Wednesday, February 28, 2018
Thanks to Howard Wasserman for the invitation and thanks to the Prawfs readers who commented over the month. I hope the posts were interesting and helpful.
Judicial Nomination Cascades
Earlier this month, University of Colorado law professor Melissa Hart was sworn in as the newest Justice of the Colorado Supreme Court. Her appointment to that seat was made possible when Allison Eid left the court to join the Tenth Circuit Court of Appeals, which itself was made possible when Neil Gorsuch left the Tenth Circuit to join the Supreme Court of the United States.
This is an example of a nomination cascade – the opening of a position on the bench made possible when a sitting judge is nominated for another court. These vacancies are almost always filled by appointment; even in state courts where judges are elected, governors typically have the ability to make interim appointments.
The Gorsuch-Eid-Hart example is in fact a double cascade, with the Gorsuch nomination leading to two further openings. That fact alone makes it unusual: usually the first or second opening is filled with a nominee who is not already a judge. But it is also unusual because of its speed: three seats were filled, in cascading order, in less than one calendar year.
To get a sense of how frequently judicial cascades occur, I took an admittedly quick look at all federal appellate court (including Supreme Court) nominations for the Trump, Obama, George W. Bush, and Clinton administrations. I focused on appellate nominations because they seemed most likely to trigger cascades, although it is certainly the case that a federal district nomination or a state appellate court nomination can trigger them as well. A few interesting things jumped out.
First, one might expect double (or even triple) cascades to follow U.S. Supreme Court nominations, given that most of the current Justices were elevated from the U.S. Court of Appeals. In fact, Gorsuch was the only Supreme Court nominee in the last 25 years to trigger a double cascade. George W. Bush did not even get a chance to start a cascade for his two Supreme Court nominees: although John Roberts and Samuel Alito were both appointed and confirmed in 2005 (the first year of Bush’s second term), neither of their seats was filled until well into the Obama Administration. There were a number of double cascades early in each of the Obama, Bush, and Clinton Administrations, but all started with an opening at the U.S. Court of Appeals. Some cascades were entirely federal (court of appeals-district-court-magistrate or bankruptcy), while others were a state-federal mix.
Second, most presidents took the opportunity to create cascades (by appointing lower federal and state judges) early in their first term. This makes some intuitive sense: a president coming off of an election vistory, with a significant amount of political capital, should be more willing to create additional openings in the federal judiciary with the expectation of filling them with his own nominees. Presidents in their second terms clearly adopted a different strategy: Obama and Clinton largely nominated government and private practice attorneys for federal appellate positions, while George W. Bush went with a heavier dose of state judges. Both strategies avoided the possibility of creating a vacancy in the federal district courts which might remain open until the next administration.
I found one triple cascade in my early review, which occurred late in the Bush Administration. In May 2008, G. Steven Agee was confirmed to the Fourth Circuit Court of Appeals, which opened a seat on the Virginia Supreme Court. That position was filled by Leroy Millette, which opened a seat on the Virginia Court of Appeals. That position was filled by Cleo Powell, which opened a seat on the Virginia Circuit Court. (I’m not sure who filled that seat –yet.)
One might ask whether nomination cascades are a good or bad thing for the judiciary and the public. One clear advantage is that nominees have a proven level of judicial experience, and are less likely to need time to get up to speed on the nature of judging. At the same time, looking only to existing judges creates a pipeline effect, in which judicial aspirants have to start at lower levels of the state or federal judiciary in order to get noticed for a higher court nomination. That would seem to be a mixed blessing.
My guest-blogging month is up, but I am going to continue to play with the historical data. I’ll post any interesting new findings in the comments. Thanks to the entire Prawfs crew for letting me hang out here once more.
Bump Stocks and Machine Guns as Case Study in Textualism, Chevron, and the Ambiguity of “Ambiguity”
Textualism in statutory interpretation is, on one view (which happens to be my own) a shiny, steely, precise knife blade with a handle made of silly putty. If the text is deemed to be “unambiguous,” then textualism seems to cleanly slice through obfuscation like a scalpel, cutting away all messy questions about how to define and apply broad statutory purpose, legislative history, or judicially crafted substantive canons by instructing the judge to follow the “plain” text. The blade of textualism, however, can be deployed only if the text is “unambiguous,” and unfortunately the concept of ambiguity is the most ambiguous concept of them all.
President Trump has recently provided us law profs with an interesting example of ambiguously ambiguous statutory language, suitable for in-class problems or final exams. (Whatever its merits as an effective presidency, the Trump Administration is a gift that keeps on giving to law profs teaching statutory interpretation). He has promised to ban “bump stocks” on firearms as a response to mass shootings in Parkland, Florida and Las Vegas, Nevada.
Putting aside the question of whether such a ban would produce any discernible reduction in gun deaths, does the President have the power to ban “bump stocks”? The question turns on the meaning of a six-word phrase in the National Firearms Act of 1934, a statute enacted during the national panic about Tommy-gun toting bank robbers and gangsters (e.g., “‘Machine Gun’ Kelly”). The phrase beautifully illustrates how ambiguity about ambiguity allows judges to turn Chevron and other substantive canons on and off like a spigot, all the while ostensibly adhering to the most rigorous textualism. After the jump, my thoughts on how “sliding scale” textualism might be a better way of resolving such meta-ambiguity than the grammar wars between majority and dissenting opinions now favored by SCOTUS. [Update: For an earlier formulation and much more precise and better-defended version of what I call “sliding scale” textualism, you should read Richard Re’s Green Bag essay The New Holy Trinity].
1. Why is the National Firearms Act is ambiguously ambiguous?
26 U.S.C. Section 5845(b) defines “machine gun” covered by the statute to mean
any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun....(emphasis added)
So is a “bump stock” “designed and intended” to convert a firearm into a “weapon which shoots...automatically more than one shot...by a single function of the trigger”? These devices use the recoil power of the gun to bounce (“bump”) the shooter’s finger repeatedly up against the trigger, allowing them to shoot faster than their finger’s muscular movements would normally allow. This finger-bumping action looks “automatic” (the shooter’s voluntary motions do not cause the trigger to be pulled). But does this bouncing mechanism constitute a “single function of the trigger”?
One can make a textual argument on either side of the question. Since each shot of a bump-stock-equipped weapon is accompanied by a corresponding pull on the trigger, one “plain text” answer might be “no”: “more than one shot...by a single function of the trigger” means that the ratio of trigger pulls to shots must be more than 1:1. On the other hand, it is that initial voluntary motion of the finger’s pulling the trigger that starts the initial recoil of the gun that, in turn, bounces one’s finger against the trigger involuntarily, thereby causing all of the subsequent recoils and bounces that lead to rapid discharge of the firearm. Why cannot that initial voluntarily induced motion of the trigger be deemed to be a “single function of the trigger” that causes the later involuntary trigger pulls leading to “more than one shot”?
In 2010, the ATF gave an opinion letter to Slide Fire, a firearms manufacturer, stating that bump stocks were not a machine gun conversion device within the meaning of the statute, because the device would not, by itself, “automatically” produce rapid fire. Instead, for the device to cause repeated trigger pulls, “the shooter must apply constant forward pressure with the non-shooting hands and constant rearward pressure with the shooting hand.”
Is the 2010 opinion letter persuasive? Again, one sinks into the Talmudic murk of ambiguously ambiguous text. The letter assumes that a device “shoots automatically more than one shot” only if the shooter makes no voluntary decisions whatsoever to insure that continuation of the automatic fire. One could argue, however, that this sort of reasoning proves too much. Machine guns normally will not fire unless the shooter applies constant pressure to the trigger: If one drops the machine gun, it does not ordinarily continue to spew bullets by itself. By extension of ATF’s reasoning, no weapon ever sold would constitute a “machine gun,” because all machine-gun triggers require the shooter to continue some sort of voluntary action for the shooting to continue.
The ATF’s letter suggests a response to this rejoinder: According to the letter, devices covered by the statute must have “automatically functioning mechanical parts or springs” to perform “an automatic mechanical function when installed.” Although the letter does not explain why this criterion is related to the statutory language, a smart lawyer might fill in the blanks: The gun “shoots automatically more than one shot” only if the statutorily required “single function of the trigger” contains an “automatic” component, and, in ordinary English, “automatic” components must have parts that move by themselves. The gun’s recoil is not part of the bump stock, which does not move by itself. No moving parts? No “automatic” function.
Shall we go one more round of this textualist style of reasoning? Against the ATF’s letter, one might ask why “automatically” should be read to modify “single function of the trigger.” In the statute’s text, “automatically” is an adverb modifying the verb “shoots,” not the noun “function.” But the ATF might reply that the canon noscitur a sociis requires that the noun “function” be read in light of nearby words like “automatically shoots,” suggesting that the device itself must move by itself — “automatically.”
