Monday, April 30, 2018
The insidious conspiracy to provoke college students into saying silly things
Michael Simkovic has a blog post describing and denouncing a plot by “a network of organizations funded by wealthy conservatives and libertarians including the Koch Brothers” to discredit universities. [UPDATE: At Professor Simkovic’s request, I emphasize that Professor Simkovic uses the term “network,” not “conspiracy,” in his post]. Simkovic’s critical piece of evidence is a speech by that master Conspirator, Eugene Volokh, who gave a talk in New York City sponsored by a libertarian think tank, the Institute for Human Studies. In his talk, Volokh advised speakers (in Simkovic’s words) to express “controversial conservative and libertarian views on campus, draw the ire of their university administrations and progressive students, and document the incidents for him so that he could publicize them through his blog, the Volokh Conspiracy, which was then distributed by the Washington Post.” By video-recording studnets’ disruptive antics, these conspirators intend to “discredit universities in the eyes of conservatives, libertarians, and moderates.”
According to Simkovic’s post, the problem with these conservative speaking events is that “[m]any lectures about ‘free speech’ are not really about ‘free speech,’ but rather are intended to provoke a reaction that will discredit universities.” Simkovic advises students and journalists not to take the bait: Do not attend the events, and these agents provocateurs will just go away.
Both Simkovic’s juxtaposition of “free speech” with provocation and his tactical advice strike me as misguided. Using speech to to provoke a foolish reaction from an audience is a core purpose of free speech. Moreover, encouraging students to boycott speakers who provoke them into silliness is a bad idea, because it conceals a problem that needs to be solved: Many of our students cannot tell the difference between an epithet that deserves to be shouted down or boycotted and a reasoned argument that requires a reasoned response.
Consider, first, why insincere speech that reveals an audience’s bad values is useful. Obtaining information about what an insular group really thinks is difficult to the extent that such groups obfuscate with vague abstractions when broadcasting their views to outsiders (“Down with racism!” “Crush the patriarchy!”) To gauge the specific content and intensity of such groups’ views, one has to confront them with a specific position and see how they react. Consider, as an example, the IWW organizer Frank Little’s reading the Declaration of Independence in Spokane in order to provoke the police into arresting him. Little’s goal was not to provide information about the Declaration of Independnece (presumably widely available in print in 1910) but rather to provide information about the vicious bullying of Spokane law enforcement. Revealing this information is an important purpose of public expression: Sometimes the information that one wants to elicit with one’s speech comes from the audience, not the speaker.
A conservative speaker who offers an anodyne opinion in order to provoke an unreasonable reaction is likewise providing a useful service in revealing the current sad state of students’ stunning incapacity for reasoned argument. For instance, Josh Blackmun provoked some CUNY students into mindless “four legs good, two legs bad” chanting simply by showing up on campus, apparently because Josh had earlier criticized DAPA/DACA’s legality. For the record, I believe that both DACA and DAPA constitute exercises of proper prosecutorial discretion. But the question is a close one: The depth of these kids’ immaturity is starkly revealed to the world when they respond to Josh’s past criticism of DACA/DAPA only by shouting “shame on you!” in unison. Revealing that ignorance/indifference to intelligent argument is not an insidious conspiracy: It is an important public service.
Simkovic’s tactical advice, therefore, strikes me as misguided because it papers over rather than addresses the problem of students’ intellectual immaturity. The deepest problem with those chanting students, in my view, is not that they interrupt speakers. (Josh was not interrupted for very long, after all). The deeper problem is that they cannot distinguish between a Milo Yiannopoulos and a Josh Blackmun: These students’ tastes in argument are so debased that all views different from their own sound the same to them. White supremacist gibberish and reasoned opinions about the scope of the President’s executive powers all get the same treatment, because the students simply cannot tell the difference. Telling students to boycott everyone who offends them does not solve this problem: It merely conceals it.
So here’s some alternative advice. When someone like Josh comes to campus, how about sitting quietly during the talk, waiting for the Q&A, and then asking him an intelligent question about how he distinguishes between DACA/DAPA and all of the past Presidents’ issuing of work authorizations to unlawfully present people? (I guarantee that you will get an answer: Josh is not shy about sharing his views). Invest the time that you would otherwise spend on poster-making to read up on Article II and prosecutorial discretion. Save the chanting, posters, or boycotts for people who have nothing to say.
Of course, this alternative strategy will require students to be able to distinguish between an argument and an epithet. But that inability is precisely the problem that conservative campus speakers have revealed. Covering the problem up with a boycott might make the students look less ridiculous, but it will not make them more discerning.
Symposium: Futures of Legal Education (All Posts)
All posts from the symposium can be found here. (Apologies for the delay in posting this round-up).
Exclusive Submission: Dickinson Law Review, Volume 123
The Dickinson Law Review is now accepting exclusive submissions for Issue 1 of Volume 123. All articles submitted to the Law Review between now and May 11, 2018, at 11:59 PM Eastern Time will be evaluated and considered for publication by May 18, 2018. If you have previously submitted an article to the Dickinson Law Review, you must resubmit the article for consideration in this review.
By submitting an article via this exclusive submission track, the author agrees to accept an offer of publication, should one be extended. Articles that receive offers of publication will be published in Issue 1 of Volume 123.
To submit, please email your article manuscript in Microsoft Word format, along with your CV, to [email protected] Please title the subject line “2018 Exclusive Submission Track.”
Sunday, April 29, 2018
A Serious Law Review Article about Law Review Articles
As the debate about the value of law review articles continues on this blog, on Twitter, and in other reaches of social media opinion-sphere, I wanted to draw attention to Barry Friedman’s new article Fixing Law Reviews that was just published in the Duke Law Journal (April 2018). It is worth a read and will perhaps be an impetus for some needed changes.
Saturday, April 28, 2018
U Va Law bans non-students from library during exams
Story here (forwarded to me by a colleague with the subject line "Glad I'm Not a Dean"). Nothing wrong with that policy on the surface--many schools do that to ensure that law students have sufficient study space during the high-stress period. The potential problem is that the policy change was enacted in response to white-supremacist leader Jason Kessler using the library, which triggered a wave of protests, public forums, and demands for the school to take action. So what happens with a content-neutral policy enacted for blatantly viewpoint-discriminatory reasons?
Friday, April 27, 2018
When crim pro hypos come alive
If you teach criminal procedure, you probably teach about the Sixth Amendment and the Strickland ineffective assistance of counsel standard. Essentially, the Supreme Court has held that to find a Sixth Amendment violation for constitutionally bad lawyering you need to show deficient performance and prejudice.
And, because we criminal procedure professors are teaching a bunch of future lawyers it is usually fruitful in class to play around with the concept of “deficient performance.” What should be the constitutional floor for lawyering (recognizing that you have another person’s life and liberty on the line).
In my class I reference the “sleeping lawyer” case that arose out of the United States Court of Appeals for the Fifth Circuit around 2000. Calvin Burdine was facing the death penalty with a lawyer who slept through some portion of the trial. It was actually hard to tell how much he slept because the trial record was silent (silence being a direct consequence of the lawyer sleeping and not objecting). A three-judge panel initially upheld the death penalty, but after columnist Bob Herbert wrote a scathing editorial in the New York Times entitled Medieval Justice the case got renewed attention, and ultimately the en banc court reheard the case and reversed. Sleeping in a death penalty case is understood to be deficient performance.
So, what happens when one of the best lawyers in the country -- a lawyer who’s hourly fees are so high he is one of America's richest lawyers, and who has won some of the most celebrated criminal cases in history (Michael Jackson etc.) falls asleep in the middle of trial (technically 30 minutes during the judge reading back prior testimony to the jurors). That is what apparently happened in the Bill Cosby retrial this week during deliberations. (I can’t confirm the facts but there were several news reports even as the story became overshadowed by the bigger news of the guilty verdict.)
But, for law professors interested in crim pro hypos… Is this deficient performance (putting aside the prejudice issue)? Shouldn’t it be more deficient if you are paying more for an attorney than most people could dream of affording? If it is not deficient performance then why? A presumption of competence based on wealth and reputation? Can a well-compensated super lawyer ever be deficient? While here the sleeping did not seem to interfere with the actually lawyering (the judge was just reading back the testimony), what if it had happened in other stages?
Now that Cosby has been convicted will this be an issue for appeal?
Why Moral Risk Presents a Challenge to Retributivist Punishment
As we grow up, it really feels like we make choices as first movers. It feels like I decided to drink coffee this morning in a way that was not simply the result of atoms crashing into each other in ways determined long before my birth (or determined by physical laws and random subatomic behavior). But rather than make an argument here about free will directly, I instead ask how confident you are that we have free will. Keeping in mind that no one has defended free will to widespread satisfaction over the last several hundred years, it seems hubristic to believe in free will with very high levels of confidence. Consider then your percent confidence that we have free will and make a little note to yourself about it.
Now assume that we really do have the sort of free will that can generate moral responsibility. How confident are you that we ought to respond to moral wrongdoing by punishing/making wrongdoers suffer? Is it not possible that harming someone who harms others fails to improve the situation? Is it not possible that our urges to make wrongdoers suffers are misdirected, just like many other urges that we learn to control? Consider your confidence, then, assuming that we have free will, that wrongdoers deserve to be punished/suffer for their wrongdoing and write it down.
When we punish, we mostly only consider offenders' recent criminal deeds for which they stand formally accused. We give relatively little consideration to what they deserve across their entire lives. Some people may have suffered so much, one might think, that additional suffering only pushes their situations further from what they deserve rather than closer. Or, they may have done so many good deeds that we would more accurately give them what they deserve by not punishing them than by punishing them. Would it be better to consider what people deserve by considering their whole lives rather than just their criminal history? Taking the propositions in the prior paragraphs as given, note your confidence that it is possible and sufficiently practical to assess the relevant background history of a defendant’s deeds and life circumstances in order to assess what he deserves.
