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Tuesday, August 15, 2017

Finalizing the U.S./Mexico Water Sharing Agreement

A summary of a tentative agreement on shortage sharing in the Colorado River basin was recently released by the International Boundary and Water Commission (IBWC) - the bilateral international commission that implements the 1944 Rivers Treaty between the U.S. and Mexico. This agreement will be Minute 323 to the 1944 Rivers Treaty, and represents an extension of several of the main provisions of Minute 319, the 2012 agreement that expired this year. Minute 323 will only be finalized if the states of the Colorado River basin can agree on a Drought Contingency Plan (DCP). The DCP negotiations are ongoing. This agreement represents the continued success of the IBWC and emphasizes the importance of hydrodiplomatic relations between the U.S. and Mexico. Lost in much of the (in my opinion, misguided) talk of building walls on the border or abandoning NAFTA is the importance of a close, collaborative relationship between the U.S. and Mexico in jointly managing our rivers to enhance drought resiliency and our ability to adapt to changing climate conditions.

Minute 323 will extend Mexico's agreement to take a reduction of the 1.5 million acre-feet per year (maf/y) it is owed under the Rivers Treaty in times of shortage, declared by the U.S. Department of the Interior (DOI). Such declarations are based on the elevation of the water in Lake Mead. The agreement will also extend Mexico's ability to store a portion of its allocation in Lake Mead, which provides Mexico with needed storage capacity while also helping to avoid shortage declaration by keeping the reservoir's levels above 1,075 feet (the level below which a light shortage would be declared). Thanks to a good snow pack this past winter, the lake level today is 1,080.31, which is comparatively comfortable after several years of drought conditions and record-low reservoir levels. Under the DOI's shortage sharing guidelines, Arizona and Nevada face reductions if a light shortage is declared, and then further reductions in the case of a heavy shortage (below 1,050) and an extreme shortage (1,025). Below 1,000 represents dead pool - there is no guidance on shortage sharing at that stage (it's the Thunderdome). California currently faces no reductions (although that issue is part of the DCP negotiations). Mexico has voluntarily agreed to reductions in Minute 319, and will renew that commitment in Minute 323. Mexico's willingness to share in shortage and store its allocation in Lake Mead are enormously helpful to the overall management of the river. The legal regime governing the Colorado River has a built-in structural deficit. The Colorado River Compact allocates 7.5 maf/y to the Upper Basin states and 7.5 maf/y to the Lower Basin. The 1944 Rivers Treaty allocated 1.5 maf/y to Mexico, and we lose about 1.5 maf/y to evapotranspiration. That's 18 maf/y we assume in the river, and represents the foundation upon which the entire water rights regime in the basin is built. Yet we know from tree ring analysis that the 1,000 year average in the river is closer to 13 maf. We have to build in more adaptive capacity to respond to this structural deficit, and Minute 323 extends that needed flexibility that we secured in Minute 319.

Minute 323 also will include a few new elements not included in Minute 319. One will be the development of the "Bi-National Water Scarcity Contingency Plan" to create a long-term strategy for larger reductions in allocations in cases of extreme shortage. The other is the formation of working groups, including one to explore the joint development of desalination on the Sea of Cortez. I've written on the legal issues raised by that kind of joint development of desalination. It's one of other recent joint international desalination developments, including most notably the Red-Dead Project between Israel and Jordan. These kinds of projects are enormously complex and generally expensive. I am optimistic about the future of desalination, and the technology has made huge leaps in recent years. But we are often too quick to jump to costly augmentation projects without fully evaluating alternatives. All of the jurisdictions of the lower Colorado basin deal with significant water losses, caused in part by infrastructure challenges like unlined ditches or leaking pipes. Water savings from repairing pipes and lining ditches may provide the same quantity of water as desalination but at a lower cost. Other potential augmentation methods should also be considered, including a cooperative approach to upland forest management. The costs and water savings that could be achieved from such measures, or perhaps something even more ambitious like floatovoltaics (solar panels on the surface of ditches and reservoirs to generate energy while reducing evaporation losses) should be compared to costs and water generated from augmentation projects like desalination.

 

 

Posted by Rhett Larson on August 15, 2017 at 07:52 PM | Permalink | Comments (0)

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (12)

Sunday, August 13, 2017

Article Submissions: W&L Journal of Civil Rights and Social Justice

The Washington and Lee Journal of Civil Rights and Social Justice (JCRSJ) is conducting a direct article review for submissions to our Fall 2017 Book, Volume 23, Issue 1. Any article submitted to the journal by Sunday, August 27 at 10:00 p.m. will be reviewed and evaluated before September 4.  If you have submitted an article to JCRSJ previously, please resubmit your article for consideration in this direct review.

By submitting your article, you agree to accept a publication offer, if extended by the journal.  Any articles accepted will be published in Volume 23, Issue 1, scheduled for publication in December 2017.

If you wish to submit an article, please e-mail an attached copy of the article, along with your CV, to JCRSJ@law.wlu.edu.  Please include “2017 Direct Article Review” in the subject line. Thank you so much and we look forward to reviewing a number of articles.

Posted by Howard Wasserman on August 13, 2017 at 01:52 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, August 11, 2017

The Process for Challenging a Presidential Self-Pardon

The ongoing investigations of possible collusion between the Trump campaign and Russia have raised all sorts of interesting and difficult legal questions. I've tried my best to read what lawyers and legal scholars are saying who are engaged with these questions, and I've learned a lot from following their debates. Family and friends sometimes ask me some of these questions. While there are a few on which I can at least offer an informed opinion, for most of these questions there are people much better qualified to answer than me (and I agree with Carissa about humility, civility, and uncertainty in offering these opinions).

I was asked one such question the other day by a friend, so I'm here to ask the same question to the many readers and bloggers of PrawfsBlawg who are better qualified to answer than me. Assume a president committed a federal crime and pardoned himself. Who has standing to challenge that pardon, and how would they go about bringing a claim? I guess a federal prosecutor could just bring charges against the president, and leave it up to the judge to decide the constitutionality of the self-pardon. Even if that's right, it just raises another frequently-asked question nowadays about whether a sitting president can or should be indicted, particularly for something like obstruction of justice. If he can't or won't be indicted, then I'm not sure that there is a process to challenge the self-pardon. I've tried to follow the debates on these kinds of issues on blogs and Twitter, but I don't think I've seen this question discussed (and sorry if it has and I've just missed it).

Posted by Rhett Larson on August 11, 2017 at 10:00 PM | Permalink | Comments (9)

In This Week's News: Some law schools accept the GRE. Conservatives' heads explode.

To a certain breed of conservatives, even the term "diversity" is a red cape in front of a bull.

How else to explain this bizarre headline, and the unfortunate article more generally, to Georgetown Law Center's announcement that it will start accepting the GRE as an alternative to the LSAT.  Northwestern made this announcement just before, joining Arizona and Harvard in the group of law schools (presumably to expand) to consider the GRE as one alternative test to the LSAT in evaluating law school applicants.

From that, we get treated to a polemic about how this move represents the decline of western civilization -- or, at the very least, the decline of law schools' commitment to admitting highly-qualified students. 

We can and should debate the complex question of law school testing and, with it, how best to evaluate the skills, credentials, and experience of students to law schools.  Yet, the argument we made, along with the other law schools who have announced this move, have precious little to do with an end-run around standards and quality.  Nor do any of us presume that applicants-of-color are unable to achieve success either on the LSAT or in law school or in the profession.  Rather, we said, and we mean, that we are looking to expand the pool of interesting, talented candidates, especially from STEM fields, who might view the strictures of the LSAT -- the narrowness of the test, as well as the procedures by which it is administered -- to create a disincentive to considering law school.  Nothing here about lower standards; indeed, nothing here about the quest to, in Professor William Otis' extravagant words, "adjust the student body to reflect the ethnic makeup of the electorate."

So, to Ward Connerly, Prof. Otis at Georgetown, and others, keep moving along folks, there's nothing to see here.

