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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 (2)

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 | Permalink | Comments (0)

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 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 | 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)

“Smart” Snitches

Do you drive a “smart” car or live in a “smart” home? In addition to receiving the benefits of convenience, efficiency, and quantifiable self-awareness, you also happen to be living with a world-class “snitch” who will tell police whenever you end up on the wrong side of the law.   

Consider the fate of James Bates, a Bentonville, Arkansas man charged with murder.  According to police reports, Bates and three associates spent the night drinking and watching football.  The next morning one of the men was dead, floating in the hot tub.  Was it a tragic accident or a murder?  Signs of a struggle led police to suspect Mr. Bates, but police needed a witness.  It turned out they had one – Bates’ smart home.  Bates, its seems lived in a smart home outfitted with an Amazon Echo, a Nest Thermostat, a Honeywell alarm with door monitoring motion sensors, a wireless weather monitoring system, and WeMo devices for remote access lighting. 

The case has received significant news attention because of the possible implications of the technology – what if Amazon’s Echo had overheard potentially incriminating words, “Alexa, how to do dispose of a dead body?” or “Alexa, how to you remove blood stains?”  In addition, Amazon filed a First Amendment motion in opposition to the government’s subpoena requesting the data, an initial legal response that signaled an aggressive privacy and public relations pushback.  

I have been playing around with the idea in a few law review articles, but really the constitutional – Fourth Amendment questions – are quite open.

We know the Fourth Amendment protects “persons, houses, papers, and effects, against unreasonable searches and seizures” and that the Supreme Court has interpreted this language to protect you if you can demonstrate a “reasonable expectation of privacy.” 

So, do you have an expectation of privacy in your smart car?  You drive that smart car on public streets, knowing that each turn is being monitored by a computer connected to a central command.  You even paid extra for it.  Can you claim privacy?  You gave up the information to a third party – Ford or GM via OnStar or 911 Assist – and the service they provide.  And, you are in public.  Should you have any privacy claim against the government watching you in public? 

We know the Supreme Court has expressed caution that long-term direct police monitoring using a GPS device or searching a smartphone both would require a warrant, but with a lawful and narrowly tailored search warrant there may not be much constitutional protection.   The Supreme Court has held in other contexts – like your bank records and phone records – that by giving a third party access to the information you have also given up any expectation of privacy.  The smart thinking is that this “third party doctrine” would apply to your smart car.        

More broadly, how should the Fourth Amendment protect smart data emanating from our “persons, houses, papers, and effects”?  This is a puzzle that lawyers (and law professors) are only just beginning to address.   Think about the data from your smart heart monitor which could reveal your heartbeat at the time of the alleged arson, or the smart energy monitor that shows you are growing pot.  Can police intercept this information from the smart data sources collecting it?  Does the Fourth Amendment even apply to data that lives outside our smart devices?  If not, is there any legal protection from police collecting all of our unsecured smart communications? 

I wrote about the idea in a new article “The Smart Fourth Amendment” but welcome thoughts and other ideas. 

These questions will continue to arise as the Internet of Things develops, expands, and eventually takes over our world.   Your data will become the clues for next generation police investigation. You will unknowingly become your own snitch.        

Posted by Andrew Guthrie Ferguson on May 12, 2017 at 07:00 AM | Permalink | Comments (1)

Wednesday, May 10, 2017

Trump Judicial Nominees

President Donald J. Trump has announced ten judicial nominees to the federal circuit and district court nominees.  Two quick reactions to these nominations.

(1) While Trump’s campaign and presidency have reflected and leveraged the internal divisions and therefore weaknesses of the Republican Party, his judicial nominations so far have reflected what I blogged about previously: the strength of the judicial nominations part of his party. Neil Gorsuch would have been a front-runner for a Supreme Court nomination in a more traditional Republican Administration.  His first nominees to the lower federal courts are incredibly traditional and/or Establishment-dominated—many Supreme Court clerks and many current or former law professors.  Rather than displacing or challenging his party on judicial nominations, he has approached judicial nominations in the most unsurprising way possible for a contemporary Republican President.

