Sunday, December 31, 2017
2017 Year-End Report of the Federal Judiciary
The 2017 Year-End Report of the Federal Judiciary was released at 6 p.m. Sunday. No dueling or lumberjacks this year, although the Chief could not help but throw in a history lesson about The Great Hurricane of 1780.
The primary theme this year was how the judiciary responds (and responded in 2017) to natural disasters. This was followed by a brief discussion of the "new challenge" for 2018 of dealing with workplace sexual harassment in the judiciary, discussing his called-for AO working group to examine policies and practices, including codes of conduct, employee education, confidentiality and reporting rules, and rules for processing complaints. He closed with an expression of confidence that the "overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies."
Law Professors on Twitter
Like many law professors, I am on Twitter. And like many law professors, I often question whether being on Twitter is a particularly good idea. Among other things, I enjoy Twitter because it allows me to read the tweets of other law professors and to engage with law professors about their tweets and mine. But while reading those tweets and having that engagement can be quite enjoyable, it can also be quite the opposite.
In the past few months I have had several conversations with other law professors in which they expressed surprise and disappointment in how other professors have used the Twitter platform. There are a variety of complaints—some professors use the platform to tweet intemperately about political views, some use it for over-the-top self-promotion, some use it to express legal views far outside of their areas of expertise. One common complaint I have heard—and one that I share—is that law professors use the platform to engage in increasingly confrontational and rude ways with one another. Professors should always be willing to engage with those who don’t agree with them. And we should always expect our opinions to be challenged. But Twitter appears to have made the tone of those disagreements much coarser and their occurrence more frequent.
I don’t know how to fix the many problems that Twitter causes in legal discourse. But I’ve drafted a short essay on the topic—which can be found here—and I’d be very grateful for feedback on how to improve the essay. In the meantime, let’s try to be kinder to each other in 2018.
Ferris Bueler's AALS San Diego #AALS2018
AALS 2018 is this coming week! I can't wait to see hundreds of colleagues coming down here to San Diego for several event-packed days. I've posted here about the four panels I am taking part in: a festive event friday evening for my book You Don't Own Me at our gorgeous USD campus near Old Town; the annual IP Evil Twin debate; a panel with a bunch of deans (Erwin Chemrinsky, Bob Post, Ed Rubin, Jide Nzelibe (not dean yet) and yours truly) on scholarship, politics and legal ed; and a panel on employment and labor law during the Trump years. So you can't say I am slacking.
BUT - it's SAN DIEGO. In January! It's warm and sunny and there is so much to do and see.
Here are my top 10:
- La Jolla Cove. The rocks, the cave, the seals, the birds. It can get stinky but it’s a good kind of stench – all organic. Eat breakfast at Brockton Villa to watch the natural beauty, the swimmers, and the kayaks. Have drinks at sunset at George’s, Dukes, Eddie Vs, or anyone of the other upscale dining places. Bring your laptop to the Living Room for an office setting with a view. Walk up along the village to the art galleries, fun boutiques, and the La Jolla Museum of Contemporary Art. Visit Trilogy for an amazing rooftop vegan eateries and aerial yoga. If you have time on the way back, drive up to Mt. Soledad for 360 degrees of all of San Diego. The cross at the top has been giving the 9th Circuit quite the headache for years.
- La Jolla Shores, Scripps Pier, Birch Aquarium, Glider Port, Black’s Beach. You can walk from the shores all the way to UCSD and the Salk Institute, walk down to Black’s Beach where clothes are optional. The Birch Aquarium has stunning views and educational hands-on activities – it’s small and intimate - it’s not Sea World if you know what I mean.
- Torrey Pines Reserve. 1750 acre cliffs above the beach, coastal wilderness, trails for all hiking levels. Breathtaking. Stop for tea at the Lodge at Torrey Pines, a beautiful hotel/spa/golf course that is an architectural homage to California Arts & Crafts Movement.
- Balboa Park. "1,200-acre of park, natural vegetation zones, green belts, botanical gardens, and walking paths, over a dozen museums, several theaters, and the world-famous San Diego Zoo. There are also many recreational facilities and several gift shops and restaurants within the boundaries of the park. Placed in reserve in 1835, the park's site is one of the oldest in the United States dedicated to public recreational use."
- Coronado Island. Take the ferry or drive the long bridge (it isn’t really an island but a peninsula). Go ice-skating outdoor on the beach at the stunning Hotel Del Coronado.
- Crystal Pier. Pacific Beach just south of La Jolla has a long boardwalk, beautiful beaches, and you can run or walk from the Crystal Pier all the way to Belmont Park, the historic amusement park founded in 1925, and ride the wooden roller coaster. If you see Slomo rollerblading along the way, say hi and tell him you watched the documentary about him in the NY Times and here (short of it - he's a former neuroscientist/psychiatrist who decided on radical lifestyle change: "do what you want to" one of his oldest patients told him is the secret for a longlife, so now he roller-blades on the boardwalk every day all day long in slow motion).
- Sunset Cliffs. If La Jolla is the upscale village, and Pacific Beach is the student surfer hangout, Ocean Beach is the hippie beach community. Each unique and fantastic in its own way. In between all of them are Mission Beach and Mission Bay – where you can, like with PB, rent bikes and roller blades and ride for hours. Also a good place to practice your stand up paddleboarding.
- Old Town. History, culture, authentic Mexican food. Right next to our beautiful USD campus.
- Encinitas. Another awesome beach community, with world-famous surf. Go meditate at the Zen Garden at the Self Realization Fellowship. If you are coming with the family, Legoland as well as the Safari Park are nearby in Carlsbad; Solana Beach and Del Mar are also pretty great.
- Gaslamp District and Seaport Village. This is right where the AALS conference takes place so you will figure it out. But make sure you walk all the way to the Harbor, Embarcadero and the USS Midway Museum. Perhaps even go whale watching or just a short harbor cruise between panels.
There is still more. Here's for example a top 25 free things to do. And feel free to add your own San Diego favorites in the comments or ask me any questions that you might have about planning your trip. Here's to a great 2018 and a great #AALS2018!
Saturday, December 30, 2017
Can Trump use Auer deference to undo Obama’s rules?
Last week, Judge Beryl Howell held that HUD could not refuse to implement an Obama Administration rule promoting income integration through the section 8 housing voucher program. The ruling is one of a string of defeats suffered by the Trump Administration in its various efforts to repeal the Obama Administration’s policies, ranging from immigration to clean water. This particular defeat, however, holds special interest for me, because it illustrates a relatively novel approach to overruling an earlier administration’s policies: Rather than launch a frontal assault through a notice-and-comment repeal, HUD attempted to “re-interpret” the Obama Administration’s Rule to permit the Rule‘s suspension for two years. For this “re-interpretation” to work, Secretary Carson needed a lot of Auer deference for his interpretation of his Department’s own rule. He did not get it from Judge Howell.
After the jump, some thoughts on Open Communities Alliance v. Carson‘s illustration of (1) how Auer deference theoretically empowers agencies to override the policies of earlier administrations that have been entrenched through notice-and-comment rule-making but (2) how easily courts can side-step Auer deference if they have a mind to do so, and (3) whether simple agency inaction — just sitting on their collective hands and not enforcing the prior administration‘s rule — is a more effective way to unravel its predecessor’s policies.
1. The issue settled by the Obama Administration’s “small area” rule: Should HUD require housing authorities to use zip codes or metro area rents for Section 8 vouchers?
After several years of pilot programs, data collection, data analysis, and N&C disputes over what the data suggest, the Obama Administration issued a final rule requiring the use of zip codes rather than metro areas to define the “fair market rent” covered by Section 8 vouchers. (This rule is known as the “small area fair market rent” rule). So stated, the policy seems mind-numbingly technical, but, as the Atlantic Monthly notes, the rule is a major desegregation effort, because the rule significantly protects the ability of poor families to escape impoverished neighborhoods by paying higher rents for richer neighborhoods. The “metro area method” of calculating “fair market rents” averages out the rents in the poorest and richest areas of a city, insuring that the rent covered by a section 8 voucher will be too low to cover the cost of housing in middle-class neighborhoods. Zip codes provide lower payments for housing in very poor neighborhoods where market-rate rents tend to be lower, higher payments in wealthier neighborhoods where rents are higher. The “zip code method,” therefore, gives poor families the means and incentive to get out of high-poverty neighborhoods afflicted with crime, low-performing schools, and high unemployment. Interestingly, the “zip code method” does not seem to cost more money than the metro area method for calculating fair market rents: While data are incomplete and debated, the extra money paid to landlords in middle-class neighborhoods is at least partly cancelled out by the lower sums paid to landlords in poorer neighborhoods.
So what’s not to like about a rule that enables poor households to escape poor neighborhoods at no extra cost to the taxpayer? The short answer: The Rule’s origins as an Obama Administration policy. Carson might be opposed to all things Obama, regardless of their merits. The longer and more charitable answer: There is a difficult empirical question about whether the “zip code method” will result in less affordable housing under the Section 8 program. As Secretary Carson’s Suspension Memo put the issue, it is unclear whether “the gain in units with rents below the applicable [fair market rent] in high-rent ZIP codes [will] offset the decrease in the number of units in the low-rent and moderate-rent ZIP codes.” By lowering the amounts provided to landlords in poor neighborhoods, the “zip code method” for calculating voucher payments could cause such landlords to leave the Section 8 market, reducing housing supply more than the extra units provided by voucher increases in higher-income neighborhoods. Ostensibly because of these worries about loss of housing, Secretary Carson issued a memo, not subject to notice and comment, suspending the Obama Administration’s “small area fair market rent” rule for two years, pending further study.
The problem with this reasoning, of course, is that deliberation about this empirical dispute has already occurred in the grueling N&C process used to issue the original SAFMR Rule. HUD had run a pilot program in seven cities using zip codes to calculate rents and had commissioned an expert study to analyze the results. Numerous stakeholders had commented on these data. HUD had conducted an Interim Evaluation of the data following the promulgation of the final rule. If the Trump Administration wants to revisit the empirical dispute and unravel the decision, then, under State Farm, they have to undergo the same slow process and provide a factual basis similar to that created by the Obama Administration.
2. Can Trump invoke Auer deference to suspend Obama’s rule?
Auer deference, however, suggests a way to undermine the rule without the grueling N&C process. Secretary Carson “interpreted” the SAFMR to permit the Rule’s suspension at the discretion of the HUD Secretary. The apparent vagueness of the SAFMR’s language seemed to suggest judicial deference to such an assertion of administrative discretion. The SAFMR provides that HUD may exempt public housing authorities or a metro area from using zip codes to calculate fair market rent when HUD determines that “such action is warranted.” As if this authorization were not broad enough, the rule specifies that such a suspension can be based on a presidential declaration of a housing-depleting disaster, a sudden influx of displaced households needing housing, or “or other events as determined by the Secretary.” 24 C.F.R. §888.113(c)(4).
These vague terms seem to invite Auer deference, but the district court declined the invitation. Invoking the ejusdem generis canon, Judge Howell concluded that the Rule’s grant of authority to suspend the Rule based on events “as determined by the Secretary” had to be read in light of the preceding clauses specifying conditions specific to a particular metro area or PHA such as disasters or influx of displaced persons. Otherwise, Judge Howell, reasoned, the final clause would swallow up the rest of the section, rendering those specific suspension-justifying conditions unnecessary. As for Auer deference, Judge Howell dismissed it in a single sentence: “the defendants’ construction is ‘inconsistent with the regulation,’ and thus due no deference.”
Auer deference, in short, foundered on the usual shoals where tie-breaking canons are generally wrecked: The judge declared that the text was not ambiguous enough to justify the use of the canon. Because few legal concepts are as ambiguous as “ambiguity,” such a doctrine leaves judges free to turn tie-breaking canons like Auer, lenity, Chevron, etc., on and off like a spigot. Ejusdem generis, for instance, could be applied to the SAFMR, but it need not be: The SCOTUS routinely brushes aside ejusdem generis when the limiting principle inferred from the narrow terms in a series is just too limiting. (See Ali v Bureau of Prisons or (if you agree with McKenna’s dissent) Caminetti v. United States examples).
Auer, in sum, may be more window-dressing than window. Judges who want to defer to an agency can invoke it, and others can insist that the rule “unambiguously” disfavors the agency’s reading. Judge smight feel free to sneer at the notion that the agency knows the rule because the agency wrote the rule, given the obvious point that the rule-writing agency might have been controlled by a political party and president different from the rule-interpreting agency, and the latter might want to subvert the rule being construed. In such a case, a judge might be tempted to cast a fish eye on the agency’s “re-interpretation” that seems to gut, delay, or otherwise undermine the rule being construed.
Should we be glad that Auer is easily evaded and agencies, easily controlled, by judges so inclined? To evaluate Auer, one must have a theory of bureaucratic entrenchment: Should one administration be able to entrench its policies through purely executive means against being unraveled by its successors? Auer is best understood as such an unraveling device. The defenders of Auer, therefore, ought to focus on whether and how bureaucracies should be permitted to entrench their policies. As Sunstein and Vermeule note, Auer gives entrenchment-minded agencies a reason to be extra-clear in their wording in order to foreclose a later hostile administration’s undermining the rule through interpretation. If one is inclined to facilitate bureaucratic entrenchment, however, it should not take much textual clarity for a judge to side-step Auer in order to protect an earlier administration’s handiwork, because judges like Judge Howell might feel free to invoke every possible tool of statutory interpretation (purpose, policy-based canons, textual canons, etc.) before invoking Auer, insuring that Auer serves as little more than a make-weight.