 

Posted by Dan Rodriguez on August 11, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Teaching via treatise

Classes begin at FIU on Monday.*

[*] Although I must confess to wishing we had another two weeks of summer this year. This is unusual for me--I enjoy the semesters more than summers, because I like the rhythm and routine of teaching. But I am in the midst of three projects and believe I could finish all with an extra two weeks before having to balance teaching time. 

I am trying something different in Federal Courts this semester. I am not using a casebook, but instead am working primarily from two treatises (Erwin Chemerinsky's comprehensive Fed Courts treatise and Jim Pfander's Principles treatise), along with the Constitution, statutes, a handful (maybe 10) of recent cases, and some problems. I have been toying with this for a couple years and finally decided to pull the trigger this year. A few thoughts went into this. I sensed that in upper-level classes, many students used the treatises to prep rather than reading the cases.  My class discussion is organized in a treatise format--we do not work through individual cases, but discuss the doctrine at a macro-level whole, so it may be better to have them read and prepare in a similar format. And the author of one of the books convinced me that my spoon-feeding concerns ("the students are not having to figure out the rules of standing for themselves, Chemerinsky and Pfander are telling them the rules") were overstated and that the class discussion can be as rigorous. Plus, as I will remind the students on Monday, they will have more total pages of reading this way, and while it may take less time or require less re-reading, they still must read with care and preparation to engage in the discussion.

If I like how it works, I plan to follow the same format in Civil Rights in the spring, using my treatise (new edition forthcoming).

Posted by Howard Wasserman on August 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Thursday, August 10, 2017

The Case for Law School Part III

This is the third in a three-part series in defense of law school. One more really important reason to go to law school:

3. A Law degree is a tangible skill for people who lack other tangible skills. Now don’t get me wrong, lawyers don’t cure cancer, or fix broken bones or even cars, we don’t build amazing things, and we certainly don’t invent things. So we really lack important tangible skills that make the world run. That is unfortunate. We need people out there building and creating and fixing tangible things. But there are a lot of people who realized (or are realizing) as they go through wood shop and physics or sewing or cooking class that their skills may not be tangible in nature. Or they don’t like the lifestyle that one of the jobs with a tangible skill provides them. So they decide they want a white collar office job. This would put these individuals in the same category of white collar paper/email shufflers as business people, academics, and most office jobs (you name it: HR, advertising, public relations, marketing, sales, etc.)—however I would argue that lawyers are well placed in this cohort as they have a tangible skill. It hasn’t always been this way before law schools existed and state bars limited who could practice law, but the way it is now, you need a law degree and to pass the bar to practice law.

And a law degree (and passing the bar) provides a student with a tangible skill with which to make money and/or help people. Lawyers are often necessary to help with serious family and custody disputes, immigration problems, tax, trusts, estates, criminal matters, personal injury disputes, contracts, business mergers and so on and so on. The skills to practice these areas of law obviously require more training after law school, but the basis starts at law school. And if a student is willing to work hard and go out there and serve the underprivileged, there are PLENTY of jobs out there. Most jurisdictions have lists for lawyers to sign up who are willing to take cases at reduced rates. This is also available at the federal level. Immigration and criminal cases are always more plentiful than lawyers to help process them and represent defendants in court.

 In this past year, lawyers rallied all across the country to help those who were affected by the Trump immigration ban. Many lawyers are still engaged in volunteer efforts towards this cause. And doesn’t that feel great to be able to do more—something tangible—than just complain on facebook, or cry into your pillow, or write your Congressperson to complain about policies you feel are unjust or constitutional? In other words, there is plenty of legal work to go around and plenty of good to do with it if you have the desire. The tangible skill of law can also help you make a great living. You may not be as rich as if you invent something really useful (like this exercise board I saw on Shark tank that made me rethink my entire life) but there will be work for you if you are willing to work hard and a pretty good income relatively.

Having a skill is not something I really thought about when I was graduating college. I had majored in a social science and hoped for a PhD in political science and to teach after. And although that would have been fascinating, it would not have provided me with skills to be able to represent many criminal defendants and some big companies throughout my career. This is not something students may think about when they are considering what to do after their undergrad, so I put it out there for consideration as a huge bonus to a law degree.

There are plenty more than three reasons to go to law school—I’d love to hear others from you all—but these are my most important three.

Posted by Shima Baradaran Baughman on August 10, 2017 at 01:18 PM | Permalink | Comments (9)

Is "The Federal Judiciary" Necessary?

I have just made my way through Richard Posner's latest book (as of the time of posting), The Federal Judiciary: Strengths and Weaknesses. Not without difficulty: The second half of the book was more of a slog than the first, and finishing it was more an act of will than of love. Before making two points about it, I want to offer some context; another bit of context, a confession, follows at the end. So: 1) I reviewed and criticized Posner's last book, Divergent Paths: The Academy and the Judiciary; 2) in the course of discussing William Domnarski's recent biography of Posner (note that I screwed up Domnarski's name in that post; my apologies), I suggested that it is appropriate and relevant to ask whether Posner has declined and whether his recent work and other statements suggest that it may be time for him to retire (I did not answer the question; I just said it was a natural and important question to ask and criticized the apparent reluctance to do so, for him and for Justice Ginsburg too); 3) I recently raised that question again, albeit in the course of praising something he had written this summer; and 4) as I have often noted, Posner has long been my favorite legal writer and thinker. (Not my "hero." I think lawyers and legal academics are better off without heroes and hero-worship. The famous dedication to John Hart Ely's book Democracy and Distrust is moving, captures a common mentality of lawyers and legal academics, and is a mistake.) If I think there are good reasons to ask whether Posner has declined, these are the questions of an admirer, not a hater. I find moving his quotation from Yeats at page 376, beginning, "Grant me an old man's frenzy,/Myself must I remake/Till I am Timon and Lear," although one might recall that on some interpretations Lear begins by displaying pride and narcissism, harms his kingdom by denying his own aging and death, and comes to madness. 

A longtime critic of Posner (and admirer and former clerk of Posner's nemesis, Justice Scalia), Ed Whelan, has a series of posts at The National Review's website detailing and lambasting the book. (The best posts, in my view, are this and this one.) I do not share all of Whelan's perspective or agree with all of his criticisms of Posner or the book, although some seem on-target. But I write here to offer a partial defense of the book and to raise one general, critical question about it. 

First, the book isn't bad! That's faint praise, but seems necessary in light of Whelan's widely shared posts, which might well lead readers to wonder whether to bother with the book at all. (Whelan does acknowledge that there are good bits and pieces here and there, but the point may get lost amid all the disparaging remarks.) With the caveats noted below, I enjoyed a fair amount of the book, especially the first half. As with a number of Posner's books, even when the book as a whole is questionable or seems loosely put together, there are many tidbits within it to enjoy and profit from. There are reasons to read it. 

For example, as I noted in my last post, I just taught the Intro to Law class for entering 1Ls at my law school. I told my students that it is common for law students to seek definite definitions for and applications of frequently used legal phrases ("intermediate scrutiny," "clearly erroneous," and so on), and common for lawyers to argue over those phrases in the manner of those who think some definite meaning can be derived from them, an exercise that easily turns into a kind of scholasticism. I told the students that such phrases rarely if ever have a precise or fixed meaning, and that--their understandable desire for certainty notwithstanding--it would be a mistake for them to begin their legal educations, or careers, under the illusion that most (or any) legal/judicial language of this sort can be reduced to some kind of mathematical formula. Such phrases should be understood as practices, or as placeholders standing in for an activity calling for judgment, and perhaps summing up some kind of underlying concept or policy, but not a definite one. Posner has a lengthy (too lengthy) section (especially 239-76, but really most of chapter 3) discussing various standards of review and other legal phrases. He argues, by picking them apart, that "there are no satisfactory answers to my questions about the meaning of familiar legal phrases commonly invoked by lawyers and judges without any clear idea of their meaning," and that they "exemplify not only concealment and indirection but also sheer superfluity in legal discourse." The discussion would have been better if it had been shorter, and some of the individual criticisms seem too cute. But it's useful and refreshing. Law students, lawyers, and judges would benefit from reading it.      