(2) I recently wrote an essay for a symposium in the Wisconsin Law Review about the relatively “cooperative” approach to judicial nominations utilized by the Obama Administration. The Obama Administration’s first nominee to the circuit courts was David Hamilton, a centrist district court judge in Indiana with established ties to both political parties.  Hamilton was not particularly young, not particularly famous, and was the only circuit court nominee announced the day he was announced.  By contrast, many of Trump’s nominees announced this week are very connected in the Republican Party, very young, and very known—and he announced ten nominees in one day.  Republican Senator Tom Cotton has mentioned this week that Senate Republicans are considering abolishing the blue-slip rule.  The difference in behavior between the first few months of the Obama and Trump Administrations on this issue are striking.

Posted by David Fontana on May 10, 2017 at 03:23 PM | Permalink | Comments (13)

Author’s Corner

In my last post, I tried to engage the age-old debate about the professional merits of publishing law review articles over books, and now I want to flag a few upcoming books.  (All I would note written by senior law professors).

As many of you know, this year the AALS Mid-Year Meeting is taking place in Washington D.C. at Washington College of Law at American University (with its new construction, now one of the most beautiful law schools in America).

As part of the events, the AALS Criminal Justice Section has organized a series of “Author meets Reader” forums which showcase a wealth of interesting ideas.  Some of these books you may have heard of as they are driving national conversation about criminal justice policies.  Some have yet to be published.  Some are just really excellent takes on important topics.  I list them here in no particular order, but all are worth checking out. 

I have read David Gray’s book and it is fabulous.  For more on the book, here is a YouTube link.  https://www.youtube.com/watch?v=pHUNRndaYIo

I have also read John Pfaff’s book and James Forman’s book which are both game changers in the national debate over criminal justice.   But, as you can see there is a wealth of good reads available at the AALS Criminal Justice Section Mid-Year Meeting.  Join us.

Posted by Andrew Guthrie Ferguson on May 10, 2017 at 02:00 PM | Permalink | Comments (9)

Comments on the attorney disciplinary hearing on Better Call Saul

Better Call Saul moved to Jimmy's bar disciplinary proceeding this week. Spoilers and discussion after the jump.

It played as a standard courtroom drama (which I generally do not like)--lots of testimony and argument masquerading as questions from the attorney, lots of long speeches and monologues by witnesses discussing irrelevant and inadmissible stuff, an unsworn potential witness in the gallery offering "testimony." In the end, Jimmy induced Chuck into showing that his allergy to electricity is psychosomatic (in part by planting a cell-phone batter in his suit jacket, courtesy of light-fingered Huell, who becomes Saul Goodman's fixer) and that Chuck's efforts against Jimmy are part of a lifetime of fraternal resentment and a desire to end Jimmy's legal career. The episode ended with Chuck sitting on the witness stand, having come undone; we must wait until next week to see what happens to either Jimmy or Chuck at the hands of the Bar.

The charges read at the beginning of the hearing were (they got the Code provisions right): 1) § 16-102(D): Engaging in conduct the lawyer knows to be criminal (breaking into the house); 2) § 16-804(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer (assaulting another lawyer, Chuck, in his home); 3) § 16-304(a): Unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value (the tape recording as evidence in an ongoing legal case).

So several questions and comments.

First, two of the provisions do not seem to apply to this situation. Section 16-304 is titled "Fairness to Opposing Party and Counsel" and sits within a series of provisions under the heading "Advocate." The whole portion of the code speaks to attorneys' obligations and prohibitions when acting as lawyers in any judicial or quasi-judicial proceeding before a tribunal. Section 16-304 is about an attorney's discovery, pre-trial, and trial obligations to the other side in a proceeding; sub-section (a) prohibits an attorney from destroying, altering, or obstructing the opposing party's access to evidence--implicitly, evidenceis in the lawyer's (or her client's) control and that the other side may want or need in the course of formal proceedings.  Jimmy and Chuck were not opposing counsel in any ongoing proceeding before a tribunal and Jimmy did not destroy evidence in his control to keep Chuck, as opposing counsel, from having access to it. And that language does not seem to contemplate one lawyer breaking into another's house to destroy evidence the other side has in its control, especially outside formal adversary and representative contexts.