In the wake of the Las Vegas mass shooting, the ATF issued an ANPRM requesting comments on whether it should revisit its 2010 interpretation. Within 30 days, ATF received over 100,000 comments on the question.
I am inclined to say that those competing comments as well as the rival arguments outlined above suggest that the statutory language is ambiguous enough for the ATF to invoke Chevron and reverse its 2010 letter ruling. But I would also concede that a SCOTUS inclined to engage in textual hair-splitting might determine that one set of textual arguments is better than the other and write that 2010 letter into statutory stone. As Yates and Lockhart Indicate, the existence of decent textual arguments on either side of a question does not suffice, in SCOTUS’s collective mind, to justify an inference of ambiguity.
The statute here, in sum, is ambiguously ambiguous. The SCOTUS could invoke Chevron or not, depending on how finely they want to weigh competing textualist arguments. And this leads to a second question, viz....
2. Why not use “sliding scale” textualism to resolve ambiguous ambiguity?
Why not determine whether statutory text is ambiguous by looking to the extra-textual purposes of a statute? As Will Baude and Ryan Doerfler incisively note in an elegant essay on the Plain Statement Rule, “a court’s perception of what Congress is trying to say depends in large part on that court’s understanding of what Congress is trying to do.” On this view, the courts ought to determine whether the NFA “unambiguously” excludes bump stocks from the definition of “machine guns” by looking into the purpose of federal regulation of machine guns. If the practical point of the statute was to place special federal controls on weapons that fire especially rapidly, then excluding the bump stock from the statute will seem odd. This practical purpose counts as a reason to weigh against the textual arguments for a narrow reading of statutory text. Even if that textual argument for a narrow reading is a little better than its rival textual argument for a broader reading, the purpose-based argument cancels out the former, at least to the extent of allowing the court to declare the statute ambiguous enough for the agency to make the final decision under Chevron.
On this “sliding scale” view of textualism, text and purpose are weighted on a single scale, with neither having absolute lexical priority over the other. Super-clear text might have priority over murky or unimportant purpose (see, e.g., United States v. Locke), but closely matched textual arguments might be “outweighed” by super-strong purpose-based arguments, even if one textual argument were slightly better than all rival textual readings. The sliding scale throws purpose into the mix of authorities right away, to be weighed alongside them at every stage of interpretation.
Such a “sliding scale” theory has the virtue of reflecting what courts actually do (albeit not what they say they do). It also provides a way to resolve conflicts among competing textual arguments other than the absurdity of balancing fly-specking textual minutiae while ignoring obvious statutory purpose. Against the objection that text reflects interest-group bargains that could run counter to the main thrust of a statute, there is the simple rejoinder: Maybe, but maybe not. If the textual arguments on either side of a question are reasonably closely balanced, then the slight superiority of one textual argument over its equally textual rival seems like a weird way to memorialize a legislative deal. After all, one would assume that the deal-makers would not want to codify their deal-making in language requiring a degree in linguistics or familiarity with some textual corpus stored at Brigham Young University. If Justice Kagan’s secret decoder ring yields an application of the “last antecedent rule” different from Justice Sotomayor’s, then it is time to throw in the towel on text, not parse every comma and romanette with the idea that somehow smuggled into the interstices of such arcana lies a bargain that lifted the veto gates of Congress. [Update #2: Ryan Doerfler’s High-Stakes Interpretation provides a powerful defense of the idea that the standards for finding semantic clarity should vary with the pragmatic stakes — a position that he defends by citing an overlapping consensus sounding in both sound semantic and pragmatic principles. I endorse Doerfler’s idea but am indifferent to its pedigree in semantics or pragmatics, since I tend to think that the distinction is of, well, merely semantic importance].
Tuesday, February 27, 2018
The irrrepressible myth of Patchak v. Zinke
The Supreme Court decided Patchak v. Zinke, concluding yet again that Congress' power to "change the law" to push pending litigation to its preferred conclusion is, in practice, unbounded. The purported "no dictating outcomes" principle of United States v. Klein does not impose a meaningful limitation, because nothing that Congress does (or is likely to do) is anything other than a change in the law. The law at issue in Patchak affected one case and no other cases had been brought or could be brought that would relate to that land. This will be as close as Congress will come to "In Smith v. Jones, Smith wins" without touching that third rail.
Justice Thomas wrote for himself (and also assigned the opinion) and Breyer, Alito, and Kagan; Ginsburg and Sotomayor concurred in the judgment (tying the result to sovereign immunity); the Chief dissented (as he had in Bank Markazi) for Kennedy and Gorsuch [Update: I should add that the Chief showed rhetorical restraint in this opinion, something often lacking from opinions in which he feels strongly about an issue].
An additional wrinkle was that the plurality deemed the statute a jurisdiction-stripping provision, which I am not convinced is correct. The statute says a suit relating to the proper "shall not be filed or maintained in a Federal court and shall be promptly dismissed;" that language also could describe a non-jurisdictional procedural rule or an element of the claim ("no action shall be filed or maintained against a company with less than 15 employees"), although the plurality insisted it could not be either.
So the opinion was a two-fer: Klein has no practical force and the Court overused jurisdiction.
Monday, February 26, 2018
Should Government Publish Books?
The Tea Party wing of the Republican Party currently controls the Commonwealth of Kentucky. Many state programs anxiously await their fates as they are paraded across the chopping block in the name of budgetary reform. The legislature will vote thumbs up or down on whether to eliminate seventy low-budget programs in April.
In addition to the seventy programs Kentucky Governor Bevin proposes to cut, many of which affect education and children, Governor Bevin has proposed a 6% cut to public higher education and most other state functions. I see the cuts as part of larger efforts nationwide to under-fund public education and other public services at all levels. We in public higher education will need to keep learning to do more with less, just as grade school teachers have done for so many years.
One institution unsure about its future is University Press of Kentucky, an innovator in publishing for seventy-five years. Instead of individual universities in the Commonwealth launching their own presses, we have one serving most of them—all of the public universities and most of the private ones. University Press of Kentucky focuses on local writers and regional stories. The press does an excellent job producing a bit over fifty books per year, many to great acclaim. Its books have won twelve Frederick Jackson Turner awards for the best first book by an author in American history.The University Press of Kentucky has maintained its editorial independence. The Director, Leila Salisbury, is savvy, smart and thoughtful. Somewhere I read that the Press’ small staff of sixteen produced and sold $4 million worth of books last year. It needs a state subsidy of $672,000 to do what it does. Presses like these insure that charming and educational books that probably would not get looked at or picked up by the big national and international presses still see the light of day.
The Tea Party is shrinking the category of services considered worthy of any public support. As someone formerly sympathetic to Libertarian thought and still concerned with insuring free inquiry of current and historical events, I understand a healthy mistrust of government. But, the reality is that our society is too complex to hope that for-profit and not-for-profit private initiatives will fulfill society’s great needs. And, I feel a need for society to be more than just functional. I believe there is an almost universal human need for exploring ideas, science, art, music and more.
Do we need university presses? Is the preservation and dissemination of information produced at a state’s universities worth the cost? Of course, I think so, but in a climate obsessed with educational assessment and valuing all things in terms of financial impact, university presses in red states have reason to worry. University of Missouri Press just fought off an attempt to shutter it to eliminate its $400,000 annual subsidy. For the Tea Party, publishing books simply isn’t the role of government.
Those wanting to shrink government and eliminate university presses will point to how easy self-publishing is today. The impact of writing, however, is in the dissemination of the ideas expressed to an audience—now or in the future. It is the rare self-published book that finds a significant audience. Shutting university presses stymies the impact of research and undermines the purpose of scholarship in public institutions.
To someone viewing universities solely as institutions to train students efficiently for jobs in the private sector, public funding of scholarship has no appeal. I think that is short-sighted and preordains that a full-time professor’s knowledge will be outdated in a short amount of time. Perhaps in the long run, many public four-year institutions will become more like junior colleges. Professors (or, more realistically—adjuncts) teach the nuts and bolts without producing scholarship--and try to magically keep up what's happening out in the "real world." As someone who loves to both teach and write, such a model does not much appeal to me personally. I’d probably re-enter the private sector to litigate, which I also love (and miss doing at the level I used to), rather than become that sort of professor. (Please understand that I'm not trying to disparage junior college professors or grade school teachers here, who play an incredibly important role in society.)
Of course, political winds shift, and these Tea Party developments could be reversed in the next administration. But, I’m feeling a bit depressed as I worry about whether the publisher I chose for my book will be around next year. I'm sticking with it to the (possible) end, because I believe in its mission and its people. I'm simply wallowing here for a few minutes, before I create more videos to help my students understand Recording Acts. I love helping them do it. I also love helping them become critically thinking public citizens, regardless of where they fall on the political spectrum.