The real question is not whether the book is bad, but whether it is necessary. To his credit, Posner announces on the second page that the book is what he calls a "macédoine," a "medley or jumble." I would call it a "gallimaufry," a confused medley or jumble. Also to his credit, he acknowledges the "somewhat unconventional" format of the book, which "contains a good deal of quoted material." "A good deal" is an understatement. The book is about 430 pages long. Of that, some 130 pages consist of long block quotes (I tried not to count short ones), reprints of his own writing (including several judicial opinions), and most strikingly long sections of other people's writing, including lengthy judicial opinions from his own and other courts. Some are useful. Many are useful but could have been shortened or summarized. Some are not: Did we really need five and a half pages of a Slate dialogue between Posner and Akhil Amar? A few are embarrassing: The introductory chapter contains a three-page laudatory review of his last book, from the Los Angeles Daily Journal. At times this feels less like a book book and more like a scrapbook or commonplace book. Much of it feels loosely sutured together. As Whelan notes, it is full of digressions and divagations--often true of Posner's books and usually worth the diversions, but in this case ultimately tedious and marked by abrupt transitions. Imprisoned in this fat book is a much thinner one. I would complete Cyril Connolly's quote and say "wildly signalling to be let out," but I don't see much evidence of that. The epilogue feels tacked on and perfunctory. One understands the desire to acknowledge the election of Donald Trump, but it doesn't add much, unless reprinting the four-page open letter to Trump from "Constitutional Law Scholars" can be considered a fruitful addition. It doesn't seem so to me, especially given that it's an open letter and easily accessible.

(A more substantive side note: Religion plays a weird role in the book, getting numerous brief but ominous references. Posner quotes himself saying that "our deepest values (Holmes's 'can't helps') live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification. The point holds even for judicial action. The judge [inevitably] . . . preserves a role for conscience." But he returns again and again to only one "can't help" or "deepest value," religion, often highly speculatively and generally suspiciously if not disparagingly. The closest he comes to a justification for this fixation is a short passage--immediately after arguing with seeming approval that judges are inevitably influenced by their "deepest values" and "conscience[s]," and he notes elsewhere in the book that judges' many priors include religion--offering a cursory and tendentious argument from the Establishment Clause. That's not enough of a hook on which to hang his repeated, abrupt, almost obsessive references to religion. He should have said more about it, or less.)      

I said I especially enjoyed the first half of the book. That's no surprise. I also enjoyed it when I read most of it in his Divergent Paths, Reflections on Judging, How Judges Think, and his two editions of The Federal Courts--not to mention pages and pages elsewhere excoriating the Bluebook. Of course there are some changes and additions, especially from his earlier Federal Courts books. But a good deal of it is a mere reprinting or restatement of recent writings without building on them. The closest to a justification for this extreme repetitiveness that I can find is his statement (at page 393) that his oft-stated skepticism and criticisms are "very largely ignored" and that "[c]riticisms by me that seem irrefutable are seemingly not even noticed, as if I were exhibiting paintings to a blind man or singing to a deaf one." I would urge him to take more comfort than that: I think much more attention has been paid than these quotes suggest. Even if I'm wrong, I don't think it justifies repeating, quoting, or paraphrasing all this yet again and so soon after his last three books on these subjects. One despairing memoir from Lear following his displacement would have been enlightening; four or five would have been tedious, and provided some evidence that it was indeed time for him to exit the stage.

One must note that some books, including some of Posner's previous books, consist largely of reprints of published articles. Maybe that weakens my general point a little, but not much, I think. Some of these kinds of books are indeed superfluous. But in most cases those articles are less likely to be encountered by the general reader, and there is some value in their being collected in book form. The best of them have a unity of purpose that sheds light on the collection as a whole, and make meaningful changes to the articles or add connective tissue that contributes a new element or greater clarity to the work, making it more than the sum of its parts. The books themselves, as books, have some purpose and novelty, even if the material is collected from elsewhere. There's a difference between that and simply repeating what one has already said, at length and as well or better, in previous and recent books.    

In sum, I don't think the book was or is necessary. And to that I would add (with the confessional caveat below) that I doubt in particular that it was necessary for Harvard University Press to publish it. Perhaps that suggests that I place too much faith in university presses, especially elite ones, and am engaging in a form of snobbery or credentialism. I hope not. But I do think that university presses have a valuable niche role to play in publishing, and that elite university presses ought to make the most of that role. Some presses--Oxford and Cambridge come most readily to mind--maintain huge lists. Others, like Harvard or Yale, do not, and should be selective in forming their relatively small booklists. They still have some importance (to me, at least) for their signaling function or imprimatur. The books they publish should deserve that imprimatur and add something to the literature. This one doesn't. (And, as I have suggested, it was not edited as well as one might hope or expect, although Posner thanks the Press for "critical comments on the structure and substance" of the book. I credit that statement, but it might tell us more about the state of the earlier drafts than about the quality of the final product.) A trade press could have published it, perhaps in softcover only. (I haven't read Justice Ginsburg's In My Own Words, which is mostly a collection of speeches and other ephemera along with some co-authored biographical material. Perhaps it is a work of genius. But Simon & Schuster was an adequate, and probably more profitable, home for it; it didn't need and probably didn't merit the imprimatur of a university press.) Or he could have kept working on it until it made a serious and new contribution.  I got some pleasure from the book--occasionally from new things, but mostly from reading what I had basically already read in his other recent books. I'm not panning it, as such. But I doubt strongly that it was necessary. 

* A final confession seems appropriate. I have published one book with Harvard University Press and, more relevantly, have another book in progress with them. For "in progress," read "incredibly late." Some of the reasons it is so late are fair ones: several surgeries and lots of chronic pain. Others are lamentable but understandable: I decided it needed an empirical section, and that is proving more difficult than I thought, something I ought to have weighed more heavily when estimating its date of completion. None are sufficient. I was greatly cheered by this recent article, but I'm not counting on similar forbearance, and I'm terribly embarrassed and frustrated by my lateness. I wrote last year about the effects that both chronic pain and the drugs used to treat it can have on one's productivity as a writer. That is an explanation, not an excuse--others have done more while laboring under greater burdens--but it doesn't fully capture how frustrating and demoralizing it can be to try to get things done when you feel like only half a fully functioning person. Especially given my own ambitions, I would very much like to be writing more and faster right now, as I used to. I can only apologize that I cannot, and try to press on. In any event, it didn't seem fair to criticize Posner's book--which has the comparative advantage to my own of actually existing--and especially to reserve some of that criticism for the Press, for publishing it in this form, without acknowledging the plank in my own eye.    

 

        

Posted by Paul Horwitz on August 10, 2017 at 10:12 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 09, 2017

JOTWELL: Kaminiski on Lobel on disruptive platforms

I am honored to read Margot Kaminski's (OSU) new Jotwell essay Disruptive Platforms which reviews my recent article, Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016). In The Law of the Platform I analyze what I refer to as the third generation of the Internet: online apps that disrupt offline services, most iconically represented by Uber and Airbnb. The article unpacks the economic, regulatory, and social drives for the rise of the platform economy and develops a framework for policy makers to consider the vast range of legal challenges that these new companies currently face. Kaminski describes The Law of the Platform as "rich, complicated, and ... well worth reading for anyone following changes to technology and the law." She does however call me a "platform optimist" and is concerned that I romanticize "a lighter regulatory touch in the area of technological development, even while recognizing the legitimacy of a number of consumer concerns." In particular, she raises questions the downsides of lighter enforcement and the risks of exacerbating power disparities through data collection and private digital governance. Here is a taste of this part:

The last third of the article ventures into more dangerous territory. Lobel has previously done important work on the relationship between public regulation and private (or public-private) governance. She closes The Law of the Platform by returning to this topic. Where traditional regulation fails, Lobel argues, platforms themselves can through private “regulation” ensure consumer trust and a certain degree of consumer protection. Platforms do this by obtaining insurance, by voluntarily running background checks, and through rating and recording systems that track all transactions on a platform. It is this last form of governance that most excites Lobel, and most worries me.