Similarly, § 16-102 is about the  the attorney-client relationship and the scope of representation, prohibiting criminal conduct within that relationship (as well as counseling or assisting a client in criminal conduct). Again, not this--whatever criminal conduct Jimmy engaged in had nothing to do with his representation of anyone.

That leaves § 16-804, which defines prohibited misconduct in a section on maintaining the integrity of the profession. This is what should be in play here--regulations that govern someone not when acting as a lawyer or in his representative relationship, but as a person with a law degree whose extra-curricular activities reflect badly on the profession.  And this section is broad enough to capture Jimmy's three criminal acts--breaking and entering, assault, and destruction of property. It is only for dramatic purposes (more below) that the show had to go beyond this provision. (Not so different than in Season One, when a legal-research request included pulling every case on every provisions of RICO).

Second, I do not understand why the tape was admissible and played during the hearing. Jimmy was not charged with tampering with the bank documents, which is what he confessed to on the tape. And the whole premise of Chuck's elaborate plan to get Jimmy to break into the house and destroy the tape, rather than using the tape as evidence of misconduct in altering the documents, was that the tape was not admissible.

So why did the tape come in? The theory, it appears, was that it was necessary for the Bar to prove that the tape was evidence of misconduct to prove that Jimmy destroyed or intended to destroy something with potential evidentiary value. If the tape did not contain a confession of wrongdoing, it did not have potential evidentiary value, thus destroying it would not violate § 16-302(a). And that explains why Kim made what amounted to a 403 objection, arguing that the tape's probative value was substantially outweighed by the danger of unfair prejudice--the tape's relevance to show that the thing destroyed had evidentiary value is outweighed by the risk that the committee would use it to conclude that Jimmy committed the uncharged, but arguably more serious, act of altering legal documents.

But (putting aside whether § 16-302(a) reaches this sort of destruction of someone else's evidence outside of relations with opposing counsel) if the tape is not admissible in any proceeding, is it still "potential evidence" that can be destroyed? Can something be "potential" evidence if it is obviously not admissible in any formal proceeding? Is it enough that the respondent "reasonably believes" what he destroyed was potential evidence and that this is why he destroyed it? Does it matter that there is no ongoing proceeding in which the tape could have been submitted (even if it would have been admissible when that proceeding began)?

Third, Chuck's mental state should not matter. It does not change that Jimmy did everything the Bar accused him of doing--he did break into the house, he did destroy personal property (potential evidentiary value or otherwise), and he did assault Chuck. I am not sure why Chuck's mental illness, Chuck's resentment of Jimmy, or the overall state of their relationship matters. If those are Bar-punishable offenses (whether by disbarment or some lesser sanction), they remain so.

The theory must be something like this: If Chuck is mentally ill and/or convinced of Jimmy's wrongdoing, Jimmy was (out of love) telling his ill brother what he wanted to hear in a moment of crisis, rather than confessing to actual misconduct. Chuck was so distraught in his delusion that Jimmy altered the documents that Jimmy admitted doing so only to help Chuck feel better. And if not a confession to actual misconduct but a white lie to ease his brother's troubled mind, the tape is not evidence. But, again, why does it matter that Chuck is mentally ill?  Jimmy could make the "telling him what he wanted to hear" argument even if Chuck was healthy but having a crisis of confidence in his legal abilities or even if his physical condition were real--Jimmy might falsely confess to ease his brother's discomfort, regardless of the cause of that discomfort.

This point seems a victim of plot. To create a narrative of the brothers working elaborate cons on one another, the legal theory in the story also had to be convoluted.

Fourth, Jimmy should still be in trouble. He did break-and-enter and he did commit assault and those do reflect adversely on his fitness. And that does not change because Chuck is mentally ill or vengeful. Both actions could warrant bar discipline, although perhaps not disbarment. Of course, I am not convinced that destroying potential evidence (even if it is admissible) would warrant disbarment, the ultimate sanction that seems reserved for the most extreme and repeated conduct.

Posted by Howard Wasserman on May 10, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (6)

Tuesday, May 09, 2017

The 2017 Texas Regional Legal Scholars Workshop

The following is from Dave Fagundes of University of Houston Law Center, on behalf of that school and Southern Methodist University Law School, on the 2017 Texas Regional Legal Scholars Workshop.

Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at UH Law Center and SMU Law School invite you to join us for the third annual Texas Regional Legal Scholars Workshop, to be held on August 25-26, 2017, at the University of Houston Law Center in Houston, Texas. The Texas Regional Legal Scholars Workshop—which for the first time will also include scholars from law schools in Louisiana, Arkansas, Oklahoma, and New Mexico—provides an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.

The workshop will give participants the chance to meet other early-career scholars in Texas and surrounding states, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but UHLC will pay for meals, including a hosted dinner at a restaurant on Friday night.

Who: Scholars with less than 10 years in a full-time law faculty position (including tenure-track, non-tenure-track, clinical, and legal writing positions) at any law school located in Texas, Louisiana, Arkansas, Oklahoma and New Mexico. Please note due to space limitations, only scholars from schools in those five states are eligible to attend.

When: The workshop will be on Friday August 25th & Saturday August 26th, 2017. The Friday session will run from approximately 1:00 pm – 6:00 pm, and the Saturday session will run from approximately 9:00 am – 5:00 pm. (These times may be adjusted slightly depending upon the number of attendees.) The deadline for registering is Monday, June 1st. Please register online. When registering, please provide a title for your paper and specify the topic from the pull-down menu. If you have a paper to upload, please do so (we understand that participants may not be able to upload a draft at the time of registration). Updated drafts may be posted at the same web address as your paper progresses.

Each attendee is also expected to serve as the primary commenter on at least one paper. We will assign attendees to papers once we have a final list of participants and topics. For this reason, we ask that you submit an entry only if you are confident about being able to attend; late withdrawals may leave other participants without a commenter for their paper.

Where: University of Houston Law Center, 4604 Calhoun Rd., Houston, TX 77204.

Format: The author will present a 5-10 minute synopsis of his or her paper, identifying specific areas for feedback. Then, a primary commenter will speak for around 10 minutes. After that, other attendees may take turns commenting. Each session will last no more than 60 minutes.

Hotel: We have reserved a block of rooms at the UH Hilton, located on the University of Houston campus a short walk from the Law Center. Rooms in the block are available for the nights of August 25 and 26, and cost $119 per night. The block will be available until July 26 or until it fills up, whichever comes first. Please make reservations in the UH Hilton room block online.

Questions: Dave Fagundes (dfagunde@central.uh.edu) or Nathan Cortez (ncortez@smu.edu).

Posted by Howard Wasserman on May 9, 2017 at 08:12 PM in Teaching Law | Permalink | Comments (0)

A new definition of chutzpah?

In The Joys of Yiddish, Leo Rosten offers the classic definition of chutzpah: The man who, having killed his parents, begs the court for mercy on the ground that he is an orphan.

But might we have a new definition: Donald Trump--who spent months insisting that Hillary Clinton's handling of emails constitutes a jailable offense (if not treason), spent part of the election criticizing FBI Director James Comey for coddling Clinton, and was elected president at least somewhat (studies are unclear how much) with the help of Comey's three public announcements about the FBI investigation (two in the final weeks of the campaign)--has fired Comey [ed: purportedly] for his disclosures about the email investigation.

Posted by Howard Wasserman on May 9, 2017 at 06:33 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

National Impact/Expertise via Articles or Books

“Should I write a book?”  That is a question I am asked on regular occasion by junior faculty. 

It is an oddly difficult question to answer and one that I think the Prawfsblawg community might be helpful in debating.

Unquestionably, law review articles are the coin of the realm for most law professors.  Junior faculty members are told to focus on them.  Scholarly potential is judged by them.  Status (if you care about such things) is guided by placement in them. True, outside the legal academy not as many people as you would wish read them, but they are the focus of attention.

Books are secondary. Great books can change career trajectories and influence policy, but their influence is usually outside of the academy.  I don't want to minimize the importance of books because many scholars write both books and articles with equal influencing impact.  But, many times books are seen as an extra bonus, maybe not even counted for tenure review, although certainly not a negative.  Sure, as you get more senior, books can shape or define a career and as larger works they tend to offer more fully developed ideas.  But, as an untenured professor, they are a lot of work with less obvious institutional reward.

