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Wednesday, May 31, 2017

SCOTUS Symposium: Good hombres and legal positivism

I think this sort-of relates to Paul's definite contribution to the SCOTUS Symposium. In light of Paul's model, how should we understand the Ninth Circuit's denial of a stay of removal in Ortega v. Sessions, particularly Judge Reinhardt's concurring opinion?

Ortega came to the United States unlawfully as a teen; he has been here 28 years, gotten married, had 3 children (one of whom is in college), and become a successful businessman--he is, as Judge Reinhardt said, a "good hombre." Ortega has been under a stay of removal since 2014, until the government changed its position on the stay in March and ordered him removed (absent the stay, that happens next month. Reinhardt concurred in the denial of the stay, arguing that the court lacks the authority to grant it, even if it is not fair and just. He concludes with a flourish:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

Assuming arguendo we agree with Reinhardt that this decision is unjust, what do we think of the decision generally and Reinhardt's opinion specifically? Is this a form of resistance or domestication--the hope that, even though the administration "wins" and its opponent "loses," the court's words of criticism might either calm the administration down going forward or rouse an opposition? Alternatively, this presents a third option for the courts--compliance, in that the administration's policies move forward, even if it is grudging compliance with a chip on the court's shoulder that might rally domestication or resistance.


Either way, it supports Paul's argument that the conversation must be about more than who wins or loses--if all the administration cares about is winning, the court's words are meaningless. They begin to sound in Fuller's critique of legal positivism and how that concept requires courts to validate immoral actions in the name of positive law.

Posted by Howard Wasserman on May 31, 2017 at 03:50 PM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Domestication or Absolute Resistance? A Semi-Supreme-Court Symposium Question

I'm not sure this post is a direct contribution to the ongoing Supreme Court symposium here. Indeed, insofar as it doesn't much address current decisions, except for those who are eager to read them as tea leaves for the future, it definitely isn't a direct contribution. But this basic thought has been on my mind for several months now, and although it's appeared here and there in recent posts, I wanted to put it directly in a post of its own. It certainly will be relevant for the next couple of Terms of the Supreme Court, and is far more relevant in watching the ongoing activity of the lower courts, whose work is largely separate from and often not even much influenced by what goes on at First Street. 

There has been a lot of talk, influenced by recent lower court opinions on the so-called travel ban (or, more propagandistically, "Muslim ban") and other administration activity, about lower courts developing a form of what some critics call "TrumpLaw," law responding to and designed especially for the Trump administration. Of course, like "Muslim ban," the label "TrumpLaw" is a form of propaganda, an attempt to argue a particular contestable point in the guise of merely describing an alleged phenomenon. But the phrase, or at least the basic thesis, should not be wholly anathema to supporters of the lower courts' recent moves. Many of them have made forceful, sometimes persuasive, arguments that the courts should act with particular regard to this administration and its actions and foibles--that, for instance, this administration requires a change to or total abandonment of the usual substantial judicial deference to actions and assertions by the executive branch. The difference, perhaps, is that "TrumpLaw" may be seen as a radical departure from existing law and in effect a lawless set of actions, while on a friendlier view, what courts do when they respond to actual circumstances on the ground is just "law" (pun on "just" intended), adapting itself to the circumstances. If the facts justifying the usual deference change, then the usual level of deference necessarily changes, and this is just regular law at work, not a departure from law. On this view, what courts are doing is fully in line with some classic views of separation of powers, in which one branch must perforce act when another branch shows flaws and failings.

As a matter of law and normative views, I have problems with some of what the lower courts have come up with, especially in the travel ban cases. But I am less concerned about that, or about "TrumpLaw" as such, than with the possibility that there is a lack of clarity and consensus about what "TrumpLaw" should be aiming to achieve. Where courts take even fully justified aggressive actions, there are reasons to worry about the precedent they are creating and its application in future cases. That concern eases or intensifies depending on what their goal or endgame is. And I do not think the lower courts either have a consensus on this or have even thought about it much in these terms. Like most of us (present company excepted, of course), they are responding to circumstances as they arrive, influenced by a fiery public discussion, and may think that the urgency of the situation takes precedence over such long-term thinking. I think that's dangerous. Without such a long-term vision, individual cases will build on each other and achieve momentum--maybe good, maybe bad. It is certainly worth thinking about these questions as they go about their current work.

Keeping in mind the usual shortcomings of binary descriptions of this sort, I think there are two possible goals lower courts--and eventually the Supreme Court--might be aiming at:

1) Domestication. Courts' responses to the Trump administration and its actions could be aimed at domesticating the administration. What I mean by domestication is that they could attempt to make the administration act more professionally and conventionally, to behave more like more establishment administrations rather than like an arbitrary, populist, or aggressive administration that is often at war with its own professional ranks (to the extent they exist in this understaffed administration) and seemingly eager to dispense with the conventional ways of doing things. Take deference. Faced with a problematic executive order, the courts could insist that the administration engage in more communication and consultation within the administration, and arrive at particular executive orders only after those orders have gone through the usual process of internal examination and criticism, careful drafting, proper legal advice, and the establishment of particular reasons for acting. They could, in short, use deference or the lack thereof to force the administration to go back to the drawing board and do it "right," or at least "right" in light of prior conventional executive branch conduct. There have been some traces of this in the opinions issued so far, which have, for instance, emphasized the lack of consultation within the executive branch and the shutting out of various participants in the usual policy formation process. But under the domestication approach, if the administration went back to the drawing board and complied with these instructions, the courts would then return to the usual level of deference, even in cases where the judges themselves might consider the substantive policies themselves ill-advised or worse. 

2) Resistance vel non. On one reading of the travel ban cases, including decisions at the appellate level and decisions dealing with the revised travel ban, the lower courts have gone beyond simple domestication as a goal. Their aggressive and creative use of doctrine has not been aimed at trying to make the administration more professional and conventional, while leaving it to make policy choices with which judges (and establishment figures, left and right) might disagree; rather, it constitutes utter resistance to the Trump administration and its policies. I mean this descriptively, not critically. Beyond the usual argument that even a conventional administration must be resisted when it trenches on individual rights (a superficially attractive point, although probably more questionable than this rhetoric makes it seem), one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se. Domestication alone, which would allow the administration to act dangerously while ensuring, by insisting on the kinds of procedures that insulate an administration action from aggressive judicial review, that the policies that result from it are not easily vulnerable to legal challenge, is not only not enough: it is positively harmful. The goal here is not regularity, consultation and communication, and procedural propriety without regard to substantive policy, but substantive "justice," with all the power and vagueness contained in that term. All this, as I say, can be argued to be justified. Its long-term implications, however, are more dangerous and suggest a potentially aggrandizing and openly political judicial branch, whatever the eventual policy or administration to which this approach might be applied. Beyond simple left-right division, it also suggests a strong resistance of the clerisy to any threats to the establishment itself. Although it might be aimed at even relatively conventional administrations, on the basis of ideologically driven policy disagreements, it certainly suggests a specific tendency to view populism itself as illegitimate and subject to aggressive judicial counteraction. That is a pretty strong normative statement, and one that it is harder to say is required by the Constitution itself.    

These two approaches can both be spotted in the travel ban cases and in much public and judicial commentary on the Trump administration. They will often overlap in particular cases. But they are definitely not the same, and the differences between them will become more apparent the longer the administration continues, and the more individual judicial decisions there are. Their long-term implications and costs and benefits are very different. As a general matter, I prefer the domestication model, and disagree with the current judicial decisions insofar as they show signs of resistance as such rather than a focus on domestication. But for present purposes I am not arguing strongly for one model over the other. I am open to arguments that domestication is not enough and that resistance is required, although I'm not convinced. And I am certainly open to arguments about the relative, and different, costs, benefits, and long-term dangers--not least to democratic legitimacy--of either approach. 

Regardless of my own position about which approach is preferable, I think these are the two main options available to the courts right now; that they are not the same; that each has its own positive and negative aspects and long-term implications; and that the courts themselves have tended to mix the two approaches without sufficient thought about which approach to take. I would feel a lot better if there were more open consideration, from judges, scholars, and commentators, about which goal to pursue. I think the better goal is to use legal doctrine to force the administration to do a more professional job, which in the end should place even terrible policies (constitutional concerns aside) more clearly in the realm of politics, not to be disturbed by the courts but rather left to the political branches and the public. It is certainly possible to think that an administration policy is terrible, the worst one has seen, while thinking it is sufficiently legally proper to be a matter of political debate rather than judicial intervention. But I am open to being persuaded otherwise. What worries me is the sense that courts are acting in the moment, without either considering these two different models or making clear which one they are aiming for. They should be more self-conscious about this and more transparent about their goals, even if that transparency makes the goal harder to achieve without critical reaction. In the meantime, rather than simply supporting or opposing these decisions tout court, scholars and public commentators (and, of course, the increasing number of public commentators who quite incidentally are also scholars, although not acting in an especially scholarly fashion) should put these ideas on their radar screen, be straightforward about their own preferences, and use these two models to provide a more sensitive analysis of the decisions we are getting from the lower courts. 

The connection to the Supreme Court, of course, is that as the Court is confronted with these and other cases, it too will have to come up with a general approach. Prognosticators who talk in general terms about who will "win" in these cases, generally by engaging in armchair analysis of the ambitions and fears of Justice Kennedy and a couple of other Justices--and often trying to signal Justice Kennedy that he must follow one path or another if he wants to secure his reputation and legacy or to manipulate him into a particular vote--talk mostly and only about the administration "winning" or "losing." But I suspect that if the Court does take on a more active role in response to this administration, the more important question will be whether a majority of the Court takes a domestication or a resistance approach rather than who wins or loses. Justice Kennedy, for instance, could vote against the administration while taking either approach. To the extent that they are not simply working the refs, and there is a lot of that going on, I think progressive "academic" writers engaged in public commentary, on Twitter or elsewhere, have been overly optimistic about the likely outcome of these cases. I think their predictions would be better and more thoughtful if they talked more about the kind of approach the Court should or will take in responding to the administration, rather than in terms of simple wins or losses. I think they would also be more influential in their efforts to sway the Court or individual justices. I think Justice Kennedy could be persuaded to engage in a domestication approach more easily than a pure resistance approach, and so could some conservative justices. Regardless, I think this is the question that confronts the Supreme Court, and I hope the justices and others think more, and more openly, about this. I do not assume one or the other approach will win permanent majorities. But I do think it describes what we will see happening on the Supreme Court over the next couple of years.   

Posted by Paul Horwitz on May 31, 2017 at 10:56 AM in 2016-17 End of Term, Paul Horwitz | Permalink | Comments (0)

SCOTUS Symposium: Justice Gorsuch on personal jurisdiction

Cassandra discusses then-Judge Gorsuch's opinion in Dudnikov, finding jurisdiction in Colorado under the Effects Test based on a letter sent to California that affected the plaintiff's behavior and business in Colorado. Cassandra raised the possibility that the Effects Test was silently overruled in Walden.

I doubt Walden was a stealth overruling of Calder, but it did narrow it one respect: Whereas many lower courts had said that the test was satisfied if the defendant directed conduct at a state knowing it would affect the plaintiff there, Walden requires that intentional conduct be aimed at the forum, not only at the plaintiff (who happens to be in or from the forum). In other words, knowledge that the plaintiff is in or from the forum or might feel effects in the forum is not enough when conduct is undertaken elsewhere; the intent of the outside condct must be to hit the forum.

The question (which I have used as a hypo in class) is whether Dudnikov comes out the same way after Walden. The point of the cease-and-desist letter was to stop the plaintiff from doing things in CO. So did the defendant direct his conduct at Colorado in purposefully trying to stop the plaintiff's business there? Or did he only direct his conduct at California, with knowledge of effects in CO?

Posted by Howard Wasserman on May 31, 2017 at 09:31 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 30, 2017

SCOTUS Symposium: Thoughts on County of LA v. Mendez

I'm happy to be participating in this symposium, with a great group of co-contributors—many of whom are personal friends and all of whom I admire. I've been avidly reading PrawfsBlawg since it launched my 1L year more than a decade ago, so it's a treat to finally be contributing to it. Consistent with my scholarly fields, I'll be most interested in what the Court does in criminal law and procedure cases. But I'm also a general SCOTUS watcher; fellow guest Ian Samuel and I do a SCOTUS-themed podcast called First Mondays that I feel obliged to plug at least once here. 

For my first post, I'd like to offer some thoughts on County of Los Angeles v. Mendez, a decision today that concerns when officers can be held liable for injuries that follow from earlier constitutional violations. Here's how the case arose: LA County Sheriff's deputies were searching for a fugitive. Their search led them to a house; living in a shack behind that home were Angel Mendez and his partner, Jennifer Garcia (eventual plaintiffs, and the losing respondents at SCOTUS). Although there were some indications that the shack was used as a residence—and evidence in the record that the officers had been told that people were living in the backyard—the officers entered without a warrant and without knocking or announcing. Mendez and Garcia were sleeping inside as officers entered the property; immediately before the officers entered, Mendez had picked up a BB gun to move it.  Upon encountering Mendez holding the BB gun inside (which the officers mistakenly, though understandably, perceived to be a firearm), the officers fired 15 shots, seriously injuring both Mendez and Garcia. 

Mendez and Garcia sued and got a $4 million damages award; the Ninth Circuit upheld that award on the theory that the officers violated clearly established law by entering the shack without a warrant. The Ninth Circuit relied on the "provocation doctrine"--a theory that had arisen in the lower courts and which basically provided that if an officer's unconstitutional actions "provoked" a violent confrontation, that officer could be held liable for damages arising from an otherwise reasonable use of force. SCOTUS reversed in a unanimous opinion (sans Gorsuch, so 8-0) written by Justice Alito. As the Court explained, the provocation theory was impossible to square with the Court's caselaw on excessive force claims. Under Graham v. Connor, an officer's use of force that is otherwise reasonable under the relevant circumstances can't become unreasonable simply because of an earlier constitutional violation.

The Court's rejection of the provocation theory isn't at all surprising. The doctrine had been criticized in the lower courts; the doctrine seemed confusing and hard to cabin; and the plaintiffs themselves hadn't even defended it in their briefing. A somewhat more promising angle, though, had been the Ninth Circuit's alternative holding that the damages award was justified under the principle of proximate cause, on the theory that the shooting was the foreseeable result of the earlier constitutional violation (the warrantless entry). Here, too, the Court held the Ninth Circuit had erred: the Ninth Circuit had focused on the risks created when the "officers barged into the shack unnannounced," but this was a risk created by the officers' failure to knock and announce (a separate claim on which the Ninth Circuit had found the officers entitled to qualified immunity), not their failure to get a warrant.  On remand, the Ninth Circuit will get another shot at the proximate cause analysis "based on the deputies’ failure to secure a warrant at the outset." 

Here, too, the result isn't shocking. And the fact that the decision was unanimous, with nary even a concurrence, suggests that the opinion doesn't break huge amounts of new ground.  And I think the result is basically correct in light of existing doctrine and the way the Ninth Circuit opinion was written (i.e., not very well).  Still, there are two questions I'm interested in the wake of Mendez.

First, I think it's useful to take a step back and look at the larger picture of Fourth Amendment doctrine and how frequently it denies a remedy for seemingly avoidable wrongs. The doctrine is very granular, requiring courts to analyze an incident on a claim-by-claim (and essentially moment-by-moment) basis rather than analyzing the entire set of police actions as a whole.

Take Graham v. Connor—under that decision, courts are supposed to analyze whether an officer's use of force was reasonable based on the objective circumstances at the time force is applied. I think the problem that the provocation doctrine was created partly to solve is that the Graham analysis doesn't seem to leave a lot of room for consideration of the circumstances leading up to the use of force. Even if, say, police make a series of questionable decisions that lead them into a dangerous situation, courts tend to analyze damages claims based on a very narrow timeframe.