3. Don’t just do something: sit there!
The flimsiness of Auer leads to one final question: Why did the Trump Administration not undermine the Obama Administration’s SAFMR Rule just by refraining from enforcing it? Sheer failure to bring an enforcement action against non-complying Public Housing Authorities, after all, would, in theory, have the same effect as formally issuing a “suspension policy,” but such pure inaction would likely be unreviewable under Heckler v. Chaney.
I actually have no answer to this final question: It is intended for the readers of the post — both of them, optimistically, given the tediousness of the topic to all but the most avid admin law nerd. If you have made it this far, gentle reader, and have any insights as to why Secretary Carson did not simply sit on his hands w.r.t. the SAFMR or, more generally, why Trump does not gut Obama’s legacy simply by doing nothing, your thoughts, online or offline, are most welcome.
As comment-priming speculation...there might be practical or political obstacles to non-enforcement. Perhaps the “Deep State” (i.e., the professional federal civil service) is likely stubbornly to enforce the law without some sort of explicit and legally binding opinion from the top. But this is rank guessing on my part. I note only that the formal anti-entrenchment doctrine of Auer is easily evaded by judges who believe that presidents should be able to entrench their policies. That we law profs spill so much ink over a doctrine that has such little bite suggests how we academics love a good abstract argument regardless of its importance to policy.
Wednesday, December 27, 2017
Wall Street Journal Reviews You Don't Own Me
Imagine my excitement of waking up this morning to discover a terrific review by Jacob Gershman in the WSJ of You Don't Own Me. Here's the beginning:
Like Condoleezza Rice, Ivanka Trump and Michelle Obama, Orly Lobel played with Barbie dolls when she was growing up. “Fortunately,” writes the San Diego law professor in her new book, “I was also encouraged to challenge the distorted realities of Barbie’s world.”
No toy has been deconstructed so thoroughly as Mattel Inc.’s iconic plastic doll. But Ms. Lobel’s “You Don’t Own Me” is something different. The world that she explores is not a dollhouse but a courthouse. Her brisk and engaging book chronicles the decadelong copyright clash between Mattel and MGA Entertainment Inc., an upstart rival that had a mega-hit with its “Bratz” doll line but that was nearly obliterated by Mattel’s scorched-earth legal offensive. Journalists tend to overuse words like “war” when writing about lawsuits. But if ever there were an example of a civil dispute meriting military metaphors, it is Mattel vs. MGA. According to Ms. Lobel, the combined legal expenses of the battle went north of $600 million.
Monday, December 25, 2017
Jews and Chinese Food
Saturday, December 23, 2017
City of Hays v. Vogt and the Meaning of “Criminal Case” in the Self-Incrimination Clause
Another under-the-radar Supreme Court case this Term is City of Hays v. Vogt, which presents the question whether a post-charge, pre-trial probable cause hearing is part of a “criminal case” within the meaning of the Self-Incrimination Clause. Vogt was a police officer employed by the City of Hays who was allegedly required to make self-incriminating statements in the course of an internal investigation into some mishandled property that had come under the control of the police department. Vogt was then charged with two felony counts in Kansas state court relating to the mishandled property. After he was charged, the State held a hearing for the purpose of determining whether there was probable cause for the prosecution to proceed against him. At that probable cause hearing, the statements Vogt had been compelled to make were used against him. However, the judge found no probable cause to proceed and dismissed the charges. Vogt then sued the City on the ground, inter alia, that the use of his compelled statements against him at the probable cause hearing violated his right under the Fifth and Fourteenth Amendments not to be "compelled in any criminal case to be a witness against himself."There are a number of unsettled issues in this type of case. For example, since the Self-Incrimination Clause is violated only if statements are compelled and then used against the speaker, what is the significance of the fact that different parties here did the “compelling” and the “using?” (The City supposedly compelled the statements and the State of Kansas then used them.) Also, is there § 1983 liability at all for a violation of the Self-Incrimination Clause or is the victim’s sole remedy exclusion of the statements? And if the statements have been used but the case is dismissed, as here, are there any damages? Finally, did Vogt forfeit his claim by failing to claim the privilege at the time the statements were compelled?
Irrespective of whether and how these questions ultimately are answered, the Court granted certiorari only on the question of whether the probable cause hearing here was part of a “criminal case.” The question of when a “criminal case” begins has been bouncing around the courts of appeals for some time, which is presumably why the Court granted certiorari.
I joined an excellent amicus brief recently filed by the Constitutional Accountability Center arguing that the probable cause hearing is indeed part of a “criminal case.” Textually, the term “criminal case” has to be distinguished from two terms used in the Sixth Amendment but not the Fifth: “criminal prosecutions” and “trials.” The City’s claim that the Self-Incrimination Clause can be violated only at trial admittedly is supported by dicta in Chavez v. Martinez, which held that the Self-Incrimination Clause is not violated when police officers compel statements from a suspect. But Chavez held only that the “criminal case” does not encompass police interrogations; it did not have occasion to determine when exactly the “criminal case” begins. The City’s claim that “criminal case” is essentially synonymous with “trial” is in considerable tension with the fact that the Sixth Amendment specifically uses the word “trial.” Presumably, if the framers and ratifiers of the Self-Incrimination Clause had understood it to apply only at trial, they would have used that word in the Fifth Amendment as well.
The City’s claim is also in considerable tension with the fact that the Sixth Amendment applies only to “criminal prosecutions.” Because a trial can take place only within the confines of a criminal prosecution, it would have made perfect sense to include the Self-Incrimination Clause in the Sixth Amendment if the framers and ratifiers had understood the Clause as applying only at trial. The fact that they did not strongly suggests that they understood the Self-Incrimination Clause as imposing constraints upon use of compelled statements that go beyond the confines of a criminal trial.
More broadly, the structure of the Fifth and Sixth Amendments represents a division of rights between those that are triggered prior to indictment and those that are triggered after indictment. The prefatory language of the Sixth Amendment – “In all criminal prosecutions” – demonstrates that the Amendment applies only after formal charges have been brought. By contrast, the Fifth Amendment largely governs the prerequisites for bringing formal charges in the first place: the Grand Jury Clause requires that they be brought only via indictment or presentment; the Double Jeopardy Clause forbids charges when guilt or innocence has previously been adjudicated; the Due Process Clause forbids the government from creatively getting around these requirements, by providing that criminal punishment can follow only from ordinary process; and the Takings Clause modifies the Due Process Clause by preserving the narrow exception for lawful takings via eminent domain. Applying the Self-Incrimination Clause to use of compelled statements in proceedings that take place prior to formal charges makes perfect sense under this structure. And even though the probable cause hearing in this case took place subsequent to formal charges, that will not always be the case, as when a prosecutor seeks to use compelled statements in a grand jury proceeding in order to obtain an indictment.
And speaking of grand juries, Vogt’s reading of “criminal case” in the Fifth Amendment is also consistent with the use of the term “cases” in art. III, sec. 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under . . . the Laws of the United States . . . .” Everyone recognizes that a federal district court has jurisdiction over a federal grand jury, even before it issues an indictment. This judicial power must come from somewhere; it comes from Art. III, sec. 2. Thus, a grand jury proceeding must constitute part of a “case” within the terms of that section. It would be anomalous if the word “cases” in art. III, sec. 2 covered pre-trial proceedings such as grand juries but “case” in the Fifth Amendment did not.
Friday, December 22, 2017
#AALS2018 Panel Alert: Fake News, Alternative Facts, and the Future of Journalism
If you're in San Diego for AALS, I hope you'll come to the fake news panel organized by the Defamation & Privacy and Mass Communication Law sections. The program will take place on Jan. 3, 2018, at 1:30 pm. Here's our description of the panel:
A discourse with no anchor in truth ceases to have value as discourse. The President’s accusations that the media are perpetuating “fake news” have raised numerous legal and ethical questions for lawyers, journalists, government officials, and citizens. This panel, comprised of experts in journalism and media law, will consider the phenomenon and politics of fake news; the law’s role, if any, in regulating truth in public discourse; the media’s role in ensuring public discourse is anchored in truth and their contribution to the fake news phenomenon; the role of independent fact-checking websites such as Snopes.com and Politifact.com in helping debunk fake news; and the potential impact of the fake news debate on First Amendment press freedoms.
LaVonda Reed (of Syracuse University College of Law) and I (now of the U. of Missouri Law School!) will be moderating. Speakers include Amy Gajda of Tulane Law School, Lili Levi of Miami Law School, Scott Lewis from the Voice of San Diego, Richard Marosi of the LA Times, David Mikkelson of Snopes.com, Rebecca Nee of San Diego State University, and Jestin Coler of DisInfoMedia.
Thursday, December 21, 2017
Those the Legal Profession Leaves Behind
One of the downsides of current tuition discounting practices is that the students who pay full tuition are often those who can least afford to. On average, getting a JD increases earning power. But we know that those benefits are unevenly distributed—there are some graduates who have a hard time either entering or remaining in the legal profession. It can be especially hard for women to re-enter the profession after stepping away.
A remarkable bankruptcy opinion from the Western District of Washington illustrates what can happen when things fall apart. Legally, it is interesting for its discussion of how income-based repayment of student loans interacts with dischargability in bankruptcy. But the court’s factual findings and discussion of the debtor’s circumstances are especially eye-opening.
The debtor’s educational path started in community college, where she got an associate’s degree. She later finished a B.A. in political science at the University of Washington and then obtained a J.D. from Pacific McGeorge. She took out a bit more than $300,000 to finance her various degrees. Along the way, she married and had children. She also had mental-health struggles and was diagnosed with bipolar disorder. In spite of her struggles, she managed to achieve academically and “consistently held some form of employment” when out of school.
Her family obligations and financial situation became much more difficult right around the time she was graduating from law school. She was pregnant with triplets who were born very prematurely. The triplets required lengthy hospitalizations and all three had some level of disability. One of the triplets had particularly severe disabilities, and even eight years later cannot walk, read, write, or count to 100. The triplets’ older brother was apparently diagnosed with autism during these years. The debtor's husband divorced her—he continued to pay child support, but the court opinion makes it clear that she had primary custodial responsibility for five children, four of them disabled.
It spite of those difficulties, she passed the bar and got a job as an associate at a law office. However, the court stated that the position did not offer her “an advancement track that would that would likely improve her financial situation.” As a result, she attempted to set herself up in solo practice. In order to establish her reputation and build her practice, she engaged in “volunteer and reduced-fee legal work.” Again, however, she was unable to earn enough money to support herself. She worked side-jobs as an Uber driver and a pizza delivery driver. She got a real-estate license and sold a couple of properties.
Ultimately, none of those ventures ended up being sufficient to sustain her, and she took a job as a waitress in a nearby casino. The waitressing job offered health insurance and allowed her to work nights and weekends in order to take care of her children.
She filed a Chapter 13 bankruptcy case and made the required payments for three years. At that time, the court had to decide whether to discharge her student loans, which had grown to $484,964 with interest and penalties. Navient/SallieMae stipulated to a discharge of the $68,967 owed to it, leaving the court to decide what to do the remaining $415,997.
In performing the “undue hardship,” analysis, the court made a likely accurate—but still very disquieting—conclusion. The court found that the debtor’s “work history as an attorney did not result in sufficient income to to repay her student loans and take care of her dependents,” and that, in fact, “she is likely earning more with benefits [through waitressing at the casino] than [she] could through practicing law.”
The final question before the court was how to consider the existence of income-based repayment programs in the undue-hardship analysis. The student loan companies argued that since her income was so low and her family expenses so high, her IBR payment would be $0 a month. They therefore opposed discharging the debt, preferring instead to take a wait-and-see approach as to whether she would be able to make payments some time in the next 25 years.
The court, however, held that such an approach would not advance “either the policy of repayment of student loans or the debtor’s fresh start.” The court therefore discharged nearly $200,000 of her debt. It left $220,000 intact, concluding that the debtor could potentially pay it off over the next decade if she put all available resources toward the debt. This would not leave her any money to save for retirement, but the court noted that “in ten years the Plaintiff will be 55 years old and with some time left in her working life.” If she is still able to waitress at age 55, she can start saving for retirement at that time.
Sponsored Post: Teaching PR through simulations
The following post is by Alex Long, Associate Dean for Academic Affairs & Doug Blaze Distinguished Professor of Law at The University of Tennessee College of Law, and is sponsored by West Academic.
When I first started teaching Professional Responsibility many years ago, I had a student make the following suggestion to me after class one day: if a student can pass the Multistate Professional Responsibility Exam (MPRE) without first having taken Professional Responsibility, the student shouldn’t have to take Professional Responsibility in law school. The student suggested that I raise that idea with our dean. At the time I didn’t have tenure, so I forced a polite smile and counted to three and told the student I’d look into it.