I take Kaminski's warning very seriously and it is an area I'd like to research more. The Law of the Platform lays out the initial framework for analyzing and debating this new wave of digital business models and as Kaminski correctly notes, each one of the areas discussed in the article, including tax, consumer protection, occupational licensing, antitrust, employment and labor law, zoning, and discrimination, poses a myriad of challenges and new questions.

I've begun to respond to some of these challenges in several sister articles to the Law of the Platform. I engage with the questions of employment law, including the classification issue of drivers and other workers on the platform, in a talk I delivered when I was honored to give the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals last year. The lecture is now published as an article named The Gig Economy and the Future of Employment and Labor Law.  In another new article, Platform Market Power, Kenneth Bamberger (Berkeley) and I research the questions of antitrust, market concentration, new entry and the risks of dominance and inequities through data collection (soon on SSRN or email me for a copy). And I continue to analyze whether and how the platform can reduce transaction costs in all three stages of the deal in an essay, Coase & the Platform Economy, forthcoming in the Cambridge University Press Sharing Economy Handbook 2017 (Nestor Davidson, Michele Finck & John Infranca eds.) There is still much more to study and debate and I am very grateful for Kaminski’s excellent review pushing us forward as we grapple with the rise of the platform.

 

 

Posted by Orly Lobel on August 9, 2017 at 07:59 PM | Permalink | Comments (0)

Inter-State Water Disputes in India

Thanks to everyone at PrawfsBlawg for having me back. I am currently working on a project comparing how nations with federal systems govern waters crossing sub-national jurisdictional boundaries, and what lessons international transboundary water law can draw from these domestic approaches.  It's been a particularly interesting summer for inter-state water issues in India.

India's Constitution creates a federal structure that divides legislative powers between the national parliament and 29 state legislatures. Water policy is largely delegated to the state legislatures and institutions, with the exception of inter-state water issues. Under Article 262(1) of India's Constitution, the national parliament may enact laws for the adjudication of inter-state disputes over shared waters. In 1956, Parliament enacted the Inter-State Water Dispute Act. This act allows an individual state to request the formation of a special tribunal to adjudicate a claim that a neighboring state's action, or failure to act, has adversely impacted the complaining state's water supply. Upon such a request, the national government establishes an ad hoc tribunal for that specific case, consisting of a chairman and two members nominated by the chief justice of the Supreme Court.

Just a few days ago, an inter-state water tribunal was convened under the 1956 Inter-State Water Dispute Act to adjudicate claims made over the Mahanadi River, shared between the states of Odisha and Chhattisgarh. Odisha has sought the formation of the ad hoc tribunal based on a claim that Chhattisgarh's construction of dams and weirs on the river has impacted flow on the Mahanadi. There is something to be said for India's approach to resolving inter-state water disputes. India's ad hoc tribunals tend to have comparatively greater expertise in water law and management than they typical district court in India. However, so far these tribunals have struggled with reaching decisions in a timely manner and enforcing judgments. Tribunals deciding inter-state disputes on the Cauvery and Ravi Beas rivers have been convened now for over 25 years without having yet reached a decision.

In its last session this summer, the national Parliament introduced the Inter-State River Water Disputes Bill. This bill proposes of permanent tribunal made of eight members, with each dispute referred to a three-member panel. Unlike the current law, the tribunal will have less than six years to decide each case. The bill could be a major improvement over the current law by retaining the institutional competence of a specialized water court, but expediting its decision-making process. However, the bill does not appear to solve the issue of enforceability.

While inter-state water disputes in the U.S. are fairly common and the adjudication of these disputes fraught with challenges and complexities, lack of enforcement has not typically been a problem. One reason perhaps is that U.S. federal agencies (particularly in the arid west where inter-state disputes are more common) generally finance, build, and operate the large dams and reservoirs on inter-state rivers, and usually have permitting jurisdiction over such dams under Section 404 of the Clean Water Act as well as the Federal Energy Regulatory Commission's permitting of large hydroelectric dams. This provides a mechanism for the federal government to enforce water sharing decisions, legislation, or agreements - as can be seen with the role of the Department of the Interior enforcing shortage sharing in the lower Colorado River basin based on the level of Lake Mead. Perhaps India's 2017 bill on inter-state river disputes should be coupled with a stronger national role in financing, building, permitting, and managing water infrastructure on inter-state rivers to enhance the enforceability of national tribunal judgments in inter-state water disputes.

Posted by Rhett Larson on August 9, 2017 at 01:54 PM | Permalink | Comments (2)

The Case for Law School—Part II

This is the second post in a series exploring why a student might consider law school over no advanced degree or another advanced degree.

2.Writing skills. Like my first example, every lawyer does not acquire amazing writing skills out of law school and there is always a range, but in general law students learn how to write. They learn how to write cohesive arguments that address important counterarguments systematically. They learn how to write quickly and not to waste any words. If you can say something in 10 words, a law student will learn never to say it in 15. The flowery adjectives that are acceptable to add into your essays for your English or Sociology undergrad class will be quickly excised in your first semester law school memo.

If a student loves writing and wants to improve at it, they are a great candidate for law school. I remember saying to an undergrad professor that I wasn’t sure I should go to law school because I hated arguing. They responded, “do you like writing”? Because you will do a lot more of that in law school than arguing. I couldn’t agree more with this observation. And this is the same in practice. Lawyers in practice write often and often effectively. My colleagues at Kirkland & Ellis used to joke that we were the best email writers around (which is basically most of what we did early on in our legal careers in litigation)—write really good emails. (I would argue that many white collar office jobs are just people paid way too much to write really nice emails all day, but that is clearly an aside) But obviously writing a quick—to the point—email that effectively communicates your argument is important. Effective writing will help a person in any field they decide to work in. It is a life skill for an individual, even if they decide not to practice law. I have heard from friends who studied business regret that they didn’t also get a law degree for the writing skills they would have gained.

Rather than hiring a lawyer to write a “lawyerly” letter to your landlord, or to a subcontractor working on your house, or to your Senator to help you with a small immigration issue—you can do all of that yourself. It is an empowering skill, which you can really only learn through law school. (Since I’m writing to a large audience of lawyers, I will say, of course there are exceptions and a lot of people without a law degree have these skills but the best way to gain them for someone who doesn’t have great writing skills is law school). Many of the most talented journalists today have gone to law school (Linda Greenhouse, Bob Woodward, Adam Liptak, Dalia Litwick just to name a few current examples). Some very popular political commentators on both sides (I don’t want to name these because you will all mock me but there are many very popular ones that you might be surprised by—including Geraldo Rivera and Megyn Kelly). Some of the most effective presidents and world leaders (Thomas Jefferson, Abraham Lincoln, Woodrow Wilson, Franklin D. Roosevelt, Gandhi, Nelson Mandela, Fidel Castro and so on). This is not by accident and at least a part of many of these leaders’ successes I would say is excellent writing.

More reasons to study law in my next post…

Posted by Shima Baradaran Baughman on August 9, 2017 at 11:58 AM | Permalink | Comments (12)

Tuesday, August 08, 2017

The Case for Law School Part I

 

We are all very familiar with the arguments made against going to law school in recent years. A couple examples here and here and here. There have been some real fears and other exaggerated ones about the lack of jobs and debt burden. A part of me believes that there is a small contingent at the N.Y. Times who had a parent that pushed law school and a rebellious adult who now hates all lawyers because there has been an extraordinary amount of negative press there. Here are just a few of the many titles: the law school debt crisis, an expensive law degree and nowhere to use it, the debt burden of law school graduates. I understand this potential motivation to a certain extent, as I was “too lazy” to go to medical school (according to my parents) and became a lawyer.