Now, I shall wrap up my wallowing and invite you to pick up the torch. Are we leaving a Renaissance for another Dark Age? What will higher ed will look like for the crop of students currently in school districts banning To Kill a Mockingbird and The Adventures of Huckleberry Finn? Will they ever be encouraged to read Fahrenheit 451? Will they be conditioned to believe that education is about nothing more than job training? Where do you think we’re headed in twenty or fifty years? Will government starve higher education to the point that membership in various accrediting agencies requiring scholarship will no longer be a priority? Will the scholarship function shrivel and die except at the most prestigious institutions for whom the market will pay for their brand name? Do you think that's the way it should be? Alternatively, do you think that level of centralization and potential uniformity of trained, critical thought is a sad development or perhaps even dangerous?
I'd love to hear your thoughts, thought experiments and even wallowing in the comments.
Facing imminent defeat
Is it possible to imagine more-certain defeat for a party before argument even begins than for the union (and the continuing vitality of Abood) in Janus v. AFSCME this morning? A Gorusch-less Court divided 4-4 on this issue two years ago. Alito is on record as wanting to overrule Abood; the Chief believes that every small thing a public union does--even negotiating a coffee break--is political, so compelling fees is compelling support of political speech; and Kennedy tends to go along with speech claimants. Gorsuch breaks the tie--and like most judicial (as opposed to academic) originalists, his originalist views invariably align with conservative and Republican anti-union political preferences.
The likely battle lines are known going in for most cases with this Court, although sometimes there is some room for play in the joints. But this issue has been so many years in the making. Scalia's death delayed it. But it feels as if it delayed the inevitable until this morning.
And for an advocate, how do you steel yourself for that situation?
I am on a committee tasked with reviewing our standards related to "presumptive renewals" of contract clinicians. The ABA seems to require that contract clinicians acquire something reasonably similar to tenure. After a number of contract renewals, clinicians' contracts generally become "presumptively renewable" and they cannot be terminated without "clear and convincing evidence." Yet our faculty still votes on these renewals. There is some debate about what the record upon which this vote is occurring ought to look like. I would like to know what your school does about renewing these contracts. Is it purely a decanal decision to renew? If a committee is charged with making a recommendation to the faculty, what is the committee deliberating about? Do they look at reports on how the clinic functions? Student evaluations? Visitation by the faculty? Is the full faculty involved in these decisions? How? Please let me know either in the comments or email me directly at [email protected] Thanks so much.
Sunday, February 25, 2018
McGinnis on the Cult of RBG: A Sympathetic Dissent
I have written in recent months about my concerns over cults of personality or hero worship around judges: the relationship of this phenomenon to clerkship culture, its particular application to celebrity treatment of Justice Ruth Bader Ginsburg, and other matters. Those concerns have something to do with various work I'm doing, however slowly, on eventual law review pieces. At the often-interesting Law and Liberty website, Professor John McGinnis has a very readable piece on the "Notorious RBG" question, titled "The Troubling Apotheosis of the Notorious RBG." (From what I think one can fairly call a different part of the political spectrum, Professor Richard Hasen also recently published a piece criticizing this phenomenon. Concerns about the celebrity treatment of Justice Ginsburg, or any other Justice, and about some of her public statements, are not confined to the right. Indeed, one thing that struck me about recent Twitter and online commentary was that many conservatives who have criticized Justice Ginsburg for her extrajudicial statements wrote approvingly of recent public statements she made about the importance of due process in Title IX proceedings, without mentioning broader concerns about extrajudicial statements on legal issues that may come before the Court or about issues that are part of current political debate. Our concerns about this phenomenon should not end where our agreement with some particular public statement begins.)
McGinnis argues that the recent "adulatory" treatment of Justice Ginsburg, including not only her recent set of public appearances and friendly interviews but the industry of T-shirts, books, and workout guides--in our society, everything is eventually, and generally instantly, commodified--"raises concerns about the left’s model of a justice and of justice [itself]." The core of his column is that the "Notorious RBG" question is fundamentally about the tendencies of "the left." He concludes:
Other justices on the left side surpass her in other ways. As I have written elsewhere, Elena Kagan is both a fine stylist and the only equal of John Roberts on the current Court when it comes to the smoothness of deploying doctrine. But Kagan and Breyer are by political science measures not nearly as far to the left as Ginsburg in their voting patterns. And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice.
As I said, the phenomenon disturbs me too, as does the general tendency toward adoring treatment of judges on the part of too many lawyers and legal academics, often former law clerks imbued with American clerkship culture, a treatment that is almost always accorded to those judges whose views are consistent with the political views of the person engaging in the veneration. Those concerns are heightened when the adoration is not just a one-sided thing in which the object of the celebrity treatment takes no part in it and does not encourage it, but one in which the object rather seems to enjoy and participate in that phenomenon, and/or takes to making general public pronouncements on various issues, which is a common element in modern American celebrity culture.
But I disagree with McGinnis's take, which seems to me to make one major mistake, and also to err more generally in not offering a richer, and less left-targeted, picture of American culture--including the American culture of hero-worship and the increasing tendency to elide the idea of heroism and the status of "celebrity." I should add that this is an adaptation of a Twitter (sorry!) thread that readers encouraged me to turn into a blog post, so doubtless it carries over some of the flaws and tendencies toward generalization of that medium. And I should make clear that I am addressing the "Notorious RBG" phenomenon, and some of Ginsburg's extrajudicial conduct, far more than I am addressing Justice Ginsburg herself, especially in her capacity as a judge, although I think her rash of recent public statements raises fair questions about whether she should either refrain from such conduct and avoid public appearances more generally, or consider leaving the bench.
First, McGinnis concludes that the adoration of "The Notorious RBG" must be about the left and crude left politics, because Ginsburg has not been an extraordinary justice and certainly is not as good as other, but perhaps less reliably "left," justices. Setting aside any debates on the quality of Ginsburg's work as a justice, I think this is starting point is seriously flawed. It treats the "Notorious RBG" story as beginning once she joins the Court and having little or nothing to do with the whole arc of her professional life. But a major source of the adulation of Ginsburg has to do with what she fought for and achieved before becoming a judge. Thurgood Marshall is similarly treated as a judicial hero, not primarily because of his work on the Court, which even some (or perhaps, albeit quietly, many) legal liberals think of as lackluster, but for his incredible work as a civil rights lawyer and architect of Brown v. Board of Education. Starting the "Notorious RBG" calendar in 1993 ignores all that she did as perhaps the greatest architect and champion in the past 40 or 50 years of women’s legal and constitutional rights.
There’s also little or no cultural or sociological sense in McGinnis's piece of the general American love of hero worship, and the way it leads hero-worshippers to read facts through the lens of their hero worship, emphasizing favorable facts and minimizing or ignoring inconvenient ones. This is a general American (or human) tendency, and it is hardly the sole property of liberals or “the left.” (Personally, I wish people would use terms like "the left" or "the right" far more precisely and selectively, especially when they are treated as nearly synonymous with "liberal" or "progressive" or with "conservative," let alone "Democrat" or "Republican." That's especially true for lawyers and the legal academy, who are generally establishment-oriented and less likely to be truly and interestingly politically radical.) The piece also ignores other relevant and more personal factors, which could be seen either as related to or as independent of the prior factors: She is in her eighties, and continues to speak out passionately on the Court on issues that deeply affect women in particular. Moreover, and on a personal level, for some it may matter that her beloved and widely admired husband passed away in recent years, leaving the Court and her work on it as a major solace. (Or so it may appear from the outside, including outsiders who love and admire her. I cannot say whether she views things in this fashion or not.)
Taking these together, I think the view is something like this: She has long been a hero for women’s rights, predating her time on the Court and continuing today. She is a role model for her achievements and her fierce determination and independence. Given all this, and given the (unfortunate) tendency of Americans to treat one’s status as a hero as generally applicable and almost indefeasible once conferred, she is entitled to do and say more or less what she wants--or, putting it in favorable or adoring terms, to "speak out"--and to sit as long as she cares to. On this view, she has earned such a right, and suggesting otherwise--let alone focusing on her rather than another, male Justice--violates or attacks her earned hero status and all that she did to earn it. (The gender-focus question was especially perceptive and pertinent early on, when some commentators were suggesting that she step down and not saying much about Justice Breyer, but before Ginsburg had engaged in any especially questionable extrajudicial statements. For that reason, it has less bite today, in my view.) Any misbehavior is either irrelevant, or should be treated as an unfair and strategic basis for "attacks" on the justice, or is interpreted through the lens of hero worship, and thus minimized or ignored, or treated as not affecting the bottom line that you don’t attack a hero and that she has earned the near-absolute right to sit as long as it makes her happy.