I’ve reflected on that event numerous times throughout the years and pondered why this student thought his logic should apply to the MPRE but not necessarily the entire bar exam. Why does anyone need to take any law school course if one can pass a test on the subject matter before taking the course? I think the most obvious reason why the student thought this way about PR is that the student viewed the MPRE merely as a hoop one must jump through that can be navigated simply by choosing “the most ethical” answer choice or excluding answer choices that “don’t pass the smell test.” In contrast, most people realize they can’t pass a multiple-choice test on Civil Procedure without first having taken Civil Procedure. For whatever reason, many students approach PR as a course involving theoretical, but impractical, discussions of intuitive principles (but not real “rules”).
I spend much of my time in PR trying to disabuse students of the notions that “do the right thing” is a reliable maxim for dealing with issues of professional responsibility and that the issues we cover aren’t likely to matter in practice. Over the years, I’ve found that one of the best ways of doing that is to have them work through simulation exercises that force them to approach ethical issues the way a lawyer would and that involve ethical issues with not-so-intuitive controlling rules. To that end, my colleague Paula Schaefer and I started developing some of these simulation exercises and incorporating them into our PR classes. (West Academic Publishing recently published them as part of their Developing Professional Skills series.)
For example, we have an exercise in which students are asked, first, to evaluate whether their firm has a conflict of interest involving a lucrative and longstanding client and, second, to break the bad news to the client by writing a letter if the answer is yes. The “do the right thing” maxim would prove essentially worthless in determining whether a conflict exists, and human nature is to resist any conclusion that might end up costing one’s employer money. One of Paula’s exercises requires students to “bill” the time they spend preparing for classes over a three-day period, thus illustrating how the task of billing time to a client is more complicated than it sounds, how easy it is for clients to get overbilled, and how even a lawyer who wants “to do the right thing” by a client may end up not doing so. I know other folks in the field sometimes use similar exercises.
All of these exercises are just part of the ongoing attempt to help students appreciate the real-world application of the rules they read about in their casebooks. But for whatever reason, PR seems to have lagged behind this trend. That’s unfortunate, because there are actually some issues in PR that are not only highly relevant to real
practice but are actually kind of interesting. I’ve incorporated these sorts of exercises into my Torts class for a few years now. But keeping students’ attention and making them appreciate the value of the material is not the challenge in Torts that it is with PR. I’m sure there are plenty of other courses for which the same could be said. For those who teach courses like PR where student resistance and skepticism are obstacles to overcome, I thoroughly recommend using these kinds of exercises to help students appreciate the hidden beauty of the subject matter.
Zervos v. Trump, in federal or state court
Richard Primus discusses an amicus brief he wrote in Zervos v. Trump, the defamation lawsuit filed by a former Apprentice contestant in New York state court (Zervos claims Trump sexually assaulted her and that Trump's denials effectively defamed her as a liar). Trump has moved to dismiss, arguing that a sitting President enjoys immunity from suit in state court (stated differently, Clinton v. Jones applies only in federal court). Primus's brief (written for Steven Burbank, Richard Parker, and Lucas Powe) argues that state and federal courts are no different for purposes of the President's amenability to sue.
The existence of presidential immunity does not matter in this case, because Zervos will refile in federal court on diversity jurisdiction (Zervos is from California, Trump is probably from New York, but definitely someplace other than California). The surprise when Zervos filed suit was that she had filed in state court (in Trump's home state, no less) rather than federal court. It might have been a fear of anti-plaintiff federal procedure and a desire to take extensive (embarrassing) discovery that she is more likely to get in state court than federal court. But the same law applies and the jury pool in the Southern District of New York is the same (and as anti-Trump) as the County of New York, so it is not obvious Zervos is better off in state court than federal court.
From the other side, though, it is worth wondering why Trump is bothering to raise immunity in this case, because it will not end or even delay the lawsuit. Does he so badly want to be in federal court? Is he trying to protect the presidency apart from his personal interests (something he has not been inclined to do)? Is he trying to make Zervos work for it?
Wednesday, December 20, 2017
Read, Watch, Listen, Eat/Drink: A 2017 top five list
1.. Stephen Kotkin, Stalin: Waiting for Hitler, 1929-1941
Volume II of Kotkin's magesterial biography of one of the 20th century's most monstrous and interesting figures.
2. Bruce Springsteen, Born to Run
Sublime autobiography by the Boss!
3. Daniel & Richard Susskind, The Future of the Professions and Gillian Hadfield, Rules for a Flat World
Two insightful, interesting books on emerging developments in professional work, including law and legal services.
4. Nathan Hill, The Nix
Wonderful novel, ambitious and intense
5. Geoffrey West, Scale: The Universal Laws of Growth, Innovation, Sustainability, and the Pace of Life in Organisms, Cities, Ecosystems, and Companies
Fascinating use of complexity science to shed light on modern urban and corporate development.
Honorable mention: Yuval Noah Harari, Homo Deus: A Brief History of Tomorrow; Bill Henderson's terrific new blog, Legal Evolution; Lucky Peach magazine; Gillian Metzger's Harvard Law Review Foreword; David Frum's Twitter feed
- Florida Project
- Ken Burns' Vietnam War
- The Deuce
Honorable mention: Silicon Valley; Get Out; The Americans; 30 for 30
- Ahmad Jamal, Marseille
- Vijay Ayer Sextet, Far from Over
- The National, Sleep Well Beast
- Wes Montgomery & Wynton Kelly, Smokin' in Seattle
- Kamasi Washington, Harmony of Difference
Honorable mention: Kendrick Lamar, Damn; Thelonious Monk, Les Liasons Dangereuses 1960; Glenn Campbell, Adios; Philip Glass, Piano Works
- Proxi (Chicago, IL)
- Hog Island Oyster Depot (Tomales, CA)
- Friday, Saturday, Sunday (Philadelphia, PA)
- Rye Whiskey, Spirit Works Distillery (Sonoma County)
- Shephard Restaurant (Cambridge, MA)
Honorable mention: Shaw's Thanksgiving buffet (Chicago); Pok Pok (Portland, OR); Pliny the Elder beer (Russian River, CA); NorthShore Gin (Chicago); Union Square Cafe (NYC)
The Marks Rule and Hughes v. United States
Some of the Supreme Court’s most important decisions lack any majority opinion. When confronting those fractured rulings, courts often apply “the Marks rule”—the principle that precedent can be found in the “position taken by those members who concurred in the judgments on the narrowest grounds.” Easier said than done. As the courts of appeals have learned, extracting precedent from fractured decisions can be like squeezing water from stone. And the Court has repeatedly declined to clarify how to apply the Marks rule.
But all that may be about to change. Earlier this month, the Court granted review of Hughes v. United States, which presents not one but two questions on how to apply the Marks rule. The underlying merits issue involves an important aspect of federal sentencing that the Court addressed in Freeman v. United States (2011). Alas, Freeman fractured 4-1-4, with Justice Sonia Sotomayor writing a solo opinion that all eight other Justices expressly disagreed with. After many circuits concluded that Justice Sotomayor’s approach was the “narrowest grounds,” the DC Circuit and the Ninth Circuit concluded that Freeman was binding only for its result—and then chose to follow the Freeman plurality. Hughes may finally reveal how the Justices would apply the Marks rule in that kind of case.
There’s a lot to say about Hughes, but for now I’d like to add a perspective that isn’t directly represented in the cert papers: the Court should throw the Marks rule overboard. By favoring the “narrowest grounds,” however defined, Marks creates inefficient interpretive burdens for later courts, privileges outlier views among the Justices, and discourages compromise. Moreover, the Marks rule is not well supported by history and does not reliably reflect majoritarian views on the Court. So instead of seeking out the “narrowest grounds,” courts should simply ask whether a majority of the Court has expressly endorsed a single rule of decision, even if not in a single opinion. That approach would place the burden of precedent formation on the most efficient actors—the Justices themselves.
I defend that position in a new draft paper. The paper also presents evidence of how the Supreme Court, federal circuits, and state appellate courts are actually applying Marks. In brief, the data shows that lower courts are using the Marks rule with rapidly increasing frequency. The Marks rule is thus on the way to becoming a staple of appellate practice—and possibly a framework opinion. Yet courts often disagree about how Marks’s “narrowest grounds” test applies, and explicit Marks attention is largely focused on a relatively small number of fragmented decisions. These findings can help courts, commentators, and litigants evaluate Marks’s practical operation, as well as the costs and benefits of abandoning it.
Hughes calls for more than just rationalizing Marks: the parties—and the Justices—should consider whether the Marks rule is worth having at all.
Northwestern Law -- Deanship
This is a great opportunity to lead an extraordinary law school at a propitious time.
I say this unequivocally from the vantage point of someone who has had the privilege of serving in this role for now six years. The job announcement fills in much of the detail and, of course, has a nice pitch. It bears a close look. I would add this: Our law school has been steadily building a reputation for serious innovation in education in a dynamic world, one in which our graduates will need skills to enable them to prosper at the intersection of law, business, & technology. To that end, we have been collaborating actively with our renowned business school, Kellogg, our Engineering and Medical Schools and various other parts of our major research university. Moreover, we have established key partnerships with innovators and entrepreneurs in the law-tech space (ROSS intelligence, for example, and also the ABA Center on Innovation). Law is changing rapidly, and legal education is changing along with it. Northwestern is forging a path toward innovation within the ambitions of elite legal education and multidisciplinary instruction. Exciting to be a part of this; and I am truly excited about the next era under able new leadership.
And because this is a law professors blog, I should add that we have a terrific faculty, filled with extraordinary teachers and scholars, with special leadership in the area of empirical law studies. And we have one of the largest, comprehensive, and renowned clinical programs in the nation.
So, within the next month roughly, the powers that be (not including me, to be sure!) will be collecting and vetting nominations. I urge you to consider nominating exemplary legal educators and also considering this opportunity yourself. I would be pleased to chat privately with folks about this opportunity. Just drop me a note).
Michael Dorf has two posts on the Alex Kozinski saga. In discussing the various allegations against the now-former judge, Dorf uses the term "sexualized misconduct" to describe some of Kozinski alleged behavior. That term captures actions outside of employment (such as his comments and unwanted touching of women during visits to law schools) and conduct of a sexual nature that does not constitute harassment or discrimination. I want to consider the latter and figure out whether it exists.
Consider some of the things Kozinksi and others have been accused of doing: Showing or talking about porn to female clerks and employees, talking about sex and one's own sexual activity (although without explicitly propositioning the listener), asking about the listener's sexual activity (although without explicitly propositioning the listener), telling sexually explicit stories and jokes that are not at the expense of the listening employee.
This behavior is boorish and obnoxious. It is "sexualized misconduct"--misconduct that involves sex. But is it unlawful discrimination/harassment/hostile environment "because of sex"--what Title VII requires by its terms and the 14th Amendment requires by interpretation? And when does discussion of sexual things cross the line into unlawfulness? Are all discussions of anything sexual, at least between male supervisors and female employees, per se hostile environment? Or (as one law prof correspondent suggested) is it evidence of a hostile environment, but requiring a broader contextual judgment? Is sex and sexual activity different than politics or sports, so women are going to be disadvantaged by such talk? On one hand, many of the sexual conversations objectify women in some way (Kozinski's "knock chart," for example); so even if women are as willing and able in the abstract to talk about sex as men, they remain differently situated for purposes of such conversations. On one other hand, to say yes relies on stereotypes and assumptions about women and how they react to discussions of sex, sexuality, and sexual activity compared with men.
So how does or should the law treat sexualized misconduct in the workplace that does not involve unwanted touching or propositions? Is everything sexual off-limits and should it be?
Note some broader consequences if the answer to that question is no. It creates a divide between elite high-profile professions and workplaces and everyone else. Even if not prohibited by Title VII, sexualized misconduct disgusts the public and creates sufficient anger and backlash to drive a judge from the bench* or a television personality from the airwaves.** But it is not going to effect the manager at Wal Mart, whose misconduct would be outside the reach of Title VII but outside the public eye (or public interest) as to cause him to lose his job.
[*] Yes, Kozinski allegedly did far more than talk about sexual activity, so this is not the only reason he was driven from the bench.
Of course, that divide exists even if sexualized misconduct is because of sex and even as to conduct that moves into propositions and touching. Plaintiffs must show that harassment was "severe and pervasive" as to change the conditions of employment. Susan Estrich's defense of Kozinski warned about "bringing men down for conduct that, even if true, does not rise to the level of harassment," which I (perhaps in a forgiving mood) interpret as referring to conduct that is not sufficiently severe and pervasive to be a violation of Title VII or the Constitution. The public becomes disgusted and angry about misbehavior that might not rise to the level of a violation, driving out those in high-profile positions. Meanwhile, the manager at Wal Mart gets away with conduct that may be far worse because of difficulties of proof and the imbalances in the legal system. One way of thinking about this is that the public is holding those in positions of power to higher standards--it is not enough to refrain from unlawful conduct, they also should refrain from disgusting, boorish, and obnoxious conduct (at least of a sexual nature). Another way is that the law, as it is being applied at all levels, has not caught up with where public attitudes are moving (at least for the moment).
Monday, December 18, 2017
Story here.I am happy to be wrong (if surprised) about that one.