So—to model an example partly based on a pro bono case I worked on a couple years back—imagine that police choose to search a residence based on a questionable tip of drug activity; they decide to enter in force, at night, military-style, despite no reason to think that the occupants are dangerous; they fail to adequately knock and announce; one of the residents, fearful for his life and unaware that the people entering his house at the dead of night are police officers, comes to the door carrying a weapon; and the police shoot and kill him. So long as the officers reasonably fear for their lives at the moment is force is used, courts will tend to call that a reasonable use of force—even though many of the police choices that lead to that deadly confrontation seem decidedly unreasonable.

The larger problem this example is meant to illustrate is that Fourth Amendment analysis is often narrowly focused on isolated decisions made by individual officers at single points in time, rather than a course of decisions made by a law-enforcement agency as a whole. And that narrow perspective means that the law doesn't do nearly enough, in my view, to discourage dangerous police practices. (Seth Stoughton has written thoughtfully about this problem in the New York Times; see also his and Brandon Garrett's great recent article A Tactical Fourth Amendment.).

This approach to the Fourth Amendment is oriented around the perspective of the officer; the Court seems hesitant to put officers in a position of having to second-guess themselves at moments when they might reasonably fear for their lives. (See Graham's emphasis on "the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.").  Yet this officer-centered approach seems hard to justify if a goal of the Fourth Amendment is protecting "the people" and discouraging police actions that, at least viewed from a slightly less narrow perspective, seem pretty unreasonable.  And an officer-focused approach seems especially hard to justify in a world where officers are almost invariably indemnified when damages are awarded against them. 

Mendez certainly doesn't do anything to fix this problem. It does leave a slight window open for change: the plaintiffs had argued that Graham's totality-of-the-circumstances objective reasonableness approach should allow courts to consider "unreasonable police conduct prior to the use of force that foreseeably created the need to use it."  But I'm skeptical that the Court, especially now that Justice Gorsuch is on board, will ultimately endorse that approach. For the most part, Mendez will contribute to this problem, by emphasizing that courts need to break down a police encounter into its component doctrinal components, rather than asking a question like "could this shooting have been avoided by smarter choices?"

Second, I'm interested in what the Court might say about proximate cause analysis in the future. In theory, proximate cause should be able to solve some of the problems I worry about above. Even if, say, the plaintiff loses on an excessive force claim because an officer's shooting of a person inside his home is judged reasonable under Graham, it's possible that the victim could still recover under a different claim if that shooting was the foreseeable result of another constitutional violation—say, a failure to knock and announce.  In Mendez, the Court left the possibility open that the plaintiffs could still recover if the officers' failure to secure a warrant (though, as noted above, not the failure to knock and announce) proximately caused the shooting. 

But here, too, I see some trouble down the road for civil-rights plaintiffs. Justice Alito didn't mention it in Mendez, but as a Third Circuit judge he wrote about proximate cause in an influential opinion in Bodine v. Warwick. As he explained there, the "superseding cause" doctrine puts limits on proximate causation (cleaned up): 

[E]ven if the entry was unlawful, this would mean, under basic principles of tort law, that the troopers would be liable for the harm "proximately" or "legally" caused by their tortious conduct (i.e., by their illegal entry). See, e.g., Restatement (Second) of Torts §§ 431 and 871 cmt. 1 (1965 & 1979). They would not, however, necessarily be liable for all of the harm caused in the "philosophic" or but-for sense by the illegal entry. See, e.g., Restatement (Second) of Torts § 431 and cmt. a (1965). Among other things, they would not be liable for harm produced by a "superseding cause." See, e.g., Restatement (Second) of Torts §§ 440-453 (1965). And they certainly would not be liable for harm that was caused by their nontortious, as opposed to their tortious, "conduct," such as the use of reasonable force to arrest Bodine.

A simple hypothetical will illustrate the importance of these distinctions in a case such as this. Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is "no." The suspect's conduct would constitute a "superseding" cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See id. § 440.

Then-Judge Alito's hypothetical is pretty extreme, and I have no interest in arguing here that he's wrong about how the superseding cause doctrine would apply in those exact facts. But I worry that in future cases, that doctrine will be used to limit liability in cases closer to the borderline. To refer back to my hypothetical above—there are many scenarios where officers' failure to knock and announce leads directly to harm or death, because a surprised homeowner picks up a weapon out of self-defense without realizing that it is the police who are breaking down his door, and the police, seeing that weapon, shoot him. Such a case is quite different from the hypothetical in Bodine, where a home's occupant intentionally attacks and kills police officers. 

Yet my worry is that in such a case Justice Alito, and perhaps other members of the Court, would be just as willing to say that the homeowner's actions—even if premised on a mistake—count as a superseding cause, breaking the causal chain of proximate cause (Bodine says that officers "certainly wouldn't be liable for harm caused by . . . the use of reasonable force," and I think Justice Alito would think includes that a Graham-reasonable shooting). That would be unfortunate, in my view, because as the Court itself acknowledged in Hudson v. Michigan (and as Radley Balko has ably argued), one of the reasons we have a knock and announce requirement is that "an unannounced entry may provoke violence in supposed self-defense by the surprised resident." If so, proximate cause doctrine won't do much to solve the narrow-perspective problem that I flagged above. 

Posted by Daniel Epps on May 30, 2017 at 11:07 PM in 2016-17 End of Term | Permalink | Comments (13)

The Miranda App

On the theme of disrupting law, I thought I would end my month here on Prawfsblawg talking about an idea Richard Leo and I came up with about how to re-imagine the Miranda warnings and waiver process.

In a forthcoming article “The Miranda App: Metaphor and Machine” – part of Boston University Law Review's Symposium on Miranda's Fiftieth Anniversary – we came up with the idea of replacing the all-too-human Miranda warnings and waiver process with an automated interactive computer program.  As we summarize:

This Article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. Accessible on a smartphone, computer, tablet, iPad, or other system, the Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address fifty years’ worth of unsatisfactory Miranda process. Each of Miranda’s core warnings would be communicated via interactive digital graphics, animation, video, and text. Explanations would accompany each word and legal concept. Short comprehension tests would be built into the system to evaluate a suspect’s general understanding of language and law. Additional clarification would be available to address confusion about terminology, process, or rights. In addition, as designed, the Miranda App could generate a contemporaneous record of useful data about the suspect’s current capacity, literacy, understanding, and familiarity with constitutional rights. The App would be free, simple to use, easy to understand, and would provide the clarity and finality lacking in current Miranda practice. After custody, a police officer would simply hand over the Miranda App to the suspect and hand off the responsibility to explain or advise suspects to the machine.  The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. This Article includes not only the blueprints for Miranda’s future, but also a rendering of the structural weakness of past doctrine.

The impetus for this change is the recognition that “[a]s many scholars have argued, lamented, and documented over the years, Miranda has largely failed in the last five decades to achieve its core mission of reducing custodial pressure and compulsion while eliciting genuinely voluntary and knowing consent to police interrogation.”  The hope is to use the creation of a Miranda App to rethink – as both metaphor and machine – the existing practice.

Obviously, the pros and cons of such a change deserve serious consideration (and debate) and we spend almost 60 pages wrestling with the history, practice, and meaning of Miranda in the article.  Happy to hear anyone's thoughts about the design concept or the potential for creating a prototype. 

Finally, thank you everyone for engaging with me this month, and, special thanks to Howard and the Prawfsblawg family for the invitation to blog about my various interests and ideas.  Until next time…

Posted by Andrew Guthrie Ferguson on May 30, 2017 at 09:27 PM in Article Spotlight | Permalink | Comments (2)

SCOTUS OT16 Symposium: A Narrow Decision in BNSF

Thanks to Howard for the invitation! As it happens, my most-looked-for opinion was released this morning, in BNSF Railway Co. v. Tyrrell. I'd written an amicus brief in the case, leaving the Daimler issue to one side; and with Daimler already on the books, I think the Court basically got it right. (I might save a few quibbles for a future post.)

But what's most noteworthy about the opinion is what it didn't address. As Cassandra and Howard note, the respondents lose under the Court's reading of Daimler. The respondents also argued that, notwithstanding Daimler, Congress had authorized Montana's personal jurisdiction; Part II of the opinion explains in detail why that isn't so. That holding let the Court skip another issue briefed by the parties, namely whether Congress can license state personal jurisdiction when it wants to.

BNSF argued that it can't. The Fourteenth Amendment's Due Process Clause limits state personal jurisdiction, and Congress can't license what the Constitution forbids. That would have been an easy way to dispose of the issue, without the Court's having to dig through the historical record of the 1910 amendments to the Federal Employers' Liability Act. But the Court restricted itself to the statutory ground, leaving the constitutional one for another day.

This was a good issue for the Court to avoid. Whether Congress can license state personal jurisdiction is actually much harder than it seems. The existing limits on state PJ are enforced through the Due Process Clause, but they don't necessarily come from the Due Process Clause. As I've argued before, the Court in Pennoyer v. Neff drew these standards from general and international law, of which federal and state courts in the days of Swift v. Tyson could each take their own view. Over time, courts lumped these substantive standards for personal jurisdiction together with the means for their enforcement, treating the whole topic as something to be mined from the depths of due process. But if the standards don't come from the Constitution, and if Congress chooses to adopt different ones (such as by prescribing the effect of state judgments under Article IV), it's far from clear that the Fourteenth Amendment would say no.

In fact, some federal statutes may do this already. 28 USC § 1738A imposes rules for state child-custody jurisdiction, and these rules may or may not track today's due-process doctrine. Those rules weren't at issue in this case, of course, and the Court properly avoided ruling on their constitutionality. (While the United States supported BNSF as an amicus, it didn't take any position on the issue of congressional power, or even discuss any statutes that might be affected—writing only that "there is no need to address any such questions here." Justice Kennedy raised the constitutional issue briefly during BNSF's oral argument, but no one asked the SG about it.)

So whatever else one might think of today's opinion, it's a good example of the Court doing more work in order to do the right thing: avoiding a constitutional issue it didn't have to decide.

Posted by Stephen Sachs on May 30, 2017 at 04:10 PM in 2016-17 End of Term | Permalink | Comments (0)

SCOTUS symposium: Developments in Personal Jurisdiction

Thanks to Howard for inviting me to participate in the SCOTUS symposium! I wanted to follow up on Howard's post about the Court's decision today in BNSF with a few additional thoughts on  the case and where the Court might be going with its personal jurisdiction doctrine:

(1)  I think Justice Sotomayor is right when she writes in her dissent that effect of BNSF and the Court's earlier decision in Daimler effectively means that general jurisdiction is available only where the defendant is domiciled (state of incorporation and/or principal place of business). It earlier seemed possible that "at home" jurisdiction could be broader than domicile. But outside of the most exceptional of circumstances, "at home" jurisdiction does appear to be limited to domicile only.

(2) Howard also points out that a forthcoming decision in Bristol-Myers Squibb will be more telling about the future of jurisdiction, because the Court will finally have to determine just how "related" the defendant's in-forum contacts have to be to the events giving rise to the suit.  Rocky Rhodes and I have written about that issue here and  most recently here. It seems clear to me that the relatedness question is a much more difficult issue for the Court to decide--though Bristol-Myers was argued on the same day, it was not decided concurrently with BNSF.

(3) When the Court does decide Bristol-Myers, I suspect that the decision will be much more split. BNSF followed Daimler very closely, and Justice Ginsberg's majority opinion was joined by eight other justices--only Justice Sotomayor wrote separately, concurring in part and dissenting in part, concerned that the Court's opinion "grants a jurisdictional windfall to large multistate or multinational corporations" and that "individual plaintiffs, harmed by the actions of a farflung foreign corporation . . . will bear the brunt" of the decision. As Rocky and I have written, however, that concern is lessened if the Court allows a broader conception of "relatedness."  A broader version of specific jurisdiction can make up for a narrower version of general jurisdiction, returning the parties to roughly the same equilibrium

(4)  It's more difficult to read the tea leaves about where the Court will come out on the relatedness question. Both BNSF and Bristol-Myers were argued at the April sitting that included Justice Gorsuch, and he joined the majority in BNSF. His earlier writing on personal jurisdiction suggests that he might be open to a broader version of specific jurisdiction. In a trademark case involving fabric sold on eBay, Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008), then-Judge Gorsuch affirmed jurisdiction. In that case, the plaintiffs were fabric sellers in Colorado who sold textiles over eBay. The defendant, who believed its trademark rights were violated by the plaintiffs' sales, had sent a cease-and-desist letter to eBay in California. Then-Judge Gorsuch held that the defendant's letter could count as a contact with Colorado, because although the letter

"formally traveled only to California, it can be fairly characterized as an intended means to the further intended end of cancelling plaintiffs' auction in Colorado. In this way, it is something like a bank shot in basketball. A player who shoots the ball off of the backboard intends to hit the backboard, but he does so in the service of his further intention of putting the ball into the basket. Here, defendants intended to send the NOCI to eBay in California, but they did so with the ultimate purpose of cancelling plaintiffs' auction in Colorado. Their “express aim” thus can be said to have reached into Colorado in much the same way that a basketball player's express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket."

Id. at 1075.  

(5) Although Bristol-Myers primarily raises the question of relatedness of contacts, that question is frequently tied to the question of whether "effects" in the forum state can count as a contact. Judge Gorsuch's opinion in Dudnikov relied on the effects test set out in Calder v. Jones, 465 U.S. 783 (1984). The Supreme Court recently attempted to distinguish Calder in its opinion in Walden v. Fiore, which held that defendant accused of wrongfully seizing assets in Georgia could not constitutionally be subject to jurisdiction in the plaintiff's home forum of Nevada, in spite of the fact that the deprivation of funds was felt in her home forum. However, I have argued elsewhere that Walden may have operated as a "stealth overruling" of Calder. That issue is unlikely to be decided by Bristol-Myers Squibb, but it is raised in a pending cert petition, TV Azteca v. Ruiz, which I will blog more about later.

Posted by Cassandra Burke Robertson on May 30, 2017 at 02:24 PM in 2016-17 End of Term | Permalink | Comments (0)

SCOTUS Symposium: More recusals

Leah flags the summary disposition in Jaffe v. Roberts, where all Justices but Gorsuch were the respondents on the petition and all were recused, leaving only Gorsuch to act on the petition. Below that is a second no-quorum affirmance in Arunga v. Obama, in which Kennedy, Ginsburg, Breyer, and Kagan were recused.

A quick Google search shows that Arunga is a serial crazy litigator, with past lawsuits against President Clinton, Mitt Romney, and the ACLU. So I doubt there was much comprehensibility or merit to the lawsuit. Still, I am curious why those four Justices were recused.

Posted by Howard Wasserman on May 30, 2017 at 02:10 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (3)

Ambiguity -- the most ambiguous concept in the law of interpretation

Esquivel-Quintana, the decision handed down this morning by SCOTUS, provides a good example of what I call the "Ambiguity of Ambiguity." AOA is important, because most so-called "substantive canons" are triggered by a judicial finding that a statutory term is "ambiguous." If those findings of ambiguity are essentially acts of judicial fiat, then the doctrines that we call "statutory interpretation" is essentially a shell game, because courts can turn canons on and off like a spigot, at will, simply by declaring that some phrase is, or is not, "ambiguous."

Esquivel-Quintana illustrates how interpretative formalism has gotten a bad name among us purposivists. The Court held that the phrase "sexual abuse of a minor" unambiguously excluded Esquivel-Quintana's conviction for statutory rape based on his having sex with his 16-year-old girlfriend when he was twenty-one years old. Being "unambiguous," the phrase barred the Court from invoking either Chevron or lenity. Instead, the Court purported to apply pure textualism, mostly in the form of looking at language from another federal statute, other crimes listed as "aggravated felonies" with "sexual abuse of a minor," and a bunch of state laws.

Think just a moment about why such a decision, although right on the merits, is difficult to take seriously as an interpretation of "unambiguous" statutory text.