That’s a more interesting story, in my view, and a more complete one. It is especially important that this story doesn’t depend on making claims about “the left” that treats liberals as unique rather than exhibiting widely shared human tendencies.
None of this, of course, is a defense of RBG or the cult of RBG worship. We should not treat past heroic conduct as conferring some kind of lifetime license to act as one pleases. We should not ignore, simply because one is a hero or seems mentally sharp, the possibility that the hero is affected by age and suffering lapses of judgment as a result. (General intelligence, or even genius, is not synonymous with good judgment in decision-making, especially spur-of-the-moment decision-making.) We should not ignore the possibility that the hero judge--whether Ginsburg or any other judge and regardless of that judge's politics--is treating his or her hero status and lifetime tenure as a license to make improper extrajudicial statements. We should always worry when a hero seems to believe her own publicity or to revel in being worshipped, a common and understandable human tendency that leads to hubris and its consequences.
We should reject the general temptation to treat judges as heroes, and the current tendency of our unfortunate culture to mistake heroism, a form of virtue, with celebrity, a form of trivia and cult of personality, or to combine the two. We should treat unwise or improper conduct the same regardless of whether the person committing it is a hero or a “villain.” We should recognize, especially (and especially today) that offices of honor are defined by unceasing duties and responsibilities rather than being prizes for past achievement. Given that judges can age and suffer lapses in judgment, that they are “votes” as well as people and that none are irreplaceable, we should reject the “sit as long as you like—you’ve earned it” view, and be willing to encourage even heroes to step down when the moment has come. We should not create cults of personality and especially celebrity around judges, both because that is immature behavior and because it may have the perverse effect of injuring the very person it seeks to exalt, by tempting him or her to believe the publicity, treat it as a license rather than a responsibility, and become immured in an epistemic bubble.* And a judge’s family and close friends should serve as a reality check and as candid advisors, including warning against isolation, offering hard criticisms, and encouraging silence or prudence or even retirement, not as fans or an amen corner. Nor, although it is understandable, should they encourage such a person to do anything that will make him or her happy. Judges are already insulated enough; they need people to tell them hard truths and give tough advice. (To be clear, Justice Ginsburg's inner circle may be doing all the right things, for all I know. It is possible that she is receiving excellent advice of this sort from her loved ones and closest advisors and simply disregarding it—or, with all due respect, that her age is affecting her judgment on these questions. Even brilliant people, while remaining intelligent and energetic, can suffer from the effects of age on judgment. In any event, I certainly have no inside knowledge on these questions.)
We should, indeed, resist the lure of hero worship altogether, and resist even more strongly our cultural worship of celebrity as such—especially for judges and other office holders. These are general aretaic questions, applicable to us all, and it’s a mistake to treat these questions of how to live as just another tool in the culture war or as being about “left” versus “right.” They run deeper than that.
* On Twitter, I wrote after this passage, "I think Robert Bork ended up surrounded and insulated by fans in whose eyes he could do no wrong, and that this affected and hurt his disappointing post-judicial writings." A family member wrote to say that I was quite mistaken to think so. I will happily acknowledge that I may indeed be, and that, as with what I say about Justice Ginsburg and the advice she presumably receives from close friends or family, I pretend to no inside knowledge on those factual questions. I do think that two of the most dangerous things that can happen to one's judgment are to be a subject of widespread public scorn or a subject of widespread public adulation, both of which, often working in concert ("my enemies prove how right I am and how vicious they are, and my supporters vindicate my views and encourage me to stick by them; from now on, I will live and work in and among my supporters and away from my critics"), can distort one's independent judgment. But even if I'm right about that, I can't assume that this applies in any individual case unless I have more biographical facts to work with. I do think Bork's post-judicial writings were far from his best. But I was grateful--ultimately--to be brought up short by this criticism.
Friday, February 23, 2018
JOTWELL: Wasserman on Schwartz on Qualified Immunity
I have the new Courts Law essay, reviewing Joanna C. Schwartz, How Qualified Immunity Fails (Yale L.J.), an empirical study on the actual frequency and success of qualified immunity in five federal districts.
Thursday, February 22, 2018
Chinese Spies! Russian Trolls!! Self-Defeating Tribal Paranoia in America
Last Tuesday, FBI Director Christopher Wray warned the Senate Intelligence Committee that Chinese students studying STEM subjects could be spies trying to steal technology from American campuses. According to Wray, we should “view the China threat as not just a whole-of-government threat but a whole-of-society threat on their end, and I think it’s going to take a whole-of-society response by us.” Wray relied on Spy Schools, 2017 book by Daniel Golden describing how Chinese grad students acquire expertise from U.S. universities that they use to start technology companies in China. While Wray did not go into details about what a “whole-of-society” response would entail, one does not need much imagination to foresee proposals to ban Chinese grad students’ studying high-tech subjects at U.S. schools.
I am inclined to view Wray’s comments as symptomatic of a broader strain of self-defeating tribal paranoia (“SDTP” for convenience’s sake). The hallmarks of SDTP are (1) fear of cultural outsiders’ taking our stuff or infecting our minds and (2) panicked efforts to exclude those insidious aliens to safeguard our minds and property.
Consider, first, why Golden’s and Wray’s worries might be paranoid. Yes, of course, Chinese students might be spies. But so what? Spying is not the cause of our decline: We are falling behind the Chinese not because their students study in the United States but because we are too cheap to fund primary scientific research with tax dollars. Tsinghua University is gaining on MIT, because the Chinese government cares about building a first-rate STEM system with public resources, and our government does not. Consider, second, why excluding Chinese grad students is self-defeating: Those grad students are themselves a high-tech resource, as Google, Facebook, and Amazon have been pleading for years. Our folly is not our admission of Chinese students but our exclusion of them: We do not give them H1B visas so that they can put their knowledge and skills to work on behalf of our economy and security. In the name of nationalism, we cut off our nose to spite China’s face.
You might be willing, Gentle Reader, to entertain my argument that Wray’s fears of Chinese grad students constitute an instance of SDTP, at least as a plausible hypothesis. In order to excite a bit more controversy, let me suggest a more contentious hypothesis: The obsession with Russian-financed election meddling is also symptoms of SDTP, in much the same way as our fear of Chinese students.
The problem is not that Russian meddling does not exist (it obviously does) or that it is not evil (it most certainly is). The self-defeating nature of the obsession with Russians is that the focus on the foreign origins of the meddling distracts us from our real problem, which is our home-grown mutual distrust. Our focus on the fact that trolling websites and fake rallies come from Russians (as opposed to, say, ironic Maine guys) distract us from our real problem — a gaping rural-urban divide that leads rural-exurban voters to trust unverified Facebook pages more than anything coming from hated urban sources of news. CNN’s ruthless haranguing and doxxing of an elderly woman for her falling for such a Russian scam is a great illustration of how the relentless pursuit of traitors exacerbates the very distrust that leads rural-exurban voters to endorse Russian scams in the first place. I am a Never-Trumper Republican, but, after seeing CNN’s footage, I came away thinking that, as recruiters for Trump, obnoxious harangues from snotty newscasters easily trumped a few millions in Russian money invested in phoney Facebook pages. If the point is to prevent rural voters from voting against their own self-interest by supporting charlatans like Trump, then triumphantly harping on those rural voters’ gullibility seems like a self-defeating policy. As Ross Douthat noted awhile back, “obsessing over Russian influence can become a way to deny or minimize American realities that are far more important than some provocateur’s Hillary-for-prison meme.”
Actually the problem is worse than denial or minimization: The obsession with treason could actually exacerbate our worst problem, which is mutual alienation of rural and urban voters through our outrage-addicted endless harping on the other side’s traitorous tendencies. The constant accusations of “treason!” distracts us from Walt Kelly’s sad conclusion, true today as it was in the 1950s: We have met the enemy, and he is us.
Meta-Ranking of Flagship US Law Reviews
Two years ago, PrawfsGuest Bryce Newell (now at University of Kentucky) created a meta-ranking of the top US law reviews. On his personal blog, Bryce has updated the ranking (in sortable format) for 2018. Worth a look in contemplating where to submit and publish in the new submission cycle.
upon reading this missive from the superintendent of the Needville (TX) School District. Some of the quotations reflect an unfortunate picture of the connection between education and the creation of an engaged People in a democracy. "A school is a place to learn and grow educationally, emotionally and morally," which somehow does not include caring or becoming involved in matters of public concern. Students must "[r]espect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest." So speaking on matters of public concern is not educational and is a sign of disrespect for oneself and other (perhaps respect is the new unity that I argue is anathema to free expression).
Rhodes can do this and get away with it. A student walk-out would constitute "disruption" by in-school speech that schools are free under modern student-speech doctrine to halt or punish. He couched it in an unfortunately over-officious tone and a genuine disrespect for students as individuals with First Amendment rights. It appears he believes students do shed their First Amendment rights at his schoolhouse gates.