Stories about the signs of his lacked of qualification have focused on his lack of trial experience and have quoted defenders rejecting the premise that experience as a trial lawyer is a "precondition" to being a district judge. But as I argued, his lack of trial or litigation experience was not the real problem (although commenters here have disagreed). The problems were his lack of knowledge of basic legal concepts and his arrogant believe that he did not need that legal knowledge. Petersen tried to minimize this as his "worst two minutes" that should not have outweighed his 20 years of public service. But those worst two minutes revealed so much (about his legal knowledge or his character) that the balance seems appropriate.
Sunday, December 17, 2017
Glossary of Judicial Terms
Saturday, December 16, 2017
Byrd v. United States and the Relationship Between Standing and Consent
I previously posted about Byrd v. United States, a Fourth Amendment case that the Supreme Court will be deciding this Term. The issue in Byrd is whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search. Byrd’s fiancée rented the car and she alone was authorized to drive it but she loaned the car to Byrd, who was subsequently stopped for a traffic infraction. Police then searched the car, finding evidence incriminating Byrd in a federal drug offense. The case is in the Supreme Court on the assumption that the search was unlawful and the only question is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed.
The case points up an interesting connection between the Court’s standing jurisprudence and its third-party consent jurisprudence. The standing question, at least where a search is concerned, is whether the person asserting the exclusionary rule had a reasonable expectation of privacy (REOP) in the place searched. Indeed, the Court has at least formally eschewed the idea of “standing” as a separate topic and has admonished courts and litigants to analyze such issues purely in terms of the Fourth Amendment claimant’s REOP. (Despite this, everyone still speaks of “standing”).
Interestingly, the concept of REOP also sneaks into the Court’s third-party consent cases, which nearly always involves situations in which the police have undoubtedly undertaken a search and the only question is whether A’s consent to search is binding upon B. The Court has decided those cases by looking at common social understandings regarding shared privacy in places, an analysis that looks a whole lot like its REOP cases, which govern whether a search has occurred at all. For example, in Georgia v. Randolph, the court held that one co-occupant’s consent to search by a police officer was trumped by another present co-occupant’s objection, rendering the consent invalid as to the objecting co-occupant. It relied heavily on common social understandings: what would ordinary people do in the face of one occupant’s consent and one occupant’s objection to entry?
The Court has instructed that the validity of third-party consent depends upon whether (1) the third party had authority to consent in her own right and (2) whether the person asserting a Fourth Amendment violation assumed the risk that the third party would consent. Generally, though, the Court’s cases have focused on the second element because they have involved situations in which the third party undoubtedly had the authority to consent to a search on her own behalf: typically, as in Randolph, they involve co-occupants of premises. Thus, whether the third party has a sufficient connection to the place searched to have authority to consent is an area that is undertheorized. For example, does a minor child or an overnight guest at a premises have authority to consent to a search of all or part of the premises?
There is a kinship between standing and third-party consent, given that both use as their touchstone social custom and usage that form the backbone of the REOP standard. Indeed, Randolph relied in part on Minnesota v. Olson, a standing case. The question in both areas appears to be whether an individual has a sufficient connection to the place searched to, on the one hand, object to an unlawful search by the police or, on the other hand, bind a third party by consenting to a search by the police. As Justice O’Connor wrote in her separate opinion in United States v. Karo, “surely a homeowner cannot simultaneously have so little interest in a container that his consent to its search is constitutionally ineffective, and have so great an interest in the container that its search violates his constitutional rights.” Similarly, Justice White wrote in his dissent in Rakas v. Illinois: “If a nonowner may consent to a search merely because he is a joint user or occupant of a `premises,’ then that same nonowner must have a protected privacy interest. The scope of authority sufficient to grant a valid consent can hardly be broader than the contours of protected privacy.”
The upshot is that, if I am correct about this connection, consent issues can be resolved by reference to the law of standing and vice-versa. As Justice O’Connor put it in her separate Karo opinion: “Standing to object to [a] search . . . and power to give effective consent to the search should go hand in hand.” That is to say, for example, because the Court held in Olson that overnight guests at a premises have standing to assert the exclusionary rule based on an unlawful search of the premises, it stands to reason that the same overnight guest has authority to consent to a search of the premises (though that authority might, as in Randolph, be trumped by the objection of someone with an equal or greater interest in the property). By like token, because the Court in Minnesota v. Carter denied standing to someone on the premises for only a few hours for a purely commercial purpose with no prior relationship to the premises, such a person would also lack authority to consent to a search of the premises (whether police might reasonably believe that such a person had authority is, of course, a separate issue).
Let’s apply this to Byrd. Assume hypothetically that Byrd has manifested consent to a search of the car and the police found evidence that incriminated his fiancée in a crime, and the fiancée subsequently moved to suppress on the ground that Byrd had no authority to consent to a search of the car that would be binding as to her. I think her claim would and should be roundly rejected. When she loaned the car to Byrd to use in her absence, she effectively gave him full authority to use the car, including the authority to allow others to enter, unless she specifically withheld that authority. That, it seems to me, is the common understanding among those who lend and borrow cars. And I see no reason why that would not hold true even though Byrd was not authorized by the owner of the car to use it.
I have found only one court of appeals case to address this particular issue, United States v. Hunter, a 2011 Tenth Circuit case cited in the scholars’ amicus brief on behalf of Byrd, which – full disclosure – I signed onto. There, as in Byrd, a rental car was stopped for a traffic infraction and the driver was not authorized by the rental agreement to drive the car. Unlike in Byrd, the lessee, Hunter, was sitting in the passenger seat. And unlike Byrd, the driver in Hunter consented to a search. The court upheld the reasonableness of the search, rejecting Hunter’s argument that the unauthorized driver was incapable of giving valid consent to search. One could argue that Hunter’s silence in the face his friend’s consent itself constituted tacit consent on his part, or at least was reasonably so interpreted by the police officer. But the court went further and wrote that “there is no legal authority which expressly states that only the named person on a rental car agreement can authorize a search of a rented car.” If Hunter is correct, and I believe it is, then there is an even stronger case that Byrd, who was driving in the absence of the lessee of the car, would have had authority to consent so as to bind the lessee. And if standing and authority to consent rise and fall together, Byrd ought to be deemed to have standing.
Friday, December 15, 2017
About that Judiciary Committte Hearing
Matthew Spencer Petersen, an FEC commissioner and a nominee to the United States District Court for the District of Columbia, had a rough time at his confirmation hearing Wednesday when he was unable to answer probing legal questions requiring nuanced analysis (asked by Republican Sen. John Kennedy). These included "Do you know what a motion in limine is," "Do you know what the Younger abstention doctrine is," and "How about the Pullman abstention doctrine."* Kennedy also asked Petersen if he had "read" the FRCP and FRE.
[*] I am proud to say that I teach each of those things in my courses. My new pitch to upper-level students during course-selection time will be "If you want to be a federal judge, take my courses."
A couple of thoughts about the entire thing:1) Kennedy began by asking the full panel of Petersen and four other nominees whether any had tried cases to verdict or taken depositions. The "never tried a case" thing has been a recurring theme with several of Trump's district-court nominees, but I am not a fan. There is benefit to having judges from various backgrounds on all courts, including legislative-branch and non-judicial executive-branch experience (which would not allow a nominee to have tried or litigated a case). That a district-court judge has never litigated a case (not "tried," since most cases do not go to trial) should not be disqualifying.
2) Petersen sort-of tried the latter move by describing his role in supervising the FEC attorneys who litigate on behalf of the FEC and who thus deal with the FRE and FRCP and motions before judges--"no, I have not argued the motion, but I have overseen the lawyers who do and I am familiar with this work." But that set him up for the questions revealing he did not know anything about what these lawyers do.
3) The problem is that Petersen apparently had never heard of basic legal concepts. It was not that he could not ask answer questions about their appropriate scope or how they should apply. He could not give basic definitions or describe the basic ideas behind these doctrines. The real revelation here was less Petersen's unfitness (although he is unfit), but his arrogance. He was so certain he will be confirmed and that this was a dog-and-pony formality that he did not take two hours to look up the basic definition of legal issues or become less-than-minimally conversant about basic procedural issues that he hopes to spend the next forty years dealing with. He believed he could walk in, sit through the couple hours before the committee members, and be home free to a lifetime appointment. And that may be more disqualifying that not knowing basic legal principles. Watching Petersen, he did not appear embarrassed or bothered or ashamed by the spectacle.
4) No one "reads" the FRCP or the FRE, so the question itself was bad. Were Petersen smarter, he might have responded "I have not read them like a book, because that is now how one deals with a code. But I am happy to answer questions about specific rules or overarching ideas contained within the FRCP." That might have stopped Kennedy in his tracks (see below). But Petersen could not have answered those next-level questions, so this option was not open to him.
5) [Added thought]: The questions Kennedy asked were effective in making Petersen look stupid. But the questions could not have shown much about Petersen's qualifications, regardless of his answers. He would not have shown himself fit by saying "A motion in limine (Latin: "at the start", literally, "on the threshold") (Latin pronunciation: [ɪn ˈliːmɪˌne] in LEE-min-ay) is a motion, discussed outside the presence of the jury, to request that certain testimony be excluded" or "Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim in state court" (those are cut from the first sentences of the Wikipedia definitions). Yet he did not do that basic work (see # 3).
6) Am I alone in doubting that Sen. Kennedy knows what Younger or Pullman is? Or, at least, that he would be unable to have asked more than "have you heard of it" questions?
7) Petersen will be confirmed. Kennedy will vote in favor, both in committee and on the floor. So I will not even be able to use this as a sales pitch, because the students can always say "well, Matthew Petersen is on the D.D.C. and he doesn't know Younger, so why should I."
8) Here is the video, if you have not seen it. Regardless of outcome, it is worth watching
Academic Freedom at NYU-Shanghai: A Year-End Report from a Participant
As the end of the term approaches here at NYU-Shanghai, it is a good time once more to examine the question of whether American universities’ campuses in China enjoy academic freedom. I have posted on this question several times before (see here, here, and here), and some recent commentary suggests that a new post is in order.
In particular, in order to avoid the sort of conceptual confusion that risks degenerating into vacuous moral grandstanding, any discussion of “academic freedom” needs to distinguish between three entirely distinct questions: (1) What are the bare facts about how NYU-Shanghai (and, by extension, other similar American universities’ campuses in China) actually operate? (2) What is the appropriate baseline against which to measure the academic freedom enjoyed at NYU-Shanghai? and (3) what are the risks of an American universities’ being complicit in an oppressive government’s actions that are unrelated to that universities’ academic affairs?
I am in a good position to answer (1), having taught Constitutional Law for a total of fifteen months over a period of three years at NYU-Shanghai. As for (2) and (3), these are normative questions about which you, gentle reader, should make up your own mind. After the jump, I will offer my defense of NYU-Shanghai, measuring a fact-based view of its actual academic freedom against what I believe is the most defensible baseline and the most plausible definition of “complicity.” (Warning: This is a long post, because, in the face of a lot of acrimonious accusations, I am aiming, more than usual, for pedantic accuracy here).
1. What are the facts about censorship at NYU-Shanghai?
First, what are the bare facts about what the faculty and students can say at NYU-Shanghai? The short answer is: Believe it or not, anything we want. There is a tendency for critics to deduce from some purely theoretical concept of how Leninist China “must” operate that such a statement cannot possibly be true. (Most such critics have never actually visited our campus, seen a class, or talked to our students and faculty. See, e.g., Kent Harrington’s hatchet job in Foreign Affairs. To such writers, I plead: Please do a little legwork beyond quoting a bunch of blogs. I am happy to talk to you via email or Skype or put you in touch with students or faculty members of your choice).
As for data, my own course provides a few points. I teach a class entitled “The U.S. Constitution: Is It Relevant to China?” The point of the course is to present some basic American constitutional concepts to undergraduates, 50% of whom are typically PRC citizens, exploring contemporary controversies in American and Chinese constitutional law. The format features frequent debates in which I require teams of students to present opposing sides of an issue, arguing on behalf of positions that they may or may not in fact agree with.
Some of the course material concerns controversial legal issues in the American context, and some, equally controversial issues in the Chinese context. Yet I have never felt the slightest pressure to modify any aspect of my course, and my students, both Chinese and non-Chinese, approach classroom debates with no-holds-barred advocacy. From my conversations with my colleagues here at NYU-Shanghai and from sitting in on other law classes (there are not that many: we are not a law school), I have found precisely the same sort of absolutely unlimited discussion.
But do not take my word for it. The GAO’s report on American universities’ campuses in China found that campuses like NYU’s that have independent legal status, facilities that are physically separate from partner Chinese universities, unlimited access to the internet, and extensive student life programs have high levels of academic freedom. NYU-Shanghai meets all of these criteria. As the GAO report noted,
(Full disclosure: That anonymous faculty member is me).
“Faculty we interviewed told us they did not face academic restrictions and could teach or study whatever they chose. For example, several faculty members asserted that neither they nor their colleagues would tolerate any academic restrictions, and one faculty member told us he and his colleagues intentionally introduced class discussions on politically sensitive topics to test whether this would trigger any complaints or attempted censorship.”