First, the Court's declaration that the phrase "sexual abuse of a minor" in 8 U.S.C. §1227(a)(2)(A)(iii) is so plain that it excludes use of lenity seems a bit odd in light of the the Board of Immigration Appeals' reaching exactly the opposite conclusion about what the phrase means. Presumably, competent lawyers who know a lot about immigration law sit on the BIA: How "plain" can a phrase be, then, if SCOTUS and the BIA disagree about what it means?

Second, in what sense is interpretation "textual," if the relevant text mostly comes from extrinsic sources like other state and federal laws? Yes, I know: Those laws serve as a sort of ersatz dictionary with which to construe the operative text of the statute being enforced. But such statutes only serve as a proper dictionary if those other statutes really are in pari materia with the statute being construed. How do we know that the other statute (in this case, 18 U. S. C. §2243, which criminalizes “[s]exual abuse of a minor or ward" but specifically defines such an offense with an age limit) is in pari with section 1227(a)? After all, one could just as easily argue that the absence of a similar age limit in section 1227(a) suggests that Congress "intended" in the latter statute not to define abusive sexual relationships without reference to the omitted age limit. (Put another way, I'll see your "pari materia" and raise you an "expressio unius").

Again, I do not disagree with the holding of Esquivel-Quintana: I think that SCOTUS got the result exactly right. But the opinion's textualist rhetoric illustrates (to my mind, at least) how textualism short-circuits substantive canons that are more likely to reflect sensible statutory readings than the byzantine meandering through the U.S. Code guided by pari materia and similar "textual" canons called for by the textualist' playbook. Rather than pretend that the meaning of "sexual abuse" in a deportation statute should be determined by the meaning of the same phrase in a different statute, why not simply throw in the towel and admit that, if one has to canvas the criminal code to figure out what "sexual abuse of a minor" means, then likely the phrase is ambiguous enough to allow use of lenity?

Posted by Rick Hills on May 30, 2017 at 01:02 PM in 2016-17 End of Term | Permalink | Comments (0)

SCOTUS: A Big Day For Justice Gorsuch & The First Affirmance By An Equally Divided Court

Howard posed some questions to kick off the symposium on the Supreme Court's OT 2016. I'll start by half-seriously answering the question about what cert petitions I'm watching and why.

The petition I want to flag (which the Court also acted on this morning) is Jaffe v. Roberts.  The "Roberts" listed as the respondent in the case caption is Chief Justice John G. Roberts, Jr.  The other respondents in the case are Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, and former Justice Scalia.  The case challenges the Justices' failure to grant certiorari in a prior case filed by Mr. Jaffe.

This morning, the Court resolved the petition.  But because all of the Justices just listed are respondents in the case, they couldn't participate in its resolution.  And the order indicates that the Chief Justice and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor and Kagan took no part in the consideration of the petition.  That left Justice Gorsuch.  And he (acting as "the Court," per the order),  "affirmed the judgment ... with the same effect as upon affirmative by an equally divided Court."

Two other quick things to flag about the order and the case.  

One, today was the first day we got an opinion in a case in which Justice Gorsuch participated (BNSF Railway v. Tyrrell).  But we also got an affirm-by-an-equally-divided Justice Gorsuch opinion.  Who would have thought that Jaffe v. Roberts would be the first affirm-by-an-equally-divided Court opinion from OT2016?  

Two, the docket page lists the counsel in the case.  The counsel for respondents is (unsurprisingly) Acting Solicitor General Jeff Wall.  Wall clerked for Justice Thomas.  Is this the first case where a former clerk represented the Justice for whom he or she clerked?  (I haven't bothered to try and look up the answer to the question, but just wanted to pose it.)

Posted by Leah Litman on May 30, 2017 at 12:14 PM in 2016-17 End of Term | Permalink | Comments (0)

Entry Level Hiring: The 2017 Report - Final Call for Information

This is the final call for information for the Entry Level Hiring Report. I will close reporting on Thursday, June 1. 

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect 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)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 30, 2017 at 12:01 PM in Entry Level Hiring Report | Permalink | Comments (0)

SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions

The Supreme Court issued four opinions today.  One of those opinions, Esquivel-Quintana v. Sessions, involves what seems like a relatively technical statutory interpretation question.  But behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress---issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.

Esquivel-Quintana involves a section of the Immigration and Nationality Act that identifies a conviction for an “aggravated felony” of “sexual abuse of a minor” as grounds for mandatory removal from the United States.  Petitioner had been convicted under a California statute that prohibits sexual intercourse with a minor who is more than three years younger than the perpetrator.  The law defines a minor as any person under 18.  Petitioner argued that this conviction should not make him eligible for mandatory removal because it does not fall within the “generic federal definition” of sexual abuse of a minor, which requires that the victim be younger than 16.  The unanimous Supreme Court agreed that Petitioner was not subject to mandatory removal, not because his victim was older than 16, but because the California statute would permit a conviction in circumstances even when the victim was 17.

Now, you might be asking yourself “what is a ‘generic federal definition’ of a crime, and where do you find such a definition?”  Those are excellent questions.  And the answers are less than satisfying.  There is no section of the U.S. Code where you can find “generic federal definitions” of crimes.  Instead, the generic definitions are common-law creatures that the courts have created in order to deal with the fact that Congress has written a number of statutes that rely on state-court convictions.  And because states define crimes differently, Congress does not specify which specific state criminal statutes trigger its federal laws.  Nor does Congress define the criminal conduct or elements that trigger the federal laws.  Instead it uses phrases like “sexual abuse of a minor,” leaving it to federal prosecutors and federal courts to sort out which state court convictions qualify and which convictions do not.  And, as you might imagine, sorting these things out is far from easy.  It leads to a lot of circuit splits, and we end up with a number of decisions from the Supreme Court on these types of issues every year.

If you take a step back and think about why Congress is writing such imprecise statutes, you’ll realize that it is because Congress is trying to expand the reach of its laws to capture information from state courts.  In recent decades, the federal criminal law has expanded.  The federal government has sought to regulate not only those people who commit federal crimes, but also those who are convicted of state crimes.  Federal law seeks to deport people who have committed state crimes, it prohibits people from possessing firearms based on state court convictions, and it uses those convictions to drastically increase punishment for people who are convicted of federal crimes.  As the federal government has increased its criminal law role, it has leaned heavily on state court convictions.  But states have written very different criminal laws.  These differences are traceable to the idea that each state faces different problems and has different priorities.  Congress’s decision to try to use those state laws as the scaffold for a nation-wide criminal law not only raises questions whether Congress is usurping the role of the states in shaping criminal law, but it also ignores the messy reality of state law differences.

These laws also highlight the limits of Congress’s power.  It is not easy for Congress to draft and enact legislation.  So it would be next to impossible for Congress to list all of the specific state statutes that it would want to trigger a federal law, and then to continuously pass legislation to update that list as states change their own laws.  But Congress’s decision to use imprecise phrases like “sexual abuse of a minor” raises its own problems.  Two Terms ago, in Johnson v. United States, the Supreme Court held that a portion of one of these federal laws was unconstitutionally vague.  A vagueness challenge to a similar law is pending before the Court right now in Sessions v. Dimaya

To be clear, the Supreme Court is not always hostile to federal laws that incorporate state court convictions.  And it often rules for the government in those cases even when a reasonable reading supports a defendant-petitioner.  But at least today we can add Esquivel-Quintana v. Sessions to the list of cases in which the courts have pushed back against these federal laws.

Posted by Carissa Byrne Hessick on May 30, 2017 at 11:57 AM in 2016-17 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

SCOTUS OT Symposium: Anticipating Which Canon Will Fire First in Esquivel-Quintana

Responding to Howard's call to identify our most anticipated cases from SCOTUS, I cannot decide between Esquivel-Quintana v. Sessions and Trinity Lutheran Church v. Comers. Since Esquivel-Quintana involves arcana of statutory interpretation, my excitement over the former case needs just a bit of explanation.

Every Spring when I teach Legislation & the Regulatory State (a mandatory 1L course here at NYU), I tell my students that there really are only two things to remember about the so-called "Lenity canon." First, the canon almost never does any useful work in resolving statutory meaning, because the courts use it only as a last resort when every other canon and interpretative technique has been tried and has failed. Second, if the canon has any function at all, it is to place a limit on Chevron deference by signaling that executives get no deference in construing criminal statutes.

Judging from oral argument, Esquivel-Quintana might very well reject or at least narrow that second proposition, making lenity even more insignificant than it already is. [UPDATE: Well, I did not have to wait long: SCOTUS handed down its opinion this morning, and -- surprise! -- neither canon won: It turns out that the statute is "unambiguous"!].


Esquivel-Quintana had been convicted of statutory rape for having sex with his sixteen-year-old girlfriend when he was 21 years old, thereby violating a California statute prohibiting any such equal intercourse between anyone and "a minor who is more than three years younger than the perpetrator." The question in Esquivel-Quintana is whether such a conviction counts as "sexual abuse of a minor" under 8 U.S.C. §1227(a)(2)(A)(iii), a federal offense that results in automatic deportation of an alien perpetrator.

Chevron comes into the case because the Board of Immigration Appeals ruled that any conviction for statutory rape automatically constituted "sexual abuse of a minor" if the underlying statute required a "meaningful difference" between the ages of victim and perpetrator. Three years, apparently, was meaningful enough. Against this view, Esquivel-Quintana argued that "minor" under section 1227(a) should be construed in pari materia with 18 U.S.C. § 2243(a), titled “sexual abuse of a minor or ward,” which makes it a federal crime to have sex with a person who is less than sixteen years old.

There is, in short, sufficient ambiguity in the text to justify application of some sort of tie-breaking canon. The question is: which canon fires first? Lenity or Chevron?

I will leave it to whoever wants to comment to explore arguments for one or the other canon. My only suggestion is that, if one wants to induce Congress to write a plainer law, then lenity is the way to go. A certain political prudery induces Congress to use hazy language when defining sex crimes. Letting a few defendants escape the scope of the law is a good way to mobilize prosecutors to prod Congress into clarifying the language, if there is any political will at all for clarity. As a statutory penalty default (in Einer Elhauge's sense), therefore, lenity was a lot of merit.

Posted by Rick Hills on May 30, 2017 at 11:25 AM in 2016-17 End of Term | Permalink | Comments (1)

Before turning to today's merits cases . . . .

With four (albeit relatively short) merits cases today, I'm sure we will have plenty to read and talk about, but before I sit down to do that, I thought I'd offer a couple of quick if obvious answers to one of Howard's starting questions. "What pending cert petitions are you watching and why? Which do you expect the Court to grant?"

Here's one case I definitely expect the Court to grant -- the travel-ban case recently decided by the Fourth Circuit and still pending in the Ninth. The administration has already said that it will seek review. I know that the Solicitor General's grant rate is normally a "mere" 70%, but this strikes me as the kind of issue where the Court will feel an obligation to grant the United States petition, even without a split. I wouldn't even be surprised to see the petition filed in the next month, to obtain review before the issue is stale or moot.

Here's one case I don't expect to be granted: Masterpiece Cakeshop v. Colorado Civil Rights Commission, now relisted for the eleventh time. At this point, I'd be shocked if this meant anything other than at least one, and probably more than one, Justice writing opinions concurring in/dissenting from/respecting the denial of certiorari.

And while I have the floor on the topic of non-merits work, I can't help but point to an intriguing attorney discipline order issued today, D-2971, In the Matter of Christopher Patrick Sullivan:

Due to mistaken identity, the order suspending Christopher Patrick Sullivan of Boston, Massachusetts from the practice of law in this Court, dated May 15, 2017, is vacated and the Rule to Show Cause issued on that date is discharged.

 (Found via Kimberly Robinson on Twitter.)

On yesterday's installment of their podcast, Dan and Ian discussed attorney discipline orders, which Dan called "just the first pages of a story." This one sounds like it might be quite a story.

Posted by Will Baude on May 30, 2017 at 11:15 AM in 2016-17 End of Term | Permalink | Comments (4)

SCOTUS Symposium: General jurisdiction narrows further

I am glad we started our June symposium two days early, because the Court issued four of its remaining opinions, including BNSF R. Co. v. Tyrrell, one of two personal jurisdiction cases from the April sitting.

The question was whether a state court (in this case, Montana) can exercise jurisdiction over a FELA claim for an accident that occurred in another state. The Court unanimously (through Justice Ginsburg) held that FELA itself does not answer the question because the possibly relevant statutory provision did not speak to personal jurisdiction, but only to subject matter jurisdiction (making clear concurrent jurisdiction over FELA claims) and venue (for FELA claims in federal court).

The personal jurisdiction analysis therefore was covered by International Shoe. And here was see the same divide (Ginsburg for the Court, Justice Sotomayor dissenting alone) over the scope of general jurisdiction as in Daimler v. Bauman; Part III of the majority and all of the dissent are an in-miniature rehash of Diamler.

The majority reiterates several things: 1) General jurisdiction is where the defendant's contacts are so "continuous and systematic" as to be "essentially at home"; The "paradigm" of the essential home is the entity's principal place of business and state of incorporation; 3) there may be "exceptional" cases in which general jurisdiction will be available outside those two states; 4) a company doing business in many states cannot be home in all of them and the analysis must consider its in-state contacts in light of its overall activities in other states; 5) Shoe was a specific, not general, jurisdiction case, so any discussion of general jurisdiction there is dicta. The Court added something new: It pointed to Perkins as exemplifying a company essentially at home other than its state of creation and P/P/B, hinting (according to Sotomayor's dissent) that this exhausts the exceptional cases and only a similar set of facts* will qualify.

[*]Unlikely, as Japan is unlikely to invade the Philippines.

Thus, 2000 miles of track and 2000 employees in Montana is not sufficient to make BNSF essentially at home, where it is incorporated and has its PPB elsewhere and where it does similar amounts of business in other states.

The significance of this case in reaffirming the narrowness of general jurisdiction may not be clear until the Court decides Bristol-Myers. The narrowing of general jurisdiction has forced courts to find ways to expand when a contact "gives rise" or "relates to" a claim, thereby expanding specific jurisdiction.

Posted by Howard Wasserman on May 30, 2017 at 10:51 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS OT 2016 symposium

Thanks to Howard for kicking off the conversation.  As I mentioned, responding to Rick Hills, in the comments to Howard's post (!), I'm looking forward to Trinity Lutheran, in part for the Proust's-cookie-type reason that it reminds me of some (unsuccessful) cert. petitions that Michael Paulsen did, back in 1999, trying to get the Court to take up the "the Constitution does not allow states to discriminate against families that choose religious schools in the context of otherwise general benefits programs" argument.  I'm also curious to see what happens in Lee v. Tam and, in particular, what (if anything) the justices will say about the power of governments (including, say, state universities?) to regulate, discourage, punish, etc., "offensive" speech.  And, while I haven't thought much about parcels and takings since Bob Ellickson's Property class, I spend a fair bit of time with a Property Prawf, who tells me that the question in Murr v. Wisconsin -- "Whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes" -- is an interesting one.

Howard also asked the question that, I imagine, many of us who teach public-law subjects are getting from our Court-watcher-reporter friends, "Will Justice Kennedy retire?"  (Here is Dahlia Lithwick, suggesting that the Fourth Circuit's travel-ban opinion can be read as "a ransom note from the federal judiciary directed solely at Justice Kennedy.")  I, no surprise, have no idea, but I hope he does and that Justice Ginsburg does the same, the resulting political/partisan nastiness notwithstanding. I think this (at least, I think I think this) not (only) because I imagine their replacements would think about the law more like I do, but because I just don't think it's healthy or otherwise good for our rule-of-law aspirations for 80-years-old jurists (no offense!) to imagine themselves as, or to be regarded by us as, indispensable.  (For more on the "term limits for justices" conversation, see, e.g., this.)

Posted by Rick Garnett on May 30, 2017 at 08:22 AM in 2016-17 End of Term | Permalink | Comments (0)

Monday, May 29, 2017

If Silicon Valley Re-Invented the Law School 

What would a Silicon Valley-inspired law school look like?  I ask because I have been spending the last few years studying disruptive technologies, and, I wondered – as a thought experiment – how Silicon Valley entrepreneurs might rethink how to teach law for the digital age.