In order to punish under a relatively pure version of retributivism, you need to believe all three of these propositions (i.e., that people can be morally responsible, they deserve punishment/suffering for their wrongdoing, and we have the right data to measure desert). So we can express your confidence in the conjunction by multiplying (because I asked you to consider the probabilities conditioned on the truth of prior propositions). If you were relatively confident in each proposition, say 90% confident, your maximum confidence in the conjunction is .9 *.9 *.9 = 73%. Is that good enough to punish someone? Well, if forensic evidence yielded 73% confidence that a defendant committed some crime, would that be high enough to convict and punish? No need to decide yet. In Punishment and Moral Risk, I walk through nine propositions that one must believe to retributively punish a particular offender. As you can imagine, if you're realistic in your estimates, confidence in the conjunction drops rather quickly.
But how confident must retributivists be that punishment is justified? If they're less than 50% confident, then they believe it more likely the person does not deserve retributive punishment than that he does. But a 50% requirement seems far too low. Most retributivists believe in the beyond-a-reasonable-doubt (BARD) standard. The values underlying that standard seem to reflect the view that it is far worse to punish someone who ought not be punished than fail to punish someone who ought to be. So, though I can't give you an exact number, the values underlying retributivist commitment to BARD suggest retributivists should be rather demanding in their overall confidence that a person deserves to be punished. I claim that, given reasonable ways of filling in the nine propositions I offer, retributivists (of relatively pure varieties) will generally lack sufficient confidence to actually punish a particular offender.
I'm pleased to report that the Illinois Law Review will be publishing an online symposium early next week that responds to the claims I make in the paper. More about that and the five contributors to it next week when the symposium is published!
P.S. Last week, I wrote a post on the "bumpiness" of criminal attempts which took issue with some of Doron Teichman's claims on the subject. I thank him for his thoughtful reply in the comments to that post.
Thursday, April 26, 2018
Predicting Legal Puzzles
New technologies offer puzzles for law professors trying to sort through established doctrine and traditional legal principles. In the criminal justice space, new surveillance technologies offer endless challenges to ideas about expectations of privacy, police power, and associational freedoms.
If you write in the space, you take note of those scholars who have an almost prophetic (predictive) talent to see the future before anyone else does. David Harris (Pitt) and the late Andy Taslitz always seem to write about problems in policing literally a decade before the issue hits the news and the rest of the legal academy. In my early days, I literally did individual preemption checks to see whether Professors Harris and Taslitz had already written about my next new idea.
Others – too numerous to name – have written about future problems only to see them become present problems facing us today. As one part of this post, I would invite you (in the comments) to suggest legal academics who you think have this prophetic talent.
After the break, I will talk about by own stumble into an accurate prediction.
Until now the “eureka, I’ve accurately predicted the future moment” hadn’t happened to me. But, for the first time in my academic career the futuristic world in which I puzzled about has finally come into being.
In 2015 I wrote an article Big Data and Predictive Reasonable Suspicion, 163 U. Pa. L. Rev. 327 (2015) that had as its core theme that a Fourth Amendment doctrine built on a small data foundation couldn’t survive a big data world. The article posited how a world of big data information about suspects combined with facial recognition would erode the Fourth Amendment’s reasonable suspicion standard on the streets.
This Article traces the consequences of a shift from “small data” reasonable suspicion, focused on specific, observable actions of unknown suspects, to a “big data” reality of an interconnected, information rich world of known suspects. With more specific information, police officers on the streets may have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will use existing predictive analytics to target suspects without any firsthand observation of criminal activity, relying instead on the accumulation of various data points. Unknown suspects will become known to police because of the data left behind. Software will use pattern-matching techniques to identify individuals by sorting through information about millions of people contained in networked databases. This new reality simultaneously undermines the protection that reasonable suspicion provides against police stops and potentially transforms reasonable suspicion into a means of justifying those same stops. …
The wrinkle of big data is that now officers are no longer dealing with “strangers.” Even people unknown to officers can be identified and, with a few quick searches, revealed as a person with recognizable characteristics or about whom certain predictions can be made. If officers view those individualized and particularized identifying characteristics— such as prior convictions, gang associations, and GPS coordinates near the scene of the crime—as suspicious, then otherwise innocent actions might create a predictive composite that satisfies the reasonable suspicion standard. In essence, reasonable suspicion will focus more on an individual’s predictive likelihood of involvement in criminal activity than on an individual’s actions.
It was a good piece that covered both the Fourth Amendment doctrine and explored new predictive technologies that had not been discussed in law review articles. There was only one problem: police did not actually have facial recognition technology that would allow them to match up suspects with big data information. The technologies existed (in theory) and were coming (I argued), but were not yet being considered by police departments. The premise of the article (one that I slightly elided at the time) was that you needed real time facial recognition to turn strangers into known suspects with big data.
Fast forward to this month, and the Wall Street Journal wrote about how police are partnering with companies selling facial recognition with artificial intelligence capabilities. According to the WSJ, these technologies are coming to a street corner near you pretty soon.
Yesterday, the Washington Post wrote an article about the future of facial recognition in body cameras, quoting the CEO of Axon, the leading maker of policy worn body cameras saying, “It would be both naive and counterproductive to say law enforcement shouldn’t have these new technologies. They’re going to, and I think they’re going to need them. We can’t have police in the 2020s policing with technologies from the 1990s.”.
And, today a coalition of civil rights groups wrote a public letter to Axon to push back on the harmful impacts of real time facial recognition. The letter argues that certain products like real time facial recognition would be unethical to deploy. It also challenges the company to involve community groups in all of its ethical decisions. The letter was written in response to the formation of an AI Ethics Board that Axon created to inform the company of the risks of these new technologies.
Three quick thoughts on these developments.
First, the puzzle of how facial recognition technologies will distort suspicion is now teed up and ready for testing, and I hope others engage in thinking through the solutions. The Georgetown Law Center on Privacy and Technology (Alvaro Bedoya, Clare Garvie, and Jonathan Frankle) recently published a groundbreaking report -- The Perpetual Line Up -- on the unregulated state of facial recognition technology. There is much more to be said about the subject.
Second, I hope others see the value of creating ethics boards. All too often lawyers are not in the rooms when the technology is designed. Perhaps more companies should develop ethics boards (which would include both legal and moral ethics experts). Putting lawyers in the room will avoid some of the obvious pitfalls that have increased tension between police and communities. There are no easy answers here, but having critics in the room will only add value.
Third, it is fun being right about a prediction (I only hope the Fourth Amendment can survive).
Adler on same-day audio
Jonathan Adler argues that nothing bad happened after the Court released the Trump v. Hawaii audio the same day and there is no reason not to make same-day audio the regular practice.
Stand in the place where you work
I began using a standing desk about five years ago, when my colleague Eric Carpenter joined the faculty from the military, where he used a standing desk. About 5-10 people now use standing desks, including one who bought herself a treadmill desk. I bought StandStand, a portable standing desk invented and crowd-funded by Luke Leafgren, a professor at Harvard.
This story reports on recent studies suggesting that the cognitive benefits gained from walking (which might explain why I pace when teaching) are gained by standing while at your desk. Maybe while keeping my classroom laptop-free, I should give students the option of standing in class.
Wednesday, April 25, 2018
Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.
I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.
What is Moral Risk?
Suppose you're rather sure that eating meat is perfectly fine. Indeed, you're 80% confident that non-human animals have no right to life and no great harm occurs when they are slaughtered for food. So you can go on eating meat, right? Not so fast. It would only be rational to consider what follows given your 20% confidence in the possibility that you're wrong. Plausibly you might assess the moral harm of being wrong as quite severe. If you're wrong, let's assume you believe, slaughtering animals for food is a great evil, perhaps almost as serious as slaughtering humans for the same reason.
So here's how things look to our hypothetical person: He's 80% confident that eating meat provides some pleasure and nutrition and is not a significant moral harm. But he's also 20% confident that eating meat is a great evil, not far from being as serious as murder-cannibalism. Now it seems irrational for him to eat meat. If I was 80% confident that opening a box would yield $10,000 for me but 20% confident it would explode and kill me, I'd better not open the box. It's not worth the risk. Why should we analyze these problems any differently when they involve prudential considerations (money vs. explosions) than when they concern moral considerations (pleasures/nutrition from eating vs. harms akin to murder and cannibalism). So, even if our hypothetical person is rather confident that eating meat is perfectly fine, it might be irrational for him to eat meat anyhow, given his levels of confidence and his weighting of the relative harms. That's what makes moral risk important. In our deliberations, it seems that we should consider not only what we believe is moral but what risks we are taking about what is moral as well.
What does this have to do with the law? In a just-published article, I argue that moral risk should lead us to be very skeptical of retributivist justifications of punishment that claim we should punish people because they deserve it for past wrongdoing. Most retributivists find it far worse from a moral perspective to punish an innocent person than to fail to punish someone who is guilty. This asymmetric weighting of moral risks leads them to require a rather higher standard for factual guilt (the beyond-a-reasonable-doubt standard). But as I'll discuss in an upcoming post, I don't think we can plausibly have sufficient confidence in retributivism to overcome the rather high level of confidence that retributivists seem to demand in order to punish. In the meantime, here's Dan Moller on abortion and moral risk and here's Alex Guerrero on moral risk and eating animals.