At least this is my sense of the conventional wisdom (with usual caveats that it is institution dependent and a host of other qualifiers).  And, it may even be correct in terms of promotion and tenure.  But, if you want to become a recognized expert with national impact (which is sometimes also required for tenure) I am not sure I agree with the traditional advice.  I have been teaching for 7 years (not much, I concede).  I have written 19 articles and 1 book (with the second on the way).  And, over and over it has been my book that has opened doors nationally, defined my “expertise,” and been my calling card.  Even though 14 (or 15 depending on how you count) of my articles have been on technology and criminal justice issues, my book on juries provides a legitimacy that the articles do not.

My sense is that with lawyer groups, judges, journalists, legislatures, and professional organizations, the status of “book author” opens doors more than “professor” or “scholar of well written law review articles.”  Similarly, in today's media culture, a book is a marker of expertise.  Even if you have written 120,000 words in law reviews on a subject, those insights are less visible than a 60,000 word book on the same issue.  Producers call.  Journalists ask.  Invitations arrive in the mail.

To be clear, I am not convinced anyone buys books anymore, or even reads them when they do, but the marker of “author” provides a legitimation that law review articles do not.

This influence may be true more with non-law professor audiences.  And, so for junior faculty members deciding on a book, it may well be preferable to focus on gaining the respect of one's colleagues for traditional scholarship and not on being an expert in any broader way.  Again, individual goals and institutional culture plays a role. 

But, if your goal is to get your ideas out there to the legal world and beyond and make an impact then writing books may open more doors than writing in law reviews.  Or maybe I am completely wrong, which is why Prawfsblawg is such a grand place to engage the debate.  What do you think?

Posted by Andrew Guthrie Ferguson on May 9, 2017 at 03:19 PM | Permalink | Comments (6)

Northwestern Law Review exclusive summer submissions

From July 1-July 21. Details here.

Posted by Howard Wasserman on May 9, 2017 at 11:50 AM in Teaching Law | Permalink | Comments (0)

Monday, May 08, 2017

JOTWELL: Mulligan on Subrin & Main on state procedural rules

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure (Case Western Reserve L. Rev), which argues against "reflective" state emulation of the Federal Rules.

Posted by Howard Wasserman on May 8, 2017 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Entry Level Hiring, The 2017 Report - Not Last Call for Information

The hiring season is not yet over, so I will not be closing the Entry Level Hiring report today. Rather, I will leave it open until the end of May.  As always, please submit information regarding entry-level hiring to me via email or the original post.

Posted by Sarah Lawsky on May 8, 2017 at 10:27 AM in Entry Level Hiring Report | Permalink | Comments (0)

Sunday, May 07, 2017

Opening up broadcast indecency

At the end of the day, the minor controversy over the FCC's "inquiry" into Stephen Colbert's "cock-holster"* joke is going to be a lot like people in the administration talking about "opening up the libel laws"--a lot of noise that will never be put into any legal effect and cannot be taken seriously.

[*] As George Carlin reminded us, "cocksucker" is one of the words you cannot say on television. It is not clear that the word "cock," standing alone, falls in the same category.

The ban on indecent speech on broadcasting is 6 a.m.-10 p.m., so Colbert (at 11:30 p.m.) operated in a zone in which indecent speech is not legally prohibited. Colbert and CBS thus can be punished only if his joke was obscene under Miller. But we are past the point that written words alone can be held legally obscene, given how community values have evolved in understanding what is patently offensive. And that is before we get to the fact that the comment was a joke about the President of the United States, so it has serious political value. Frankly, I doubt this comment would be deemed punishable indecency, even if broadcast outside the safe harbor. If it could not be indecent, no way could it be obscene.

Still, I found this Fortune story by Aric Jenkins both wrong and problematic. The author objects to calling an FCC investigation "censorship," insisting that it is merely following standard operating procedure in logging and reviewing complaints. Plus, the author insists, any "penalty would be monetary — not any form of censorship." Again, I thought we long ago left behind the idea that post-publication punishment is not a form of censorship of speech. And I wonder if Mr. Jenkins would be so sanguine if the federal government established standard operating procedures for reviewing complaints about his articles and imposing a monetary penalty on them--would he insist that this is not censorship.