I am interested to see if and how students may respond to this if committed to engaging in protest. How might Rhodes respond to a silent protest with black armbands--is he going to ignore Tinker? And, whatever the trend in student-speech cases, is a court? Alternatively, if protests gain sufficient critical mass and Rhodes attempts to suspend hundreds of students, would his job survive the parental anger? Alternatively, what if students all stay home that day and then attend a protest at a dedicated time--would Rhodes challenge the decision of dozes or hundreds of parents to keep their children home and would his job survive the parental anger if he tried?
Wednesday, February 21, 2018
Judging Access to the Court System
A very curious lawsuit is currently playing out in Chicago, involving four different state and federal courts. It should be of interest to anyone who teaches or follows developments in First Amendment law, federal court abstention, or court administration. It’s also a fascinating example of judges being asked to decide what obligations the courts themselves owe to the public.
The case involves a First Amendment challenge to records access in the Cook County court system. Last November, the Courthouse News Service (CNS) filed a lawsuit in federal court against the Cook County clerk’s office and clerk Dorothy Brown, alleging that the clerk’s office was not immediately disclosing certain electronically filed complaints that were a matter of public record. The gist of the allegations is that lawsuits filed in hard copy are immediately accessible to journalists or any member of the public, but e-filed lawsuits must first be administratively processed, which can delay public access for days. CNS sought injunctive and declaratory relief.
The lawsuit came as Cook County was already struggling to bring its civil case filing system into alignment with the rest of the state. The Illinois Supreme Court set a date of January 1, 2018 for the county to make its system fully compatible, but granted a six-month extension at the end of December when it became apparent that the county and its vendor were nowhere close to meeting that deadline. (The county asked for a one-year extension, which was rejected.) In granting the extension, the state supreme court announced that its own administrative staff would attend future implementation meetings to assure that the project was completed in a timely manner.
Meanwhile, Brown’s office responded to the CNS lawsuit by arguing that it has no First Amendment obligation to make any document public until it is “accepted for filing,” citing a standing order requiring the clerk’s office to remove certain categories of documents from the public domain. That argument was evidently unpersuasive. In early January, the federal district court granted a preliminary injunction to CNS, and gave Brown 30 days to create a system to allow the press to obtain immediate access to e-filed complaints. The district court held that “In the absence of an injunction, CNS will continue to be deprived of its First Amendment right of timely (immediate and contemporaneous) access to e-filed complaints."
From that point, it started to get really interesting.
Over the past several weeks, Dorothy Brown’s work life must have felt positively Shakespearean. In late January, she petitioned the Illinois Supreme Court again, asking for leniency with respect to the deadline for e-filing integration, and explicitly seeking permission to comply with the federal court order by making e-filed documents (including documents filed under seal) immediately available to the public. When the Supreme Court did not respond right away, Brown twice asked the federal district court to stay the injunction. Twice the court rejected her request, the second rejection coming on February 13.
Brown again took the offensive. Moments after the district court’s denial of her second motion, she filed a motion with the Seventh Circuit Court of Appeals, arguing that the district court should have declined to hear the case under the abstention doctrine in Younger v. Harris (1971), and instead should have referred the matter to an Illinois state judge. Brown also argued that her office had been wrongly sued, and that the proper defendants were the Administrative Office of the Illinois Courts and the Office of the Cook County Chief Judge.
The Seventh Circuit has yet to rule on the Brown's motion. But the Illinois Supreme Court weighed in again on February 14, curtly denying Brown’s January petition without further comment.
What to make of this?
In some ways I feel bad for Dorothy Brown, who has portrayed herself (with some success) as a mere bureaucrat who is trying to follow conflicting sets of orders. There seems to be no question that her office is simply incapable of complying with the federal court’s e-filing order at this juncture. And the irony of Cook County’s paper filing system (which is by any account remarkably byzantine and chaotic) being more accessible than its e-filing system should not be lost on the observer.
But we should not pity Ms. Brown and her colleagues too much. While the causes of her office's dysfunction on this matter are not entirely clear, it would come as no surprise if they boiled down to some combination of inadequate resources, poor management, ordinary negligence, and politics. At the same time, if her office had shown expended half the time, energy, money and creativity in implementing a competent e-filing system as it has in defending this lawsuit in multiple courts, the issue probably would have been resolved long ago.
Tuesday, February 20, 2018
Sponsored Post: How to teach international law
The following post is by Jens David Ohlin, Vice Dean and Professor of Law at Cornell Law School. It is sponsored by West Academic.
There are multiple approaches to teaching international law. One option is to stick with the doctrine and get students to nail down the basics. While certainly pedagogically sound, this approach can be dull and uninspiring. A second option is to build the course (or its casebook) entirely around a series of problem cases: situations where international law either resolved, or failed to resolve, a particular international controversy. This second option often resolves the problem of being dull, though the success or failure of each problem case depends on the degree to which the problem case catches fire with the students.
Some of the problem cases might strike the students as antiquated; events that occurred during the lifetime of the professor might as well be ancient history from the perspective of the student, who doesn’t care whether the events occurred in 1985 or 1945—both happened before their time. Furthermore, teaching the doctrine exclusively through the problem case raises a reoccurring problem with the students. After working through the material, the students worry that they’ve only learned the necessary material required to analyze a particular problem case, which was arbitrarily selected, and they worry that they lack a general background knowledge of the subject matter for that chapter. Or they can’t tell which norms they learned are generalizable to other contexts and which ones only apply to the problem case. This sparks anxiety and uncertainty.
The obvious response to these problems is to skip any problem cases that miss the mark or fail to resonate with the students. But if the problem case is interwoven with the presentation of the doctrine in the chapter, the professor doesn’t have the option of skipping the problem case; it is woven into the very DNA of the chapter. What to do?
In my own humble way, I’ve tried to find a third way in my own casebook, International Law: Evolving Doctrine and Practice. The casebook is designed with flexibility as its goal. Doctrine is presented with a clear and crisp formulation, followed by cases and other materials that show an application of the doctrine. Then, to add flavor to the materials, my casebook includes short, modular problem cases that are less than a page in length—just long enough to give students a chance to apply the doctrine to another set of facts, but short enough that the problem case can be skipped entirely without any loss of coherence to the chapter’s presentation of materials. In so doing, I’ve tried to craft a third way in between the two approaches discussed above. This third way avoids the dullness of a doctrine-heavy, treatise-like casebook, while at the same time, it avoids the problems of generalizability that problem-oriented casebooks sometimes suffer.
Of course, not everyone teaches international law in the same way, and a diversity of approaches is a good thing. But like goldilocks, the result I hope is something that is “just right”: enough doctrine for those who want to focus on the case law, rules, treaties, and custom, and enough examples and problem cases so that students appreciate that international law is called upon to resolve the most pressing and urgent global problems of yesterday, today, and tomorrow.
2018 Research Scholar Position, Columbia Law and Economics of Capital Markets Program
The Columbia Law School/Columbia Business School Program in the Law and Economics of Capital Markets is seeking a full time Capital Markets Research Fellow. The appointment will run from July 1, 2018 to June 30, 2020.
This position is intended for a person who expects to begin a law school teaching career at the start of the 2020-21 academic year and who desires an interim position that would help the person prepare for such a career by offering the time and facilities needed to do serious research and to develop further expertise.
More information is available here.
Saturday, February 17, 2018
Commercial Book Proposals & Agents
There are thousands of web pages and books out there about writing commercial book proposals. In my opinion, the best web source for writing commercial non-fiction like most law professors might is this one. And the best book I read on the subject was Publish Your Nonfiction Book by agent Sharlene Martin and Anthony Flacco. More importantly, you'll need to get your hands on a few excellent book proposals.
I did not get to see a recent book proposal that successfully landed a top commercial publisher until I hired a publishing consultant. Jill Swenson came highly recommended by a number of authors who have published non-fiction that related to the Holocaust. Swenson has helped many authors write book proposals and find suitable agents. The authors who recommended her wound up represented by agent Sharlene Martin. I did not pitch Martin. I pitched only one agent, and it was by invitation. That was Robbie Hare with Goldfarb & Associates. She was nothing less than amazing.There are useful books out there on finding agents, which will lead you to websites and other sources. But, without a doubt the best way to find an agent to take you on as a client is to use and expand your network to find a personal connection. You'll need to draft a snappy query e-mail that gets their attention. I recommend the originally titled Guide to Query Letters and 2018 Guide to Literary Agents to help you with this.
Although I got lucky on my first shot landing a dream agent, I first compiled a long list of agents to query. In addition to using the Guide to Literary Agents, I reviewed the acknowledgements of the authors who write books I thought my future readers also enjoy. Authors commonly thank their agents in books' acknowledgements.