Law schools are tradition-bound institutions. For decades, law school classes have been taught in a way that would at least be familiar to the students who went to law school in earlier generations.  Obviously, numerous innovations have occurred with the advent of clinical education, experiential opportunities, and clear advances in diversity, teaching methods, and some classroom technology.  But, at some basic core, the process of legal teaching and learning has remained relatively unchanged.  The books from which I teach look a lot like the textbooks I learned from, and the ones my parents, and grandfather learned from.

In other industries, disruption has occurred.  If you brought the highest tech worker from 1960 and brought them to a successful San Francisco tech office, with open spaces, pods, laptops, ping pong tables, free goodies, and a corporate mission to sell digital widgets globally, via the internet or the Internet of Things, it would not look at all familiar. Workspaces, work, and how we think about work has changed.

The San Francisco tech scene remains an outlier, of course, but that is my point.  I am not seeking to redesign all law schools, but to re-imagine one for the future.

And, I know there have been experiments around the edges.  Cornell Law School launched a new program on information and technology law in New York City.  Georgetown Law School teaches a joint practicum class with MIT on cutting edge issues in law and technology.  Stanford being Stanford has various projects and programs about legal technology.  And Harvard, Yale, Berkeley, NYU, and GW, among others have institutes devoted to new digital technologies.  But, I mean what if instead of adding to the existing curriculum, we completely disrupted it.

Imagine if we started from scratch, with Google/Apple/Facebook/Microsoft/Intel etc. each donating $100 million for this experiment in legal education.  The sky is the limit and all we need is the design.  What would you do?

I have some ideas, but thought I would open the areas of debate rather than narrowing them with my views.

  • How would we design the space? Would classrooms make sense?  Would labs, teams, or distance learning be a better model?  Should law teaching be designed to match a more collaborative process – problem solving, practical, creative, disruptive?
  • How much of the existing curriculum would remain? Obviously, students need to pass the Bar Exam, but what part of contracts, torts, criminal law, etc., could be changed?  Is it a change in emphasis or an entire rethinking of the curriculum? What other subjects or types of learning should be added to the core curriculum?  Do you add technological design elements? Practical engineering or computer/data science or coding classes?   
  • What kind of students would this law school attract? Engineers, computer scientists, data scientists, hackers, cybersecurity professionals, data theorists, entreprenuers etc.?  Would such a school expand the possible pool of potential lawyers?
  • Who would teach? How many law professors would be qualified to join this faculty?  How would hiring be different?
  • Would the goal be to teach lawyers for a new legal economy (which would include a disruption of the legal profession) or teach lawyers to be useful to tech companies and to shape technology policy and law?
  • Does the legal market need a Cal Tech or MIT of legal education?

These are some initial questions.  I welcome other questions, and any answers if anyone has thoughts on the subject.

Posted by Andrew Guthrie Ferguson on May 29, 2017 at 09:14 PM | Permalink | Comments (17)

Symposium Introduction: SCOTUS OT 2016

Welcome to the first (hopefully annual) PrawfsBlawg Symposium on the end of the SCOTUS Term. Our guests and regular Prawfs will be exchanging posts and talking to our readers and to one another about the final cases of the Term, as well as other issues relating to the Court.

I will get the conversation started with a few questions for consideration and discussion before the final month begins and we get into the flood of cases:

• By my count, there are 34 cases left to be decided. Which one(s) are you anticipating and why?

• Fourteen of those cases are from the April sitting, the only one in which Justice Gorsuch participated. Besides the obvious--no 4-4 splits--how do you anticipate Justice Gorsuch affecting the outcomes in these cases, compared with how they might have come out were the Court still short-handed? How does Gorsuch appear to have affected the Court's dynamics?

• What pending cert petitions are you watching and why? Which do you expect the Court to grant?

• Is Justice Kennedy going to retire at the end of this Term?

Feel free to start the month by discussing these and other issues not presented here.

Posted by Howard Wasserman on May 29, 2017 at 07:17 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Rotations

Thanks to Ben and Andrew for visiting in May; they will be around for a couple final days.

For June, we are going to run a symposium on the end of the October 2016 SCOTUS Term. This will be a month-long exchange of posts,  in a conversational and interactive manner; we will be discussing final decisions of the Term as they are released, as well as other issues surrounding the Court, such as new cert grants, the influence of Justice Gorsuch on the Court's dynamics, and the rumors of Justice Kennedy's retirement. We will be talking with you and with one another.

Guest-bloggers are Will Baude (Chicago), Daniel Epps (Wash U), Leah Litman (Irvine), Andra Robertson (Case), Stephen Sachs (Duke), Ian Samuel (Harvard),  and Chris Walker (OSU) [ed: and late additions Joseph Miller (Georgia) and David Fontana (GW)]. In addition, the regular Prawfs who write on SCOTUS issues will be joining in the mix. This is something a little different for us. I think it will be fun and interesting.

Because there may be opinions released on Tuesday, we are going to start a couple days early.

 

Posted by Howard Wasserman on May 29, 2017 at 07:13 PM in 2016-17 End of Term, Blogging, Howard Wasserman | Permalink | Comments (0)

Summer Reading Suggestions

With the summer starting, it's time to think about the books to read over the summer.  If you're looking for engrossing and informative reads, here are a couple I really enjoyed: 

  • Black Edge by Sheelah Kolhatkar tells the tale of insider trading investigations into Steve Cohen's SAC Capital.  Fans of Showtime's Billions might find some similarities between Black Edge and the show.  If you've ever had to deal with a student honor code proceeding, you will also probably love the coverage of Mathew Martoma's forged transcripts and clerkship applications.
  • The Undoing Project by Michael Lewis explores the relationship between Daniel Kahneman and Amos Tversky.  If you've read Daniel Kahneman's book Thinking Fast and Slow, this puts that giant body of work into context.

What else should I put on my list?   I've got Norm Champ's Going Public on deck right now and need to pick up more material.

Posted by Benjamin P. Edwards on May 29, 2017 at 03:23 PM | Permalink | Comments (1)

Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, May 27, 2017

A Benefit of Magnanimity

Our opinions sometimes inform our personal identities.  Changing your opinion on some subjects may also require you to change how you self-identify.  Changing an opinion on these issues may also cause you to lose your membership in a group.  On some issues, changing your opinion might cause your social group to ostracize you.   It isn't easy to change a position you took publicly.

When many people hold the same opinion, they will not all abandon it at once. Some people may hold an opinion more because they belong to a group that holds the opinion than because of any particularly well thought out rationale.  Some people will switch on an issue before others.  

We can treat people changing their beliefs in different ways.  One approach may be to hector them for taking so long to come around.  While they might be done holding the opinion, we might not be ready to stop bashing them for holding it in the first place.  This sends a terrible message to persons thinking about making the jump.  It tells them that they may lose standing in their current community of belief and not be welcomed into another.  Publicly criticizing others for taking too long to change their opinion seems likely to make it harder for others to take the jump.

Magnanimity seems a better approach.  It keeps the focus on the beliefs at issue instead of on the person holding the belief.  It also gives others an incentive to move to your side.

With that said, I'd like to announce that I've changed my mind:  I will now use the Oxford comma.  I'm still evolving on one or two spaces after a period.

Posted by Benjamin P. Edwards on May 27, 2017 at 09:01 PM | Permalink | Comments (2)

Friday, May 26, 2017

“Bright Data”  

At the core of the rise of data-driven policing is the ability to predict risk.  Predictive policing does not actually predict crime, but instead provides a mathematical assessment of heightened risk at certain places or with certain people.  The technology analyzes risk, and the inputs are generally identifiable factors that can be replicated across jurisdictions.

For example, certain environmental factors encourage crime in certain places.  These risks may involve fixed structures (abandoned property, empty lots), poor lighting (to avoid detection), escape routes (to avoid capture), access to legitimate businesses (to hide one’s intention), etc., with the growing number of risk factors adding up to a heighten likelihood of criminal activity.  Crunch the numbers, study crime patterns, and you can forecast where crime is most likely to occur.   

Similarly, certain socio-economic factors and lifestyle choices can heighten risk.  If you are involved in gang activities, drug activities, and live in poor areas in certain cities, your likelihood of being involved in a shooting is significantly greater than others without those risk factors.  Add in proximity to past violence, arrests, and past acts of gun violence, and particular people can be targeted as more likely to continue along that path.

At a very simple level (hidden by a lot of complex math) real world inputs get fed into an algorithm to create predicted levels of heightened risk.

In the policing context, this can be helpful to guide police to patrol areas predicted to be of higher risk, or to target individuals identified to be at a higher risk of crime. 

But, notice that the prediction of risk does not determine the remedy of a policing response.  All of the fancy risk assessment only goes to identify the places or people who might be at risk of being involved in crime.  The technology does not speak to how one might remedy that risk.  More after the break.

However, because the history of predictive policing has involved police (and been funded by police), we tend to think that the risk and remedy are connected, but, in truth, they are not.  One could just as easily send in an emergency urban planner into those hot spots of crime (with a grant to fix up the area, rebuild, add lights, provide economic opportunity).  Similarly, social workers, violence interrupters, and other community members could be sent instead of police to interact with individuals predicted to be involved in the next shooting.   Police do not have to have any role.  As I sometime joke when asked about my feelings about predictive analytics, “predictive policing is great, but probably better without the policing part.” 

One of my goals in writing about big data policing is to get people to see that the value in predicting risk can be acknowledged without necessarily also adopting a policing remedy.  In fact, it might be helpful to think about how big data risk identification would work without the police controlling the technology. 

I call this use of big data technologies to focus on environmental and social needs “bright data.”  “Bright” as in smart, revealing, or illuminating.  The idea is to turn the predictive analytics being developed to identify patterns of crime and look at trying to solve the underlying patterns of social risk.  We could – and some people are already doing it – map the social needs of society in the same way as we map crime patterns.  We could predict those in need of social services, as opposed in need of social control.

And, to be fair, some predictive policing models explicitly incorporate this social risk prediction as part of their overall crime strategy.  Under the leadership of Mitch Landrieu, New Orleans created a violence reduction plan (NOLA for Life) that combined big data technologies and predictive policing with social risk assessments and social programs.  But these big projects cost big money, and after initial success the reduction in violence has been difficult to sustain. 

I discuss this idea of bright data more in my book, and hope that the interest in big data policing will allow us to see the value of the technology in a broader light. At a minimum, I want the national conversation about big data predictive analytics to recognize that risk and remedy can be decoupled and studied separately. 

Posted by Andrew Guthrie Ferguson on May 26, 2017 at 11:49 AM | Permalink | Comments (1)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

1) The court affirmed the nationwide scope of the injunction and actually gave reasons: Plaintiffs are dispersed throughout the country; congressional desire for uniform immigration law; and an interesting Establishment Clause hook--because the EO violates the Establishment Clause, its enforcement as to anyone sends the identical  message that plaintiffs are outsiders and unwelcome in the community.

The first concern is satisfied by a true nationwide injunction, which is to say an ordinary injunction--protect named plaintiffs everywhere they are. It does not justify this injunction, which is universal--protecting everyone everywhere. The second argument proves too much. Congress wants all federal law to be uniform; that is the point of having federal law in some areas. There is nothing special about immigration law in that respect. That the law might go through periods of disuniformity while courts figure out the meaning and validity of some law is inherent in a tiered federal judiciary and unavoidable, given that SCOTUS does not have original jurisdiction in all constitutional challenges to federal law, meaning any challenge must work its way through multiple (possibly disuniform) courts before SCOTUS can offer a final, uniform conclusion. It does not justify a regional court acting as SCOTUS and having the nationally controlling (even if temporary) word on an issue.

The third argument is interesting and would seem to make the Establishment Clause special for injunction purposes. But that Clause also is special for standing purposes, so it offers an interesting way to tie the front-end standing concerns with back-end remedial concerns.

 2) If the President cannot be enjoined in an Ex Parte Young action such as this one, it really means he is immune from suit, should not be named as a defendant at all, and should have been dismissed from the action at the outset. But he wasn't and courts entertain these lawsuits with the President as a named defendant all the time.

The Fourth Circuit relied on Franklin v. Massachusetts, including Justice Scalia's concurrence. Scalia argued that it was enough to enjoin the Secretary to stop unlawful executive action, just as we enjoin the executive to stop unlawful legislative action. But the reason is that legislators enjoy absolute Speech-or-Debate immunity from all suits for all remedies. In fact, we have EPY at all because of sovereign immunity-- the sovereign (the United States) cannot be sued, so we sue the executive acting on behalf of the sovereign. The President purportedly is not immune, at least not from an injunction, so there should be no reason to look elsewhere. Or, if he is immune, say so and proceed accordingly.

The Fourth Circuit also cites Franklin for the proposition that this does not leave the President free to act unconstitutionally. The secretaries through whom he acts are enjoined. And "[e]ven though the President is not directly bound by the injunction, we assume it is substantially likely that the President . . . would abide by an authoritative interpretation" of the EO.

Why is that so in a departmentalist world? The key to functional departmentalism is the difference between an injunction/judgment and precedent--the President is bound by the former, not by the latter. But if the President cannot be enjoined, there is no way to compel him (beyond persuasion) to the judicial interpretation. I suppose the answer is that the President cannot enforce the EO himself, but only through his secretaries, aides, and federal employees--all of whom are enjoined. Still, it adds an unnecessary step that is inconsistent with EPY, unless the President enjoys an as-yet unrecognized immunity.

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Allure of Big Data Policing

As I mentioned in my initial post, the goal of my book project on “The Rise of Big Data Policing” is to examine how technology is changing the “who,” “where,” “when,” and “how” we police – especially in large urban cities.  As I write in the introduction:

"New technologies threaten to impact all aspects of policing, and studying the resulting distortions provides a framework to evaluate all future surveillance technologies. A race is on to transform policing. New developments in consumer data collection have merged with law enforcement’s desire to embrace “smart policing” principles in an effort to increase efficiency amid decreasing budgets. Data-driven technology offers a double win—do more with less resources, and do so in a seemingly objective and neutral manner."

In the book, I make the argument that in addition to the strong lure of new technology and cost efficiencies, there is an openness to new “data-driven technologies” as a result of the recent upheaval arising from a heightened awareness about police violence in America. 

Over the last few years – and again last week – the death of African Americans at the hands of police officers has generated protest, anger, and dissent. In addition, policing systems like the NYPD’s stop and frisk program created fear, resentment, and frustration about how citizens should be treated by law enforcement.  My argument is that out of this tragedy and frustration, the idea of policing strategies being guided by data-driven objectivity has become quite alluring.  Replacing human discretion with algorithmic precision – at least in theory – seems like a move toward progress.  Following data and not hunches seems (again in theory) like an improvement.  More after the break.

Again, from the introduction:

"This book arises out of the intersection of two cultural shifts in policing. First, predictive analytics, social network theory, and data-mining technology have all developed to a point of sophistication such that big data policing is no longer a futuristic idea. Although police have long collected information about suspects, now this data can be stored in usable and sharable databases, allowing for greater surveillance potential. Whereas in an earlier era a police officer might see a suspicious man on the street and have no context about his past or future danger, soon digitized facial-recognition technologies will identify him, crime data will detail his criminal history, algorithms will rate his risk level, and a host of citywide surveillance images will provide context in the form of video surveillance for his actions over the past few hours. Big data will illuminate the darkness of suspicion. But it also will expand the lens of who can be watched.