Posted by Howard Wasserman on May 7, 2017 at 05:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, May 06, 2017

Announcement: Prospective Law Teachers Workshop at SEALS

Each year, SEALS hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Boca Resort in Boca Raton, Florida on Wednesday, August 2 and Thursday, August 3. On Wednesday, there will be mock interviews between 8 and 10 AM with CV review sessions at 1:00. On Thursday, mock job talks will take place from 8 to 10 AM. And at 3:00 on Thursday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will give advice about getting hired in this “new" market. There are also many excellent panels on Tuesday, Wednesday, and Thursday that are targeted to newer law professors, which prospective law professors will also find helpful. See http://sealslawschools.org/submissions/program/programwp.asp.

If you are interested in participating in this year’s workshop, please send your CV to professor Brad Areheart (Tennessee) at brad.areheart@tennessee.edu, who co-chairs the committee along with Leah Grinvald (Suffolk). Applications are due by May 15, 2017. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at a wide variety of schools, including Tulane, South Carolina, UNC, Cal Western, Oklahoma, Boston U, Idaho, Colorado, Louisville, and others.

Posted by Howard Wasserman on May 6, 2017 at 04:35 PM in Teaching Law | Permalink | Comments (5)

Thursday, May 04, 2017

Should we explain bicameralism to President Trump?

And a question asked in all seriousness: When, if ever, has a President held a Rose Garden ceremony, surrounded by his party's house caucus, to celebrate one house approving a piece of legislation?

Update: A different question: What is the procedural equivalent of what Trump and the caucus did here in celebrating something that has no legal effect, but is a necessary step towards a conclusion that will have legal effect? Celebrating the denial of summary judgment or a motion to dismiss? Celebrating an indictment (this one is common in high-profile cases, but an indictment arguably has more legal meaning than passage in one house)? Celebrating (depending on which side you are on) the grant or denial of a motion to suppress evidence?

Posted by Howard Wasserman on May 4, 2017 at 06:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Call for Exclusive Submissions: Penn State Law Review

The following is from Penn State Law Review:

The Penn State Law Review is conducting a direct article review to fill positions in Volume 122: Issue 1 and 2. Any article submitted to this review between now and May 12th will be considered and evaluated by May 17th. If you have submitted an article to the Penn State Law Review previously, you must resubmit your article for consideration in this direct review. 

By submitting your article, you agree to accept an offer for publication, should one be extended. Any articles accepted will be published in Volume 122: Issue 1 or Issue 2 of this review. Issue 1 is currently scheduled for publication in September 2017. 

If you have an article that you would like to submit, please e-mail an attached copy of the article, along with your CV, to SBL5219@psu.edu. Please include “2017 Direct Article Review” in the subject line.

Please feel free to contact me with questions.

Sarah Loy, Editor-in Chief of the Penn State Law Review


Posted by Howard Wasserman on May 4, 2017 at 01:57 PM in Teaching Law | Permalink | Comments (0)

Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But let's suppose, just for sake of argument, that there were state action. How is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.

[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?

2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted by Howard Wasserman on May 4, 2017 at 12:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Let Us Compete

I am excited to share my op-ed in the New York Times which features my ongoing research on talent mobility, including my collaboration with the White House under the Obama administration.  I hope we can bring change - May the Fourth be with Us! One of the arguments I make in the article which I have not developed elsewhere is that while noncompete restrictions impose hardships on every worker, for women these restrictions tend to be compounded with other mobility constraints, including the need to coordinate dual careers, family geographical ties and job market re-entry after family leave. In other words, non-compete restrictions are likely to have a disparate impact on women and to contribute to the gender pay gap. I would of course love to get your thoughts. Here you can read the whole article.

I really like the original illustration by Scott Menchin in both the print and the digital editions. What I don't love is that the Times changed my title from Let Us Compete to Companies Compete but Won't Let Their Workers do the Same in the digital -- because it is questionable whether some companies these days compete enough, as Kenneth Bamberger and I are asking in a new paper called Platform Market Power, about antitrust law, dominance, and competition in the digital era; and in the print edition they gave it the title, Isn't Competition a Worker's Right? - which it should be yes, but my arguments in Talent Wants to be Free and here have always been that noncompetes are also problematic from an innovation policy perspective; it's not just a labor versus management issue.