To write a top level book proposal and land a heavy-hitting agent, you really need to know your competing titles and understand where you fit in the market. That's the most important aspect of the book proposal, and probably the one aspect academics are weakest at drafting. You need to think like a marketer. If your book were in Barnes & Noble, what would be on the shelf or display table next to it? What books would be listed below yours on Amazon under the line "Customers Who Bought This Item Also Commonly Bought:"? For me, my market angle is that I am among a wave of women writing non-fiction about different aspects of Holocaust history. Book clubs who enjoy their books will enjoy mine. Jewish Community Centers who host them might enjoy a presentation from me, as well.
In sum, you need to figure out your niche to draft the book proposal and figure out which agents to pitch and how. Then, you need to spend weeks writing an excellent book proposal. You will need input from people who have done it before. In my case, I decided it was worthwhile to get some professional input from Swenson, and I am glad I did. I do not believe my agent would have taken me on had I not taken that step to improve my book proposal.
Finally, you'll want to query agents one at a time and be prepared for frustration. The typical result to a query is silence. But if you are lucky enough to get feedback, use it to improve your query and proposal and keep going until you find the one for you!
And to preempt some awkward e-mails, I cannot share my book proposal for various reasons.
And, for the cynics: No, I am getting no benefit for plugging the excellent professionals, books and web pages mentioned in this post.
Wednesday, February 14, 2018
Anti-Competitive Job Markets and Wage Fixing in Academia and the Au Pair Industries
In the past few years, more attention is being devoted to anti-competitive practices in the labor market. A few years ago I wrote a book called Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale Press). The thesis was that through contractual clauses primarily between employees and employers as well as employer-employer we are creating controls over human capital that suppress job mobility and in turn harm innovation and economic development. I was thrilled when in the summer of 2016 I was invited to present this research (I also published several related law review articles on the subject for example here and here and here) at the White House. I became part of a White House working group on non-compete policy which eventually resulted in a President's Call for Action to the States. A parallel and very much connected development has been to apply the antitrust lens on human capital practices, for example, the antitrust investigation and subsequent class actions against Silicon Valley giants which agreed to not hire each other's employees. In 2016 the FTC and DOJ issued a guidance on how antitrust applies to hiring and wage fixing and DOJ has warned that moving forward it will criminally prosecute such anti-competitive practices as no-hire agreements and wage fixing between competitors.
Two new cases continue the development of this new area of law. First, interesting for us professors and the lateral hiring market, last week a North Carolina federal judge certified a class of faculty from the University of North Carolina medical school and Duke University in a lawsuit over allegedly anti-competitive no-hire agreements. Second, on the compensation and wage fixing front, and a very different job market, a federal judge certified last week a class of 90,000 Au Pair nannies. I am quoted yesterday in this BusinessWeek article about the case. The case is particularly interesting to me because it brings me back full circle to the first law review article I ever published -- when I was a student at Harvard Law I wrote a seminar paper which I then published called Class and Care: The Roles of Private Intermediaries in the In-Home Care Industries in Israel and the U.S., Harvard Journal of Law and Gender. You might even say I was long awaiting this class action that would expose some of the exploitative practices in this vulnerable industry.
Tuesday, February 13, 2018
Are You Ready to Pitch a Book?
Junior TT prof asks, “I always hear to wait till after tenure if you're not in a discipline (like legal history) for which books are the coin of the realm. But if you've gotten clearance internally or have simply already satisfied your tenure requirement in terms of writing, is there any reason to wait?”
Let’s assume that tenure is a lock. There still might be a reason to wait. That reason is whether you have sufficient platform to demonstrate to publishers that you will sell your book. And make no mistake about it, you will be the one who has to sell your book. For mere mortal law professors, publishers will have very limited budgets to promote the book. Sure, they will put it on their website and in their catalogue and do some limited promotion, but it will be up to you to show them up front that you have what it takes to do your own marketing.
Here's a little "do as I say, not as I do" advice. I spent far too much time learning and obsessing about building platform. I read far too many web sites and books. Many of them told me that to sell a non-fiction book I needed to obsessively build my following on social media of people who truly might buy the book. Many companies will offer to do this for you for a fee. Don’t fall for that. Paying for random followers, many of whom will be bots, will get you nowhere (and publishers will see through it). I put in the hours to make connections with over 10,000 people on Facebook, Twitter, LinkedIn and my website (JenniferKreder.com). I did pay to try out Facebook’s tool to promote a few posts on my Facebook author page. It was unnecessary, but it was interesting to see how it worked by allowing you to target people with certain interests, particular demographics (gender and age range) in particular cities. Many of my future readers are active in Facebook groups focused on Holocaust history and genealogy. Now that I’ve been through the process of getting an agent and getting read by the big publishers, I really don’t think law professors need to do all this (although I have no regrets other than using social media for procrastination purposes). The reason is that these things are not the key to determine whether we as law prawfs have sufficient “platform,” which can roughly be translated as “visibility.”So, how can you assess whether you have a sufficient “platform?” If you’ve been writing for only a few years on the tenure track, it might make sense to build a bit more platform before shooting for a mainstream publisher. But, don’t wait too long—and certainly not because you don’t have a large social media following. I waited unnecessarily and let my worry about numbers and burning bridges with agents get in the way. (You have to assume you’ll get just one shot to pitch any particular agent or publisher.)
It turns out for law professors that platform doesn’t turn much on the numbers of followers you have on social media. The numbers definitely won’t make or break you. Here are the types of things you need to start to think about:
- Are you known in a field that appeals to a wide audience?
- Who—EXACTLY—might be in that audience?
- How do you communicate with them?
- What books do they buy?
- Are there organizations that would be interested in sponsoring you to speak to large audiences of them?
- How much public speaking outside of the classroom have you done already?
- Have you written for outlets other than law reviews?
- Can you get on radio or TV?
Whether you have sufficient platform to warrant going for the book deal now or waiting is really a case-by-case call. If you decide it’s best to wait, focus on improving your answers to these questions, rather than obsessing over building a social media presence. You can get more active on social media now, but you will have time to do more of that later after the manuscript is in the hands of your publisher.
In my next post, let’s assume you’re ready to go for it! (Yes! I'm rooting for you!) I’ll write about how to get your book proposal in shape to submit to agents or publishers directly. As I’ll discuss in a later post, I hired a publication consultant to help prepare my book proposal. Although I know plenty of prawfs who have written books, I don’t think any had a literary agent, and I wanted one. So, I needed some expert help, because I could not tell from the many, many sources I read what they really wanted from someone like us.
Finally, as always, let me know in the comments if I can try to help you with specific questions.
Counting on the Low Information Voter
The LSE Blog features some interesting new research by University of Texas Professor Brent Boyea on the intersection of partisan elections, campaign contributions, and professionalized courts. Looking at 12 years’ worth of data from state high court elections, Boyea found that campaign contributors are nearly twice as generous, on average, in states with partisan judicial elections than they are in states with nonpartisan judicial elections. He also found that “contributors support candidates more actively in states with professionalized courts where judges have higher salaries, advanced resources, and courts have freedom to decide their agenda.” And contributors are most generous when elections are partisan and courts are professionalized. This suggests, to me at least, that campaign contributors expect to get the most "bang for the buck" in states where a candidate's election is all but assured on partisan grounds, and the elected judge will later have some freedom to act in a manner consistent with the contributor's own agenda.
Somewhat related is this story out of Illinois, discussing how attorney Phillip Spiwack legally changed his name to Shannon O’Malley in advance of his campaign for a Cook County judgeship. Spiwack/O’Malley appears to be conceding to a stubborn reality of Chicago judicial elections: having an Irish woman’s name is an extraordinarily valuable commodity at the polls—more valuable, it seems, than professional experience, skill, or judicial temperament.
These items add to a growing body of evidence that in judicial election states, candidates and their financiers virtually expect citizens to come to the polls armed with no more information than a candidate’s party affiliation or surname. How this advances the integrity, efficiency, or legitimacy of the judicial system is beyond me, but I welcome sincere and robust defenses of this system in the comments.
(Cross-posted at The Interdependent Third Branch.)
Sunday, February 11, 2018
Why has bris survived?
I have been taking an adult Jewish learning class this year, examining the key events (milestones, holy days, etc.) of Jewish life. This week was about birth and brit milah. One question was why brit milah is observed by substantial numbers of Jews when other mitvot--keeping kosher, observing Shabbat, observing the festival days, wearing tzitzit--are not practiced in nearly as great numbers by Jewish people assimilated into modern U.S. society. Of all the mitzvot to survive modernity and assimilation, why that one?