The second cultural shift in policing involves the need to respond to outrage arising from police killings of unarmed African Americans in Ferguson, Missouri; Staten Island, New York; Baltimore, Maryland; Cleveland, Ohio; Charleston, South Carolina; Baton Rouge, Louisiana; Falcon Heights, Minnesota; and other cities. This sustained national protest against police—and the birth of the Movement for Black Lives—brought to the surface decades of frustration about racially discriminatory law enforcement practices. Cities exploded in rage over unaccountable police actions. In response, data-driven policing began to be sold as one answer to racially discriminatory policing, offering a seemingly race-neutral, “objective” justification for police targeting of poor communities. Despite the charge that police data remains tainted by systemic bias, police administrators can justify continued aggressive police practices using data-driven metrics. Predictive policing systems offer a way seemingly to turn the page on past abuses, while still legitimizing existing practices.

For that reason, my aim in this book is to look at the dangers of black data arising at this moment in history. Only by understanding why the current big data policing systems were created and how traditional policing practices fit within those systems can society evaluate the promise of this new approach to data-driven law enforcement."

As recent evidence of this pattern, just this month the City of Chicago – home to the birthplace of person-based predictive policing, a Department of Justice Civil Rights investigation into the Chicago Police Department that found widespread racial discrimination, and a horrific murder rate – decided to go all in on big data policing.  The City of Chicago has decided to combine a place-based predictive policing technology, a person-based predictive policing technology, and a real-time “Strategic Decision Support Center” to target the people and places driving violence.  Not surprisingly, the City, like others before it, got good press for its high-tech answer to the increasing violence. 

And, to me this one of the secrets of why big data policing is so alluring: it offers “an answer.”  Chicago needs an answer about how they are going to stop the shootings.  As of April 26, 2017, there were almost 1000 shooting victims in Chicago this year.  Over 4000 people were shot last year.  Politicians, chiefs of police, any sane person needs some answer about how they are going to stop the killing.  It doesn’t have to be a good answer.  It doesn’t have to work. But, you need to have some response.  Big data policing and all the fancy technology provides an adequate (and potentially satisfying) response.

It is also “an answer” that seems to be removed from the hot button tensions of race and the racial tension arising from all too human policing techniques.  Having more information, smarter information, more real-time information appears neutral and fair, and a lot better than just sending in more officers (which might increase tension).  This true even though the data comes from these real police officers and impacts the daily decisions of these real human beings.

To me, the big reason why we will continue to see the adoption of new data-driven technologies, even in advance of any data-driven studies to show the technologies work, is because of this need for an answer.  Ask yourself, if you were a mayor or chief of police wouldn’t you want to be able to point to something – like a new predictive program or system – to answer that age-old question of “What are you going to do to end crime?”  A black-box futuristic answer is a lot easier than trying to address generations of economic and social neglect, gang violence, and a large-scale underfunding of the educational system.  It is also a lot easier than more intrusive policing methods that require more officers on the streets. 

So, Chicago and other cities are going keep finding “an answer” whether or not the big data policing solution actually improves things in the long term. 

In my last post of this series tomorrow, I will address whether predictive policing requires a “policing solution.”  Many of the current risk assessment and predictive techniques are good at identifying risk.  The question remains whether police need to be the institution that remedies that risk.  

Posted by Andrew Guthrie Ferguson on May 25, 2017 at 10:42 AM | Permalink | Comments (0)

Wednesday, May 24, 2017

Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

I. First, the doctrinal backstory: Since at least the 2010 census, Republican state legislators in the South have been zealously "packing" black voters into districts with ever-larger black majorities in order to minimize Democrats' political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.

This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie) had pressed for a lax, fact-based review of race-based districts under an incomprehensible "predominant factor" test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt) and Justice Kennedy (in Miller v. Johnson), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.

After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, "strict-in-theory, rational-basis-in-fact" sort of color-blindness?

As I noted in an earlier post, Alabama Legislative Black Caucus v. Alabama suggested that a great ideological switcheroo was about to take place. ALBC gave rise to a 4-vote dissent from SCOTUS's conservatives and a 5-vote majority (liberals plus Kennedy) remanding for a harder look at apparently baloney Voting Rights Act justifications for packing black voters into super-majority districts. One did not have to be a diehard Legal Realist to suspect that both sides were suspicious that the other was tailoring its principles for partisan reasons.

II. What is the doctrine of race-based districting after Cooper and Bethune-Hill?

I will spare you the doctrinal convolutions of these lengthy opinions. They are tedious, inside-baseball stuff, fit for an election law blog rather than a generalist forum like this one. (For handy summaries, see my colleague Rick Pildes' post over at Scotusblog. Pildes was counsel for ALBC, so he knows what he is talking about). Here are the simple take-away points, as I understand them:

A. Bethune-Hill's bottom line: Just because a district's boundaries can be explained with "traditional districting factors" does not mean that race did not predominate, if the legislature actually was motivated predominantly by race. A district does not have to look really weird in order to be predominantly motivated by racial purposes: Cleverly disguised use of race is still use of race. It is the ("predominantly") racial purpose, not the race-neutral appearance, that matters. In particular, explaining each jiggle and turn of a district boundary with some conveniently race-neutral story about county lines, incumbent protection, and so forth cannot exonerate a plan that is revealed by "smoking gun" intent evidence to be designed to maintain a minimum percentage of black voters in safe districts.

B. Cooper's two bottom lines:

1) State legislators do not have carte blanche to create black-majority districts to deal with racial bloc voting that allegedly violates the VRA, unless those legislators actually show a likely violation of the VRA absent te packing of black voters. In particular, the legislators have to show that there really are not enough cross-over white voters to break the alleged white bloc. VRA compliance must be proven, not assumed, as a justification for "predominantly" race-based districting.

2) Plaintiffs challenging a district as race-based do not need to produce a race-neutral districting map that accomplishes the State's proffered race-neutral goals as well as the State's map. Contrary to one (apparently erroneous reading of) Easley v. Cromartie II, such proof of a predominantly racial motive is not essential, because "direct evidence" of racial purpose -- for instance, "scores of leaked emails from state officials instructing their map-maker to pack as many black voters as possible into adistrict, or telling him to make sure its BVAP hit 75%" -- could also supply the needed proof.

II. Were these decisions rooted in political party or constitutional doctrine?

One might be just a wee bit suspicious of the line-up in Cooper, especially when one contrasts it with the line-up in Cromartie II. All of the Cromartie II liberals read Cromartie II narrowly to allow proof of racially discriminatory purpose even without the plaintiffs' producing a race-neutral map accomplishing the State's race-neutral goals. Alito, joined by Roberts and Kennedy, wrote a dissent from the holding described at I(B)(2) above, calling for a broader reading of Cromartie II. But back in 2001, Kennedy joined the conservatives in Cromartie II in dissenting from Breyer's very deferential attitude towards race-based districts. Now Kennedy is joining a dissent that declares "[a] precedent...should not be treated like a disposable household item—say, a paper plate or napkin -- to be used once and then tossed in the trash."

Has Kennedy suddenly been converted to a deep love for stare decisis, a love so deep that he is willing to give a broad reading to a mushy precedent that he had earlier decried? Or did Kennedy join Alito's dissent because Kennedy regarded Kagan's majority opinion as a cynically opportunistic and partisan defense of the color-blind constitution, a defense that was rejected by liberal justices in '01 when it got in the way of black politicians' districting demands but currently being deployed by some of the same liberals to get rid of Republicans' districting plans now that black Democrats can win without packing black voters?

Well, let's let Alito's dissent speak for itself. Accusing the majority of "execut[ing] a stunning about-face" on Cromartie II, Alito wrote that, by easing the proof of race-based districting, “the federal courts will be transformed into weapons of political warfare," because, "[i]f the majority party draws districts to favor itself, the minority party can deny the majority its political victory by prevailing on a racial gerrymandering claim,” claims that "can exact a heavy price by using the judicial process to engage in political trench warfare for years on end.”

It is difficult for me not to read this passage as anything but an accusation that the Cooper majority has relaxed Cromartie II's proof requirements because now the majority sees that racial gerrymandering benefits Republicans ("the majority party") and hurts Democrats ("the minority party"). Of course, Alito is expressly speaking of litigators, not his brethren on SCOTUS. But if the shoe fits...

So is such an accusation accurate? The question is difficult to answer, because Cromartie II is a convoluted, fact-specific mess. One can easily pull language out the opinion to favor either the majority's or dissent's reading of how a "predominantly racial" purpose is proven. Indeed, it is quite possible for such mushy, fact-specific precedents to follow a partisan path even if each justice sincerely votes for completely non-partisan reasons, because, as Justice Scalia caustically noted in his Morrison v. Olson dissent, with the "ad hoc approach to constitutional adjudication,... the law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be." Of course, what a liberal majority in 2001 thinks the law "ought to be" might be quite different than what a similar liberal majority in 2017 thinks -- and Cromartie II obligingly provides a big tent for both views.

Mushy precedents like Cromartie II, in short, naturally invite the accusation that the law is (as Alito put it) a "weapon of political warfare." It is not just Cromartie II that invites such suspicion. The same opportunity to tailor the principle to the current majority's current unspoken preferences is present in (for instance) Fischer's analysis of affirmative action or Morrison's of separation of powers.

III. Was Cooper really a "partisan" decision"?

I am inclined to think, however, that Kagan's Cooper opinion is as non-partisan as one could reasonably expect in this fraught area of the law. My key piece of evidence is that Thomas signed on to the majority opinion, adding a separate concurring opinion to note that, whatever the majority might say, the Cooper majority effectively confined Cromartie II "to its particular facts." Cooper, in short, is a general blow against the deferential attitude towards race-based districts exhibited by Cromartie II. By walking back Cromartie II, Cooper gives plaintiffs new tools to challenge the gratuitous creation of black safe districts even when they are not being created by Republicans or being challenged by Democrats. I assume that these tools are precisely why Thomas signed on: Cooper's language will provide reasonably durable speed bumps when Democratic state legislatures of the future want once more (for whatever reason) to draw district lines on racial grounds.

So kudos to Thomas for sticking to his color-blind guns. Whether you love or hate his doctrine, you cannot help but admire the man for rejecting the temptation of abandoning his principles for short-term partisan advantage.

Posted by Rick Hills on May 24, 2017 at 12:00 AM | Permalink | Comments (7)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

An Updated Fiduciary Forecast

As the clock ticks down, the fiduciary rule seems increasingly likely to go into effect.  This morning, Secretary Acosta dropped a surprising op-ed in the Wall Street Journal announcing that he would not delay the fiduciary rule's implementation because Labor's review has "found no principled legal basis" to delay the rule's effective date.   The op-ed reads almost as a civics lesson.  Acosta pledges "respect for the rule of law" and explains how the notice and comment procedure limits the ability of administrative agencies to regulate on whims.  

This does not mean that the fiduciary fight is finished.  The op-ed promises to reopen public comment on the rule and consider the issue yet again.  Acosta explains that the administration has "respect for the individual" and "presumes that Americans can be trusted to decide for themselves what is best for them."  In the financial advice context, the argument makes little sense.  If a retirement saver knew what was best for him, he would not need a financial adviser.  We seek out advice when we do not know how to act in our own best interest.  A paean to freedom of contract here amounts to a defense of the freedom to fleece and to be fleeced.   

In a way, this development looks like a blown play from the administration.  The Trump team may have assumed that its initial sixty-day delay opened a sufficient window for Congress to kill the rule, leaving the President's hands cleaner.  This outcome seems particularly surprising given the Trump team's general opposition.  Anthony Scaramucci compared the fiduciary rule to Dred Scott--contending that the rule discriminated against financial advisers. Gary Cohn argued that the rule should be scrapped because it was "like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger."

In any event, the rule does not prevent retirement savers from making unwise investments.  It simply limits the ability of financial advisers to steer clients toward poor choices that generate more profits for the financial adviser.

Posted by Benjamin P. Edwards on May 23, 2017 at 04:30 PM | Permalink | Comments (0)

Big Data Policing

I wanted to spend a bit of time this week discussing my forthcoming book “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” (NYU Press, release date Oct. 2017).

The book describes how new predictive technologies and surveillance capabilities are changing the “who,” “where,” “when,” and “how” law enforcement does its job.  As I write in the introduction (available here):

"Roll call. Monday morning. Patrol officers receive digital maps of today’s “crime forecast.” Small red boxes signify areas of predicted crime. These boxes represent algorithmic forecasts of heightened criminal activity: years of accumulated crime data crunched by powerful computers to target precise city blocks. Informed by the data, “predictive policing” patrols will give additional attention to these “hot” areas during the shift. Every day, police wait in the predicted locations looking for the forecast crime. The theory: put police in the box at the right time and stop a crime. The goal: to deter the criminal actors from victimizing that location."

More after the break.

"Soon, real-time facial-recognition software will link existing video surveillance cameras and massive biometric databases to automatically identify people with open warrants. Soon, social media feeds will alert police to imminent violence from rival gangs. Soon, data-matching technologies will find suspicious activity from billions of otherwise-anonymous consumer transactions and personal communications. By digitizing faces, communications, and patterns, police will instantly and accurately be able to investigate billions of all-too-human clues.

This is the future. This is the present. This is the beginning of big data policing. Big data technologies and predictive analytics will revolutionize policing. Predictive policing, intelligence-driven prosecution, “heat lists” of targets, social media scraping, data mining, and a data-driven surveillance state provide the first clues to how the future of law enforcement will evolve.

At the center of policing’s future is data: crime data, personal data, gang data, associational data, locational data, environmental data, and a growing web of sensor and surveillance sources. This big data arises from the expanded ability to collect, store, sort, and analyze digital clues about crime. Crime statistics are mined for patterns, and victims of violence are mapped in social networks. While video cameras watch our movements, private consumer data brokers map our interests and sell that information to law enforcement. Phone numbers, emails, and finances can all be studied for suspicious links. Government agencies collect health, educational, and criminal records. Detectives monitor public Facebook, YouTube, and Twitter feeds. Aggregating data centers sort and study the accumulated information in local and federally funded fusion centers. This is the big data world of law enforcement—still largely in its infancy but offering vastly more incriminating bits of data to use and study.

Behind the data is technology: algorithms, network analysis, data mining, machine learning, and a host of computer technologies being refined and improved every day. Police can identify the street corner most likely to see the next car theft or the people most likely to be shot. Prosecutors can target the crime networks most likely to destabilize communities, while analysts can link suspicious behaviors for further investigation. The decisional work of identifying criminal actors, networks, and patterns now starts with powerful computers crunching large data sets almost instantaneously. Math provides the muscle to prevent and prosecute crime.

Underneath the data and technology are people—individuals living their lives. Some of these people engage in crime, some not. Some live in poverty, some not. But all now find themselves encircled by big data’s reach. The math behind big data policing targets crime, but in many cities, crime suppression targets communities of color. Data-driven policing means aggressive police presence, surveillance, and perceived harassment in those communities. Each data point translates to real human experience, and many times those experiences remain fraught with all-too-human bias, fear, distrust, and racial tension. For those communities, especially poor communities of color, these data-collection efforts cast a dark shadow on the future."

The argument I put forth in the book is that all big data policing technologies have a “black data problem.”  Again, from the introduction:

"This book shines light on the “black data” arising from big data policing: “black” as in opaque, because the data exists largely hidden within complex algorithms; “black” as in racially coded, because the data directly impacts communities of color; “black” as in the next new thing, given legitimacy and prominence due to the perception that data-driven anything is cool, techno friendly, and futuristic; and, finally, “black” as distorting, creating legal shadows and constitutional gaps where the law used to see clearly. Black data matters because it has real world impacts. Black data marks human “threats” with permanent digital suspicion and targets poor communities of color. Black data leads to aggressive use of police force, including deadly force, and new forms of invasive surveillance. Big data policing, and these new forms of surveillance and social control, must confront this black data problem."

The book builds from my scholarly writings on predictive policing, big data technologies, and the growing surveillance state.  And, it raises what I think is a largely ignored problem of how existing problems of racial bias, opacity, and legal confusion threaten to undermine the potential innovation behind any adoption of “smart technology.”  The book offers a warning – a predictive risk assessment if you will – about how new technologies cannot escape the age-old problems that have negatively impacted law enforcement for generations.   

My next post will be about why this race for new technologies has been so alluring to law enforcement.