Sponsored Post: Teaching Bus Orgs in the real world
The following post is by Michael A. Chasalow, Director of the Small Business Clinic and Clinical Professor of Law at USC Gould School of Law, and is sponsored by West Academic.
A successful Business Organizations course needs to cover a broad range of material that involves a number of new concepts while keeping students engaged. After several years of teaching, I developed several hypotheticals that connected “real world” scenarios to the substantive material. (Eventually, these hypotheticals developed into the foundation of my Experiencing Business Organizations book.) I have found that practical exercises provide context to substantive material that can be somewhat dry and allow students to engage as “lawyers” rather than passive students. On the other hand, I do not believe that practical exercises alone are sufficient to teach Business Organizations.
Given the movement toward experiential learning (okay, and the pending release of the second edition of Experiencing Business Organizations), I wanted to share my experiences using practical exercises as part of a doctrinal course. I have found that students appreciate a connection to the real world and learn the material better when there are practical exercises. However, I typically have over 100 students in a course, and I recognize that it can be challenging to personalize an experiential component—let alone grade each exercise—in such a large class. To address this challenge, I divide the class into “firms” of four or five students and give them the types of assignments they might receive as associates working on a corporate matter in a law firm. I try to limit the responses to 2-3 pages, which I find is sufficient to make the exercise meaningful, but not excessively burdensome. (I also let each firm rotate a “point person” who has primary responsibility for completing the exercise.)
The assignments are intended to incorporate the most recent substantive material we cover in the course, while building some practical and strategic lawyering skills. There are a few students who balk at the extra work, but, by and large, most of my students find the exercises beneficial and appreciate experiencing how the issues we are covering in class might arise in practice. These exercises provide great opportunities for feedback both on the written assignment itself and in class when we review the exercises and give students an opportunity to present. While the team approach works well in larger classes, the exercises also work well individually.
I believe that a good course should include both theoretical and practical instruction. I use the materials in Experiencing Business Organizations to provide the opportunity to maintain the fundamentals of a traditional course while enhancing the learning experience with simulations. However, there are, of course, many approaches to including practical material in a doctrinal course. Whether you use a casebook that provides exercises, draw on your own experiences or gather material from local practitioners, you will find that including practical exercises is extremely useful and worthwhile, and students seem to feel that they are getting a good mix of practical experience skills along with the substantive subject matter.
Navigating accommodations and pedagogy
Like many on Prawfs and elsewhere, I've dabbled with laptop bans in the classroom. (For me, I'm deeply uncertain about what the "right" answer is and won't rehash those discussions here.) But I'm aware of situations where a professor has banned laptops only to receive a word from the accessibility services office that a student (or more than one) requires an accommodation--the ability to use a laptop.
And like many on Prawfs and elsewhere, I've wondered about whether I ought to record classes (e.g., to provide opportunities for students with legitimate reasons for absences to hear the material, and to allow students with long commutes to re-listen to class discussion) or not (e.g., to protect the privacy of students and maximize classroom candor, or to prevent incentivizing classroom absences). But I'm aware of situations where a professor has refused to record lectures only to receive a word from the accessibility services office that a student (or more than one) requires an accommodation--the ability to record lectures.
Gone are the days where accommodations were limited to things like time-and-a-half on the exam. A much deeper understanding of students' needs, coupled with much more sensitive university accessibility offices, has given rise to many more accommodations over those available even a decade ago. Some greater contemporary accommodations, like service animals, don't really have pedagogical impact.
But, at the same time, I can't help but start to wonder how to handle these accommodations in relation to pedagogy. If I allow laptops or record all lectures, then it's a moot point. But what if I want to ban laptops or if I don't want to record classes?
I think some of my concerns have been about how students might react. That is, they don't know which students have extended time or other exam-related accommodations because there's a level of privacy inherent in that process. But a student with a laptop in a class where everyone else can't use them stands out--in part, it may call attention to the student with an accommodation (an undesirable result, to be sure), or, in part, it might be a lack of student sensitivity to accommodations (which, perhaps, I or others could communicate more effectively). And a student who gets access to recordings is in the same boat--I have to tell the class that I'm recording the lectures (even though the students generally don't get access to them), but at least they can't single out the students with the accommodation, but the same lack of sensitivity is an issue. (Or, more crudely, a complaint that the system is "unfair" to them if they want to type or listen to recordings.)
So, my temptation might be to forego any kind of pedagogical decisionmaking and go with the path of least resistance--record, type, whatever you'd like. But that strikes me as suboptimal, especially if I'm convinced (and, I should note, I'm not totally convinced in any of these arenas) that I ought not do it.
Maybe there's a third way--working with the accessibility services offices to develop more nuanced accommodations that avoid these concerns: win-win or something like that. But I'm not sure those kinds of options would be available, and it would involve me second-guessing the decisions of professionals who've weighed student requests carefully.
So... I don't know. It's something I've been grappling with. Have any of you struggled with these issues? If so, have you reached any better resolutions than I have?
What to cover and when
There is a connectedness among the pieces of the law-school curriculum, one that may have increased as we have expanded course offerings, eliminated required courses, decreased hours (at least in 1L), and varied the types of offerings. Sometimes this is personal--I used Fed Courts to cover stuff (such as the Grable line) I cannot get to in Civ Pro and Civil Rights to cover stuff (all of § 1983 and Bivens) I cannot get to in Fed Courts. Other times it is broader, as some courses rely on other courses for foundation and connection--we want students to know crim law and procedure before we send them to work in a prosecutor or PD office.
And sometimes this touches not only on what we teach in doctrinal classes, but the order in which we teach it. There is a never-ending debate in the Civ Pro world about whether to start with pleading and the FRCP or jurisdiction (and then whether subject matter or personal). I am in the former camp, initially because the person I learned Civ Pro from is in that camp and now because I believe it is the best approach, although I see the merits to the alternative. My FIU colleague who teaches the other section of Civ Pro begins with Pennoyer. In Evidence, I begin with Relevancy and do not reach Hearsay until the final month of the semester, again because that is how I learned the material. My FIU colleague who teach the course reaches Hearsay much earlier in the semester.
I was speaking with my colleague who runs our outstanding Academic Excellence Program, working with marginal spring 1L and fall 2L students (this program is a big reason for our Bar-pass success). He links his support class to particular doctrinal classes--Civ Pro for spring 1L and Evidence for fall 2L; the special extra assignments and close support he provides are for writing assignments linked to those classes. And this difference in order of coverage is causing him some headaches. If he assigns a question on Hearsay or P/J or discovery early in the semester, only half the class will know the material from the doctrinal course.
I am not sure how to resolve that problem. I have considered reasons for teaching in the order I do, as do my colleagues, and I doubt either of use will convince the other. Order, it seems to me, affects how I teach the material and changing the order changes how I teach. I can teach Hearsay a certain way because, by the time we get there, my students have a basic understanding of relevancy; I can teach Personal Jurisdiction a certain way because, by the time we get there, my students have a basic understanding of what a civil action and what it looks like. Again, my colleagues would say the same in reverse.
But our choices, however well-founded, have downstream effects.
Tuesday, April 24, 2018
I only want to see you working on your Civ Pro test
Zimmer as Trustee for the Kin of Prince Rogers Nelson v. Trinity Medical Center, a wrongful death action in Illinois state court by Prince's Estate against the hospital and doctors in Moline, Illinois that treated him, and failed to recognize a possible overdose, about a week prior to his death, and Walgreen's, two Walgreen's stores, and several Walgreen's pharmacists for prescribing him medications improperly.
Consider:• All the defendants are from Illinois, except for the two Walgreen's stores, which are located in Minnesota (where Prince was a citizen prior to his death). Those defendants destroy complete diversity, keeping the case in state court. And that likely is the reason they were sued. Of course, even without the non-diverse defendants, the case is not removable because of the forum-defendant rule.
• It is not clear how there could be personal jurisdiction over the stores. I presume they filled prescriptions for drugs for Prince in Minnesota and had no obvious connection or direction to Illinois in their prescription activities. There are allegations in the Complaint that sound in obtaining jurisdiction over the stores through their connections to Walgreen, which is an Illinois corporation with its PPB in Illinois and subject to general jurisdiction. So it is the converse of Daimler--attempting to use a parent to get jurisdiction over the underling. I suppose there is purposeful availment through owning a Walgreen's franchise (which presumably requires some contractual or other relationship with Walgreen's), but those contacts don't give rise to this claim. (The analogy would be if someone who choked on a Burger King fry sued Rudzewicz in Florida, based on his franchise agreement with BK). Expect the stores to move to dismiss for lack of personal jurisdiction (although, because of the F/D/R, dismissing them has no removal effects).
• There is an interesting state venue question. The lawsuit was brought in the Circuit Court of Cook County. But Prince was treated at a hospital in Moline, Illinois, in Rock Island County. Illinois law makes venue proper in the county of residence of any defendant, with corporate defendants residing in any county in which it has a registered or other office or is doing business. Walgreen's headquarters is in Deerfield, in Cook County.
• The case offers a simple illustration of the fact that conduct in one state injuring someone who is from another state does not, without more, create personal jurisdiction in the injured person's home state. Hence the Estate going to Illinois rather than making the defendants come to Minnesota.
Book Review Roundtable on Kathleen Brady's "The Distinctiveness of Religion in American Law"
Last Spring, the Program on Church, State & Society at Notre Dame Law School (more here) hosted a small roundtable conference dedicated to Kathleen Brady's then-new book, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence. Each participant wrote a short reflection on the book -- a kind of "admission ticket" -- and these reflections (along with Brady's response) formed the basis for the day's conversations. I'm pleased to report that the "tickets" have been collected in the November 2017 issue of the Journal of Law and Religion. They are, if I say so myself, really interesting. Take a look!
