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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.

 

Posted by Cassandra Burke Robertson on December 11, 2017 at 09:10 PM | Permalink | Comments (2)

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.

Posted by Sarah Lawsky on December 11, 2017 at 12:03 PM in Law Review Review | Permalink | Comments (0)

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.

Posted by Howard Wasserman on December 11, 2017 at 11:13 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

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.

Posted by Paul Horwitz on December 11, 2017 at 09:58 AM in Paul Horwitz | Permalink | Comments (0)

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

Miami, Florida

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 FIU_LawDean@Divsearch.com.

Kim M. Morrisson, Ph.D., Senior Managing Director or John Mestepey, Managing Director

Nancy Helfman, Vice President and Senior Associate

Diversified Search

2005 Market Street, Suite 3300, Philadelphia, PA  19103

215-656-3579

 

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  

Posted by Administrators on December 10, 2017 at 06:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

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.

Posted by Michael J.Z. Mannheimer on December 10, 2017 at 04:32 PM in Constitutional thoughts | Permalink | Comments (5)

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.

Posted by Howard Wasserman on December 10, 2017 at 03:10 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

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.

Link here

Posted by Dan Rodriguez on December 9, 2017 at 10:38 AM in Daniel Rodriguez | Permalink | Comments (0)

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.

Posted by Rick Hills on December 8, 2017 at 02:04 AM | Permalink | Comments (10)

Thursday, December 07, 2017

Casablanca and the greatest heckler's veto in cinema history (Updated)

Steve Lubet at Faculty Lounge links to a 2015 essay calling the "Le Marseillaise" scene from Casablana the greatest in movie history and the turning point in the film.

 

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.

Posted by Howard Wasserman on December 7, 2017 at 05:12 PM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (24)

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.

Posted by Cassandra Burke Robertson on December 7, 2017 at 03:24 PM in Life of Law Schools | Permalink | Comments (4)

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:
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."
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.

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.

Posted by Rick Hills on December 6, 2017 at 09:01 AM | Permalink | Comments (8)

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.

Posted by Howard Wasserman on December 5, 2017 at 05:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Accepting GRE

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?

Posted by Howard Wasserman on December 5, 2017 at 05:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (7)

Friday, December 01, 2017

Drifting justices

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.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (21)

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...

Posted by Cassandra Burke Robertson on December 1, 2017 at 08:19 PM in Music | Permalink | Comments (0)