So with all of this bad press, law admissions have been down. But should they be? Why should students go to law school? I will put forward a few arguments.

At the outset my defensive argument (which has been the frontline from the law field) but I think the weakest and least important one: The economy has not been strong for new job growth, but law jobs are struggling just the same as other jobs. The job growth for law jobs is on track with other professions according to most recent numbers of the Bureau of Labor Statistics and lawyers make a median salary of $118,000 a year. Not bad. According to NALP, Employment numbers for the class of 2015 were over 87% employment. Also pretty respectable. But even if employment numbers are not as strong as they could be (sometimes they have been at 90% or more), should you decide not to go to law school because at the time you graduate college the job numbers aren’t great for all students? Maybe you are an above average student or really have skills that will make you a good lawyer. Or should you not study law just because you might not want to practice law?

Obviously a degree in law is not for everyone. I’ve seen several students lately who I believe have made the mistake of choosing to do a master’s degree or no advanced degree because of some of the negative press against law schools.

So instead of going on the defensive and arguing job numbers or about struggling law schools, I want to provide some insight into why a law degree is an important one.

  1. Law school teaches you how to see both sides of an argument better than any other degree. Law school teaches you how to determine a reputable source from a bad one, a good argument from a weak one, and to see through logical fallacies. Often lawyers are criticized for becoming dispassionate because of this great skill. Students that come into law school feeling indignantly opposed to abortion rights will be forced to confront the legitimate arguments on the other side and have to rethink their views. This is an invaluable lifelong skill. There is no other education that will teach you this kind of analytical thinking. And the byproduct of this is that it makes it hard for lawyers to argue with nonlawyers (ask your snarky lawyer friends but it is true). It is important now—more than ever—to have people able to see the holes in arguments and to be able to understand both sides of an issue. It is important for people to be able to decipher real from fake news and be able to see the logical problems in arguments.

I will share other thoughts in my next post…

 

Posted by Shima Baradaran Baughman on August 8, 2017 at 07:20 PM | Permalink | Comments (4)

The Geography of Campaign Finance Law

I have just posted my article on the geography of campaign finance law, forthcoming in the Southern California Law Review. The argument in the Article is that a few metropolitan areas dominate contributions to congressional campaigns, and this poses constitutional problems. A few metropolitan areas exercise an outsized influence in shaping candidates for office, the staff for these candidates, the issues these candidates run on, and how these candidates once elected govern. If Congress is to reflect the principle of geographical self-government it was designed to reflect, this poses constitutional problems.

There is currently a case before the Ninth Circuit that raises some of these issues. Alaska has a law that limits out-of-state contributions to candidates for state office. Working with the very talented Ron Fein at Free Speech for People, we have filed an amicus brief in this case expanding on the issues raised in my article.

I will have several posts on these issues in the next few weeks. For now, here is the abstract of the paper:

Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states — places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.

Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.

 

Posted by David Fontana on August 8, 2017 at 09:32 AM | Permalink | Comments (3)

SEALS faculty recruitment

SEALS is considering whether to establish a faculty recruitment conference for member and affiliated schools.* Details--whether it should be for laterals, entry-levels, or both; whether it should be in conjunction with the August annual meeting--are yet to be hashed out. The organization will appoint a committee to study the question.

[*] Motto: "Every school is southeast of somewhere."

Faculty at member and affiliated schools who are interested in serving on the committee can contact Russ Weaver at Louisville. If you have thoughts on the idea and how to implement it, leave them in the comments.

Posted by Howard Wasserman on August 8, 2017 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (4)

Sunday, August 06, 2017

Commercial Photography in Public Parks--Is Police Presence Required?

Is a municipal ordinance requiring all businesses, including commercial photographers, to get a permit to use a public park a prior restraint subject to strict scrutiny? No, said the Eighth Circuit in Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 2017 WL 3159678 (8th Cir. 2017). There, the court upheld the ordinance as a content-neutral time, place, and manner regulation subject only to intermediate scrutiny. In doing so, it applied the “narrowly tailored” prong of that constitutional standard very leniently, based on a Missouri municipality’s assessment that police presence should attend all commercial activity in public parks. This conclusion strikes me as dubious, and it also strikes me that the court's application of intermediate scrutiny looks a lot more like rational basis scrutiny than it ought. Here's a summary so you can judge for yourself.

The case involved a commercial photographer who brought facial and as applied challenges against a municipal ordinance requiring those wishing to engage in any commercial activity in a public park to seek a permit before doing so. The waiting period for a permit was two days for small-group events and fourteen days for larger-group events. The photographer asked for injunctive and declaratory relief, contending that the permit scheme created by the ordinance was a prior restraint subject to strict scrutiny. Both a federal district court and the Eighth Circuit court of appeals disagreed.

The Eighth Circuit first rejected the argument that a facial challenge was appropriate, because the challenger had failed to show how it would “significantly compromise recognized First Amendment protections of parties not before the [c]ourt.” The challenger’s arguments  centered only on “her own commercial photography” and failed to show how the ordinance would affect any other speech or speakers protected by the First Amendment. Presumably, her arguments would apply to all other commercial photographers wishing to use the park, but the court did not find this argument sufficient to create standing for a facial challenge. Therefore, the court instead addressed only whether the ordinance was unconstitutional as applied to her.

The first step in this analysis was determining whether the ordinance was content-based or content-neutral. The court determined it was the latter based on its text and purpose. The text of the ordinance did “not reference any specific commercial enterprise or any specific message,” and it applied equally “to commercial photographers and to hot dog vendors.” Nor was there any evidence that the ordinance had a “content-based purpose,” since the ban on commercial activity had a long history and was for the purpose of reducing park congestion and maintaining visitor safety. Finally, even though the ordinance discriminated between commercial and non-commercial photographers, there was no evidence that commercial photographers were disfavored speakers; the court therefore concluded that any burden on the speech of the challenger as a commercial photographer was purely incidental to regulation of commercial activity within the park.

Because the ordinance was content-neutral, the court treated the permit scheme it created as a time, place, and manner restriction on speech; therefore, the proper standard for judging the ordinance’s constitutionality was whether it was “narrowly tailored to serve a significant governmental interest” and “[left] open ample alternatives for communication.” The photographer challenging the ordinance conceded that reducing park congestion and maintaining safety were significant governmental interests, but made four separate arguments that it was not narrowly tailored. First, the challenger contended that the ordinance was not narrowly tailored because the Village had not created a permit exception for commercial photography of small groups. The court held that the lack of a small-group exception did not invalidate the ordinance given the record evidence of “high demand, [a] history of congestion, and the limited facilities of the park.” The court also rejected the challenger's second argument that the ordinance should have focused only on known “congestion points” frequented by commercial photographers. This argument, according to the court, ignored that other commercial vendors might cause congestion at other points, making it rational for the Village to “globally promote maximum use of park resources and protect against damage to all park facilities.”

The third argument rejected by the court was that the ordinance’s “two-day application period (for events of fewer than ten people) and the 14-day period (for larger groups) [we]re not narrowly tailored because they serve[d] to chill artistic expression.” The court noted that commercial photography is typically planned in advance, giving photographers plenty of time to obtain the required permits, and the permit period were chosen to give the Village the time needed to process and, if necessary, review permit applications.  Finally, the court rejected the argument that the ordinance was not narrowly tailored because the $100 administrative fee charged by the Village was too high. According to the court, the Village hired police officer to watch over commercial activities in the park, and the court therefore found a “direct correlation” between the fee and the costs incurred by the Village. The court assumed, without further analysis, that the Village had made a rational decision to provide police to watch over hot dog vendors and commercial photographers and concluded that the $100 fee, which very well might be cost prohibitive for some commercial photographers, to be narrowly tailored to making the park secure. The court emphasized that because only intermediate scrutiny applied, narrow tailoring did not require that the Village choose the least restrictive means but instead required only that “the means chosen are not substantially broader than necessary to achieve the government's interest.” This standard was met.