Posted by Andrew Guthrie Ferguson on May 23, 2017 at 11:11 AM | Permalink | Comments (1)

Monday, May 22, 2017

The Ticking Fiduciary Clock

Despite an initial 60-day delay from the Trump administration, the Department of Labor's fiduciary rule now nears its June 9th effective date. The rule requires financial advisers to give advice in the best interests of their clients when giving advice about retirement accounts.  With just eighteen days to go, it seems increasingly likely that the rule may actually go into effect.

Some legislative and administrative risks remain for the rule. The U.S. House of Representatives seems likely to pass the Financial CHOICE Act of 2017 in the near future.  It spans about six hundred pages and seeks to unwind many of Dodd-Frank's reforms and, among other things, repeal Labor's fiduciary rule. The legislation has been widely criticized and may fare poorly in the Senate.  Earlier today, John Coffee memorably described it as something "drafted by the staff of a libertarian think tank . . .  after they had all smoked something very strong."   Given the strong opposition to the CHOICE Act, a legislative repeal appears unlikely before June 9th.

The fiduciary rule still faces administrative risks.  President Trump issued a memorandum directing Labor to review the fiduciary regulation. In response, Labor delayed the rule by 60 days to conduct its review.  The "review" may be mere pretext for rescinding the regulation.  According to one report, the new Secretary of Labor Alexander Acosta has begun casting about for a way to "freeze" the fiduciary rule in a way that will "stick" as his top priority.  These reports have drawn harsh criticism from Democratic Senators questioning whether Secretary Acosta "prejudged the outcome of the review."  If Labor moves to delay the rule again, consumer protection groups seem likely to challenge the decision in court.  

As the clock ticks down, it will be interesting to see what justification Labor might trot out to block its own rule or whether it will allow the rule to go into effect.

 

Posted by Benjamin P. Edwards on May 22, 2017 at 08:29 PM | Permalink | Comments (0)

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Baseball rules--collect them all, trade them with your friends

For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."

It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.

Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Police in changing communities

Some good stuff in this lengthy Buzzfeed piece on the tensions between the (overwhelmingly white) police and the increasing Black and minority communities in Troy, New York. Two items to pull out that are common in these types of stories, but illustrate some things I have been thinking about:

1) Describing the cycle that multiple incidents followed: "a stop for a low-level infraction; an interaction that escalates; use of force by officers; a charge of resisting arrest, dismissed by prosecutors or acquitted at trial; and then a lawsuit settlement with the city that allows officers to deny the allegations of misconduct." And four officers involved in multiple incidents remain on the police force. And the city works these (relatively small) settlements into the cost of doing business, so civil damages litigation produces no political or accountability pressure to change its policies or the behavior of its officers.

2) Among the reforms the chief of police proposed were dashcams, which were opposed by the union and ultimately rejected. Again, a common reaction--police unions are the one stakeholder not enamored of cameras and many unions are going in the opposite direction of moving away from initial support.

Posted by Howard Wasserman on May 22, 2017 at 08:06 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 21, 2017

Are esports sport?

It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.

My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills.  I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.

The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.

Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, May 19, 2017

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Years ago, when the legal community was in an uproar about whether the Department of Justice had become too politicized under George W. Bush’s administration, I had the good fortune to attend a panel on the U.S. Attorney firings.  The panel consisted of all of the former U.S. Attorneys who had been fired at the beginning of President Bush’s second term.  One U.S. Attorney said he had been fired for refusing to seek the death penalty in a particular case.  Another said he’d been fired for refusing to move quickly on political corruption charges against Democratic officials.  And a third said that he had been fired for refusing to bring obscenity charges against internet providers.  The prevailing sentiment, both at the panel and also in the press, was that, although the President had the power to fire those U.S. Attorneys, the decision to fire these particular attorneys was inappropriate because it had been done for “political reasons.” 

The panel was fascinating, but I had the same question then that I do now:  If prosecutors, the FBI director, and other executive officials derive their legitimacy from their indirect democratic accountability, then why is it a scandal to fire such an official for “political” reasons.  How do you draw the line between a legitimate “policy” reason and an illegitimate “political” reason? 

Because I apparently do not lack self-confidence, I asked the panelists this question.  And the answer that I got was, essentially, that general policy directives are okay, but any attempt to influence decisions in individual cases are off-limits.  At the time, I thought that this was a satisfying answer.  But now I am not so sure.

When it comes to police and prosecution, policy statements don’t seem to mean very much.  Policy statements, like the charging memos that Attorney Generals regularly disseminate to federal prosecutors, are necessarily general.  And they invariably leave room for professional judgment.  In fact, you might say that the true policies of a prosecutor or law enforcement office can be discovered only by assessing how that professional judgment is employed in different circumstances.  To use one of the examples from the U.S. Attorney firing, it doesn’t tell you much to know that a particular prosecutor supports capital punishment; what you really care about is the circumstances under which he or she will seek the death penalty.

Of course, the news accounts of the interactions between Director Comey and President Trump are not a simple example of law enforcement independence.  Because the investigation at issue involved the President’s own campaign, there are a multitude of other issues at play.  But whatever we take away from the Comey affair, I don’t think it should be a lesson of absolute independence for the Department of Justice.

Posted by Carissa Byrne Hessick on May 19, 2017 at 11:30 AM in Carissa Byrne Hessick, Criminal Law, Law and Politics | Permalink | Comments (6)

1L Fear

From the days of The Paper Chase to the constricted tightness in the air around exam time, “fear” is part of law school.  But, is there an optimal level of “fear” that creates healthy focus, but not paralyzing distraction?  Is any fear constructive, or is it all a negative emotion that should be eliminated? Should fear be part of the 1L experience?  Does it help, hurt, distort, or destroy students?  As the world changes (with different expectations of students and from students), does fear have any place in the first year law school curriculum? 

As a law professor “fear” is a tool.  Some professors use fear in obvious bullying ways.  Some professors use fear though humor and humiliation.  Some professors make you fearful of disappointing them.  Ask any 1L why they are always prepared, and in between answers about “love of the law,” intellectual curiosity, and ambition, you will get the answer “I was afraid not to be prepared.” 

1L classes set up in a Socratic or semi-Socratic teaching style generate fear of embarrassment.  Students are on call, on stage, called out to answer in public.  The fear of ignorance, confusion, or saying the wrong thing is present every day.  Professors demand answers to their questions.  And, the process generates a natural tension that can make some people afraid.  Add in differences in learning styles, culture, and a host of power dynamics, and law schools create an intimidating learning environment that generates a natural fear.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don't consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a "coach" not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question -- is fear healthy?

Again, looking at my own law school experience (and recognizing my own privileged status and engagement) fear definitely motivated me.  I was fearful of being called on (I can still hear the deafening sound of my own heart beating when I knew I was next to be called on in class).  I was fearful about failing (or at least not doing as well as I could).  And, I worked really hard, less out of love of contracts or torts, and more out of a fear of not being prepared and being called out for that lack of preparation.

I could be wrong, or a product of another generation, but fear of not doing well, of failing to meet expectations, or of literally failing law school was ever present.  Fear motivated me (and I believe others) which is why it was intentionally or unintentionally fostered by law professors trying to motivate mastery of the law.

Yet, fear is not a part of other educational environments.  You don't think of high school English class as frightening.  You don't necessarily think of college seminar courses motivated in any way by fear.  While there are certain professors who emulate John Houseman in their lectures (a style that pre-dates The Paper Chase), much of the undergraduate experience is decidedly not Socratic. It is still stressful, but not full of fear.  One reason why students have a difficult time adjusting to “learning the law” involves a greater sense of fear.  

And, I can't imagine fear is scientifically proven to improve learning.  I am no expert, but learning theory seems to suggest otherwise.  And, the intentional creation of fear in a classroom has to be distracting if not disabling to many students.  Fear can bring with it class, gender, and racial power dynamics and can interfere with interpersonal relationships and learning.

So of all the possible motivational emotions, should law schools encourage fear?  Should we make a conscious effort to reduce fear in the classroom?  Should we be more consumer friendly and kind?  Should we replace fear with inspiration? Or collaboration? Or self-reflection?  Or self-reliance?

Or, is the fear that motivates being 100% prepared a life skill we want to cultivate in lawyers?  Should we turn up the pressure and demand more work and stress from our students to be prepared for the always demanding practice of law?  Should every class be like an appellate argument? 

I am afraid I don't know the answer, but think it worth discussing?

Posted by Andrew Guthrie Ferguson on May 19, 2017 at 06:25 AM | Permalink | Comments (13)

Thursday, May 18, 2017

How other law schools do things

Looking for some ideas on how law schools handle some faculty matters.

1) Course/credit releases. How do you handle periodic/special releases from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). Not thinking about faculty buying out, but rather  one-year reductions because of big scholarly projects, etc. How often can faculty do this? Who decides--the dean, faculty, or some combination? Is there written criteria as to what justifies it or is left to decanal discretion? Do the credits get made up in a subsequent year? Is it a banking system?

2) Co-authored articles for P&T. How are P&T committees handling co-authored works in evaluating a colleague's productivity and in deciding what to send for outside review? Are such works being discounted? Do you ask the candidate for a breakdown of who did what or how the writing process worked on the project?

Please respond in comments.

Posted by Howard Wasserman on May 18, 2017 at 03:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

 The fellowship model can, on the whole, be seen as a kind of substitute or proxy for Ph.D studies in other disciplines. It doesn't serve all the same functions; perhaps most prominently, it's not clear that elite fellows at law schools generally use their time to acquire and absorb a canon, in legal scholarship generally or in their own field. But it does provide some of the other functions of a doctoral program. Perhaps most centrally, going into a fellowship program, one that increasingly lasts longer than one or two years and extends into quasi-post-graduate berths, serves the same winnowing and signaling function that a doctoral program does. A well-credentialed and potentially talented young lawyer who takes the fellowship path signals a strong interest in a career in legal scholarship and teaching, partly because he or she shows a willingness to take an income hit for the sake of a long-term academic career. (This also, on the margins after accounting for stipends and scholarships, makes it less likely that the entry-level population will be diverse across a range of levels, and more likely that it will be either relatively financially well-off, or that it possesses enough elite social capital to know about the fellowship path in the first place and successfully obtain a fellowship, or both.) Whatever earning capacity as a lawyer one of these fellows might have had if they remained in practice while writing on the side (which is difficult), they signal a willingness to abandon that path in favor of the academy. Indeed, by making themselves less employable in legal practice--why hire a former A student with a court of appeals clerkship under her belt as an associate when that person has been out of practice for two to five years? There are plenty of A or B students with clerkships who have remained in the actual practice of law--they show a willingness to burn their bridges out of the legal academy. That makes them surer bets for hiring law schools, especially given that tenure votes no longer serve a significant winnowing function for law schools. 

And, of course, they do research and writing while serving as fellows, learn about their subject (as an academic subject, at least), and sometimes publish superbly (by standard if flawed criteria). They also gain the time and resources to do empirical work that's difficult to do as a junior scholar working toward tenure and that many law schools are looking for in candidates. As or more important, they learn the "talk" and "walk" of the academic culture, and often get significant mentoring and advice about job-talks and other elements of the hiring process. By the time they go on the market, they look, talk, and walk like a law professor, have a better publication record than many existing professors, and have a demonstrable commitment to staying and working productively in the legal academy over a long time.

I won't rehearse the standard practical-vs.-academic or practice-vs.-theory arguments here. The fellowship model, and the law school hiring model generally, has routinely been criticized on this basis on the comment pages of every law blog. Without taking a strong position on that standard debate, I am glad the issue has been and continues to be raised, if not always terribly subtly or charitably. It more than deserves a place in the discussion. Happily, others have and will continue to cover that ground--and they should.

I will say that, keeping that debate in mind but in the background, all the elements of the fellowship model that I have described above, and no doubt other factors, are arguably positives. Although there is a tremendous amount to be said for hiring scholars who are also proven lawyers with serious practical experience and may keep a finger in that pie, there is also--to the extent we continue to insist on standard scholarly/academic criteria--a higher potential failure rate in such a crop. Entrants from such a pool may also take longer to get on their feet, while fellows are generally already well-published and well-prepared for the job. And, for historical reasons at least, law schools worry about hiring people who are "retiring into the legal academy," and who may turn out to be (on some measures) deadweight on the faculty for decades. Law schools have experienced many interviews and job talks by non-fellow candidates who are still very wobbly by standard measures. By contrast, the average level of quality and confidence of well-trained and mentored fellows is very high. 

I do not think any of these concerns are knockout punches in favor of the fellowship model or against hiring more practitioners, for several reasons. First there are the standard arguments in favor of practice and practical experience, which are out there and need not be rehearsed here. Then there is the question whether the "success" and "failure" we worry about are being judged according to faulty criteria. A practitioner-teacher may provide plenty of value to a law school and its students over decades, whether he or she publishes much or not. That's hardly "deadweight," although clearly some faculty, either of the practitioner or the scholarly model, do become deadweight. And one response to all this could be to actually take a chance on more non-fellow types, and use meaningful tenure votes to winnow out those who turned out to be bad bets by standard criteria, instead of acting as if anyone who has been hired and has managed to turn out three or four okay articles and average teaching evals has some kind of right to permanent employment. My basic point is that there are reasons to think well of the fellowship model. That is certainly true as long as we hold good scholarship to be a duty and desideratum in the legal academy, as I believe we should (which does not by any means rule out changing the mix to include more practitioner types). Let's give the fellowship model its due.

What, then, are the downsides, other than the standard practice-vs.-theory debate? There are quite a few, of which this is a decidedly non-exhaustive list. Others should feel free to supplement it. Some of them are "hard" points, and some are "soft" or more impressionistic or cultural points. 

1) Given the possibility that those who don't succeed in getting jobs in the legal academy after going the fellowship route may suffer diminished job prospects by taking themselves out of practice, we might be concerned about that, even if we treat this as a knowing and voluntary choice on their part. That's especially true if hiring numbers stay low relative to even the fellowship applicant pool. (As an aside, we certainly should have doubts about expanding fellowship programs, especially outside of the top five or ten schools. Those schools lower down the chain that have such programs might consider using them mostly to select and groom a couple of their best graduates with a potential interest in and talent for teaching, with an eye toward hiring those fellows at their own schools.) 

2) We might worry about what we are teaching these fellows. I will say it again: Every member of a hiring committee, and indeed every voting member of a law faculty, as well as the candidates themselves, should read Martha Nussbaum's classic short article Cooking for a Job: The Law School Hiring Process. Nussbaum asks whether the process is "effective in identifying good scholars, as opposed to good rhetoricians." She is concerned with the application of "nebulous standards": "items such as 'brilliance' and 'star quality' are frequently mentioned," and such standards are hard to pinpoint and subject to distorting influences. The process, she writes, favors "a certain type of individual, who combines obsequiousness with glibness and aggressiveness," over the reticent, shy, contemplative, but careful and sound scholar. Promising scholars may flunk "lunch," or the job talk, because they don't display a command of the bells and whistles of academic lingo or give a polished performance. Presciently, Nussbaum worried that such a process would "produce[ ] young scholars who have a confused sense of what their purpose is. Are they supposed to be good rhetoricians or good scholars? Are they supposed to spend years working toward a difficult truth, or to come up with catchy phrases and slogans that will market their ideas to an audience?" 