Even NYU’s most relentless critics like Representative Chris Smith have not found any fault with the levels of academic freedom here at NYU-Shanghai, once they have actually visited the campus. Indeed, Representative Smith gave a blistering speech to the NYU-Shanghai community at our campus attacking the Chinese government’s human rights record. Nobody interfered with his ability to express his views, including views that were patently offensive to some of the students in the room. Instead, they waited patiently for him to finish before presenting counter-arguments.
2. What is the appropriate baseline by which to measure academic freedom at NYU-Shanghai?
Does the absence of express censorship at NYU-Shanghai mean that we have total academic freedom, in the most expansive linguistically tolerable sense of that term? Of course not.
There are lots of ways in which speech can be chilled beyond explicit rules, and those chilling factors are certainly present at NYU-Shanghai (as at other universities). For instance, we do not control the Exit-Entry Bureau of China and cannot invite speakers or faculty to the campus who cannot get a visa from the Chinese authorities. (Mutatis mutandis the same goes for American-soil schools seeking speakers from outside the United States). Likewise, China could deny visas to any of our current faculty who are too critical of Chinese policies. I know from personal conversations with scholars who need physical access to China for their research that the prospect of being denied a visa deters them from speaking or writing too frankly about China’s policies. (Again, that chilling effect exists for professors at American schools on U.S. soil who want access to China). The prospect that someone might report your classroom remarks to Chinese authorities might chill your speech in the classroom (here or in New York City), even if officially there are no official restrictions, especially if you are a Chinese citizen who fears social or employment repercussions from state employers. Finally, our academic freedom ends at the front entrance of the school on Century Avenue: Neither our faculty nor students can do research or engage in public expression in China in ways that violate the ordinary background rules of life in a Leninist regime. For instance, public criticism of Party or State can be easily prosecuted as “subversion of state power” or “picking fights and causing disturbances” in violation of Article 105 or Article 293(4) respectively of the Chinese Criminal Code.
Are these sorts of restrictions reasons to believe that NYU-Shanghai has made an unacceptable compromise of academic freedom by opening a campus in China? In asking this question, NYU-Shanghai’s critics routinely fail to define any baseline of freedom against which to measure NYU-Shanghai’s performance. Such a baseline, however, is critical: If one is aiming to assess NYU's decisions, then one needs to compare the status quo at NYU-Shanghai with some state of the world deemed to be academically freer that would be produced if NYU-Shanghai either bargained harder with their Chinese partners or if NYU-Shanghai did not exist at all.
Judged by any reasonable definition of any such baseline, I believe that it is difficult to argue that NYU-Shanghai should demand from the Chinese that their students and faculty should be immune from China’s general immigration and criminal laws when those students and faculty are off campus. No sovereign nation would ever agree to such a condition: It would be unacceptable not only to the Chinese government but also to other Chinese citizens. Why would anyone reasonably expect that NYU could somehow wrangle such special privileges from China? Has any foreign university ever received such special treatment from the United States government — or any government, for that matter?
If it is unrealistic for NYU-Shanghai to demand total immunity from Chinese law, then NYU-Shanghai’s critics must be demanding instead that NYU-Shanghai not create any Chinese campus at all, because acquiescing to China’s ordinary immigration and criminal laws off-campus is too great a price to pay for the freedoms we enjoy on-campus. But this position is even more implausible, because it leaves everyone with less academic freedom than they otherwise would have. Anyone who would be excluded by China’s Immigration laws from lecturing at NYU-Shanghai, for instance, would still be excluded in the absence of an NYU-Shanghai campus. If NYU-Shanghai did not exist, Kwame Anthony Appiah (or the Dali Lama or whomever) would not somehow magically be able to get a visa to give a lecture at, say Fudan University. The only effect of NYU’s deciding to stay out of China, therefore, is that Chinese students would (1) still not be able to hear what those excluded speakers have to say and (b) also not be able to hear what I and my colleagues have to say. If one’s goal is to protect academic freedom, what possible sense does it make for NYU to stay out of China because of scruples about not being able to import anyone they like to be physically present on campus? By that standard, all universities in the United States ought to shut down, because, under Kleindienst v. Mandel, the First Amendment’s Speech clause does not guarantee non-citizens the right of entry to speak to citizens who want to hear them speak.
The same confusion about baselines infects complaints that our Chinese students here might be chilled by government spies who report what the students say to vindictive authorities. It is possible that such spies exist (although, from my personal experience, our Chinese students seem unconcerned about their existence). But they exist as well at American universities located in the United States. Again, if universities become unacceptably tainted by the possibility that a student will fear that Chinese authorities will hear about their classroom remarks, then American schools should simply stop accepting any students from Communist China. Of course, such exclusion of foreigners to insure one’s own moral purity would degrade, not enhance, academic freedom. Mutatis mutandis the same holds for NYU’s refusing to create a campus in Shanghai: Such moral posturing would leave no one better off (since presumably the government would continue to spy on Chinese students at existing Chinese and U.S. universities), and it would leave many worse off — namely, everyone in our student body who would like to have the option of attending NYU-Shanghai despite the hypothetical presence of people who would snitch on them to the Chinese government or Communist Party.
3. Is NYU-Shanghai “complicit” in the bad actions of Chinese officials?
Behind much of the rhetoric about academic freedom is, I suspect, an entirely different concern: NYU’s critics worry that NYU becomes “complicit” in the bad deeds of Chinese officials by maintaining a campus in China. Robert Precht of Justice Labs stated this worry last spring when he wrote that “[t]he problem of complicity arises because of the very close business relationship between the universities and the Chinese government.” By “receiving generous subsidies from the government,” Rob argues that American universities potentially become complicit in “the government’s” bad acts.
There is, however, a deep confusion at the heart of this “complicity” argument: It ignores the basic fact that the Chinese Communist Party is a “they,” not an “it.” There are many, many departments, commissions, provinces, towns (40,000), counties (3,000), cities (hundreds), and many other subunits within Party and State of Communist China. It is hard to see how one becomes “complicit” in the bad deeds of, say, the Beijing Bureau of Public Security because one has cut a deal with the Pudong Municipal Government and the Ministry of Education. By similar reasoning, one becomes complicit in the misdeeds of Joe Arpaio in Maricopa County whenever one enters into an agreement with, say, New York City or the National Institute for Health.
I recognize that theories of complicity can be extremely elastic. Some people see complicity everywhere from any sort of association, however remote, with practices they deem to be evil. There are religiously sponsored medical clinics who will not post a sign required by state law notifying patients of the availability of abortion, arguing that mere physical proximity to such information will make them complicit in the practice to which the notices refer. Even under such a capacious theory of complicity, however, the notion that NYU becomes complicit in, say, the arrest and trial of a human rights lawyer by police and procurators that have no connection whatsoever with NYU simply because NYU enters into an agreement with the Pudong government or the Ministry of Education strikes me as fanciful even by the unusually metaphysically terms of strained complicity arguments.
4. But what about all of those Communist Party members in your university’s administration?
I know and respect Rob, so I have a hard time understanding why he would embrace a theory of complicity in China that makes no sense in the United States (or anywhere else). My only hypothesis is that Rob and others who criticize NYU for its dealings with the Chinese government adhere to the notion that the Chinese Communist Party is such an unusually unified and especially evil organization that one’s dealings with any member of the Party taints one with the sins of any other member. My suspicion is reinforced by another post in which Rob declared that, because, under governmental rules, a member of the Chinese Communist Party must occupy a leadership position at NYU-Shanghai, it follows that NYU-Shanghai must not really be able to protect academic freedom. (Rob went so far as to accuse us of some sort of fraud because of this requirement of representation of the Communist Party in our leadership).
It is actually pretty funny to hear that Rob is shocked, shocked to find that Communism is going on here at NYU-Shanghai. That Rob would find the requirement of Communist Party members in the leadership alarming suggests a stereotype of the Party as a monolithic organization in which every member endorses every action that every other member ever took. My own experience runs against that stereotype. In the fifteen months that I have spent in China, I have met several Party Secretaries and Deputy Secretaries at several Chinese universities. Some have been working for years to outlaw sex discrimination in the workplace after successfully protecting Hep B patients. Some are inveterate advocates of due process for criminal suspects, including trial-centered justice and an end to coerced confessions. Some oppose strongly the recent draft supervision law that, they believe, will undermine Chinese citizens’ constitutional rights. Branding them all as untrustworthy and oppressive is the sort of paranoid thinking that I have gradually come to expect from, say, Steve Bannon, not from usually fair critics like Rob.
In particular, Chancellor Yu Lizhong, NYU-Shanghai’s Party Secretary, is one of the most beloved educators in China. Parents flock to him at NYU events, because they trust him: He is a celebrity in China for his straightforward style, his honesty about the costs and benefits of an expensive western-style education, and his warmth towards our students. Chancellor Yu speaks with the quiet authority of someone who – like many Party members – has suffered from the Cultural Revolution. I am pretty sure that he does not need a lecture from Rob or anyone else about the value of freedom, academic or otherwise.
Yes, we have lots of Communists here at NYU-Shanghai, including Communists in the leadership like Chancellor Yu. Before you go into a pearl-clutching panic, keep in mind that many of those Communist Party members are students who came here precisely because they wanted a western-style education and they counted on Chancellor Yu’s good faith guarantees, backed by his reputation for integrity, to deliver. Far from dominating the school with their imagined anti-liberal conspiracies, my students who are Communist Party members often feel marginalized by fellow students and keep their Party membership under wraps. (I go out of my way to encourage them to be proud that they want to participate in their country's governance).
The irony of Rob’s statements about NYU-Shanghai’s alleged fraud is that there are nationalists in the Chinese Communist Party making accusations strikingly similar to Rob’s about NYU-Shanghai – but from the other direction. They warn that foreigners and capitalists are infiltrating Chinese universities with insidious plots to undermine Communism through western values. So we at NYU-Shanghai have to put up with Rob’s baselessly claiming that we are stooges for Leninism while Chinese nationalists contend that we must be a front for the CIA.
Caught between the CCP’s and America’s nationalists, students who come to NYU-Shanghai, Communist and non-Communist alike, are demanding an education where they can learn without being hectored and preached at by the zealots of any ideology. As I have noted in an earlier post, I have found that NYU-Shanghai delivers such an education more effectively than many American universities, which seem to be undergoing their own little Cultural Revolution in which the True Believers shout down speakers, shut down documentaries and plays, and invade classrooms in the name of their various fighting faiths.
In sum, I believe that the record reflects that NYU-Shanghai has successfully been delivering a type of liberal education increasingly threatened in both China and the United States. Whether this type of education meets one's standard for "academic freedom" depends on the baseline by which one measures acceptable limits on such freedom. If one believes that the appropriate baseline for assessing freedom of NYU-Shanghai students in China is the precise set of freedoms enjoyed by NYU's students on Washington Square inside and outside the campus, then, no, NYU-Shanghai's students are obviously not "free." They cannot, for instance, march in street demonstrations or hand out leaflets denouncing the government. But that standard strikes me as normatively indefensible. If NYU refused to open a campus in any country that lacked the United States' libertarian commitments, then no one would gain any new leafletting or street-marching rights, but everyone would lose the opportunities provided by NYU abroad. NYU’s departure would leave everyone less free to the benefit of no one but a few moral purists who would cut off Chinese students' noses to spite China's face. While there is a theory of complicity that makes such a price worth paying, I am inclined to think that frustrating students' and faculties' academic aspirations is an odd way to protect their freedom.
Thursday, December 14, 2017
It's Time to Start Impeachment Proceedings of Judge Kozinski
Twelve years ago when I was considering going into academia, there were several must-read law blogs. Prawfsblawg, of course, and Volokh Conspiracy (which I am pleased to see is moving away from having a paywall). And also Letters of Marque, written by Michigan law student Heidi Bond, rightfully described here on Prawfs as being “astute and wickedly funny.” Years later I realized that Bond was also the best-selling author Courtney Milan, whose books I adore. Her characters are complex and well-realized, her plots engaging, unpredictable, and coherently structured, and her humor is still, always, astute and wickedly funny. Her books (along with law professor Alafair Burke’s legal thrillers), are some of the few insta-buys for me.
Reading about Heidi’s experience with Judge Kozinski made me feel equal parts sad and furious. It’s been decades since Catherine MacKinnon pointed out that sexual harassment is a form of sexual discrimination, but that point gets proved again and again when women’s careers are stalled or derailed.
As a recent article by Rebecca Traister explains very eloquently:
“What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equals; that they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving. . . . It’s not that we’re horrified like some Victorian damsel; it’s that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.”
Judge Kozinski offered a perfect example of understanding women’s worth as erotic or ornamental when he reportedly sent a memo to his Ninth Circuit colleagues “suggesting that a rule prohibiting female attorneys from wearing push-up bras would be more effective than the newly convened Gender Bias Task Force.”
I don’t have a #metoo of my own. I was very lucky to clerk for judges who treated their clerks fairly and professionally and who were wonderful mentors. After I finished my clerkship I took a job as Assistant Solicitor General in Texas for the then-unknown Ted Cruz. There is certainly fair criticism of Cruz’s work as Solicitor General of Texas. I personally felt that he pushed the office in too partisan a direction, and then, as now, I disagree with nearly every political stand he takes. I ended up choosing to leave for a new job relatively quickly. But in the time I worked for Cruz, I saw him treat the male and female staff no differently. He looked for opportunities for junior lawyers to stretch their wings—I got to argue an appeal very early on, for example. And when I told him I was interested in academia, he went out of his way to introduce me to professors he knew. When I left the office I was ready to move on, but I felt happy to be a part of the legal profession and I felt confident that I had a place in it.