Monday, April 23, 2018
I just got my copy and started reading Brett Frischmann and Evan Selinger's (with foreword by Nicholas Carr) new book Re-Engineering Humanity and its fantastic. It shows how perhaps more than being worried of AI taking over we should worry about how AI is changing us and what we believe is at the core of our humanity: free will, social engagement, creative independent thought. Here is a synopsis:
In this wide-reaching, interdisciplinary book, Brett Frischmann and Evan Selinger examine what’s happening to our lives as society embraces big data, predictive analytics, and smart environments. They explain how the goal of designing programmable worlds goes hand in hand with engineering predictable and programmable people. Detailing new frameworks, provocative case studies, and mind-blowing thought experiments, Frischmann and Selinger reveal hidden connections between fitness trackers, electronic contracts, social media platforms, robotic companions, fake news, autonomous cars, and more. This powerful analysis should be read by anyone interested in understanding exactly how technology threatens the future of our society, and what we can do now to build something better.
Brett is coming to San Diego this week so I can't wait to host him here for a faculty workshop this Thursday, and then immediately drag him in return to a book talk I am giving in the afternoon at UCSD. (by the way - my book You Don't Own Me just came out this week in audio for all you audible lovers - 11 hours, or listen to it in double speed!).
Sunday, April 22, 2018
Universal injunctions in Trump v. Hawaii and Chicago v. Sessions
SCOTUS hears argument on Wednesday in Trump v. Hawaii on the constitutional and statutory validity of the third travel ban, including (perhaps) the validity of the universal injunction. Marty Lederman explores the scope-of-injunction issue; he concludes that if the court reaches the scope question, it may be entirely dicta. A Supreme Court decision declaring the ban constitutionally invalid will, in almost all cases, result in the government suspending enforcement across the board. So the Court passing on the scope issue will have no practical effect.
Meanwhile, a divided Seventh Circuit panel affirmed the universal injunction as to the sanctuary-city-funding regulations. Sam Bray critiques the ruling at the VC. I will be spending the coming week updating some writing on the subject.
A few thoughts after the jump.Marty's argument that a Supreme Court decision has the same effect as a universal injunction is right as a formal matter, because the President tends to proceed on an assumption of judicial supremacy--the Court's constitutional word is the last constitutional word. Much of the public shares that assumption, so the President may be politically bound to do the same. But a committed judicial-departmentalist executive could make these questions interesting.
Marty touches on the plaintiffs' Establishment Clause argument in favor of universality--that a limited injunction "fail[s] to 'remove the stigmatic harm that respondents suffer based on ‘the simple enactment’ of the Government’s policy.'” Although I do not discuss it in my article, this argument has never made sense to me. The traditional conception is that the simple enactment of a law, regulation, or policy does not violate constitutional rights; only the (actual, attempted, or threatened) enforcement of the law, regulation, or policy violates constitutional rights. And I do not believe there is anything unique about the Establishment Clause in this regard. The E/C cases involving stigmatic harm have involved executive actions sending a message of exclusion--religious displays, football prayer, legislative prayer, etc. Stigmatic harm has not been a basis (to my recollection--I have not looked at this recently) for challenging the enactment and existence of the law itself. If it were, the injunction would have to compel repeal of the law or regulation, rather than prohibiting its enforcement. This logic, if it prevails, could not be limited to the Establishment Clause. It also should apply to speech cases, because the "simple enactment" of the law would have a chilling effect even on those not threatened with enforcement, justifying an injunction to protect them along with the threatened (so as to have standing) plaintiffs.
Hawaii also argues that it cannot identify in advance who might seek to study there so as to be protected by the injunction, so everyone must be protected. But the difficulty of identifying those with a sufficient connection with the plaintiff can be left for future enforcement of the injunction protecting Hawaii; it need not be decided at the point of issuance.
As for Chicago and sanctuary cities, the court deserves credit for offering a detailed and non-conclusory defense of universality, only the second court to do so (the other being the district court it was affirming). Sam captured the defects in the opinion. The problem remains the same. The attempt to allow this universal injunction while limiting universal injunctions to "rare circumstances" fails, because the limiting principles are not limiting principles and appear to justify a universal injunction in every case.
Saturday, April 21, 2018
More on PowerPoint
As one of the "Oh, I never use PowerPoint" people Derek mentions, I wanted to add on to a couple pieces of his post. Derek says he uses PP for three things: 1) The text of a rule or statute; 2) Visualizing a concept such as a flowchart; and 3) Photos and other AV material. And he and I teach some of the same classes.
First, not using PowerPoint is not the same as "simply sp[eaking], lectur[ing], engag[ing] in Socratic dialogue." While I (proudly) never use PP, I fill the dry-erase board with flow charts, key terms or phrases, hypothetical problems, and occasionally statutory text, especially if I want to break the pieces of the statute down. I recall a SEALS panel on using AV in class and one of the speakers presented his slide for the Erie flowchart. It was the same flowchart I use, just with more color and boxes and permanency. But the dry-erase board allows me to interact with the visuals, circling and underling things as we go, something that is impossible on the sterile slide (even with a laser pointer).
Second, the drawback to putting text on a slide is that students stare at the slide instead of the text in their books. I want them to learn to read and highlight or underline or mark-up the text as they go, by having the text right in front of them and being able to work with it. I have been aware this semester of how much students jot down what they hear about a statute in their notes and use the remembered language from their notes, rather than going back to the precise text and textual language. This is important when we are jumping around to multiple rules and they have to figure out how to read the rules together and fit them as parts of a whole. I prefer to read the rule together, with everyone looking in her own book, rather than presenting it in one spot for all.Third, Derek says he does not churn through and read slide after slide. But the temptation to do so is overwhelming and commonplace, thus becoming expected by students and audience members.
Fourth (and this is going to be a matter of personal style), the question must be whether a visual adds something to the presentation and to the students' learning. When teaching Lujan, does it really add to the students' understanding of the case to flash a picture of the Nile Crocodile? It's nice as trivia or cocktail-party conversation--which certainly is important--but does it help the students understand the material? If my answer is no, it is something I leave out of the classroom, but perhaps present on the course-adjacent blog or web site.
Finally, while I believe I shared this story here years ago, it is worth repeating. It involves an academic talk rather rather than class, but it gets at the same thing. I was presenting my empirical study of the infield-fly rule , which had charts with numbers and pictures of fields showing location of batted balls, and the AV system was not working. The moderator told me to "do the best I can," which would have been "not at all," since the talk would have been incoherent without the audience being able to see what I was talking about. (They fixed the system by the time I got up there, so it worked out). That the moderator could believe the talk could work without the visuals tells me that many people are giving many talks using PP that adds nothing of consequence, probably with visuals that contain the text of what the speaker is saying and that are going to be read, but nothing more. If someone can do the same talk and be as understood without the visuals, the visuals add nothing essential and can be discarded.
Friday, April 20, 2018
It's time to have the talk... about PowerPoint
Few things are more ubiquitous and less discussed in legal education than PowerPoint. It inspires obsessive use and targeted hate.
I use PowerPoint with varying degrees of regularity in the classroom (and while I'll focus on that here, some of the discussion points are fruitful for consideration for academic talks, too). (As an aside, I typically used Prezi, a more dynamic open-canvas environment than PowerPoint, but given the decline of Flash and Prezi's move toward more PowerPoint-like features, I may be abandoning that platform soon.) And I use it for basically three things. (I'll use PowerPoint as a shorthand for basically any audio-visual display in the classroom, but PowerPoint does come with its own stigma and faults.)
First, the text of a rule or a statute. When I teach Civil Procedure or Evidence, I'm displaying the text frequently. It's quite valuable, I've found, when students break into small groups to work on a hypothetical, or when I'm walking them through a hypothetical--the giant actual text of the rule miraculously helps them pay attention to the words. (I'll very rarely use a quotation from a Supreme Court opinion that establishes a common standard.)
Second, a visualization of some concept, like a mind map or a flow chart. It's designed to synthesize dense material into a digestible format.
Third, photographs, audio-video components (more on that below), or other ways of bringing certain concepts to life. (I've even resorted to the occasional meme.)
In all three, I very rarely churn through a series of slides. Most would linger for minutes, if not most of the class.
Now, some might never use PowerPoint--or, at least, while they might occasionally put up a YouTube video, but wouldn't call such an exercise "using PowerPoint." Some might take a more moderate approach to using PowerPoint to outline topics in class or mention case names & titles to anchor discussion.
But then there are the PowerPoint, in my view, over-users. That might include churning through 20 or 30 slides in a single 60- or 90-minute class. There might be large blocks of text, sometimes summarizing a case, sometimes big chunks of law. There's a temptation to read through it, right off the screen. Students may start transcribing the content furiously on their laptops.
And the visuals. Oh, the visuals. Color schemes, clip art, busyness.
I thought I'd share a few things to think about and ways one might improve the use of PowerPoint. There are the great critics like Edward Tufte, and I can hardly add to them. (I confess, I sometimes violate these principles myself, so typing them out is designed to give me some structure.) This also requires knowledge of far more than PowerPoint--you need to be aware of the location where you are presenting as much as, if not more so than, the software itself.
First up: display. High-resolution is essential, and one should be very reluctant to do too much with PowerPoint if your audience is going to be gazing at grainy lower-resolution displays. Smaller fonts or more subtle items will be lost. The same goes true for the size of the display and how high it's mounted from the audience--craning necks looking to a small screen dramatically diminish impact, particularly for those in the back of a large auditorium or up near the front of a high-mounted display. True HD with good sightlines make use of PowerPoint. If you don't know the room? Simpler (or abolition) is better.