All these things are in evidence in the fellowship path and the performance of fellows in the hiring process. The careful mentoring, honing of the job talk paper, and multiple rehearsals of the job talk and interviews has resulted in an increase in the superficial average quality of our candidates. But many of the virtues we see are indeed of the rhetorical sort. Answers to tough questions are well-rehearsed and sound good. But are they good in substance? I routinely see well-trained fellows at job talks who answer one set of (supportive) questions by making grand claims about the importance and sweep of their recommendations, and then respond to critical questions about the implications or applicability of a paper by emphasizing the suddenly narrow scope of their paper and denying that it has any broader implications, or who appear to have never seriously considered those implications. Surely such answers suggest the surface-level strategics of the talk rather than a capacity for deeper reflection. Some of this is tied up with politics, but that is not only a matter of the actual politics of the fellows (generally one-sided) or their mentors (same, almost certainly exacerbated by the rise of fellowships in "centers" or programs that are quite explicitly political and favor only one set of views or policies, and whose fellows are treated at some level as shock troops being prepared for the legal academy). It's also, in part, a strategic decision to appeal to the legal academy's mostly liberal and reformist views. If the point of your paper is to recommend that the courts wield an enormous hammer, you ought to be prepared to consider when and whether it should or inevitably will be wielded for other purposes. I rarely find candidates who are willing to concede openly, at the risk of alienating politically like-minded members of the faculty, that the argument they have developed might be applicable for very different reasons by very different people, and who are then willing to discuss why the proposal is still worth it or indeed why that possibility should be welcomed. If more faculty at job talks were willing to cut to the jugular vein of a job talk paper (they often are not, or lack the expertise to do so; they may not even have read the paper), they would get at these issues better and demand deeper answers. Often the answers are superficially satisfying but not deeply serious. As I wrote, a lot of job talk papers coming out of the fellowship program are finely honed and look extremely impressive, but sometimes are seeming home runs that cleverly conceal a paper that is either a failed pop fly or a base hit with grandiose trappings.  

3) Tied to this point is the apparent reticence or, perhaps, lack of reflectiveness of the directors of the fellowship programs themselves. I want to tread carefully and not judge prematurely. Perhaps these directors (although they change often enough to hamper that sort of reflection) are thinking carefully about these concerns. But they certainly are not talking much about them, and certainly not openly and with the wider legal academy as an audience. It is, of course, possible that they are not reflective on these points, or that--especially as the legal academy comes to be filled with those who have already come through this process and internalized its values--they are not aware of them or deny that they are concerns. Add to this the understandable desire that their fellows should succeed in getting jobs. That means they will give whatever advice works in the hiring process. Over time, that advice, even if it was initially strategic and self-aware, will gradually and osmotically become part of the worldview of those directing and going through the programs. (Every fellowship program and mentor should devote some time to pushing their fellows to think about why all the advice they are getting may be wrong or dangerous for scholarship and teaching itself, and urging them to reach their own judgments when the time comes for them to make their own career decisions and vote on job candidates. Do they do this?) Elite law schools and professors, in my view and my partial experience, often have a fairly narrow range of focus and experience, and take for granted the standards that got them and their fellows where they are. Many or most of them know much less about life in the academic trenches at lower-ranked law schools than one might imagine. (Certainly my experience is that their advice to candidates choosing among job offers suggests just that.) It is easier for them just to see the successes and not count the externalized costs. They may lack the information, basis, or incentive to second-guess what they are doing and the kinds of lessons they are instilling. They may prefer "brilliance" over soundness because their own environment prizes brilliance.

4) As what I've said so far suggests, I'm worried in a more impressionistic sense about the effects of all this on the overall culture, both of the fellowship programs themselves and ultimately of the legal academy. As I wrote in my last post, I think it's only superficially cynical to think that most professors know what the game is and know that they are playing it, without buying into it, although a number of people have written to me to say just that. Such a position is possible, but contrary to human nature and difficult to sustain over time. Eventually, people internalize and rationalize the values they have been taught. They stop thinking about novelty paragraphs as a mere tactic, and grow to think of them first as a necessity and then as a virtue. They first over-value glib "brilliance," and then think of it as a sound criterion. It's not that they disdain substance, but it becomes easier for them to focus less on it or to forgive papers that are longer on brilliance than on soundness. That happens first at the level of the fellowship programs and their directors, and then at the level of the fellows they indoctrinate. Then those fellows seed the academy, and, lo and behold, many of them apply the same standards and replicate themselves when hiring new candidates. They treat the strategic choices they made to get a job as goods in themselves and as positive desiderata in examining new job seekers. Nussbaum's concerns become a cultural virus, and eventually just the way things are.

I said above the fold that there were "other reasons . . . why this trend can build without much second-guessing, especially public second-guessing." Let me build to my conclusion with some of those reasons. First, there's the Wizard of Oz problem. The elite schools that have fellowship programs and mentor fellows are offering strategic advice for fellows to help them get jobs, according to the criteria that law schools are likely to apply--or the criteria they think law schools are likely to apply, but this ends up becoming a self-fulfilling prediction. If they were to talk openly about some of these stratagems, let alone the problems with them, it would hardly benefit their fellows. The first rule of Fight Club is, well, you know. If they are reflective about these concerns, and I don't know whether they are or not, they have a strong incentive to keep it to themselves.

Second, the hiring law schools want to look good with their hires in everyone else's eyes. (Faculties also want to look good in their own eyes, and individual faculty members want to look good in their colleagues' eyes.) This favors taking the standard existing criteria for granted, no matter how much agreement there is that these criteria are flawed. Let me build on this with a hypothetical. 

Let's say almost everyone agrees that substance matters more than placement and that placement is a poor proxy for substance. They conclude that Candidate One, a fellow who has published in Virginia and NYU (these are randomly chosen top law reviews), is doing "brilliant" work but that the work is better at appealing to elite law review editors than it is good in itself. Moreover, Candidate One has given a nice polished job talk and has great recommendations from impressive mentors. By contrast, Candidate Two, who is in practice and has few or no influential mentors but has been noticed positively by people in her field, has published in Baylor and a tertiary Texas journal (again randomly chosen), and is more halting in her job talk. But there is real soundness behind the pieces, which are (commendably) narrow but excellent and suggest the promise of more genuinely valuable work being done on the subject. And the "halting" answers suggest a genuine willingness to grapple with real questions and to revise one's views as appropriate, or to acknowledge the costs of one's approach and/or be less bold and more narrow in one's conclusions. Which candidate to hire?

Hiring Candidate Two won't make a splash when it is announced. Candidate One is likely, because she is skilled at the relevant tactics and has active (and sometimes only semi-scrupulous) mentors who will lobby the law reviews, and because of the Matthew Effect, to continue to place well, although she may also continue to have a hollowness at the core of her work. Candidate Two, having started with lower-ranked journals, may remain ghettoized there, no matter how good her work actually is. Faculty members are often insecure about judging candidates, especially candidates outside their field. The fact that the elite world is ready to reward Candidate One, that she has multiple offers, and that this does after all suggest she will do very well by standard criteria, all may push the voting faculty toward the "safe" choice. Influential members of their own faculty may share a belief in the standard criteria and be highly concerned with metrics, US News rankings, and other elite measures. They will find it easy to ridicule the choice of Candidate Two as damaging to the law school's reputation and future in a competitive and reputation- and ranking-obsessed legal academic culture. Even if the faculty at this school strongly agree that substance matters more than placement and that "brilliance" is a snare for the unwary and status-obsessed, they know or believe that the rest of the legal academy thinks otherwise, and want to look good in the eyes of that community. These again are reasons to make the "safe" choice of Candidate One. And once one moves to actual hiring votes between two competing candidates, the discussion usually becomes polarized and exaggerated. The virtues of Candidate One will be exaggerated and extolled and her flaws, which are harder to pin down by reference to conventional external criteria, will be downplayed and excused as a function of youth. Candidate Two will be exaggeratedly dismissed as an also-ran or an unimpressive hire. Safety, insecurity, search costs, and peer pressure will lean in favor of Candidate One and against Candidate Two, especially if the knowledge that almost everyone who reaches a tenure vote succeeds makes it less attractive and more costly to take a "chance" on Candidate Two.      

Finally, and fascinatingly to me, there is the question of how such public discussions would be seen as affecting the well-being of the fellows themselves. Imagine writing a highly critical piece or, let's say, a post on Prawfs about the glibness and "brilliance" of candidates coming out of the fellowship market, and the dangers of such an approach and the criteria and standards of judgment that undergird it. Even if, as I have here, one makes clear that many of these candidates really are good and that the fellowship model really does have much to recommend it, the author can easily worry about whether he is sending a message to his recently hired colleagues or people he is about to meet in the next hiring season. I value all my new colleagues, whatever standards were involved in their hiring and whatever virtues or flaws they may have, and want them to feel welcome and supported. I may become good friends with them. That's even, or perhaps especially, true of those colleagues I might not have supported in the hiring process. Once the vote's over, everyone should rally round and do their best to support, encourage, mentor, and advance the career of the new colleague. I consider that a strong duty, and I think I have generally met it. But I also believe in the value of standing outside our hiring processes and considering and openly discussing our culture and the imperfect standards and approaches it embodies. That's a big part of why I still (occasionally) blog. If I don't want to risk offending a new or potential colleague, the greater incentive is to just keep my mouth shut and play the game, or at least allow the game to be played without talking about it. (Other than through cynical and knowing face-to-face gossip, which is plentiful and deplorable in the legal academy. Full many a candid, sometimes nasty but often informative, discussion is born to bloom in the faculty lounge and die unheard by the wider world.) And I am, I think, slightly more willing to air this kind of dirty laundry than many of my colleagues at large, some of whom are reluctant to do so, many of whom worry about offending others, and more than a few of whom are not especially reflective about these sorts of issues in the first place. Some might also worry that if they talked openly about these issues, mentors and program directors at elite schools might dry up the pipeline to their school, or that they themselves will suffer if they ever come up as lateral candidates or otherwise want to benefit from friendships and connections to the elite schools. I would like to benefit from those too! The academy fancies itself willing to speak truth to power, but that much less often embraces academics speaking about their own community and social and professional networks; then one suddenly hears a lot more about prudence and politics and much less about fearlessness or candor. The smart money and the prudent choice counsel silence, even for those who are interested in and self-reflective about these issues. 

I'll close where I began, by emphasizing that the fellowship model has much to recommend it, that the average level of quality and standardization in job candidates has increased dramatically since its rise, and that I am not urging us to get rid of it. Even some of those programs or individual fellows who exemplarize some of the flaws and concerns I have aired here are excellent candidates and strong scholars. Some of them have all the virtues and few of the flaws, and some have some of the flaws but many virtues, with the hope that the flaws will straighten themselves out with time and experience--although, as long as our culture doesn't change significantly, I'm worried that the latter is less likely to happen. Sometimes, maybe even most of the time, Candidate One actually is a better choice than Candidate Two.  

Nevertheless, there are genuine concerns to be raised about the fellowship track and the effects it may be having on the broader legal academic culture, especially when combined with such pre-existing factors as status and rankings obsession, the law review process, the outsized influence and often narrow perspectives of elite schools, and the culture and mechanics of the hiring process and of law schools themselves. Without treating the fellowship track and its rise as all good or all bad, we--and that includes the schools and individuals that run these programs themselves, and the fellows too--ought to be carefully and publicly toting up their costs and benefits, thinking and talking about their relationship to and influence on other aspects of the system, and considering whether there are ways to get more of the benefits while dealing with some of those costs. We have nothing to lose but our reticence. 

  

 

Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink | Comments (25)

Joining the Prawfs Community

I am extremely excited to join the Prawfs perma-blogger roster.

I started reading Prawfs in 2005, and I followed it kind of obsessively as I left my clerkship and started a teaching fellowship.  I did my first blogging here as a guest.  And it was the Prawfs community--Danny in particular--that introduced me not only to rigorous scholarship workshops, but also to a great number of people that I now consider to be close friends.

In short, PrawfsBlawg helped shape who I am today.  And I'm absolutely delighted to be a permanent part of the community.

Posted by Carissa Byrne Hessick on May 18, 2017 at 10:17 AM in Blogging, Carissa Byrne Hessick | Permalink | Comments (2)

Wednesday, May 17, 2017

Welcome Carissa Byrne Hessick as perma blogger

We are happy to announce that Carissa Byrne Hessick of UNC has joined PrawfsBlawg as a permanent blogger. Carissa, who has visited hear many times in the past, writes on criminal law, including Redefining Child Pornography Law: Crime, Language, and Social Consequences.

Posted by Howard Wasserman on May 17, 2017 at 12:30 PM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 16, 2017

Conspiracy theory of the day

In July 2016, after Trump selected Mike Pence as his running mate, Pence visited James Comey at FBI headquarters and said, "I want you to help me become President of the United States."

Posted by Howard Wasserman on May 16, 2017 at 07:57 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Connecting the Law Review Dots

I quite enjoyed Benjamin's post on the overused "under-theorized" line in law review articles. As his link to an old post of mine suggests, it is on a topic dear to my obsessive little heart.

I have no great quarrels with his post, but I would suggest that there is no actual paradox at work. Perhaps there would be if calling something under-theorized were sincere and accurate most of the time that this language is used. But I suspect that it isn't. Sometimes, calling a topic under-theorized is just throat-clearing. Often, it's strategic rhetoric for purposes of placement. Much of the time, it is somewhere in between that and a slightly but importantly inaccurate way of defending one's decision to write about a particular topic. If, instead of the standard and ostensibly impressive-sounding--the less impressive the more often you see it; paragraphs that could be saved as boilerplate are not really impressive, but they are aimed at 24-year-olds who have not seen them hundreds of times before--"under-theorized paragraph," authors wrote what they actually mean, and in plain English, we would more often see something like the following: "[X] is an interesting topic. Plenty of interesting things have been said about it, but they have not exhausted interest in the issue (my interest, at least). Even if they have, I have a few things to say about it too." I would welcome that sort of candor, and less standard-issue academic verbiage. 

Benjamin's post is also arguably connected to Andrew's post about "game-changing" law review articles, as a commenter on that post suggests. And it is connected to another pet peeve of mine, also noted in the comments: the equally standard-issue "novelty paragraph." Law professors routinely write about issues that have been written about before--quite understandably, in my view, since little is new under the sun and people often like to write about old but big and interesting questions. But law professors also like fancy placements and the credentialization, platform, and opportunities for advancement that come along with them. There are three standard strategies for trying to satisfy both urges. First, one can claim--usually ridiculously--that this is the very first article to deal with X, or something of the sort. That's the novelty strategy. Usually and amusingly, the sentence asserting that an article is The First Article on a topic is accompanied by a footnote along the lines of, "Of course, there are honorable exceptions..." That footnote then lists some of the prominent prior articles that, as it turns out, also address the topic that this article is supposed to be the very first to address. Authors, it seems, are willing to do both things--to claim that an article is The First, and to cite prior articles on the same topic--and law review editors are willing not only to stomach this, but to reward them for it.

There appear to be few credible limits to this strategy. But in some cases, either the evidence of prior treatment is overwhelming, or the author has a reasonable amount of shame or integrity. In those cases, the thing to do is break out the second strategy: the "under-theorized" strategy. Yes, lots of people have written about X before. But X remains "under-theorized." And that is this article's reason to exist and claim its own share of the spotlight. The under-theorized paragraph is thus arguably a sub-category of the novelty paragraph. Or perhaps it could be seen as an alternative strategy for instances when a novelty paragraph would be glaringly false.

A third strategy, one that I think is increasingly popular but less noticed as such, is what we might call the taxonomical or Clever Label strategy. It bears some relation to the other two strategies. Yes, X has been written about before. Yes, it has already been "theorized" plenty. But this article offers a remapping of the well-covered territory, in a way that makes better sense of all those other articles that have come before. That's the standard taxonomical approach. Sometimes, the author will place such implicit stock in the new Clever Label that he or she will not even bother to concede that the territory has already been marched into dust. The implicit claim will not be that the new article is valuable because it offers a way of making sense of the issue that takes into account and builds on the earlier literature, but that the new Clever Label is so great that the label is the novelty. I love some of these articles; hey, the best of them really are clever, and sometimes really do usefully place the earlier literature in a new light, putting different approaches into conversation with each other in a new way. But I am extremely leery of those articles that, TED-talk-like, treat neat new labels and snappy, no-colon-and-subtitle-needed titles as genuinely new and profound substance. They often place well, however. So long as they do, they're not going away.