That is how mentoring is supposed to look. And it’s the opposite of what happened to Heidi, who ended her clerkship year feeling trapped, incompetent, and powerless. Journalist Vivia Chen points out that Heidi’s “rejection of what might have been—an illustrious future as a law professor, government lawyer, judge, law firm partner—seems to have its roots with her awful experience with Kozinski.” I’m selfishly glad that Heidi is concentrating on her career as a writer. And she is still generous with her intellect and her legal skills—her illuminating blog posts on the Ellora’s Cave litigation, for example, helped the community of authors understand the legal issues in a high-profile case, and she has also used her platform to advocate in favor of greater diversity in publishing.
But it’s hard not to count the loss to the legal profession when women lawyers find their careers derailed by harassment and discrimination—when they are treated, in Traister’s words, as “fundamentally erotic, ornamental; [and] have not been taken seriously as equals.” Even though men and women have been attending law school at the same rates for many years now, women still make up only 20% of law firm partners and 24% of general counsels. There is still a pay disparity.
As long as Judge Kozinski stays on the bench, the cost to the legal profession will be too high. It is time for him to go, whether voluntarily or otherwise. In Federalist No. 65, Hamilton wrote that impeachment is appropriate for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” Judge Kozinski’s mounting record of accusers suggests an incalculable injury to the legal profession and to society itself. It is time for him to go.
Tuesday, December 12, 2017
Happy Hanukkah, and also: Judging Bodies; Judging Judges
First candle of Hanukkah is tonight and I found this lovely reminder that I've been blogging on Prawfs for 11 years.
I received this caricature today from friends from Israel. Above the original Barbie it says "First Candle (of Hanukkah)"; atop the modified Barbie it says "Eighth Candle". My friends sent this to me knowing that my new book You Don't Own Me is a story about how Mattel's courtroom drama has shaped, and was shaped by, the marketing of Barbie, the behind-the-scenes corporate quest to control, contain, and preserve her image, and in turn, the ways in which the world's most iconic plaything has had an impact on all of us, girls, boys, men and woman - on our ideas about body image and womanhood, childhood and parenting.
Since I need to go light some candles, I'll be brief and focus on wishing everyone a happy, yummy season. There is a lot more to say but I'm only going to post here a paragraph from Chapter 9, called Taming Barbie: Starring Judge Alex Kozinski as Speechzilla. In light of very recent news about the judge, this chapter may be of particular interest. Again, much more to say. I was a Supreme Court clerk after I graduated from Tel-Aviv University School of Law and I'd like to post later about judicial ethics and clerkships. Indeed the phrase "you don't own me" and the secrecy imposed on clerks all receive additional meaning in this unfolding story. Dan Solove interviews me about the book and about NDAs and the recent #metoo movement here. But for now, from You Don't Own Me, in a scene where I sit down with Judge Kozinski to talk with him about Mattel v. MGA Entertainment and his rulings in other Mattel cases.
When I told the judge that I grew up with a feminist mother who taught me that Barbie sends girls the wrong message about body image, Kozinski looked puzzled. “What’s wrong with her body image?” he asked. I explained that her proportions represent unattainable female perfection and weight. Kozinski answered jokingly, “The only thing wrong that I saw when I held Barbie is when I lift her skirt there is nothing underneath.” After his decision came out on appeal, a legal magazine drew a caricature of Kozinski holding the dolls and whispering to the other judges, “Let’s keep them.”
Judge Kozinski is one of the heroes of the case - defending our public domain, the right to compete, to remix, to speak. The chapter looks at these admirable stances but goes deeper to asking about how these worldviews are shaped and how they might interact with other (problematic) values and personal background. More later. I hope you do eat lots of latkes, sufganiot (jelly donuts), and whatever treats are in your holiday tradition - and remember - as I write in You Don't Own Me - that Finish researchers have shown that if Barbie were a real woman, she would tip and fall flat on her face.
Monday, December 11, 2017
A Looming Asteroid for Law Schools
My last post focused on proposed aggregate debt caps for federal loans. But as a recent article from Inside Higher Ed points out, a more immediate problem for educational institutions and their students may be the Prosper Act's proposed annual lending limits. The bill would limit federal loans for non-medical graduate and professional students to $28,500 per academic year.
Again, debt caps are not unprecedented--federal loans were capped until the GradPlus program was created in 2006. But so much has changed since 2006 that re-instituting federal lending caps would create chaos in law school finance.
The GradPlus program does one thing really well--it makes graduate school accessible to students regardless of their family wealth. The federal government offers loans up to the full cost of attendance (defined to include both tuition and reasonably living expenses) for graduate and professional programs. Parents do not have to co-sign the loans. Combined with income-driven repayment plans that cap repayments at 10% to 15% percent of a graduate's income, it makes attending graduate school a low-risk proposition. But the GradPlus program also helped create conditions that allowed for institutional exploitation. David Frakt, for example, has done a lot of work analyzing how some law schools have admitted students with a very low chance of ever being able to pass the bar exam. Those students often leave their educational programs saddled with some of the highest average debt rates and limited employment opportunities.
But one of the less obvious impacts of the GradPlus program is that it frees graduate and professional schools from having to worrying about how their students will pay for school. In the decade between 2006 and 2016 average private-law-school tuition rose from $30,520 per year up to $45,099 per year. Average public-law-school in-state tuition rose from $14,245 to $26,053. Living expenses add on at least another $20,000 or so per year for students. Even if the availability of federal lending didn't increase prices (though it may have, at least to a small degree), it did make it easier for law schools to rely on tuition increases to compensate for factors such as reduced support from state governments.
The Prosper Act would change all of that immediately, for the 2018-19 school year. If it passes (which it has a decent chance of doing--it is the House's version of the Higher Education Act reauthorization bill) there would be an immediate crisis in funding law school--after all, the federal loans would barely cover the cost of living (and at schools in high-cost areas, wouldn't even be enough to cover the cost of living). There would be little to nothing left over to cover tuition. Certainly, some students could rely on family contributions, and some may be able to lessen living expenses by living at home while attending law schools. But not all families are in a position to help, and the legal profession would suffer greatly if only the very privileged could join. Private loans may step in to fill some of the gap--though again, I suspect that the availability of such loans would be significantly more restricted than the current open-door policy of GradPlus. And in any case, private loans have decreased so much (declining by more than half) in the years after the introduction of GradPlus that I doubt private lenders could ramp up fast enough to avoid massive disruption in the short term. Finally, any such private loans would probably have more onerous terms--it is unlikely that they would qualify for income-driven repayment, and they would likely require a cosigner.
In short, if the Prosper Act passes in its current form, students will face immediate difficulties in financing their graduate education--and the scale of the problem will create a financial crisis for schools as well.
Northwestern Law Review Exclusive Submissions - Spring 2018
Northwestern Law Review's exclusive submission window for Spring 2018 law review submissions will be open from January 1, 2018, to January 14, 2018. Publication decisions will be guaranteed by February 5, 2018. All the information about this exclusive submission window is available on the Northwestern Law Review website.
JOTWELL: Malveaux on Coleman on gender inequity in complex litigation
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Brooke Coleman, A Legal Fempire? Women in Complex Litigation, Ind. L.J. (forthcoming), discussing the paucity of women litigators and judges in MDL litigation.
Clerkships Are, Or Can Be, Just Jobs. Maybe it's Better That Way.
This fall, I happened to be writing a short law review piece that dealt with clerkship culture. It makes the argument, which I've also made on this site and elsewhere, that American judicial clerkship culture often encourages an adolescent love and loyalty toward the judge one clerks for, and that this is unhealthy and does not help develop a fully mature legal culture. To the extent that many or most law clerks have clerked for federal judges, and many elite law professors have clerked for elite judges, it does not develop a fully mature legal academic culture either. Not everyone agrees with this argument, of course, although it is hardly new and many have made similar arguments.
The pages of law review tributes to various judges and justices, often written by former clerks who are now law professors, are filled with adoring, sometimes worshipful language. Some of that is understandable. For one thing, the editors are unlikely to solicit or select for publication a tribute that says of one's judge, "[He or she] was just okay," or "It was just a job, although it was a great job." For another, clerkships are part of the culture of elite advancement, ours is a small community that can be quietly punitive, and one does not want to be seen to write disloyally or even especially critically or in a lukewarm fashion about one's judge. And because clerkships are so romanticized, one either absorbs that language and sensibility, or doesn't want to write more blandly, lest one be suspected of having been just a so-so clerk or of having clerked for just a so-so judge.
What is striking about those tributes, though, is the common language used to describe such clerkships. Many such tributes describe the judge for whom the author clerked not simply as a great boss or mentor, or even as a friend, but in distinctly familial and filial terms. Clerking, in this description, constituted joining a kind of family, and the judge encouraged his or her clerks to think of themselves as part of his or her extended family for life. That is a particular kind of closeness, and describes and encourages a particular kind of relationship to and with one's judge. In other cases, many involving the "familial" judge and often involving judges with a deep sense of political mission or engagement, the description is one of the chambers being part of a team, a team of near-equals and allies pursuing a shared mission: one that is deeply felt, involves more than a generalized term like "justice," and is often defined in part in terms of a sense of other judges on a multi-member court as being adversaries. Again, that kind of model encourages a strong sense of closeness and identity with one's judge. It also encourages a sense of omertà, and a desire not to let down one's "side." It encourages a particular kind of relationship, one that is far more than a mere "job."
Of course, many clerks don't have this kind of experience. Their clerkship is indeed just a job. It might be one of the best jobs one ever has, but it is still just a job. And the judge one works for is clearly one's boss: not one's second father or mother, grandfather or grandmother, or friend, or even necessarily one's mentor (even if one learns and learns well from the judge and the job). The judge is not looking for a second or substitute family; he or she already has a family and doesn't want or need another one. Nor is the judge looking for political allies or teammates on some kind of crusade or mission. Clerks are employees: special employees, perhaps, or especially important employees, but employees just the same. And the judge is "just" one's employer.
I have no idea how common that clerkship experience is. I assume it's quite common. It's consistent with my own experience. But it mostly flies under the radar. It's not the model that gets talked about again and again in the law reviews. It's not the romanticized, rhapsodized description of clerking that so fills the books and articles about clerking, or the breathless descriptions of judges or justices. More often that not, law students are given the romantic description, or hope to have that kind of life-defining (and, in my view, potentially life-long adolescence-encouraging) experience. They don't want their special year, their "elect" year, to be mundane or prosaic or just an especially prestigious and interesting job. Nor do they want to describe it that way.
There was nothing particularly timely about the piece I have been working on, and I didn't intend it to be or much care. But, in the wake of the stories about Judge Kozinski over the past week, it suddenly seems very timely indeed. I don't mean to generalize too quickly or loosely from those accounts to all "family"- or "team"-model clerkships. But in my piece, in describing both the "family" and the "team" model of clerkship, and contrasting it to the plain "job" model of clerkship, I found that I was citing many published articles by or about Judge Kozinski and the clerkship experience. And in at least one of the new accounts about Kozinski, I was struck by two things: 1) a description of the totalizing nature of the experience, one that has been described about some other judges and their clerkships; and 2) the same former clerk's desire for "greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge."
Perhaps it's time to rethink the romanticization of clerkships that involve familial or filial relationships with one's judge, and the endless praise of judges who encourage such relationships rather than close but professional and workaday relationships. Maybe there's more to be said--certainly more than is generally said publicly--in favor of clerkships that are "just" jobs, that feel like "just" jobs, and in which the judge understands and makes it clear that the clerkship is indeed just a job, and the judge is indeed just another employer. It's a lot easier to criticize, refuse, or stand up to a judge who feels like a simple employer, not a filial figure, or a teammate and collaborator in a deeply charged and important "mission." I'm sure that many such relationships and experiences are indeed wonderful. But they are also rife with the potential for abuse of power, in a way that may discourage clerks from saying or doing much about it. And our culture of glowing tributes, displays of filial loyalty, and lifelong championing of one's former judge may not help either.
Maybe there is much more to be said in favor of the clerkship that is just a job and is treated like one, and the judge who is just an employer--and who knows it, and (as a professional should) acts like it. Perhaps that's better than an extreme in which one's clerkship might be "the best year in [one's] career," or "their worst," and in which, if it's the latter, multiple social and other forces discourage one from saying so. There's a lot to be said for clerkships that are neither the best nor the worst year, but are just jobs; and for judges who don't constitute one's closest relationship, for good or ill, but are just one's boss.
Sunday, December 10, 2017
Dean Search: FIU College of Law
After the jump is the ad for the Dean position at FIU College of Law. I am a member of the search committee. And while I am biased, I think this is a good job at a rising school with a lot of upside--public-school tuition, small student-body, great bar-passage and employment numbers, good entering-student numbers, and a productive faculty.