 The court also found that the photographer had ample alternatives because “the natural attributes of the part exist[ed] in multiple locations across the Saint Louis area.” The photographer was not entitled to her “ideal venue” but merely to “ample alternative channels for communicating her message.” Apparently, any natural setting in the Saint Louis area would do.

Finally, the Court addressed the criteria imposed by the ordinance for issuing a permit (or license). Although the challenger argued that the ordinance’s vague criteria gave the Village unbridled discretion to deny permits, the Court held that the scheme imposed “objective factors” and “articulated standards,” such as “the nature of the activity, potential conflicts with other scheduled events, the number of participants, and other factors relevant to resource allocation.” None of the criteria for issuing a permit were content-based, and the ordinance’s plain language essentially guaranteed approval for small-group events and conditioned approval for larger events only on content-neutral factors related to “park use and safety.” Therefore, the Court held that the ordinance met “constitutional scrutiny as-applied [stet]” to the commercial photographer.

 

Posted by Lyrissa Lidsky on August 6, 2017 at 03:31 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (2)

Saturday, August 05, 2017

What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper

The academic year begins absurdly early in Alabama, at public schools and universities alike, and I have already begun teaching. The 1L class began its work on Thursday with a short, intensive course called "Introduction to the Study of Law." I believe this is the second year we have taught it for every 1L student, and I have taught it both years. Our dean, Mark Brandon, taught most recently at Vanderbilt, and so it's perhaps unsurprising that Vanderbilt offers such a course and that we use a text written by two Vanderbilt law professors, Tracey George and Suzanna Sherry. The class mostly does what one would expect of such a course. It gives students some basics on what to expect from the law school experience, how to read and brief cases, some of the basic knowledge and vocabulary they will need to know to do their work, tips for success, and so on. The goal is to eliminate unnecessary fear and ignorance prior to the beginning of substantive law school classes. (Although I tell them, half-jokingly, that if there were no fear at all, they would miss out on joining the long law school tradition, and would lack stories to tell each other and their progeny in years to come.) We read a couple of cases, of course, and--also of course--spend some time with the classic "no vehicles in the park" hypothetical. Is the course necessary? I don't know. I enjoy any opportunity to meet and teach 1Ls, so I'm not complaining; and I think they get something out of it. It is certainly not a demanding course. No doubt many schools now do something like this, either for every student or, sometimes and problematically, for a smaller group of entering law students. 

There are a couple of things I do in this class that I thought I would share. One is obvious, if no doubt not always done: I make sure that the students, in the short time they have with me, read at least one or two full cases. The Sherry and George book offers excerpts from the fun recent Supreme Court decision in Yates v. United States, which asked whether fish are a "tangible object" for purposes of a federal criminal law barring the destruction of material to prevent its seizure by the government. Their excerpt is fine but shorter than even the average casebook excerpt. I require the students to read the full version, including the concurring and dissenting opinions, which altogether is 43 pages not counting the syllabus (which I do not reprint in my handout). Students are not required often enough in law school to read full opinions rather than excerpted versions. They thus aren't forced often enough to do the work of figuring out what the opinion means, separating the substance from the filler, and learning how to use separate opinions to make sense of and critique the majority (or plurality, in this case) opinion, and vice versa. Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often unimportant, so I want these students to read a full case at least once in law school. (Yes, they do so in their legal writing and research classes--further evidence that LRW is the most important class in law school. And I hope they all do so in the course of writing papers during law school. But more of this is better, and it's rare in substantive courses.) Yates is a statutory case and a Supreme Court case, so it's not fully illustrative of what they usually read in their 1L year, although it's pretty fun and readable. I also have them read a much shorter but still full version of a standard common-law case, and write a brief of that case. Although I don't think my own chosen common-law case qualifies, having students read a case or two is one area in which those professors or law schools that are so minded can bring in some of the underlying bigger issues that are present but not always discussed in law school--race, inequality, etc. (Some of these issues are discussed in my Intro class.) 

There are three other things I talk about: jobs; whether to attend law school at all; and writing. More on that below.

First, I talk extensively about jobs. No doubt this will please the many students, graduates, and professors who worry about this issue and think law schools fail if they're not candid and detailed in talking about difficulties getting jobs, the state of the legal economy, and so on. And it is equally likely that the talk may dispirit some of my new students, who are coming in full of hope and perhaps high expectations engendered by all the usual blandishments and encouragements that they receive when deciding whether and which law school to attend. I consider it a duty, in any event--and especially a duty to do it early, when they can still reconsider their decision to attend law school, without as much expense or disruption as withdrawing later would involve. I do mention those writers who have argued that the legal economy is improving, that law school graduates still enjoy a lifetime earnings benefit, and so on; I also mention those who argue that the legal economy is undergoing fundamental restructuring and that there will be many fewer jobs, or worse jobs, for today's law students and lawyers. But the general discussion is short; much of the talk is about jobs for Alabama students in particular, and advice for their job hunt.

Alabama is a highly ranked law school and, I naturally think, a durn good one. If rankings were all, it would be a ticket to national employment as well as work in Alabama. Our ranking, among other factors (including our relatively low tuition and extensive clinical offerings; many also say they are impressed by the friendliness of everyone they meet when they visit, and the interest in those prospective students, as compared to their visits to other law schools, which seem less friendly and happy or more indifferent to them), draws students from out of state as well as Alabamans. But rankings are not all, especially when combined with two things: the national prejudice elicited by the very mention of the word "Alabama," and the tendency within Alabama to be parochial. So we face a kind of double-bind in employment. Students who come from out of state to Alabama for law school and want to live and work here sometimes find that Alabama law firms worry that they will leave after a couple of years, and that their investment in training them will be lost. They are, in short, suspicious of out-of-staters, and place a heavy burden of proof on these students that they will remain in the state for the long haul. Conversely, despite its ranking, the value of the Alabama law degree does not "travel" out of state to a degree commensurate with our ranking. So those students, whether out-of-staters or Alabamans, who want to work elsewhere (other than a few places in the Southeast like Atlanta or Nashville) find that it's more difficult than they thought to get jobs there. (I will add that when I meet with prospective students the year before they attend law school, I ask where they want to work and what schools they have gotten into. Where appropriate, if they want to work in place X and have an offer from a decent law school in place X, I often advise them to think seriously about going there, even if it's more expensive than Alabama. I offer half-hearted apologies to the hard-working folks in our admissions and recruitment department.) 

I don't want to overstate any of this, especially if any of my colleagues are (still) reading this. Most of our graduates succeed in getting jobs, and I hope most of them get the jobs they want. Moreover, everyone from the dean on down is working hard on this issue, and making progress. As at most schools, however, getting a job isn't automatic, and it's better that our students be warned about our particular conundrum, even if it makes them nervous or unhappy at the beginning of law school. 

I don't have perfect advice. If I were talking to Alabama law firms themselves, I would tell them, I hope gently, that their parochialism is silly. And it is tied, no doubt, to a general parochialism in Alabama, and especially a tendency to rely heavily and foolishly on those who already know each other--from school, from social networks in Birmingham or Mobile, from excrescences such as the "Machine," etc. It is not different in kind from networks of those who know each other from Choate or Stuyvesant or Harvard or other webs of the northeastern professional-managerial class. But it is worse in degree, incestuous, secretive, often has a racial- and class-discriminatory impact, and is one among many reasons that our state too often fails to update itself and too often prefers mediocrity to greatness. That's a broad statement and an accurate one, but not of course a universal one. Those employers think there are many reasons to live in places like Birmingham and Mobile, and they're right; they should have a little more faith. They should also place greater weight on the fact that these students have already chosen to come to school here. Finally, they're missing out on excellent opportunities for the sake of ostensibly sure bets. Some out-of-staters will leave, but others will stay. In any event, some will be worth the investment even if they eventually leave. In the meantime, the web of alumni and connections built thereby will benefit them in the long run, as will the infusion of new blood, energy, and ways of thinking and doing business at those firms and in the state legal community, as opposed to stagnating and incestuous circles of the already-acquainted, and the occasional high-profile scandals and routine low-profile conflicts of interest they engender. I think many lawyers at many big firms in the state know this and are responding, and I think our dean, who is an Alabama alumnus, is an extraordinary ambassador and advocate for our students. But change comes slowly in our state. 