All of these are strategies for placing articles well, not for placing them as such. It is not hard to place an article somewhere. Rather, these are efforts to convince a young editor at a well-placed law review that the article under submission is not just a fine and creditable discussion of something that has been discussed before but merits continued discussion, but that it adds something sufficiently new and terrific to the mix that it deserves prestigious placement. Most scholars, if they're lucky, turn out singles and doubles, along with the occasional pop fly. Claiming that your article is the first, or the first to properly "theorize," or that it provides the niftiest new labels, is a way of trying to convince editors that everything you do is at least a triple, if not a home run. And that's the connection to Andrew's post on game-changing articles, and the comments on it. If the legal academy and its publishing arm were functioning reasonably well, we would look for a lot more singles and doubles--and in hiring new scholars, we would look for evidence that they could turn out a long succession of solid base hits. But entry-level scholars have for some time now been trained by their schools to turn out articles that at least look like triples or home runs. In reality, many or most of those articles are actually either easily fielded fly balls or carefully disguised singles. All those paragraphs up top--whether they involve novelty claims, "under-theorized" claims, or Clever Labels--are ways of making us think otherwise. It's far from clear to me that this is the best way to encourage good habits or sound scholarship.  

Note that I say "making us think otherwise." Usually, with legal scholarship being the comic and reformist industry that it is, this would be the point for someone to write about how peer review would solve all our problems, by putting into place a system that would not require scholars to aim all these strategies at easily cozened 24-year-old law review editors. That might be true in especially sober or empirically based disciplines. Articles like this make me doubt it is true for all disciplines. Much depends on the soundness of one's peers. And I think there are at least two problems with law as far as this is concerned. First, we appear to be impressed by these strategies. Authors of grandiose articles that provide the illusion of clearing the bleachers, and that place well, do well on the hiring market. It's not the 24-year-olds doing the hiring, so I don't think we can fob off our problems on them alone. Second, all this has been going on long enough that I fear we have internalized all these tactics. If we insist on hiring through the fellowship process, and if fellows are being trained in the use of these strategies, and if they then succeed on the hiring market and mentor and judge the next generation of applicants, then I see little reason to hope that peer review alone will save us from our own sins.

It might save us, if one adopted the cynical view that everyone realizes that these strategies are just that, and that many novelty claims and other such boilerplate should be disregarded in favor of a focus on the substance. But in a field in which everyone on the faculty judges specialist articles when voting on hiring, it's hard to judge soundly on the substance rather than the bells and whistles. And I think this is actually a somewhat naive, first-order form of cynicism. It assumes that everyone is smart enough to know better, and that they are also strong enough to act better when they know better. A more convincing cynical view, to my mind, would conclude that we are not always smart enough to know better; that we suffer from the same cognitive defects as everyone else, and thus are likely to fall for the same tricks as everyone else, especially if we have profited from and internalized those tricks; and that even when we know better, we may lack the strength of will to resist in the face of professional norms, the praise of recommending professors at big schools, and the votes and voices of other members of our own faculty. Even if I am usually aware enough of and peeved enough by the kinds of things I have written about here to spot them when candidates come calling, I am sure I am not always strong enough to stick to my objections in the face of those influences, especially when I know that the strategies work in the wider world and I would like my law school to enjoy enhanced prestige. And I do not think I am significantly weaker-willed than most of my colleagues. So I have little good cheer to offer, other than the faint suggestion that we ought to be spending more of our time looking for solid base hitters than for long-ball hitters. 

Posted by Paul Horwitz on May 16, 2017 at 06:18 PM in Paul Horwitz | Permalink | Comments (10)

Parlor Games and the FBI Directorship

Mitch McConnell (following the lead of Utah's Mike Lee) is urging President Trump to nominate Merrick Garland for FBI Director. McConnell insists that Garland would provide the nonpolitical professionalism needed for the position, plus he would get Democratic support, which would be a benefit for this appointment. And, of course, although McConnell does not say so, it also would give Trump a vacancy on the D.C. Circuit.

But Garrett Epps argues that it need not create any vacancy. Nothing in the Constitution or federal statutes prohibits a judicial officer from holding executive-branch office (I wrote in January wondering whether Garland would have had to resign his seat had Obama made a recess appointment). Epps cites numerous examples of simultaneous work, including Justice Jackson taking a one-year leave from SCOTUS to serve as Nuremberg prosecutor and Chief Justice Warren simultaneously chairing the commission investigating the Kennedy assassination. Epps argues that Garland could take a leave of absence from the D.C. Circuit to head the FBI for a few years (long enough to investigate Russia and anything else that comes down the Trumpian pike), then go back to the court after a few years in the Hoover Building* All it takes is the approval of the Chief Judge of the Circuit--and the Chief Judge of the Circuit is Merrick Garland.

[*] Although how much administrative trouble would it create when Garland came back to the D.C. Circuit. Would he have to recuse from nearly every federal criminal case in which FBI agents investigated?

Of course, McConnell is politically savvy and would ensure that Garland agreed to resign from the bench as a condition of confirmation. But Democrats might still score some political points, showing that McConnell's desire for bipartisanship is a ruse to create a judicial vacancy for a Republican president. If McConnell is  serious about wanting Democratic support and a non-partisan figure for the FBI, he should not insist on the new partisan gain of the judicial appointment

Ultimately, this is a parlor game (hence the title of the post) that makes for fun musings but will never come close to reality.

Posted by Howard Wasserman on May 16, 2017 at 02:23 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Spencer appointed to Civil Rules Committee

Ben Spencer (Virginia) has been appointed to the Civil Rules Advisory Committee. Congratulations to Ben.

Posted by Howard Wasserman on May 16, 2017 at 10:00 AM in Civil Procedure | Permalink | Comments (1)

Game-Changing Articles

This will be the last time I try to crowdsource the wisdom of Prawfsblawg this month.  But, like many relatively new law professors, I have tried to figure out what makes a game-changing, seminal law review article.  Some articles create new theories that shape law.  Some articles canvass an area of law.  Some reconstruct ("under-theorized") theory in new ways.  There are even wonderful law review articles about law review articles -- filled with citation counts and metrics which help identify articles that qualify as influential. 

But, what have been the true game-changing articles in the last seven years (since I have should have been paying attention)?  What are the articles that changed perceptions and qualify as seminal articles?  As just one of many possible examples, something like Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) which helped shape tort law, Fourth Amendment law, and an understanding of privacy. 

Self-nominations welcome.

Posted by Andrew Guthrie Ferguson on May 16, 2017 at 09:45 AM | Permalink | Comments (9)

Monday, May 15, 2017

The Under-Theorization Paradox

The "under-theorization" paragraph has become a standard move in article introductions. To explain why editors and readers should value a law review article, many authors include a paragraph pointing out that the issue has not received enough attention or is "undertheorized," whatever that means.  The phrase's proliferation has led to posts discussing undertheorization.  We even have a law review article on the Under-Theorized Asterisk Footnote.  A quick Westlaw search reveals that undertheorized or under-theorized has appeared in 1,982 law reviews.  The number stood at about 11,00o in 2012.  In books, the term first began showing up in the 1980s and its popularity has grown steadily. 

Yet supporting an undertheorization claim may undermine an undertheorization claim.  If you want to show the reader that your article addresses an under-theorized area, the usual proof may cast doubt on your claim.  For example, I believe that the academic literature does not examine industry self-regulation enough.  For support, I turned to others making similar claims:  

Jonathan Macey & Caroline Novogrod, Enforcing Self-Regulatory Organization's Penalties and the Nature of Self-Regulation, 40 Hofstra L. Rev. 963, 963 (2012) (“[f]ew issues are as poorly understood and under-theorized as the concept of ‘industry self-regulation’”); Andrew F. Tuch, The Self-Regulation of Investment Bankers, 83 Geo. Wash. L. Rev. 101, 105 (2014) (explaining that FINRA’s “self-regulation of investment bankers has thus far attracted scant scholarly attention”); Saule T. Omarova, Wall Street As Community of Fate: Toward Financial Industry Self-Regulation, 159 U. Pa. L. Rev. 411, 414-15 (2011) (“what is conspicuously absent from the . . . broader debate among academics and policy-makers, is a meaningful discussion of the role and shape of industry self-regulation in the emerging postcrisis regulatory order”).

Evidence for the claim that little attention has been paid to industry self-regulation comes from other articles about industry self-regulation. While we're all correct about the need for closer attention to industry self-regulation, marshaling evidence that an area needs more attention may—at some point—cast doubt on the claim.  

This is the under-theorization paradox:  as claims that not enough people write about an area accumulate, the likelihood that an area actually needs more academic attention declines. 

Posted by Benjamin P. Edwards on May 15, 2017 at 08:07 PM | Permalink | Comments (11)

Algorithms in Blue

A little later in the month I am going to preview my book, “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” (releasing October 2017).  But, today, I wanted to discuss some new revelations out of Chicago about how predictive policing works in practice.

As some of you may know, certain police departments across America have adopted a “predictive policing” strategy that targets both places of forecast crime as well as the people predicted to be involved in crime.

The Chicago Police Department has been at the forefront of developing a predictive model to identify the individuals most at risk of violence.  The theory – arising from sociological studies – is that proximity to violent acts increases one’s risk of being the victim or perpetrator of violence.  Essentially, if you are a young man involved in Chicago’s gang culture and your friend is killed, you are statistically more likely to be shot yourself or avenge the killing.  Your risk of violence is elevated due to your personal connection to violence and the cyclical nature of violence. 

Police have taken this insight and created a rank-ordered list (scored 10 to 500+) of the high risk offenders in the City.  They call it the “Strategic Subjects List” or colloquially the “heat list” and it includes 1400 names (although recent reports include a higher number).  Prior to last week, there was little information about what factors were included to get on the list or how the risk scores were calculated. 

But, last week, The Chicago Sun Times released a fascinating story on who exactly gets on “the heat list.”  More after the break.

The following quotes are from the news article. 

The paper reported that “risk scores were based on eight factors, including arrests for gun crimes, violent crimes or drugs, the number of times the person had been assaulted or shot, age at the time of the last arrest, gang membership and a formula that rated whether the person was becoming more actively involved in crime.”

The release of the data ran counter to some beliefs that only those who had been arrested for repeat gun offenses made the list.  As reported by the Chicago Sun Times, “Of those with the maximum score, nearly half — 48 percent — had never been arrested for unlawful use of a weapon, the charge typically leveled for crimes involving an illegally owned gun. Another 30 percent had been arrested once.”

That said, “87 percent of those with the top score had been arrested for some kind of violent offense” and “63 percent had been shot before.” 

I have written a bit about the constitutional implications of this predictive scoring system and some of the general dangers of these predictive systems, but this is a great revelation about some of the data behind data-driven policing.  The entire Chicago Sun Times article deserves a read.  For the first time in a while we have a bit of transparency in the world of predictive policing giving actual figures about who makes these lists and why. 

Posted by Andrew Guthrie Ferguson on May 15, 2017 at 12:01 PM | Permalink | Comments (1)

The Half-Sized Law School and the Cost in New Prawfs

Two years ago I asked the question: should we have fewer law schools or fewer students per school?  I think there are normative arguments for either approach: more schools means more geographic diversity but fewer economies of scale.  The legal academy has clearly chosen the "more schools" approach.  As Derek Muller documents in "The Incredible Shrinking Law School,"  law school graduating classes dropped from an average of 206 graduates in 2013 to 161 last year.  These numbers back up the myriad of anecdotal pieces about shrinking class sizes that have, frankly, lost their newsworthiness.  Meanwhile, despite some initial claims that as many as one-third of law schools would close, we've seen almost the other end of the spectrum.  Two schools have merged, one school has shut down, and one other is likely in the process of shutting down.  More may be on the way, but thus far fewer students per school has clearly won out.

One ramification of this approach has been the loss of jobs for new law profs.  As documented in Sarah Lawsky's annual census, the numbers went from annual hiring in the 150s to a low of 70 new hires in 2015.  This, too, is old news.  But I think the connection between the "fewer students" and the "fewer entry-level hires" has not necessarily been made.  Yes -- under either approach, there would be fewer law profs.  But when schools close, law professors of all ages lose their jobs.  When schools shrink, the first jobs to go are the hires that haven't yet happened.

I've blogged before about law school sustainability, and I think legal academia needs to recognize this big drop in hiring as a sustainability problem.  There has been some attention paid to the bubble of hires made in the 1970s and the effect of those hires on law schools now.  But there has been comparatively little attention paid to the folks like me who populate this blog's masthead and were hired between 2000 and 2010.  We too are something of a bubble.  And we are a longer-term problem, if only because we are earlier in our careers.

So, what should be done?  Should there be stronger post-tenure review to push out those "bubble" hires who are taking the place of a new and more productive hire?  That seems extremely unlikely to me.  Similarly, it seems more likely that schools will continue to shrink rather than close.  But there is unquestionably a "decade of hiring" effect within legal academia, and the academy should be thinking of ways to deal with this generational disparity.  Otherwise, we are depriving our students and our field of contributions from the next wave of academic innovators.

UPDATE: Rick Bales made the same point here.

Posted by Matt Bodie on May 15, 2017 at 10:47 AM in Life of Law Schools | Permalink | Comments (4)

Friday, May 12, 2017

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.

Posted by Orly Lobel on May 12, 2017 at 04:42 PM in Books, Employment and Labor Law, Life of Law Schools, Orly Lobel, Workplace Law | Permalink | Comments (0)

Shifting Ground in the Battle for a Fiduciary Standard

The Trump administration has moved aggressively to roll back the Department of Labor's fiduciary rule.  In a move that likely cost investors billions in lost gains, the new administration first delayed the regulation by moving its effective date back sixty days to June 10th.  More administrative delays may come. Press reports indicate that President Trump's freshly confirmed Secretary of Labor Alexander Acosta has "made stopping the measure his top priority."

With federal investor protection measures stalled, states may soon play a larger role.  Nevada has pending legislation designed to impose a fiduciary standard at the state level.  If these efforts succeed, they may increase protections on a state-by-state basis and outcomes for some.  

There is a real need to improve financial advice because far too many get bad advice.  In a local op-ed supporting the Nevada legislation, I explained how bad advice can cost investors:

The worst segments of the financial services industry oppose the bill because their high profits come from convincing savers to buy the wrong shares in the wrong funds. For example, Rydex sells an index fund tracking the S&P 500 with 2.31% annual fees (RYSYX). Vanguard sells a similar fund tracking the S&P 500 with 0.05% annual fees. The lower-cost Vanguard fund will always outperform Rydex because the funds track the same index. These fees add up to significant costs over time.

According to the American Institute for Economic Research, a decade-long investment of $100,000 would have accumulated $204,758 in the Vanguard fund and only $163,619 in the Rydex fund. The high fees create a $41,139 difference over time. Despite this, many stockbrokers recommend Rydex because it kicks a significant percentage of its fees back to the financial adviser. While Rydex provides a glaring example, financial advisers often steer clients toward suboptimal decisions in countless other instances.

Astonishingly, the fund has over $270 million in assets.  This is not the only high-fee index fund in the market.  Most investors do not behave as rationally as financial theory expects. Imagine what a scrupulously  honest financial adviser would have to say when recommending this fund:

I think you should put $100,000 in Class C shares of the Rydex S&P 500 Index Fund.  It's about 46 times as expensive as the Vanguard fund tracking the same index.  If the next ten years go like the last ten years, you'll end up behind the Vanguard fund by over forty grand--that's enough to buy a Corvette.  I still think you should buy it because the Rydex fund uses its fees to pay me for the excellent services I provide you as your financial adviser.  Think about how much you like it when our client-management system cues me to send you birthday and holiday cards!  These fees allow me to build our trusting relationship so I can continue to guide you with wise financial decisions in the future. While I won't get $4,000 a year personally because of the fees that go to Rydex, that is how much you're effectively paying.  So what do you say?  Corvettes are overrated anyway.

Posted by Benjamin P. Edwards on May 12, 2017 at 04:20 PM | Permalink | Comments (1)