Dean, College of Law
Florida International University
Florida International University seeks an energetic, practical, and visionary leader with a commitment to scholarly excellence and diversity to serve as Dean of the College of Law. Candidates with exceptional academic, public sector, or private sector experience as successful legal practitioners within complex organizational settings that involve multiple stakeholders are invited to apply. FIU is a vibrant comprehensive university offering 180 bachelor’s, master’s and doctoral programs in 12 colleges and schools. FIU is Carnegie-designated as both a research university with highest research activity and a community-engaged university. Located in the heart of the multicultural South Florida urban region, FIU’s multiple campuses serve over 54,000 students, placing FIU among the ten largest universities in the nation. Annual research expenditures in excess of $132 million and a deep commitment to engagement have made FIU the go-to solutions center for local to global issues alike. FIU leads the nation in awarding undergraduate and graduate degrees, including in the STEM fields, to minority students. FIU’s students reflect Miami’s diverse population, earning FIU the designation of Hispanic-Serving Institution.
The College of Law (FIU Law) is the only public law school in South Florida, founded on the idea that a high-quality legal education should be affordable and accessible to a broad, diverse community with a commitment to public service. FIU Law’s mission is to offer a high-quality legal education attuned to the challenges of globalization and devoted to serving the local, national, and international communities. FIU Law prides itself on graduating professional, globalized, and culturally savvy future lawyers committed to public service. FIU Law offers the Juris Doctor (JD) degree, a Masters of Law for Foreign Lawyers (LL.M.), a Juris Master (JM) degree for non-lawyers, and a variety of joint masters’ programs. In fall 2017, the JD program enrolled 457 students and the LL.M. program enrolled 31 students from 12 countries. These students are taught by a diverse faculty of 31 full-time and 46 part-time teachers. FIU Law is accredited by the American Bar Association (ABA) and is an accredited member of the Association of American Law Schools (AALS). FIU Law ranks as the most diverse law school in Florida and graduates the highest percentage of Hispanic attorneys of any law school in the nation. FIU Law ranked number one in the state in the last four July examinations administered by the Florida Board of Bar Examiners.
Reporting to the Provost, Executive Vice President and Chief Operating Officer, the Dean is the chief executive and administrative officer of FIU Law. The Dean provides active leadership in the promotion, direction, support, and growth of the educational, research, and fundraising activities of FIU Law, maintenance of a high level of morale among the faculty, and encouragement of the spirit of learning among students. The Dean represents FIU Law in the community and identifies and hosts relevant community leaders and activities on campus. As chief executive, the Dean is responsible for the management and allocation of the budget, market-rate programs, and philanthropy, as well as compliance with accreditation standards, community outreach, marketing and enrollment, interdisciplinary initiatives, global outreach, and the effective management of FIU Law’s administrative and financial affairs. The Dean consults with the faculty in designing the FIU Law strategic plan and sets the tone for FIU Law in encouraging excellence, recognizing achievement, and supporting appointments and promotions based on merit. The Dean is responsible for increasing academic excellence, creating opportunities for students, and fostering a collaborative spirit in FIU Law and with other colleges.
For this exceptional opportunity, the University seeks an innovative leader and strategic thinker with a broad understanding of the challenges facing legal education, and the ability to articulate a vision that positions FIU Law as a successful enterprise within a complex and growing public research university. The successful candidate will have the reputation, stature, skills, and credibility to attract strong faculty and students, to foster a scholarly community, and to obtain financial and other resources to strengthen FIU Law. S/he will possess a record of intellectual or professional accomplishments, also warranting appointment to the rank of tenured full professor; demonstrated ability in financial and human resources management, collaboration, and fundraising; a spirit of innovation; a strong external focus; and the ability to work within a diverse and multicultural environment. The successful candidate will have a record of fostering excellence in instruction, research, and service; a commitment to strengthening and supporting scholarship; and dedication to promoting faculty and student success. A JD or equivalent degree is required.
Screening will begin in mid-January and continue until an appointment is made. Nominations, inquiries, and applications (including a cover letter, curriculum vitae, and the names of five references) should be directed electronically to [email protected].
Kim M. Morrisson, Ph.D., Senior Managing Director or John Mestepey, Managing Director
Nancy Helfman, Vice President and Senior Associate
2005 Market Street, Suite 3300, Philadelphia, PA 19103
FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability status, protected veteran status, or any other characteristic protected by law.
For more information, visit www.fiu.edu
Byrd v. United States and Fourth Amendment Search Doctrine
Greetings and thanks for the regular Prawfs for inviting me to guest-blog for December. For those who don’t know me, I teach Criminal Law, Criminal Procedure, and related courses at Salmon P. Chase College of Law at Northern Kentucky University, and I write mostly in Criminal Procedure. Much of my work has been centered around identifying and elaborating upon what I see as a neglected federalism component in the Bill of Rights, particularly the Fourth and Eighth Amendments. In my blogging this month, I will likely focus on some interesting criminal procedure cases pending in the Supreme Court this Term. Of course, everyone is talking about the recently argued Carpenter v. United States, on whether government acquisition of cell site location information stored by cell service providers constitutes a Fourth Amendment search.
But I want to write about some lower-profile cases as well. And I want to start out with one that I think is one of the easier cases this Term, Byrd v. United States (DISCLOSURE: I signed onto a scholars’ amicus brief on behalf of the Petitioner Byrd). Byrd raises the question whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search. Essentially, Byrd’s fiancée rented the car in her own name and she was the only person authorized to drive it. However, she loaned the car to Byrd, who was subsequently stopped for a traffic infraction. There is a factual dispute over whether Byrd consented to a search of the car but the case is in the Supreme Court on the assumption that he did not and, because there was no probable cause to search, the search was presumably illegal. The question, again, is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed. Based on the Court’s case law, the question is essentially whether Byrd, as opposed to the rental car company or the lessee, had a reasonable expectation of privacy (REOP) in the car.
I call this a relatively easy case because, whether one views the REOP standard purely as a measure of widespread societal attitudes, on the one hand, or as more closely related to positive-law concepts, on the other, one should come to the same conclusion. Driving a rental car as an unauthorized driver, I would say, is a fairly common activity. I’ve certainly done it. I think most people would be shocked to learn that as an unauthorized driver, they have no REOP in the car such that any of their personal belongings placed into the car are subject to discovery by anyone who cares to snoop. That, after all, is essentially the test of whether something is a search: are the police doing what any ordinary person could do? If so, then there is no search. If not, then the police need some special dispensation, typically a warrant based on probable cause, or at least some level of individualized suspicion coupled with a good reason to dispense with a warrant.
If we take an approach that hews more closely to positive law, we come to the same conclusion. True, the fact that a driver is unauthorized might result in a breach of the rental agreement. Even that much is unclear, and if it is a breach, it is on the part of the lessee, not the third party to whom the lessee has given permission to use the car. But that is all beside the point. The question is whether the breach of the rental agreement somehow permits yet another party, in this case the police, to enter the car without permission of anyone with a property interest in the car. Again, a search occurs if the police go beyond what any ordinary person could do. So a positive-law approach would ask whether an ordinary person, even one knowing that Byrd was not an authorized driver, would have been justified in entering the car without permission. Phrased that way, the answer seems obvious. Byrd, who had permission of the lessee to use the car, had lawful possession of the car. He thus had a property interest in the car superior to everyone in the world except two people: the owner and the lessee. Anyone else entering the car without permission is likely committing a tort, if not a crime.
Of course, that simply invites the question: a tort or crime against whom? Granted that the lessee had a REOP in the car and would have standing to assert the exclusionary rule, the question is whether Byrd did as well.
But imagine the following scenario. Byrd parks the car on the street and comes back to find a stranger in the car rifling through his belongings. Byrd orders the stranger out of the car but she refuses to budge. Byrd then forcibly ejects the stranger from the car, causing her minor physical injuries. She then sues Byrd for assault. Would Byrd have a good defense? I don’t know the law in Pennsylvania, where this case arose, but I have to imagine that the answer would be yes in every jurisdiction. A person in possession of a chattel, even one with no property interest beyond mere possession, has the privilege to use ordinary physical force to terminate a trespass to the chattel, assuming the trespasser has been ordered to end the trespass. Again, under conventional common-law principles, Byrd, despite his being an unauthorized driver, had an interest in the car superior to every person in the world other than the owner and the lessee, including the police. Accordingly, Byrd has standing whether one focuses on widespread social understandings or on positive law. Indeed, as I argue in my recent piece, “A Unified Approach to Fourth Amendment Search Doctrine,” and will explore in future posts, the property-based trespass approach and the privacy-based expectations approach are really two forms of the same basic standard, because our positive law derives from the same widespread social expectations that are at the heart of the REOP test.
Nazis and free speech
Apropos of nothing: Nazis are the focal point for all sides in the debate over free speech. Those seeking a narrower approach to free speech want a rule that specifically and explicitly excludes actual Nazis from First Amendment protection; consider one comment to this post and the repeated position of Elie Mystal in this RadioLab "More Perfect" Debate. Those who defend the current expansive understanding of free speech consider protection for Nazis, especially in Skokie, as a high point in the fight for free speech.
No conclusion to be drawn; just an observation.
Saturday, December 09, 2017
tis' the season for podcast listening
So please allow me to plug mine: Planet Lex series on Legal Talk Network. Sixteen episodes, and counting, on topics ranging from Trump & rule of law, frontiers of law & technology, legal fiction (with Scott Turow), cybersecurity, public corruption, cannabis regulation, and other topics.
Friday, December 08, 2017
Who's Being "Coerced" in Masterpiece Cakeshop? (or, Why Everyone Thinks They Play Defense in Baseline Hell)
Marci Hamilton's column on Masterpiece Cakeshop's oral argument provides a great example of the futility of a particular type of rhetoric in Baseline Hell -- the rhetoric of outrage over invasion of private rights. According to Professor Hamilton, Jack Phillips, the baker, cannot plauisbly argue that conscripting him to provide a cake for a same-sex wedding will force him to endorse the wedding, because his cake's meaning is determined by the couple who are getting married. In Hamilton's words, "[t]he baker has no say on the meanings at the event," because "the couple has the absolute power to determine who speaks and what they say." Indeed, by purporting to determine the meaning of his cake once it has left his shop, Jack Phillips is actually attempting to control a private marriage ceremony. "If the couple can’t determine the meaning of Phillips' cake], the ceremony has been stolen from them by an outsider’s purposes, and, in this case, shamelessly politicized."
One might think that it takes a bit of chutzpah to describe Phillips as "stealing" a ceremony that he so obviously wants to avoid. Moreover, if there are lots of competing bakeries willing to supply an equivalent cake to the couple, then the couple's insistence that only Phillips' cake will do could be characterized by the uncharitable as the couple's "shamelessly" politicizing Phillips' shop. Advocates of same-sex marriage have won the Culture Wars (rightly, in my view). Must they also spike the ball in the end zone by forcing a handful of family businesses with religious objections to supply products easily obtained elsewhere? What material harm can an exemption for businesses like Phillips' really inflict? As for dignitary harms, I would agree with General Francisco's statement at oral argument: "I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too."
But I am inclined to leave off the "shameless" and say instead that everyone legitimately believes that their private rights are being invaded in Baseline Hell. "Baseline Hell" is that infernal state in which there are no intuitively obvious entitlements by which to assess who is coercing whom. When pervasive common-law rights collide with pervasive regulatory schemes, the beneficiary of each can plausibly argue that they are merely trying to defend themselves from someone else's meddling encroachment. Phillips' confection sits squarely at the center of this legal inferno. On one hand, the law bars Phillips from discriminating on lots of grounds; on the other hand, the law also allows Phillips to choose his products and customers. If Phillips refused to supply pies for a pie-eating contest on anti-gluttony grounds, a cake denouncing same-sex marriage on religious grounds, or a "MAGA cake" on anti-Trump grounds, he'd likely be within his common-law entitlement (assuming that support for Trump is not a religion). Phillips can plausibly argue, therefore, that, in light of the background autonomy normally protected by Colorado's common law, forcing him to supply a cake for a same-sex ceremony treats his religious objections as less weighty than analogous reasons that the law respects. (This seems to be the burden of Douglas Laycock's and Tom Berg's amicus brief). On the other hand, Phillips' store is also barred from discriminating against customers on a lot of grounds, including but not limited to sexual orientation. If Phillips gets a "special" exemption from such laws only for services provided to same-sex wedding ceremonies, then the couple who is denied service can argue that constitutional law signals them out for a discriminatory burden that, say, the celebrants of a mixed-race marriage would not face if confronted by analogous race-based discrimination (at least, if the Court accepts the theory of the United States' amicus brief that prohibiting race-based discrimination is just more compelling than anti-gay discrimination).
In short, everyone plays defense in Baseline Hell. I would let each state set the baselines best suited to its voters' beliefs and (in this case) affirm the Colorado court's decision. But I am a hopeless federalism nut and acknowledge that nationalists might instead want SCOTUS to choose the One True Baseline for the entire nation. My only plea to Hamilton is that rhetoric about one side's "stealing" a wedding is both meaningless and gratuitously inflammatory. In Baseline Hell, the polite thing to do is to acknowledge that private rights are too disputed to allow anything more than a decision to choose one set of baselines by fiat.