My theory: Circumcision become so prevalent among the general population (especially in the U.S.) after World War II that it ceased to be a practice that made Jews different or apart from the broader society into which they were trying to assimilate. Keeping Kosher made a person different from broader society, because most people do not keep Kosher. Not driving or participating in activities on Shabbat made a person different from broader society (and made it impossible for his kids to play sports and participate in other widespread secular activities). Wearing a yarmulke or tzitzit made a person look different from those in the broader society. Missing school or work for Sukkot made a person stand out from his co-workers or fellow students.
But most males (Jewish and non-Jewish) were circumcised, so a circumcised Jewish male did not look different from those around him. It was easier for Jews to continue circumcision because it did not interfere with assimilation the way other mitzvot, which non-Jews did not also adopt as secular practices, did.
Ross Douthat on banning pornography
In the New York Times, Ross Douthat has a column contending that we should "ban" hard-core pornography. Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material, my sense (and what I tell my Freedom of Speech students) is that, practically speaking -- because of the ubiquity of and ease of accessing online pornography, because of prosecutors' resource-allocation decisions, etc. -- pornography is, in practice, both unregulated and unregulatable (by the government, anyway -- employers, universities, etc., might be a different story).
I suspect (but maybe I'm wrong!) most of us think Douthat is mistaken. I admit, my own view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school-ACLU-type, thrill-to-the-rhetoric-in-Barnette libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses and, in a free society, the remedy for bad speech is good speech. I hold this view (which, it seems to me, the Court's precedents support) not so much because I think it is compelled, or even very strongly supported, by the First (or the Fourteenth) Amendment's original public meaning but because my intuition is that, all things considered, it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that will be permitted and speech that is not.
I admit, though, that I'm not and have never been entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech"). Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me." I don't believe this, though. Speech causes "harms" to others, to the community, to the self, and to the moral ecosystem. The freedom of speech, as we understand it, has costs. What's more, there is no reason to think that these harms and costs are distributed in an equitable way or that they are borne by those who benefit the most from, or are best able to protect themselves in, a libertarian speech regime. Still, my well-grounded confidence that the power to regulate speech would be abused (e.g., it would be employed overconfidently in the service of the arc of "history") makes me reluctant to depart from the near-absolutist position.
And yet: I agree that pornography is both immoral and harmful, including in the ways Douthat discusses. (It seems to me that the scathing piece Douthat wrote after Hugh Hefner's death was spot on. Hefner was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.") It's increasingly difficult for me to resist the suggestion that it should, at least, be regulated more than it is -- or, at least, it should be marginalized and disapproved more than it currently is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion might not actually be as elusive as my fellow near-absolutists warn.
Or . . . maybe not. Still, I can't disagree with Douthat that there's something worrisome, and sad, when the New York Times Magazine is suggesting ways to teach kids "critical thinking" and self-esteem-preserving techniques with respect to the massive amounts of online pornography they are viewing, by themselves.
Friday, February 09, 2018
JOTWELL: Levy on Epps and Ortman on a SCOTUS docket lottery
The new Courts Law essay comes from Marin Levy (Duke), reviewing Daniel Epps & William Ortman, The Lottery Docket (Mich. L. Rev., forthcoming), which proposes that SCOTUS increase its docket through randomly selected cases from the courts of appeals. A fascinating idea.
Thursday, February 08, 2018
Answering the Question, "Why Do You Want to Write a Book?"
My last post posed the question, “Why do you want to write a book?” In the comments was a great response from junior TT prof to kick off this attempt to provide helpful information about publishing non-fiction books not oriented towards law students and prawfs. Here’s part of the comment from junior TT prof:
Why a book? I'm interested in writing a book to reach two types of audiences that don't read law review articles: experts in fields related to the subject of the book who are not lawyers, and laypeople. Structuring my thoughts as a book seems like it offers more flexibility in several respects. First, of course, the writing can be longer and more detailed. But also, it needn't hew slavishly to the law or the law review format. Its primary relevance needn't be to law or legal academics. And it can include pictures, charts, and a less formal writing style - all technically possible in a law review format, but less likely to succeed in the placement game or replicate well in Westlaw.
Let's be real, it would be fun to publish a book and go around giving talks to non-legal and even non-academic audiences about the book. At least this is how I envision publishing a first book. This isn't a major motivation, of course. I view it the same way some aspiring artist out there is thinking about showing their work in a cool gallery one day.
Junior TT prof captured exactly what I find so appealing about writing a non-fiction book for an educated audience outside of law schools. Most of our fields are inter-disciplinary. You can appeal to the lawyers and non-lawyers in your field by writing a less formal book that abandons the rigid formats we follow in writing law review articles. And, yes, it is fun to go out and meet these people who find your subject interesting enough to come to an event to hear you! You’ll find them as interesting as they find you! You’ll expand your network of people interested in the same things you are, which has been a delightful side benefit of the book publishing process so far. In fact, to publish a mainstream book read by more than your usual suspects, you’ll need to identify your audience (and how you will reach them) before you even start writing. More on that later.
It’s funny that junior TT prof mentions artists wanting to show their work. The subject of my book is Nazi-looted art litigation. I really relate to that analogy. And, my work really needs some photos! As junior TT prof mentions, the book can more easily include pictures and charts, but you have to be careful. Those things cost money, and the pictures require copyright permission from whoever took the photo (or now holds the copyright) and right of publicity permission from anyone recognizable in the photo. If you want to use photos, you’ll need to demonstrate to the publisher upfront that you understand what that requires and that the cost is justifiable given the marketability of your project.
So, to finish on the subject of answering the question of "why do you, Prawf, want to write a book?," I’ll list three good reasons, followed by three misguided ones.
- You have burning thoughts THAT WILL INFORM OR HELP OTHERS!
- What you bring to the subject is an important, non-trivial perspective that many non-lawyers will want to buy a book to learn more about.
- Other forms of writing, such as articles, op-eds and blogging, are insufficient for you to contribute what you know your field needs.
- You think you’ll become famous and make a lot of money. If John Grisham did it, why can’t you, right? Your chances of making significant royalties are about the same as winning the lottery. So, if being famous or making money are big goals for you, there are far easier ways than writing a book. In fact, I’ve spent money learning the trade.
- Your ego. If your process is anything like mine has been, your ego will take a beating. You’ve got to have some thick skin to admit that our skills writing law reviews require change to succeed in mainstream publishing. Just because the writing in popular books is “less stuffy” does not mean that you’ll automatically be good at it.
- You want to take a sabbatical. That’s not enough motivation to see this process to the end. Ask most of the prawfs who started sabbaticals with the goal to write a book. Most wind up writing law review articles instead. That’s perfectly fine, respectable and understandable! Getting a publishing deal today from any mainstream or academic press is harder now than perhaps ever before, regardless of your writing ability. The game has changed completely, as I’ll relate in a later post about university presses.
Keep posting in the comments if you have questions you’d like me to try to address. Junior TT prof, I’ll respond to your other questions in later posts. Thanks for the input, and I hope this helps you! Unless something different comes up in the comments, I’ll start to talk in my next post about the process of landing a mainstream book publishing deal. Hint: It starts with thinking like a marketer, not an author.
Yale Center for Private Law: Fellowship in Private Law
The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law. The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law's research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information is available here.
Why Do You Want to Write a Book?
Law professors are known to write a lot. Plenty of us decide to write books. We mostly write casebooks, workbooks, supplements and non-fiction. I decided to write a non-fiction book, but I’m shooting for the educated, lay audience. I landed a contract with Goldfarb & Associates, the same agency that represents Bernie Sanders. All the big publishers read my work, but my area of expertise happens to have one crowded bookshelf. I didn’t land a big publisher. So, I decided to go with an academic press right in my back yard, University Press of Kentucky. I learned so much about the book publishing business and thought it might be helpful to prawfs to hear about it. But, the first thing you need to ask yourself is: “Why do you want to write a book?” Let me know in the comments so I can try to help this month!
Wednesday, February 07, 2018
Florida bans counter-speech, too
Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.
Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).
The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."
In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.
Tuesday, February 06, 2018
Northwestern University Law Review empirical scholarship issue
The Northwestern University Law Review is pleased to announce its first annual issue dedicated to empirical legal scholarship, to be published in spring 2019. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.
The exclusive submission window for this issue will run from March 15 - April 15, 2018. All pieces of interest will be anonymously reviewed by members of the Northwestern University Law Review’s Empirical Advisory Board, comprised of faculty from Northwestern and the American Bar Foundation, in advance of publication decisions to be issued by July 31, 2018.
In exchange for this prioritized consideration, participating authors agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision back from the Law Review. By submitting an article via the exclusive submission track, the author agrees to accept a binding publication offer, should one be extended. Please note that some pieces may be conditionally accepted upon the advice of advisory board reviewers.
Please contact Northwestern University Law Review Empirical Articles Editor Meredith McBride with questions at [email protected].