Posted by Orly Lobel on May 4, 2017 at 11:54 AM | Permalink | Comments (0)

A Kingdom of Sensorveillance

Imagine a world of all seeing technology.  RFID bands track you from point to point.  Cameras surveil you everywhere you go.  Your movements, actions, what you eat, what you wear, who you are with are all monitored in real time and with the purpose to understand and predict your every need.

This dystopian future exists, is expensive, and is called Walt Disney World.  I know, because I became a subject in this totalizing surveillance experiment last month.

It begins with a "magic band" that becomes your virtual wallet, hotel key, identification, and location tracker.  Hold the band up to various sensors and it reveals your whereabouts, interests, and needs.  It continues with fingerprint scanners that all people (including my kids) use to get into the park.  The guy at the front gate swore that Disney did not actually collect fingerprints, but only measured the circumference of the finger (hmmmmm).  It continues with a Smartphone App with precise GPS technology to show you the nearest bathroom or ice cream stand (both the subject of emergencies at different points of the day).  And, it ends with a cloud of photos marking your joy and happiness at every moment along the way.

If a real kingdom wanted to practice panvasive surveillance, the magic kingdom would be a good place to start.  And, as someone who studies the growth of surveillance technologies, the rise of sensor surveillance (sensorveillance), and “the Internet of Things,” it was an eye-opening experience.

Two things stand out just on a personal level:

First, as much as I know my smartphone spies on me, and that my actions are tracked by smart FitBits, convenience cards, and my car’s OnStar device, I still fool myself that because these things are not connected, I am not under total surveillance.  Yet, the ease of use of the magic band was really amazing.  Not having to carry a wallet, identification, or keys was liberating.  Not having to see the price of anything (especially at overpriced food venues) was freeing.  Not worrying about the hassle of entry or exits or even taking your own photos made the whole thing seamless.  And, that of course is the goal – to have one seamless connecting point with the consumer world.  It was so easy that you wanted more of it. 

Second, the socialization of surveillance technologies for children was frightening.  My children did not blink a second before offering up their fingerprints to the friendly Mouse.  Whether or not the company retained the prints, the idea that they had machines set up to collect them (and thus played into society’s need for “security theater”) was striking.  I can only imagine the positive association in my kid’s minds with Disney and surveillance. 

Tomorrow and Tommorrowland are not too far apart.  We are building an infrastructure of self-surveillance capabilities that will allow a seamless consumer company to offer us incredible new conveniences.  We are beginning to embrace the seduction of convenience and pass on that message to our children.   

And, here is where the law professor/civil liberties part of me took over.  I tried to “resist.”  I tried to ask for the privacy policies about retention of fingerprints.  I got no good answers except, it is on the web.  And it is… in good corporate speak about privacy and children’s privacy.  I tried to not give a fingerprint, and the kind man at the gate said “No problem,” and then took my photograph before I could explain about my concerns of being in Disney’s biometric database.  And, I tried to see if I could not use the band, but it didn’t really matter because my kids were certainly not going to give up their specially chosen Disney bands and so the family was being tracked all the same.  So, like a failed resistance fighter I gave in to the all-powerful Kingdom and its iconic animated rulers and just enjoyed my time.  But, someday this fantasyland might not be be so fun and we will only have ourselves to blame. 

Posted by Andrew Guthrie Ferguson on May 4, 2017 at 10:00 AM | Permalink | Comments (2)

Wednesday, May 03, 2017

Infield fly rule is not in effect and it produces a triple play

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first.  It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central District of California Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.

Update: There is a debate in the umpiring community over when an umpire should invoke the Rule. One school says the call should be made when the ball is at its apex, the other says to wait longer until it is clear the infielder could catch the ball with ordinary effort, even waiting until the ball is almost in the glove. Those who urge invoking when the ball is at its apex point to plays such as this one as the justification--waiting longer than that does not leave the baserunners sufficient time to react and run on the non-call.