Second, aspect ratio. Most tech departments have adjusted displays for a 16:9 (i.e., "widescreen) ratio. But most PowerPoint users still default to 4:3 aspect ratios, leaving you with a box with black bars along the side. That means you're actually shrinking the display size and asking more of your audience. If you know ahead of time the aspect ratio in the room, then you can maximize the real estate available. If not? I would create two separate presentations, one 4:# and one 16:9.
Third, lighting. If you've got a touch-screen HD display, you're probably not as worried. But many projectors have dim bulb. They're placed in rooms with lights that shine right on the display, dimming the look further and washing out or causing glare. So you can black out the room (good luck, notetakers), or try to figure out which light switches will sufficiently illuminate the display. If you don't know the room? Stick with black-and-white as much as you can, or don't use it. (Noticing a theme about familiarity with the room...?)
Fourth, color, hue, and saturation. This can work in conjunction with the brightness of the display. Greens and grays, or low contrast, might get lost if the color profile is poor. Color-on-color may get washed out. Clear black text on a white background (unless you're in a pitch black room, then go for white text on a black background) is ideal, even if boring. Accentuate borders if you'd like--the audience won't need to read your borders, and a little color loss isn't the worst there.
Fifth, typeface, size, and readability. Sans serif fonts are usually best with low resolution displays (it's a reason that Calibri, icky a typeface as it might be, is the default for Word, because it's highly readable on a computer monitor). It means that you may have a more contemporary look, but better to have readable Arial, Helvetica, or Verdana than... well, something not readable. Keep in mind that the size of the room often means you need font sizes larger than you want.
Sixth, audio. Oh, the audio. Rooms are usually not designed with optimal speakers, particularly for bass, so simply be careful about how much audio takes place in your room and what it sounds like. Modest use is best... unless, again, you have deep knowledge of the acoustics and can ensure that the A/V will work well.
These are all the picayune design issues that you may not think about sitting at a computer. But that's because, as a presentation format, the presentation component is too often ignored--I hope these provide a few things to think about for your next presentation.
In terms of substantive use, I won't add to the stuff that Professor Tufte writes about (he's soundly criticized PowerPoint as a reason for the Columbia shuttle disaster). But, at a time when we obsess over pedagogy, learning styles, professionalism in the classroom, and the like, I'm not sure we critically evaluate our use of A/V in the classroom. I try to, as best I can. But a lot of priors make critical insight almost impossible to address--"Oh, I never user PowerPoint," for instance, makes any critical evaluation of someone else's A/V challenging, or often blocks any discussion about how one might meaningfully add technology to the classroom. Or, "I worked really hard on these slides" opens the door that criticism of the slides means devaluing that person's work product.
That's of course not to say that we all have very different teaching styles--I loved some courses with faculty who simply spoke, lectured, engaged in Socratic dialogue without a stitch of A/V; and I loved some courses with faculty who'd flash images of stuff from the cases or anchored discussions in the text of the rule. My own classes can vary widely in how much tech I use. But I hope we can think more about it, and perhaps even improve upon it for our students' sake.
A Digital Fix to Alleviate Some Angsting Stress?
If the number of comments a thread receives is any proxy for interest in a subject, the Prawfsblawg angsting thread has to be one of the most popular semi-annual traditions. I will confess to occasionally checking it, although it rarely provides comfort during submission season. The general theme is usually one of impotent ignorance — of having no idea what is happening or the odds of a successful placement.
I completely understand the angsting phenomenon and spent some time this Spring thinking about how better information flows might make the process less stressful. It occurs to me that the potential of digital platforms like Scholastica could ease some of the angsting stress by providing more information about the decision-making process of the journals.
As an author, here are the pieces of information I would like to have during the submissions season: (1) has my article been downloaded/read; (2) how many slots are open in the journal; (3) is my article still under consideration for acceptance. Those three questions tend to line up with the three main causes of submissions stress: silence, strategic expediting, and rejection.
First as to silence: law professors spend a year writing an article and then send if off to silence. No acceptances, no rejections, no communication. Sometimes weeks pass making one question whether Scholastica is working before responses trickle in. This is stressful because as an author you do not know what silence means. Does it mean that your article has been read but rejected? That the abstract has been skimmed? Or have you simply been ignored. Being ignored is a fair concern because there is no way for editors to read every submission. So if there were a way to know that your article had not even been read, you would at least not be waiting for the chance that some top tier journal was going to contact you.
The strategic expediting game is horrible for everyone. Law review editors spend thousands of collective hours reading articles only to lose out to some other higher ranked journal. Some journals are known screeners, making their efforts valuable and super frustrating. I spoke to editors at one top 30 law school that well into March had lost 12 out of 13 articles to higher ranked journals. The articles editors were rightly frustrated. The game is also frustrating for authors who expedite, but do not know the odds of placement because they do not know how many open slots exist in any particular journal. For example, in my last week in the process this year I had a great offer, but open expedites to six higher ranked journals. It would have been very helpful to know if those journals had many slots to fill or just one or two. One could calculate their odds a bit than with the current system where one doesn’t know anything.
Finally there is rejection. Rejection sucks and makes February and March a miserable time to be around me as I obsessively check my email. There are two types of rejection for an author. The direct kind (“thank you for your submission, but…”) and the indirect-silent kind of rejection. As painful as it is I think journals should be encouraged to reject more and do it quicker. Rejection offers transparency that helps be strategic about the final choices. I wish more articles editors would simply reject, rather than wait which only amplifies the silence problem.
So here is my unsolicited suggestion to digital platforms like Scholastica. Add in features for journals to inform authors when their piece has been downloaded/read, and allow journals to update the number of slots left in their journal. Neither suggestion would be technically that difficult. For law review editors, having an automated prompt report back to the author that the article has been downloaded (and hopefully read) would provide some information about the likelihood that an article might be reviewed. It would sort of be like the prompts you get when someone reads your LinkedIn page. Similarly, having a dashboard feature where journals could show the number of slots available (or even a percentage of open slots) would give authors context about the real odds of acceptance. Neither solution will solve the underlying problem of the rushed and crazy process, but more information is better than less.
Are there other innovations you would want to see from the platforms? Other pieces of information that would make your submissions season less stressful?
Are there pieces of information that law review editors would like to know?
What other types of information sharing would be helpful?
The thread is open.
Gundy and Non-Delegation: Which of Several Non-Delegation Doctrines Should Apply to SORNA?
Marty Lederman recently asked me in a comment to an earlier post on Gorsuch’s concurrence in Dimaya how I thought Gundy v. United States should and would be decided. For those who are not hopeless Non-Delegation Doctrine dorks, SCOTUS recently granted cert in Gundy to hear argument on the question of whether SORNA (the federal Sex Offender Registry Law) violates the so-called “non-delegation doctrine” (NDD) by delegating to the Attorney General the decision about whether SORNA should apply retroactively to persons convicted of covered sex offenses prior to SORNA’s effective date.
In other words, Gundy is one of those exciting cases in which SCOTUS might actually revive a moribund constitutional doctrine that has been flitting ghost-like through the US reports since 1935, making a noise but not a difference in the outcomes of cases. Although the prospect of resurrecting the dead naturally draws a crowd, I think that revival of the NDD is unlikely. Despite Justice Gorsuch’s enthusiasm for it, the NDD writ large, as a general legislative duty to cabin executive power with an “intelligible principle,” is a non-starter. The problem is that the NDD contains no intelligible principle for determining when a statutory principle is intelligible. SCOTUS would have to be immune to irony to confer on itself unbridled judicial discretion to decide whether an agency has unbridled executive discretion. In its lack of intelligibility, one might say that the NDD is a doctrine that violates itself.
So revival of the NDD writ large seems unlikely to me. But what about the NDD writ small? After the jump, I will offer a few thoughts about whether SCOTUS might revive a mini-NDD based on the various non-delegation canons described by as Cass Sunstein ‘way back when. These canons include the ideas that (1) agencies do not get deference for their interpreting statutes to be retroactive and (2) prosecutors do not get any deference for their interpretations of criminal law (as Scalia asserted but did not really explain in his Crandon concurrence). SORNA delegates to the Attorney General the power to impose an arguably retroactive effect with an arguably criminal statute. Perhaps the SCOTUS can and should create a mini-NDD to deal with this specific sort of delegation.
Gundy had been convicted in Maryland in October 2005 of a state sex offense. This conviction violated the conditions of his federal supervised release, so, after serving time in Maryland prison, he was shipped off to Pennsylvania to serve his federal sentence in a federal facility. From Pennsylvania, Gundy was shipped off to a community release facility in the Bronx to serve out the last part of his sentence, presumably because the feds judged that he was not a big risk to the community. While still officially in federal custody (although he was unescorted on a bus on furlough), Gundy crossed state lines to travel from Pennsylvania to New York. He did not register as a sex offender under Maryland law, NY law, or SORNA after arriving in New York. The feds argue that he had a duty to register after arrival, because he had crossed state lines. In the lower courts, Gundy argued that his interstate travel did not qualify under SORNA because he was in custody when he crossed state lines and the “travel” required by 18 U.S.C. Section 2250(a)(2)(B) must be voluntary travel. The Second Circuit declined to reach that statutory question, because there was sufficient evidence to indicate that Gundy’s travel to the Bronx was “voluntary.”