To the students, I say this. For out-of-staters who want to work in Alabama, I tell them to start preparing a plausible (and hopefully mostly sincere) story about why they want to stay and work in Alabama for a long time. (I do not tell them never to leave. The long-term shape of their careers and their decisions is their own business.) And I tell them to start immediately getting to know as many Alabama lawyers as they can, including the usual offer to buy coffee and listen admiringly to the Great Man or Woman talk about his or her practice, with the emphatic assurance that they will not ask for a job. Lawyers like to talk about themselves and, on the whole, like talking to students who profess to want to do exactly what they do. They are more willing to do so if there is no pleading for a job attached. They may remember that student, and they may introduce him or her to other lawyers who will also remember his or her name. It's slow work and there will be more noes than yeses, but it can result in a job in the long term. Similarly, for Alabamans or out-of-staters studying at Alabama but who want to work elsewhere, I encourage them to start trying to meet as many lawyers in the place and area of practice they are interested in as possible. That may include using trips or vacations to those places, and trying in advance to set up as many informal informational interviews as they can manage. They should certainly contact Alabama alumni in those places, and although younger alumni will have less power, they may understand the conundrum better and be more willing to give advice. 

Most important, and perhaps most in tension with what they are told officially, I tell my new students that they should treat the job hunt as an immediate priority, not something that should wait until after midterms, Thanksgiving, or first-semester exams. Yes, they should focus hard on their studies. But it is never too early to start worrying about jobs. I advise them (and upper-year students as well) to act as if they are enrolled each semester in a class called "Job Hunting," and--as with their other classes--to schedule a certain amount of time to it each week rather than only at the end of the semester or other specific times. They should move the ball forward a little each week rather than trust that everything will work out if they apply through the conventional channels at the conventional times and/or rely on the on-campus interview process. They should do so for all six semesters of law school, including the first. I can't promise magic results. (Again I emphasize that most of our graduates succeed in getting jobs.) But I can promise a little less tension, less surprise and sudden disappointment, and more agency.

Second, I talk about the decision to attend law school itself. The modern cliche is that prospective law students should be told that unless they really want to actually practice law, with the expectation of a living but not great wealth or security, they should probably not attend law school. Take comfort: When I asked for a show of hands, the vast majority of the class reported that they had been given this advice before deciding to come to law school. (I offer the same advice to prospective and admitted law students.) We talk about why they decided to come anyway, what their expectations are, and what concerns they have. Some students talk about unhappy lawyers they know, and why they're unhappy.

This talk is less necessary than it was around 2009-12, when students came in with a great gulf between expectation and reality and less information about law school and the legal economy. Most of my students now are pretty informed about these issues, and have made conscious decisions about whether and why to attend. (They may be over-optimistic decisions, to be sure; but they are much more informed and deliberate decisions.) My point is not to scare them away. They're adults, for one thing; and for another, I loved law school and (mostly) my brief practice of law, and many of these students are far more determined, informed, and excited about the nuts-and-bolts practice of law than those of us who attended law school a couple of decades ago, when "I have a BA in English" or "I like debating" was still a frequent explanation for one's decision to attend. But it's better that they talk and think again about these questions now--when, among other things, it's easier to withdraw if they so choose--than later. We talk about these things too when I teach the legal ethics course, but by then they're already second- or third-year law students. 

Finally and more conventionally, I talk a lot about writing. My general advice is that LRW is the most important course in law school, that a vast amount of legal practice in any field involves writing, that the ability to translate and explain clearly to clients and others is a major part of their jobs, and that if they can internalize the form of a good legal memo, they can apply that skill more easily and successfully on law school exams. I continue to think this advice is better and cheaper than trying to learn and game the preferences of each individual professor. This year, I handed out something I came across in my summer reading: the English historian Hugh Trevor-Roper's writing advice for those writing academic theses. Although it's written for a different audience, it's mostly excellent advice for any writer, including any legal writer. A PDF version is available here, but I reprint them below, from this source. It can also be found in this collection of letters from Trevor-Roper, which is a delightful read.

* * *  

THE TEN COMMANDMENTS OF WRITING

1 Thou shalt know thine own argument and cleave fast to it, and shall not digress nor deviate from it without the knowledge and consent of the reader, whom at all times thou shalt lead at a pace which he can follow and by a route which is clear to him as he goeth.



  1. Thou shalt respect the autonomy of the paragraph, as commended by the authority and example of the historian Edward Gibbon; for it is the essential unit in the chain of argument. Therefore thou shalt keep it pure and self-contained, each paragraph having  within it a single central point to which all other observations in it shall be exactly subordinated by the proper use of the particles and inflexions given to us for this purpose.

 

  1. Thou shalt aim always at clarity of exposition, to which all other literary aims shall be subordinated, remembering the rule “clarté prime, longeur secondaire.”* To this end thou shalt strive that no sentence be syntactically capable of any unintended meaning. To this end also thou shalt not fear to repeat thyself, if clarity require it, nor to state facts which thou thinkest as well known to others as to thyself; for it is better to remind the learned than to leave the unlearned in perplexity.

 

  1. Thou shalt keep the structure of thy sentences clear, preferring short sentences to long and simple structures to complex, lest the reader lose his way in a labyrinth of subordinate clauses; and in particular, thou shalt not enclose one relative clause in another,  for this both betrays crudity of expression and is a fertile source of ambiguity.

 

  1. Thou shalt preserve the unities of time and place,**placing thyself, in imagination, in one time and one place, and distinguishing all others to which thou mayest refer by a proper use of tenses and other forms of speech devised for this purpose; for unless we exploit the distinction between past and pluperfect tenses, and between imperfect and future conditional, we cannot attain perfect limpidity of style and argument.

 

  1. Thou shalt not despise the subjunctive mood, a useful, subtle and graceful mood, blessed by Erasmus and venerated by George Moore, though cursed and anathematized by the Holy Inquisition, politicians and some of the media, and others who prefer to diminish language.***

 

  1. Thou shalt always proceed in an orderly fashion, according to the rules of right reason: as, from the general to the particular when a generality is to be illustrated, but from the particular to the general when a generality is to be proved.

 

  1. Thou shalt see what thou writest, and therefore shall not mix thy metaphors. For a mixed metaphor is proof that the image therein contained has not been seen worth the inner eye, and therefore such a metaphor is not a true metaphor, created out of the active eye of imagination, but from stale jargon idly drawn up from the stagnant sump of commonplace.

 

  1. Thou shalt also hear what thou writest, with thine inner ear, so that no outer ear may be offended by jarring syllables or unmelodious rhythm; remembering herein with piety, though not striving to imitate, the rotundities of Sir Thomas Browne, and the clausulae of Cicero.

 

  1. Thou shalt carefully expunge from thy writing all consciously written purple passages, lest they rise up to shame thee in thine old age.

                                                                                AMEN

* Some versions ascribe this to "the prophet Black."

** Another version adds "as commended by the High Priest Nicholas Boileau, (1636-1711)"

*** Another version has it ‘the Holy Inquisition, Pravda, and the late Lord Beaverbrook.’

       

 

               

   

 

 

Posted by Paul Horwitz on August 5, 2017 at 11:35 AM in Paul Horwitz | Permalink | Comments (6)

Friday, August 04, 2017

Law Review Submission Angsting Thread: Fall 2017

It looks to be about that time of year again.  Post here for comments about your law review submission experiences.  I'm wondering if the Northwestern exclusive review, with its decisions made by July 28, has moved up the process a bit.