Thursday, December 07, 2017
Casablanca and the greatest heckler's veto in cinema history (Updated Twice)
(New Update: The film turns 75 this year and the New York Post tells the backstory of the movie's travails and unexpected success).
But this scene involves what some now label as a heckler's veto. Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking. If, as some say, this is a heckler's veto, the government could have stopped the house band from playing or, as happened in the film, shut down the forum (although only after collecting its winnings). And so we lose the turning-point moment that galvanized what everyone regards as the "good guys" in the story.
Mark Tushnet and Erwin Chemerinsky/Howard Gillman have argued that it may depend on the nature of the space. In an open space, the Nazis did not have a superseding right of access compared with the supporters of France, so they did not have a superseding right to speak and be heard. But others insist that government can stop one speaker from being so loud as to make it impossible for another to be heard--that this is disruption, not counter-speech. Perhaps the Allies in the bar should have allowed the Nazis to finish their song and then sung their own. Or they should have gone to another space. Or they should have listened to the ideas in the Nazi song and given them a chance to persuade.
I do not have the answer to this problem and I am still turning it over for a future article. But I like this scene because it illustrates the complexity of the balance.
Update: Lubet offers an interesting take in response to my original post. He hits one point that I have heard from several people on these issues--the Allies were not singing to drown out their rivals, but to inspire the audience with their own message and their is a difference between presenting your message, loudly, and presenting a message with the intent of drowning out. I do not think intent matters, because it is difficult to separate--inspiring the Allies in the bar required that their voices down out those of the Nazi--even if the Nazis do not stop singing, they could not be heard, which was the point.
Debt Limits, Tuition Discounting, and Legal Education
Almost six years ago, I participated in an online symposium on the future of legal education at the Legal Ethics Forum. At the time, I examined the possibility of government-instituted caps on lending for graduate education, a proposal earlier put forward by Brian Tamanaha.
A lot has changed in those six years, but the proposed PROSPER Act now recommends a cap of $150,000 for graduate education. On the whole, I think that loan limits are a good idea, though a $150,000 cap would have a significant impact on law school finance. For example, the USNEWS ranking of law schools by average debt shows that the average law-school debt at 23 law schools is already more than $150,000. High-debt schools are found at all levels of the prestige hierarchy, including Thomas Jefferson (with an average law-school debt of $182,411) and Columbia (average debt $159,769). With a hard lending cap from the federal government, I would expect that private lenders would be willing to fill the gap at schools like Columbia. I don't believe they would so at schools like Thomas Jefferson. Private lender SoFi, for example, will refinance some law-school loans, but it also ranks schools by an estimated return on investment, and recommends that students "steer clear of the law school programs on our list with a 0.6 or lower salary-to-debt ratio." It is unlikely that SoFi or other private lenders would willingly provide financing for such programs. It certainly would not do so at the same rates offered by the federal government.
Even schools that have an average law-school debt load lower than $150,000 are still likely to have a significant number of students who take out much more than $150,000. It is true that law-school discount rates are relatively high. A recent report from NACUBO and AccessLex found that the discount rate "for all JD students rose slightly from 47 percent in Fall 2015 to 48 percent in Fall 2016," and "[o]ver the same time, the average student tuition discount rate for 1Ls across participating institutions fell from 58 percent to 50 percent." However, those discount rates do not reach everyone: only "[a]bout two-thirds of all JD students and three-quarters of 1Ls received institutional grant aid."
Who are the one-third of JD students not receiving discounted tuition? A study from the Law School Survey of Student Engagement, titled “Law School Scholarship Policies: Engines of Inequity,” found that economically disadvantaged and minority students bear a disproportionately high share of those costs, often subsidizing "merit" scholarships awarded to students from wealthier backgrounds.
Although I believe that lending caps can help reduce the harm from inequitable discounting, the PROSPER Act as a whole is troubling and not good for education. It would eliminate Public Service Loan Forgiveness, which would harm graduates' ability to take low-paying jobs in the nonprofit sector, and it would abolish gainful employment metrics and the 90/10 rule for for-profit institutions of higher education, allowing greater federal subsidies for for-profit education (changes that, taken together, would move federal funds away from subsidizing graduates who go work for cash-strapped public defender offices in order to increase funding that primarily benefits shareholders of for-profit institutions). I believe a much better position, as I argued six years ago, is to instead expand the gainful-employment rule to cover both the for-profit and non-profit sector, and to prioritize federal funding for the schools who successfully place their graduates in employment related to their graduate education.
Whether the PROSPER Act passes or not, however, it's clear that funding for higher education is going to be on the table going forward. It's long past time for schools to have a hard look at the ethics of tuition discounting.
Wednesday, December 06, 2017
Hunting for the Snark of Private "Expressiveness" in Masterpiece Cakeshop's Oral Argument
As anyone could have predicted (and, SSP, as I did predict in September), the Masterpiece Cakeshop oral argument's colloquy about whether baking is more, less, or just as "expressive" as hair-dressing, floral arranging, make-up artistry, wedding announcement calligraphy, or architecture was a comedy of Snark Hunting. The Snark was the elusive prey being tracked in Lewis Carroll's epic nonsense poem, The Hunting of the Snark by a band of nine characters who had no coherent notion of what a Snark might be. (Their leader, the Bellman offered "five unmistakable marks," such as "its taste, Which is meagre and hollow, but crisp" and "its slowness in taking a jest" as useless criteria). Kristen Waggoner played the Bellman's role to perfection, confidently informing the Court that architecture was not protected expression, "because buildings are functionable, not communicative." Cake-baking, by contrast, was, Waggoner asserted several times, definitely expressive, because it expresses creative expression. Carroll's Bellman offered a similarly confident test for Snarks:
"Just the place for a Snark! I have said it twice:Despite O'Brien and Spence, expressive conduct, like Carroll's Snark, is everywhere and nowhere. All conduct deliberately chosen sends a message, and, if the government's prohibits it because of its message rather than its non-expressive effects, then the prohibition is likely content-based regulation subject to heightened scrutiny. As then-Professor Kagan persuasively argued two decades ago, it is governmental purpose, not private expressive intent or effects, that normally determines whether a law is a prohibited regulation of speech.
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true."
The SCOTUS extricated itself from its Snark Safari only when the justices finally focused on Colorado's likely purposes in prohibiting Jack Phillips from refusing to make wedding cakes for same-sex nuptials. By page 51 of the transcript, Justice Kennedy asked Colorado's Solicitor General Yarger whether a Colorado Commissioner's remarks about religious motivation's being "despicable" indicated hostility to religion in violation of the Free Exercise clause. After the jump, I will suggest that governmental hostility to a purely secular ideology would equally violate the First Amendment's Speech clause. The difficulty, of course, is proving up the bad motive, and, on that practical question, I have argued that a decent respect for federalism suggest maximum deference to Colorado's good faith.
1. Why a governmental purpose of stigmatizing Jack Phillips' beliefs about his complicity in commerce is a forbidden purpose
Suppose that the Colorado Human Rights Commission knew that there was no necessity whatsoever for any particular baker to supply wedding cakes to same-sex ceremonies, because the market for bakers was really thick. the streets of Jack Phillips' city are lined with bakers, each vying to sell cakes that Jack refuses to supply. Moreover, suppose each baker can and does costlessly signal to prospective buyers their willingness to supply such cakes through signage ("same-sex wedding welcome here"). The Commission, however, insists that each baker stand ready to supply cakes for same-sex ceremonies solely because the Commission believes that moral disapproval of same-sex ceremonies is simply an improper motive. "Commercial actors should not act on the basis of prejudices like that," the Commissioners declare. While allowing vendors to discriminate against customers on other non-commercial criteria -- say, wearing a MAGA cap -- the Commission construes Colorado's law to forbid commercial actors from acting on certain non-commercial motives not because of any material harms imposed by such action (remember, the market for bakers is conceded to be an infinitely thick market) simply because, in the Commission's view, such action is an affront to customers' dignity.
Such a governmental purpose looks to me remarkably like censorship of a message based on the government's hostility to the message's content. The Commission or Colorado Legislature believes that a commercial actor's decision not to serve sends a message that the government wants to discourage. There is no material harm from the discrimination in question: The harm is solely the message conveyed. In effect, the government bans the bakery from putting up a sign
The content-based character of such a purpose becomes plainer to me by imagining an analogous prohibition on "internal assignments." Suppose that Colorado decided that employers should not be permitted to accommodate their employees' religious objections to baking a cake for a same-sex ceremony by assigning employees without such objections to the same-sex ceremony cakes. "You must treat same-sex ceremonies exactly as you would other ceremonies," the Commission declares to such bakers: "commercial actors like employees waive their rights to have religious scruples by voluntarily working for a commercial enterprise." Given that the customer gets exactly the same cake regardless of the employer's internal employee assignment policy, the only possible purpose of such a prohibition is simply to forbid employees from conveying a particular message that the employees seek to send -- namely, that their beliefs about complicity are relevant to their job.
If the gratuitousness of a ban on internal employee assignments is explicable only as content-based censorship, then a ban on a baker's referring a customer to a neighboring baker in an infinitely thick market seems equally gratuitous and, therefore, equally content-based. The only difference is that the message being censored is the employer's and not the employee's -- a distinction without a difference where both actors are equally commercial and have equally narrow or broad expressive rights.
2. Why such a purpose-based argument is not a good reason to overturn the Colorado court
So should SCOTUS reverse and remand for further fact-findings on purpose? I have argued that respect for federalism's role in defusing deep disagreements should lead the Court to affirm by deferring heavily to Colorado's characterization of its purpose. If it is at all plausible to regard Colorado as having an interest in protecting against a material as opposed to purely dignitary harm, then the Court should infer such a legitimate purpose. The question of whether Colorado's law "harms" bakers or bakers' discrimination "harms" customers is, to my mind, largely indeterminate. It is a certainty, however, that we Americans have vehement disagreements about the question that different states, red and blue, can equally well accommodate. Federalism is a meta-accommodation of our rival views for how best to accommodate rival dignitary interests. As General Francisco noted during the oral argument, "I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too."
This federalism-based case for deference does not apply to interpretations of laws limiting federal power. It would not apply, for instance, to an argument for using RFRA to curb a federal anti-discrimination law analogous to Colorado's. Indeed, the ability of states to waive RFRA's requirements, protected not only by Boerne but also by principles of statutory construction like Catholic Bishop, makes decisions like Hobby Lobby more tolerable.
If it is only Colorado doing the regulating, however, then there is a powerful case for agnosticism about the law's purpose. Such agnosticism conveys the message to Right and Left that their rival views can find a home some place in the federal republic. And, unlike the Hunt for Snark-like "expression," the search for improper governmental purposes at least tracks a type of prey that actually exists, even if, with the right level of deference, the beast always manages to escape.
Tuesday, December 05, 2017
Argument in Masterpiece Cakeshop
Having read the transcript, I have no idea where this is going or what standard anyone seems to be gravitating to. The only one of the four advocates who really got an opportunity to frame a legal standard was David Cole of the ACLU on behalf of the complainants, who was given the time to explain how O'Brien fits the scheme. Otherwise, counsel for the petitioners got caught up in an escalating series of hypotheticals involving make-up artists and sandwich artists and the difference between chefs and bakers (and, I thought, fumbled a bail-out question from Justice Alito about the expressive nature of architecture). SG Noel Francisco acknowledged the Court may not adopt his "race is different" position, although he did put across a "predominant" purpose or effect idea. And everyone fought the justices' hypotheticals (there seems to be more of that going on this Term).
The justices also seemed all over the map. Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides. And a lot of those questions read like a Donald Trump speech--"It's a great cake, it's a beautiful cake."
We did learn a few things: 1) Justice Alito does not go to may five-star restaurants; 2) part of Francisco's wedding cake remains in his freezer; 3) Justice Gorsuch does not like the taste of wedding cake*; 4) Ollie's Barbecue and Piggie Park have not gotten this much attention in 50 years.
[*] We were lucky. Our wedding cake was delicious.
With BYU, eleven schools will accept the GRE rather than the LSAT from prospective students. I would like to hear, especially from anyone teaching at or affiliated with those eleven schools, about the pros and cons of this move. And since we have permanent bloggers and past guests at both schools, I hope for some input.
The LSAT is not so tied to what we do in law school that it is an obviously superior predictor of success. Both include logic games (how to seat five people in one car when everyone hates everyone else). One pro is that law schools can better compete for the college senior who is torn between grad school and law school--a law school can recruit her without making her prepare for and take another test. I cannot think of any disadvantages, frankly. What are the two sides?
Friday, December 01, 2017
Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.
This is an intriguing argument to which I would add a few thoughts.
1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.
2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.
Greetings and Happy December!
Thanks to Howard for inviting me back! For those who don't know me, I teach Civil Procedure, Professional Responsibility, and Secured Transactions at Case Western Reserve School of Law. I look forward to guestblogging this month, which will be a happy distraction for giving (and grading) exams. December also means working hard to win the LDB Challenge--trying to make it to December 26 without ever hearing the Little Drummer Boy. New this year is an added challenge: Whamageddon (avoiding "Last Christmas," which I already lost on the way home from school today).
Anyone have favorite (or not-s0-favorite) holiday songs? I'm especially fond of Elf's Lament. I don't think Santa's labor practices are entirely legal...