Gundy’s underlying Maryland sex conviction occurred in October of 2005, a few months before SORMA became effective. Gundy is covered by SORNA, therefore, only if the statutory delegation to the AG to decide the retroactive scope of the statute is consistent with the NDD. That delegation, codified at 18 U.S.C. Section 16913(d), provides that the “Attorney General shall have the authority to specify the applicability of [SORNA] to sex offenders convicted before [SORNA’s enactment].” The AG carried out this delegation in 2008, after providing an opportunity for notice and comment, by publishing “National Guidelines” applying SORNA to “sex offenders who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction” even if their underlying sex offense convictions predated SORNA’s effective date. (An earlier 2007 interim rule had run into some trouble because of non-compliance with the APA’s rule-making procedures). In responding to critics who argued that applying SORNA so broadly constituted an unconstitutional Ex Post Facto law, the AG argued that the Ex Post Facto clause did not apply to the duty to register, because, under Smith v. Doe, that duty was not “penal” but merely “civil” in character, designed to prevent future harm rather than punish past crimes. (See pages 38035-36 of the “National Guidelines”). The AG also noted that, as a matter of policy, “fairness does not require that an offender, at the time he acknowledges his commission of the crime and pleads guilty, be able to anticipate all future regulatory measures that may be adopted in relation to persons like him for public safety purposes.”
Lower courts have generally upheld SORNA against these sorts of NDD challenges by citing the general idea that Congress can delegate broad powers to executive officials under Schecter Poultry. But questions of statutory retroactivity might be different from the run-of-the-mill delegation because retroactive application of statutes qualifies as a “major question” of policy. One might reasonably expect Congress to decide this sort of question for itself or, at the very least, specify some criteria for the AG to apply when deciding the question in a rule-making process. SCOTUS is fond of declaring without much explanation that executive officials should not get Chevron deference on Benzene-MCI-Brown & Williamson canon of statutory construction “major questions.” The same reasons that preclude judicial deference to agencies on “major questions” also suggest constitutional limits on delegations to decide them when the magnitude of the question’s importance increases. One might argue, therefore, that, when a question becomes really, really “major,” then, just for those “major, major questions,” the non-delegation canon ought to be elevated to a full-fledged constitutional doctrine rather than a mere interpretative canon, a sort of “mini-NDD” requiring extra-specific criteria in the statute itself rather than a judicial opinion controlling the agency.
I am not sure what constitutes a “major, major question,” but I am pretty sure that questions of statutory retroactivity ought to qualify if anything does. Quite apart from any constitutional problems suggested by the Ex Post Facto clause, the retroactive application of legal duties strikes at the heart of Lon Fuller-style morality of law. One might, of course, argue that Herman Gundy was not really subject to any retroactive penalty, because he traveled to New York after the date of the AG’s Guideline. It seems frivolous to me, however, to argue that a penalty ceases to be retroactive just because it is imposed on the basis of conduct that both pre- and post-dates the statute imposing the burden. Admittedly, some “continuing offenses” can safely “straddle” the enactment date of a statute. If I begin a conspiracy to do X before it is outlawed and continue that very same conspiracy after it is outlawed, it is hard to say that punishing me for the entire conspiracy inflicts some sort of unfair surprise on me. Gundy, however, may have pled guilty to a crime in Maryland without any knowledge that thereafter his plea would later be used as a basis for burdening his travel between states. The AG brushed aside this worry with the glib statement that, at the time of conviction, one need not “be able to anticipate all future regulatory measures” that could be later imposed against you. Maybe not — but the question of whether it is fair play to pile extra “public safety measures” on to a past conviction seems to me to be the sort of “major” issue that deserves a bit more explanation than such a one-line brush-off.
Of course, one might simply cite Smith v Doe for the proposition that merely protective, non-penal, “civil” burdens are not limited by the same constitutional constraints barring Ex Post Facto laws. My response to this sort of argument is colored by my belief that Smith was wrongly decided. The notion that SORNA imposed its extraordinarily punitive public shaming on “sex offenders” for purely protective rather than vindictive purposes seems to me not just untenable but risible. Moreover, the category of “sex offender” is ridiculously broad, sweeping up in its moral panic all sorts of people who pose no special public safety threat or risk of recidivism.
But Smith is the law, so let’s put aside the Ex Post Facto clause. Quite apart from EPF, these sorts of retroactive burdens give rise to weighty Due Process and non-constitutional policy implications that deserve serious — meaning congressional — consideration. If Congress does not want to do the heavy lifting, then it could delegate the decision to the AG by requiring some sort of findings before SORNA is extended to cover anyone convicted of a sex offense prior to SORNA’s enactment. But simply handing the question off to the AG without any statutory criteria whatsoever — not even a duty to make findings about “fairness” or “reasonability” — seems a little frivolous.
In sum, if the Court wanted to resurrect a mini-NDD to prohibit Congress from making completely standardless delegations of retroactivity issues to executive officials, then Gundy might be a good vehicle with which to do so. I am not betting that they will, but the likelihood of the Court’s imposing such a mini-NDD on Congress seems to me much higher than the odds of any wholesale resurrection of the general non-delegation doctrine.
Thursday, April 19, 2018
Must the Law Be as All-or-Nothing as Leo Katz Claims?
In Leo Katz's characteristically excellent book Why the Law is so Perverse, he argues that the law is often all-or-nothing because many phenomena that appear to stretch along continua, like becoming a person or dying or giving consent, are better understood as discrete events. He does not go so far as to "defend the either/or character of legal doctrines," but he purports "to show why any efforts to change things are doomed" (p. 157). He claims that "most of the time either/or can’t be avoided, or more precisely, that if we tried to purge a doctrine of it, we would find that either/or has simply migrated to another part of the doctrine or has been replaced by some other, far more troublesome feature" (p. 157). In short, he writes, "we can only affect where a sharp discontinuity will occur, not whether it will occur at all" (p. 157). (Some of you may remember that Katz shared many of the insights in his book over the course of a week at the Volokh Conspiracy.)
In a recent article, I challenge several of Katz's arguments. I aim to show that many phenomena which appear to stretch along continua could indeed be treated as such by the law or at least treated in a less all-or-nothing manner than they are now. After the jump, I excerpt just one example where I argue that death need not be understood in the discrete terms Katz proposes.
Challenge #1: (parenthetical page numbers are to Katz's book)
Katz acknowledges the initial appeal of understanding death as a continuous process rather than a discrete event: "As we look more closely at the stages through which everyone passes as he moves from being fully alive to being fully dead, it starts to feel increasingly artificial to designate any one point in this progression as demarcating the boundary between life and death" (p. 158).
Despite its appeal, Katz defends a contrary view. He asks us to imagine the spectrum of how alive a person is broken up into about 1,000 increments (or any arbitrarily large number of increments). At one end is a person who is fully alive (H). Then comes another who is just one increment less alive (H - 1) and then another who is two increments less alive (H - 2). Eventually, we reach the last person who is just barely alive (H - 1,000).
Suppose we had to choose, Katz asks, between saving one person who is fully alive or two who are just a bit less alive. Surely, he says, we would choose two people who are just a bit less alive. The incremental reduction in life is very small, and we get to save two people rather than one. Similarly, we would choose to save three people who are two increments shy of being fully alive rather than two people who are one increment shy. Soon, though, we reach an odd conclusion. If "<" means less worthy of being saved, we get:
H < 2(H−1) < 3(H−2) < 4(H−3) < . . . < 1,001(H−1,000).
Katz claims that if we take this view to the extreme, it is better to save 1,001 people who are just barely alive than one fully alive human being. "But this is absurd!" writes Katz. "A single H-minus-1,000 is a collection of completely decomposed cells. How can a set of 1,001 such collections possibly trump a single living human being …? Something has gone wrong" (p. 160). Katz believes that the only way to avoid this conclusion is to identify some "stunningly abrupt transition" where we can no longer "compensate for a drop in quality by vastly upping the quantity of those inferior-grade Hs" (p. 160). Hence, he claims "[t]here is no gentle going into that good night, as it were. Death is a cliff, not a gentle slope" (p. 160).
In fact, however, Katz has not identified a "stunningly abrupt transition." He has described a gentle transition from very alive to somewhat alive to barely alive to completely dead. No quantity of bodies described merely as a "collection of completely decomposed cells" will ever equal the value of a human life because such bodies are already dead. The problem is not that there is no continuum of life and death; it’s that Katz is describing a body that has passed the end of the relevant spectrum.
Amounts of life can fall along a spectrum and still reach an endpoint when a body is not alive at all. Consider a property that indisputably falls along a continuum, like the temperature of ice. The continuum starts at absolute zero and gradually increases. But as the temperature rises above the melting point of water, we no longer have ice; we have liquid water. So though the temperature of ice is bounded in one direction by absolute zero and by the melting point of water in the other direction, there is an interesting range where the temperature of ice varies continuously. And just as ice can have an interesting range of temperatures bounded on two ends, human life has an interesting range of vital activity even though it, too, is bounded.
One reason Katz’s hypothetical may lead us astray is that he proposes a continuum of life in biological terms. But his reductio argument concerns our beliefs not about how alive a being is but about the relative value of entities with different amounts of life. The valuation of a body need not correspond in obvious ways to the amount of life still in the body. The value of a life depends on the set of properties that give it value, not the number of cells it has that are still living.
For example, as an overly simplistic suggestion, suppose there is a relationship between the value of a person’s life and his level of conscious awareness. Lives with more conscious awareness, on this view, would be valued more than lives with less conscious awareness. Katz might ask, "Isn’t a fully alive and conscious human being worth more than any number of people with just a minute quantity of conscious awareness?" So phrased, however, the answer depends quite a bit on the details. Faced with a tragic choice, we plausibly should save a large number of people with limited awareness (but whose lives still have value) over one person with full awareness. Katz’s reductio ad absurdum has lost its absurdum.