Posted by Howard Wasserman on May 3, 2017 at 01:57 PM in Howard Wasserman, Sports | Permalink | Comments (12)

Tuesday, May 02, 2017

transparency and Trump

I want to briefly plug my forthcoming book called The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information.  It extends and reshuffles writings I've published on transparency over the past decade or so. Among the problems with book publishing is the long lead time between submitting a manuscript and publication, and the results of the 2016 election requires at least some comment. Thanks to my editors at Stanford UP I was able to include a short epilogue extending the book's thesis and analysis to the election and President Trump.

More recently I published a brief essay in the public administration journal Governance about how Trump's version of populism and transparency's populist impulses collide and separate (and last I checked it wasn't behind a paywall). The easy answer is that Trump's populism excludes or is likely to curtail the basic assumptions of modern open government. This is what advocates maintain, and they're not wrong -- it's very difficult to imagine the current administration maintaining even the Obama administration's commitment to the traditional release of government documents. (Debates about the Obama administration's compliance with open government norms are complicated and highly contested; I discuss them in the book.)

That is by way of introduction to another remarkable document from the Trump Administration, released last week, entitled "President Trump's 100 Days of Accountability." (See also his op-ed in the Washington Post over the weekend.) Transparency has come to occupy a key position in the definition of "accountability," and of course the latter days of the 2016 campaign focused especially closely on (allegedly) lost government emails and the use of a private email server. But the president's notion of accountability speaks not of transparency but of returning power to the "American people." He is accountable by definition because he represents the people who had previously been shut out of government -- those whose interests and voice had been suppressed by and within the federal "swamp."

I'm less interested in the bullshit here than in what Trump's shifting use of accountability says about transparency. His supporters don't seem to mind Trump's efforts to decrease the flow of government information, despite the frequent assistance that Clinton should have been "locked up" at least in part because of her private email server. This shift could mean two things: First, that his supporters don't actually care about transparency. Hypocrisy! Of course, this allegation could be turned against Hillary supporters who were willing to overlook her email server or diminish its importance after they had no doubt shouted from the rooftops about Bush administration secrecy a decade earlier and Trump's secrecy now. Hypocrisy is a right answer, but also a boring one and it might merely be symptomatic of something else.

So, second, Trump is revealing that transparency is itself a component of a populist conception of governance and skepticism about the state; and, except for those advocates who are focused on the issue as a preeminent administrative norm, transparency is not in fact something about which there is a broad political consensus at the margins. In the abstract, we all agree that an open government is better than a closed one. But, if pushed, we jettison abstract administrative norms. Trump's redefinition of accountability as something that doesn't include transparency is acceptable to his supporters because they don't agree that transparency is more important than the positions that Trump symbolizes and those for which he advocates. Which is a key reason why transparency, despite its seeming preeminence, always frustrates its strongest advocates.

Posted by Mark Fenster on May 2, 2017 at 03:26 PM | Permalink | Comments (2)


"Sabbatical."  The word conjures up relaxation, release, and freedom.  Like a magical island that appears only once every seven years, it arrives free of attachments and boundless in possibilities.

But that freedom creates a problem.  There are no real rules, the rest of the world doesn't stop, and all of those grand projects saved up for "later" can't be accomplished in four months (or even seven months including the summer).

I have 17 days left of my first sabbatical and realize I wish I had been given some guidance about how to maximize the experience.  I know there has been some discussion in past years (2012 seems to be the last on Prawfsblawg), but I would have loved to hear the real successes or strategies. 

So Prawfsblawg community, what are the best uses of one's time on a sabbatical? 

  • Should sabbatical beneficiaries do something unusual (write a screenplay or novel)?
  • Should one focus on articles and more law review articles?
  • Should one concentrate on research?
  • Should one focus on class prep or non-writing projects?
  • Should one write that book you always talk about wishing to write?
  • Should one relax (head to a beach or foreign capital) to change one's perspective?
  • What should one not do?

Looking forward to your thoughts (for next time).  Thanks.

Posted by Andrew Guthrie Ferguson on May 2, 2017 at 02:35 PM | Permalink | Comments (6)