Annual Women and the Law Conference, Feb 9 in San Diego
If you are in Southern California or simply miss San Diego post #AALS2018, this Friday is the terrific Annual Women and the Law Conference at Thomas Jefferson School of Law. Among the wonderful line-up of speakers, which includes academics, practitioners, judges and arbitrators, are Carnegie Melon economist Linda Babcock as well as my mother psychologist Thalma Lobel (the original Professor Lobel...).
The theme of the conference is Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making and the full program can be found here.
Monday, February 05, 2018
Understanding Civil Rights Litigation (2d ed.)
I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.
This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.
I welcome comments and feedback.
#MeToo is about Work & Power
Rachel Arnow-Richman (Denver) has an important op-ed in the San Francisco Chronicle, #MeToo: Why we must separate sex from sexual harassment. Here is a taste:
... The #MeToo movement is no longer about work. What started as a watershed moment in public awareness of workplace sexual harassment has converged with the long-standing debate over the line between consensual and nonconsensual sex. Some would say this is a good thing. We should condemn all forms of unwelcome sexual behavior regardless of where they happen. The power dynamics that embolden a young celebrity to take advantage of his date share something with those that permit a Hollywood mogul to force himself on his employees. But we risk losing something in the mix — the opportunity to transform the workplace and achieve greater employment equality for women. It’s time to regroup.
I agree with Rachel's argument that sexual harassment is not about sex but rather about work and power and maintaining economic and professional hierarchies. I wrote a related piece a while back. This makes the current debates about what is acceptable and not acceptable in the workplace difficult. Another favorite article, pre-#MeToo that speaks to this, which I quote regularly is Vicki Schultz's The Sanitized Workplace. This is a key moment for employment discrimination scholars to contribute to the more popular debate and offer, like Rachel does, a critical broader perspective about what we need to be doing to reform our work lives.
The Limits of “Executive Principle” in the Judiciary
Today marks the resolution (perhaps only temporarily) of an extraordinary, weeks-long public dispute in the Supreme Court of India. On January 12, the second- through fifth-most senior justices of the Court held a press conference, at which they divulged the contents of a letter they had written to Chief Justice Dipak Misra. In the letter, the four senior justices accused Misra of abusing his assignment powers by allocating particularly sensitive cases to courts headed by relatively junior justices. A public uproar ensued, with some criticizing the four senior justices for airing the Court’s internal affairs in public, and others chastising Misra for lack of transparency or accountability. After three weeks of speculation, the Chief Justice responded last week, publicly announcing that as of February 5, cases would be allocated so that all cases of one type would be assigned to the roster of a particular justice. Misra kept for his own roster a number of high-profile case types, including public interest litigation, election matters, and matters concerning the appointment of constitutional officers.
At first, this saga (which I describe more fully below) might not seem to have much relevance for American courts. But the larger question it presents—how executive power is exercised within the judiciary—is deeply salient for those of us stateside.
For the past one hundred years, American courts have deliberately structured their administrative processes to promote centralized decision-making and internal control, and to permit transparency only when it is necessary to maintain legitimacy. At the federal level, the Judicial Conference of the United States and the Administrative Office of the U.S. Courts have been repeatedly expanded from their pre-WWII foundations. The Chief Justice in particular has enormous and virtually unchecked power in committee assignments, and further has a bully pulpit within the federal judiciary to promote or bury administrative agenda items. Chief judges at the circuit and district level have lesser authority, but still maintain considerable administrative power—especially through the Judicial Conference and their respective circuit conferences. Chief justices at the state level, too, can set administrative agendas both by their tone and by their appointments.
The values of vigorous executive control and limited transparency are the intellectual descendants of “executive principle,” William Howard Taft’s notion that the judiciary requires a strong internal administrative force to maintain efficiency and adjudicative quality. Traditionally, judges have embraced these values, because strong internal administration tends to increase the courts’ organizational autonomy. Centralized management, internal control, and low transparency also tend to reinforce public perceptions of the court system as a serious, dignified, and apolitical actor. Put differently, a robust exercise of executive principle usually bolsters the legitimacy of a court system both internally and externally.
But a commitment to a strong internal executive can also backfire. Sometimes judges grow frustrated with a chief’s agenda, and make their disputes public. (Judge Posner’s self-published assault on the Seventh Circuit’s staff attorney program readily pops to mind.) Sometimes the public itself demands more transparency and participation in matters of court administration, and the courts must address that demand in order to contain a possible public backlash. (Consider here the opening of federal procedural rulemaking to greater public input and scrutiny in the 1970s and 1980s.) Finding the level of internal control sufficient to maintain internal and external legitimacy is an ongoing process for any chief judge.
Back then, briefly, to what happened in India. The January 12 letter and press conference from the four senior judges appears to have been sparked by Chief Justice Misra’s assignment of a particularly sensitive case to the roster of a junior justice. The case in question involved an investigation into the death of another judge, who at the time of his death was presiding over a murder case in which the party chief of India’s Bharatiya Janata Party (BJP) was a defendant. Foul play has been suspected. Misra's assignment of such an important case to the roster of a low-ranking justice was, for the four senior justices, an unacceptable assault on the internal legitimacy of the assignment process. In their letter, the four senior justices acknowledged that the Chief Justice had the right to allocate cases as he wished, but that the process could not be abused:
“The convention of recognising the privilege of the CJI to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transition of business of the Court, but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.”
This internal challenge to the court’s legitimacy was followed by fresh external challenges, as the press and pundits decried the lack of transparency in the case assignment process. Within days, Misra found himself under attack for keeping a procedure of obvious public interest under wraps. To preserve some credibility for himself and the institution, the Chief Justice had to develop a new, transparent roster system. It seems that the new system he has announced has sufficiently assuaged both internal and external fears, at least for the moment. But stay tuned: the Chief Justice’s assignment of public interest litigation cases (among others) to his own roster is already raising eyebrows.
American courts are unlikely to have to deal with a legitimacy crisis over the specific issue of case assignment, but the pressures that led to the Indian crisis are nonetheless illustrative. For one thing, India’s experience underscores the importance of having a chief judge who is as skilled at administration as he is at adjudication. For another, it warrants broader reflection as to how the benefits of strong central administration in the courts can be accomplished without eroding internal or external legitimacy. And it provides a cautionary lesson for those chief judges tasked with balancing their own vision of the courts with that of their colleagues and the public.
Hello! Thanks to Howard Wasserman for the invitation to return to PrawfsBlawg this month!
My specialty is Art & Cultural Property Law, and I’m known most for litigation seeking recovery of art stolen during World War II and the Russian Revolution. My writing and litigation work branched out into religious liberty for a while. I’ll write a bit about that this month but thought it might be useful for others to cover the process of getting a book deal these days.
I’m a Professor at Northern Kentucky University’s Chase College of Law, a wonderful place ten minutes outside of Cincinnati. I was an Associate Dean for six years but am now focused on finishing my book and getting on the speaking circuit.
I look forward to interacting with you this month and hope to be helpful to those mid-level prawfs seeking to inject a little spice mid-career.
Jennifer A. Kreder
Submission Angsting Spring 2018
This is the post to share information or ask questions about submitting to law reviews.
The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.
Additionally, a spreadsheet to gather information is here (and embedded below).
I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.
Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.
I cannot link to the last page of comments, due to a Typepad change.
Friday, February 02, 2018
The Hayekian Fourth Amendment
Thanks to Howard and the other PrawfsBlawg folks for allowing me to blog here the last couple of months. I wanted to leave with another blurb about my piece, “A Unified Approach to Fourth Amendment Search Doctrine.” As I mentioned in a previous post, and as the title suggests, the upshot is that the “reasonable expectation of privacy” (REOP) approach and the “trespass” approach to determining when a Fourth Amendment search has occurred really devolve, at least in many cases, into the same inquiry. This is because, at least at the margins, whether a trespass has occurred will often depend on the same kind of social norms and customs that form the backbone of the REOP test.
The title of this post refers to another aspect of the piece: that these social norms and customs form, and have always formed, from the ground up. Our law is better seen as “grown law,” as Hayek put it, rather than as being imposed from above. True, fully formed law in the positive law sense consists of an edict backed up by state power. But the origin of all laws is in the people’s lived experiences. It is bottom-up, not top-down. From this premise, the search for nationwide standards for what constitutes a Fourth Amendment search, either via the REOP approach or the “trespass” approach, is highly questionable.
Thursday, February 01, 2018
Universal injunctions at the state level (Updated)
Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.
In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.
[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.
Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.
State-created danger in the Nassar case?
Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.
So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.
Thanks to our January visitors for a good start to the new year.
Welcome to our returning visitors--Jen Kreder (Northern Kentucky), Corinna Lain (Richmond), and Jordy Singer (New England).
As always, if you will be in the Los Angeles area and would like to be a guest at a live taping of PrawfsBlawg (especially if you have never visited), email me.
A competing voice on universal injunctions
Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.