If bodies can be assigned an amount of life from 0 to 1,000, it’s true that there is a point where an abrupt transition occurs in our treatment of those bodies. A million or even a billion bodies assigned zero units of life will always generate less value than even a single non-zero-valued body. But there’s nothing stunning about the transition from living to dead. Katz seems to move from the fact that there is a point at which a body has no life at all to the conclusion that there is no continuum of amounts of life. Consider, however, the set of real numbers—the archetypical case of a continuous range of numbers. We can say that there’s a sharp transition between the set of positive real numbers and the set of non-positive real numbers. That is, we can craft a category that distinguishes numbers zero and lower from numbers greater than zero. But the fact that we can identify a property of real numbers that fits into a binary category doesn’t alter the continuous nature of the numbers themselves. What marks a relevant discontinuity is a matter of perspective.
Consider the historical transition from contributory negligence to comparative negligence. Comparative negligence smoothed the law by more closely tying the reduction in plaintiffs’ recoveries to the extent of their negligence. It surely made the law less either/or. True, we can imagine a sharp distinction between entirely non-negligent plaintiffs and those who are slightly negligent: no number of completely non-negligent plaintiffs will ever equal the negligence of one slightly negligent plaintiff. But this doesn’t strike me as an interesting discontinuity. Comparative negligence smooths tort law variables that we actually care about, and were it beneficial to do so, we could make our treatment of death smoother as well.
Katz offers some additional arguments to suggest that death is not a continuous process. Citing Peter Unger’s work, Katz argues that we tend not to differentially value human lives based on their levels of ability and disability:
[W]e generally feel that the rights granted to all human beings should be the same regardless of abilities and disabilities. The progression from life to death is a progression from ability to disability. If we were to treat the dying differently depending on where they are located on that progression, it seems we ought to treat the fully alive differently … and most of us would feel loath to do that. (p. 161)
We do strive to treat people the same regardless of their abilities. But, to reiterate, we must distinguish the claim that life is a matter of degree from the claim that the value of life is a matter of degree or that particular rights should be a matter of degree. Even if the value of a human body is either "fully valued" or "valueless" depending on whether it is alive, amounts of life may still be best understood in a continuous way. Furthermore, the fact that we strive to treat lives as equally valuable does not necessarily mean they are always deemed to have equal value. Most people would not be indifferent if they somehow aged ten years in an instant. Maybe lives do vary in value, but as a matter of public policy, we generally treat them as having equal value because any other scheme is too contentious, prone to error, or otherwise disadvantageous.
Importantly, I do not seek to challenge Katz’s underlying belief that death is a discrete event. Just as I allowed for the possibility that a fetus is ensouled at some moment in time, I do not to purport to disprove the possibility that a life is "disensouled" at some moment in time either. Moreover, even if death is a gradual process, there may still be practical reasons to treat death as a discrete event for legal purposes such that estates, for example, pass to heirs at a particular moment in time. But Katz purports to show that any attempt to make the law less either/or is doomed to fail or to merely shift the either/or feature of the law elsewhere, while I have argued that treating death as continuous need not implicate the serious problems Katz envisions.
After all, we often value lives differently. Health policy arguments that focus on quality-adjusted life years implicitly value younger lives more than older lives, all else being equal. If anything, health policy and bioethics are realms in which people are deeply torn as to whether the value of life should have a smooth or bumpy relationship with variables like age or expected remaining life span or have no relationship at all. We needn't feel compelled to treat death in the bumpy fashion Katz proposes.
(This post is adapted from Smoothing Vague Laws which appears in Vagueness and Law: Philosophical and Legal Perspectives (Geert Keil & Ralf Poscher eds., 2016) (Oxford University Press) (footnotes omitted).)
Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."
I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).
Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?
SB 827, the California bill that would have preempted many local zoning restrictions near public transit, has just gone down to defeat. Part of that defeat was the result of opposition from advocates of affordable housing, many of whom remain skeptical that zoning’s limits on market-rate housing reduce the supply of affordable housing. These advocates reason that market-rate housing in high-demand cities does not benefit poorer households, because poorer households cannot afford it. Sometimes such advocates go further to argue that increasing the supply of new market-rate housing actually leads to gentrification, because such housing attracts wealthier residents who bid up rents. To paraphrase Field of Dreams, if you do not build it (i.e., new market-rate housing), they (i.e., wealthy households) will not come.
Is this anti-market theory of gentrification an accurate picture of reality? The debate, nicely captured by this article posted on YIMBYwiki, has recently become a fierce scrum of claim and counter-claim. On one hand, attributing rent increases to new market-rate housing might be like attributing rainstorms to umbrellas: On this view, high demand driven by jobs causes rents to increase, and new construction just follows along, mitigating rather than exacerbating rent increases. If new market-rate housing is not built, then more rich people will just place higher bids on existing units, accelerating gentrification. (The process by which new housing affects rents on existing housing is known as “filtering”: Vox has a typically wonky but clear explanation). On the other hand, if people like living next door to rich people, then market-rate housing could conceivably raise rents on nearby lots through a so-called “amenity effect.” And maybe demand for housing is highly segregated into different, non-competing markets such that rich people only bid on new units and will not bid up the prices on existing units when new market-rate housing is constrained by zoning.
As a guide for the perplexed amidst this cacaphony, I recommend a recent literature review by my colleagues, Vicki Been and Ingrid Ellen, which suggests that (1) increasing zoning restrictiveness seems to lead to higher rents (see pages 7-8 of their paper) and (2) existing housing tends to “filter” upwards if new construction is restricted by zoning, because rich buyers tend to shop among both new and existing units, bidding on formerly cheap bungalows and brownstones when Zoning eliminates new luxury units. The best view of the facts, in sum, seem to suggest that Left advocates of affordable housing should be enthusiastic about reducing zoning restrictions as part of the solution to our housing crisis.
Yet I am pessimistic about many activists’ being persuaded by the evidence. After the jump, some dour speculation that Left activists’ beliefs about housing markets might be similar to conservatives’ beliefs about climate change, resistant to data because of prior ideological commitments and the imperatives of recruiting political allies.
1. Does evidence affect affordable housing activists’ anti-market inclinations?
First, consider the evidence that housing activists are so ideologically hostile to market mechanisms that they will irrationally discount evidence suggesting a need for deregulation. Vicki and Ingrid summarize evidence that has been around for a long time. The California State Legislature’s Legislative Analyst’s Office produced a report two years ago finding that “construction of market–rate housing reduces housing costs for low–income households and, consequently, helps to mitigate displacement in many cases.” Even a study that favors housing subsidies over market-rate construction as a solution to California’s affordable housing crisis concedes that market-rate housing helps rather than hurts poorer households.
Yet housing activists’ response to this accumulating evidence is so insensately hostile that something other than rational assessment of facts must be at work. The Council of Community Housing Organizations, which styles itself the “voice of San Francisco’s affordable housing movement” has, for instance, produced a misleading and misnamed “infographic” claiming that “filtering is a fallacy” because rents continue to rise even when more market-rate units are built. The assertion is a stunning non sequitur: Of course, rents rise when demand outstrips supply, but it hardly follows that restrictions on supply do not matter: To the contrary, the evidence shows that rents rise even faster when market-rate housing is not built. Some of the activist rhetoric is comically inflammatory and confused. One Los Angeles housing activist denounced SB 827, a bill that would increase heights of buildings in areas with lots of transit, describing the bill as “a declaration of war on South LA” and stating that its sponsor “is to gentrifiers what Donald Trump is to racists.” (Given L.A.’s zoning rules’ origins in racist desires for segregation and housing exclusivity, that comparison was rich with irony). Housing activists in Los Angeles initially objected to SB 827’s giving away rights to develop market-rate housing without requiring inclusion of affordable units. When the bill was amended to allow local governments to impose their own inclusionary requirements, however, the same activists maintained their same opposition, complaining that the bill did not do enough to prevent displacement while increasing “speculation” and “diminish[ing] democratic process.” This argument for opposing SB 827 seems threadbare: Yes, of course, increasing heights near light rail and bus lines will not solve all of California’s housing woes, but maintaining single-family zoning in such areas will surely exacerbate them. L.A. currently keeps close to 90% of West Los Angeles in single-family zones, even though the area is close to mass transit. What possible sense does such a policy make, if one’s goal is promoting affordable housing?
2. How do ideological commitments and political economy influence activist rhetoric?
The opposition of housing activists to SB 827, in sum, is so detached from empirical reality that it seems explicable only as an ideological obsession, a strategy of political organization, or little of both.
Consider, first, the role of ideological obsession. Deregulation of housing supply to help solve California’s housing crisis relies on market mechanisms towards which Left activists feel instinctive suspicion. The “filtering” mechanism essentially meets housing needs through hand-me-down housing. As new market-rate housing is snapped up by wealthier households, the aging existing units become less attractive, and their owners reduce their units’ price to attract renters or buyers, thereby “filtering” the units downwards to poorer households. Such a mechanism, however, immediately invites activists schooled in attacking Republican macroeconomics from Reagan to Bush to denounce filtering as “trickle-down economics.” (Get it? The houses “trickle down”!). Never mind that filtering — i.e., using existing structures to meet current housing demand — has nothing whatsoever to do with cutting income tax rates to stimulate investment. The rhetorical resemblance trumps any rational economic analysis. That market-rate housing is produced by private developers who stand to make a profit only makes the rhetoric more appealing.