Posted by Matt Bodie on August 4, 2017 at 08:32 AM in Law Review Review | Permalink | Comments (246)

Wednesday, August 02, 2017

CFP: Petrie-Flom Center: BEYOND DISADVANTAGE: DISABILITY, LAW, AND BIOETHICS

Beyond Disadvantage: Disability, Law, and Bioethics
JUNE 1, 2018

“Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”

                                        Justice William J. Brennan, Jr., School Bd. of Nassau, Fl. v. Arline, 480 U.S. 273 (1973).

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2018 annual conference, entitled: “Beyond Disadvantage: Disability, Law, and Bioethics.” This year’s conference is organized in collaboration with the Harvard Law School Project on Disability.

Conference Description

Historically and across societies people with disabilities have been stigmatized and excluded from social opportunities on a variety of culturally specific grounds. These justifications include assertions that people with disabilities are biologically defective, less than capable, costly, suffering, or fundamentally inappropriate for social inclusion. Rethinking the idea of disability so as to detach being disabled from inescapable disadvantage has been considered a key to twenty-first century reconstruction of how disablement is best understood.
Such ‘destigmatizing’ has prompted hot contestation about disability. Bioethicists in the ‘destigmatizing’ camp have lined up to present non-normative accounts, ranging from modest to audacious, that characterize disablement as “mere difference” or in other neutral terms. The arguments for their approach range from applications of standards for epistemic justice to insights provided by evolutionary biology. Conversely, other bioethicists vehemently reject such non-normative or “mere difference” accounts, arguing instead for a “bad difference” stance. “Bad difference” proponents contend that our strongest intuitions make us weigh disability negatively. Furthermore, they warn, destigmatizing disability could be dangerous because social support for medical programs that prevent or cure disability is predicated on disability’s being a condition that it is rational to avoid. Construing disability as normatively neutral thus could undermine the premises for resource support, access priorities, and cultural mores on which the practice of medicine depends.
The “mere difference” vs. “bad difference” debate can have serious implications for legal and policy treatment of disability, and shape strategies for allocating and accessing health care. For example, the framing of disability impacts the implementation of the Americans with Disabilities Act, Section 1557 of the Affordable Care Act, and other legal tools designed to address discrimination. The characterization of disability also has health care allocation and accessibility ramifications, such as the treatment of preexisting condition preclusions in health insurance. The aim of the conference is to construct a twenty-first century conception of disablement that resolves the tension about whether being disabled is merely neutral or must be bad, examines and articulates the clinical, philosophical, and practical implications of that determination, and attempts to integrate these conclusions into medical and legal practices.

Call for Abstracts

We seek proposals that offer innovative conceptualizations and advance inventive approaches. Proposals should focus on the fresh contributions the presentation will make, including sketches of the supporting arguments. The abstract should include (but not be limited to) a paragraph summarizing the issue that will be addressed and any currently contending views about its resolution. Successful abstracts will explicitly address how the proposed presentation will address the challenges of integrating legal and medical understandings of disablement.

We welcome submissions on both broad conceptual questions and more specific policy issues related to the “mere difference” vs. “bad difference” debate. Potential topics include:
• Can disability be considered definitively bad, without defining living with a disability as inescapably disadvantageous?
• Can we ameliorate mismatches between the capabilities of people living with disabilities and the socially constructed environment without seeming to privilege them?
• Do the kinds of human diversity that disablement represents threaten the species or harm society? Can they improve the human species or benefit society?
• (How) are bioethicists obligated to represent or at least respect the standpoints of people with disabilities?
• Does the U.S. Supreme Court characterize and categorize disability correctly in the seminal equal protection case, Cleburne v. Cleburne Living Center? How can we reconcile making special or individualized arrangements to avoid excluding individuals based on disability with equal opportunity and equal protection?
• Do different agencies’ and programs’ diverse definitions of disability—for example, that for some programs medical diagnoses suffice for disability status while others demand demonstrations of severe dysfunction—undercut efforts to address disability discrimination?
• What is the standard for people with disabilities having meaningful access to health care? What is the minimum standard for people with disabilities’ access to health care below which denial of care equates to disability discrimination?
• How may protections against disability discrimination—especially claims to civil rights or human rights—most effectively be made operative in the medical clinic?
• Can the processes for accommodating disabilities be secured against fraud?
• How should the impact of differences due to disability affect the way the competence of people with disabilities for accepting or rejecting treatment is assessed? How might new technologies affect courts’ determinations in this regard?
• What progress has been made in increasing the proportion of medical professionals with disabilities and what steps are needed to speed this effort?
• (How) should people with disabilities’ inability to achieve normal functioning affect their priority for scarce or expensive health care?
• Given the current state of data about their risks of morbidity, should lifesaving interventions for extremely preterm infants be harder to obtain than for other babies?
• Can Disability Pride be as effective for “destigmatizing” as earlier expressions of pride made by social movements such as those advanced by the LGBTQi, Women’s, or other groups?

Please note that this list is not meant to be exhaustive; we hope to receive abstracts related to the conference’s central question even if the particular topic was not specifically listed here. Proposals should demonstrate a clear linkage to all three aspects of the conference—disability, bioethics, and law. Papers that focus on ethics should include substantial discussion of policy implications. Relatedly, law will be treated broadly to include governmental policy decisions more generally. Successful abstracts will propose or outline an argument/position, rather than merely stating a topic.

In an effort to encourage interdisciplinary and international dialogue, we welcome submissions from legal scholars and lawyers, bioethicists, philosophers, clinicians, medical researchers, disability rights advocates, public health practitioners, behavioral economists, government officials and staff, and others who have a meaningful contribution to make on this topic. We welcome philosophical and legal reflections from contributors across the world, but these submissions should be general or United States- focused rather than comparative in nature. We welcome submissions from advocacy organizations, think tanks, and others outside academia, but emphasize that this is a scholarly conference, and abstracts/papers will be held to academic standards of argumentation and support.

How to Participate

If you are interested in participating, please send a 1-page abstract of the paper you would plan to present to petrie-flom@law.harvard.edu as soon as possible, but not later than October 15, 2017. If your abstract is selected, your final paper will be due on April 1, 2018, and you will be assigned a presentation slot for the conference. Please note that all presenters must provide a full final draft in order to participate and that presenters are expected to attend the conference for its full duration. We will accept conference papers of all lengths and styles (e.g., law review, medical, philosophy, or policy journal, etc.), but presentations will be limited to 15 minutes. The conference will be held on Friday, June 1, 2018. We will pay travel expenses for presenters who must travel to Cambridge; co-authored papers must name a single presenter.

In the past, we have successfully turned several of our conferences into edited volumes (e.g., with Cambridge, MIT, Johns Hopkins, and Columbia University presses). It is possible, although not guaranteed, that conference presenters will publish their papers with us in an edited volume whose chapters will be limited to 5,000 words, including references. Previous conference participants have been able to publish their submissions in different formats in multiple venues, for example both as a short book chapter and a longer law review article. However, the version that will be used for an edited volume should not have been published previously or be planned to publish separately.

How to Register

Registration information is available here. Attendance is free and open to the public, but space is limited. Stay tuned for the conference agenda, which will be posted to our website once abstracts have been selected.

Questions
Please contact the Petrie-Flom Center with any questions: petrie-flom@law.harvard.edu, 617-496-4662.

Sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. This year’s conference is organized in collaboration with the Harvard Law School Project on Disability.

Posted by Howard Wasserman on August 2, 2017 at 08:21 PM in Teaching Law | Permalink | Comments (0)

Tuesday, August 01, 2017

Rotations

Welcome to August and to our returning guests--Shima Baughman (Utah), David Fontana (GW), and Rhett Larson (ASU).

Remember that Redyip will be seen in a couple of weeks.

Posted by Howard Wasserman on August 1, 2017 at 08:01 AM in Teaching Law | Permalink | Comments (6)