Against the rhetoric, of course, stands the plain, boring, perhaps unpalatable reality that huge amounts of affordable housing are supplied by an aging housing stock. Weicher, Eggers, and Moumen, for instance, found that 45 percent of the rental units that were affordable to very low-income renters in the U.S. in 2013 had filtered down from owner-occupied or higher rent categories in 1985. If one cuts off the new market-rate housing with stringent zoning regulation, wealthy households will bid on those existing units that might otherwise descend to lower-income households. Little carriage houses, bungalows, and brownstones once deemed to be working-class housing can filter upwards to become luxury units in Brooklyn Heights or the West Village.
Second, consider the role of political strategy in inducing housing activists to fight to preserve zoning restrictions that injure low-income households. Activists need votes on local legislators. But local legislators tend to favor NIMBY neighborhood groups whose members turn out with reliable ferocity when their down payment is threatened by the construction of new buildings. Opposing zoning restrictions is a great way, therefore, to lose support on City Council. Rather than challenge Goliath to a duel, therefore, affordable housing advocates find it more comfortable to pretend that Goliath is their pal, fighting for the same cause.
Bob Ellickson long ago noted the irony of inclusionary housing requirements that could be used to exclude affordable housing by making market-rate housing impossible. By now, this irony has been amply confirmed: Even the New Jersey Supreme Court, once a big fan of inclusionary zoning, has warned that excessive inclusionary percentages can be, in fact, exclusionary. But housing activists calling for 50% set asides can conveniently ignore this inconvenient reality, comforted by the apparent generosity of a handful of “trophy units” while ignoring the affordable housing lost as a result of the elimination of new market-rate housing.
I encountered the political economy of local leftism in Ann Arbor, when I first began teaching land-use regulation back in the 1990s. The head of the local chapter of the Sierra Club consistently opposed every proposal for new apartments, even though such proposals seem consistent with the national Sierra Club’s support for urban density. It became plain to me that he was being driven by his foot soldiers — the rank-and-file members who counted on their local Sierra Club chapter to fight the good fight against unsightly new multi-family housing. Of course, those homeowners were almost unanimously college-town liberal Democrats. But the economics of housing are complex enough for them to convince themselves that opposing market-rate housing would not injure the poor. After all, poor people could not afford to live in most of the units for which building permits were sought. It was easy to ignore the possibility that, by eliminating new housing, the city council was insuring that richer people would bid up the price of existing units where poor people did live.
3. How anti-market Left rhetoric resembles anti-climate change Right rhetoric
One’s ideological priors and the requirements of political organization, in sum, can be powerful incentives to ignore economic reality. In this respect, hostility to market-based housing solutions bears a resemblance to conservative rejection of evidence on climate change. In both cases, the evidence suggests that social practices very popular with particular constituencies have high social costs that the practitioners would prefer to ignore. Driving an SUV from a exurb to a distant office or mall will likely cause temperatures to rise faster. Campaigning to keep vast swathes of a high-demand city in single-family zones will likely cause rents to rise faster. There are big psychological incentives, therefore, to ignore the evidence. Filtering must be a “fallacy,” and global warming a “hoax.” The ideological plausibility of these stances is enhanced by one’s ideological dislike of the mechanism and messenger. Lefties living in Brooklyn brownstones or San Francisco painted ladies can denounce those greedy developers and their “trickle-down economics,” all the while enjoying massive appreciation in their real estate investments that plainly show upward filtering of housing stock. Republicans — at least those living far from the coast — can safely mock the hockey stick as a figment of dorky and likely liberal professors while enjoying massive appreciation in their oil stocks.
In the end, the feedback mechanism between data and policy becomes so attenuated, Florida sinks into the sea, and San Francisco sinks into a housing crisis. That is a disheartening way to end an overly long post, but here is one perhaps useful take-away: No side, Left or Right, has a monopoly on the capacity to ignore evidence staring them balefully in the face when the data are inconsistent with their ideology and pocketbooks.
An even more unusual role
I have written before that Justice Thomas rarely assigns majority opinions, given seniority and the Court's ideological breakdown. Well, according to Slate's Mark Joseph Stern, Tuesday's opinion in Sessions v. Dimaya marked the first time in 25 years on the Court that Justice Ginsburg assigned a majority opinion, when Justice Gorsuch provided the fifth vote with the Ginsburg/Breyer/Sotomayor/Kagan block. That fifth vote, if it comes, usually comes from the Chief or Kennedy, both of whom are senior to RBG. In addition, Stern (citing Adam Feldman) says this was the sixth time a female justice assigned an opinion; the other five were by Justice O'Connor, who usually did not get to assign because she was in a majority with Chief Justice Rehnquist or Justice Stevens.
The assignment power remains an interesting future project. I have to figure out the different empirical routes that must be explored.
Wednesday, April 18, 2018
Anika Singh Lemar on why, despite SB 827’s defeat, states might still enact laws preempting NIMBY local zoning
[Editor’s note: SB 827, state Senator Scott Wiener’s effort to attack NIMBY zoning that has driven California into an acute housing crisis, just died in the state senate. For those of us who believe that excessive zoning is strangling our cities and segregating our population into regions of wealth and poverty, this is a terrible defeat for good policy. But there’s a silver lining: Bad policy provides good opportunities for great law review articles that try to fix them. In this spirit of trying to take comfort in scholarship during dark zoning times, I am posting Anika Singh Lemar’s guest-post on her outstanding article analyzing why state-level interest groups lobby against excessive local zoning. While those lobbying efforts could not quite do the trick with SB 827, Anika’s post and article both suggest that the future is not necessarily grim. Here’s Anika’s post, below]:
In an article forthcoming in the North Carolina Law Review, I argue contemporary state-level efforts like SB 827 to liberalize zoning are the progeny of earlier state laws requiring local governments to approve LULUs. Small-scale renewable energy infrastructure, family day cares, group homes, and mobile homes are LULUs which, in a substantial number of states, enjoy protection from local zoning. Examining the state legislative history behind these protected LULUs, I argue that while NIMBYs have lots of political power on the local level, they can be beat at the state level by a coalition that, surprisingly, typically includes state employees.
Consider, for example, child care programs located in the provider’s home, known as “family day cares.” It’s no surprise that NIMBYs hate day cares. Day cares involve pick-up and drop-off, often at rush hour, so there are traffic concerns. Kids are loud and obnoxious, so there are noise concerns. And family day cares by definition introduce commercial activity into residential areas, another NIMBY no-no.
And, yet, eighteen states prohibit local governments from banning family day cares. Why? Well, it won’t surprise you to learn that family day care providers do not have a powerful lobby in Sacramento, Tallahassee, Lansing, or Hartford. California, Florida, Michigan, and Connecticut legislators acted not at the behest of day care providers or even the parents who required those providers’ services. Instead, the legislative effort was driven by state bureaucrats responsible for issuing licenses to family day cares. Bureaucrats worried that day care providers would fail to apply for state licenses for fear of coming to the attention of local zoning authorities. As a result, the providers would operate outside of state oversight and potentially in violation of state laws and rules intended to protect children’s safety. Local zoning undermined state policy. As one lawmaker described the issue on the floor of the Connecticut General Assembly, “We’re either going to put them in places where people are going to have the courage to get licensed so that we know where they’re at, or we’re going to keep them underground and I think to keep the[m] underground is going to be a shame and the first time that something goes wrong in one of those unlicensed homes, I can tell you what the screaming in this Chamber is going to be. We got to get them licensed and we got to regulate them.”
Legislators didn’t defang overzealous local zoning authorities because they were libertarians seeking to free small business people from the yoke of neighborly overregulation. State legislators and bureaucratic agencies are, of course, regulators. But, as the paper demonstrates, they are sometimes also the subject, directly or indirectly, of regulation. In the case of the protected LULUs, state agencies bearing the brunt of local regulations led the charge to dismantle those regulations. Had it not been for those state agencies, various powerless constituencies – disabled individuals, family day care providers, clotheslines users, and families seeking low-cost child care – would have remained subject to overzealous land use regulations despite the cost that those regulations imposed on society at large.
Every state has a bureaucracy dedicated to affordable housing. One might wonder why state housing agencies have not played this role to advance state interventions to permit affordable and multifamily housing development. The answer lies in the distinction between subsidized and low-cost housing. In the classroom, I often refer to Capital “A” Affordable Housing (subsidized) and lower case “a” affordable housing (not subsidized, just cheap, typically old, small and/or dense). State housing agencies are charged with the former. They administer federal and state housing subsidies. Typically, that is their only charge. They are not held accountable under federal or state law for the high cost of market rate housing. Holding state housing agencies accountable for the high cost of market rate housing would force them to take action. In other words, expanding the authority of a state agency might result, counterintuitively, in less government regulation by inducing the agency to correct for local regulatory overreach.
In the case of land use, state agencies and bureaucracies are key to the deregulatory project of liberalizing zoning which is, in turn, key to addressing growing levels of economic inequality. There are not nearly enough subsidy dollars to solve a growing housing affordability crisis through Capital “A” Affordable Housing. And lower case “a” affordable housing requires significant changes to our zoning laws. We need SB827 and lots more laws like it in hot housing markets across the country. But, in order to get them, we may need, first, to empower our state housing and transportation bureaucrats to care about the cost of housing.
Are Criminal Attempts Bumpy?
The law draws hard-to-justify lines around vague words. Those lines can lead to dramatically different consequences. In Smoothing Vague Laws, I argued that problems caused by legal vagueness can be eased in many instances by "smoothing" the law. If, for example, you have merely "prepared" to commit a crime, you have no criminal liability. When you cross the line from preparation to "attempt," however, you can have substantial liability--at least the mandatory minimum sentence for the attempt. If the attempt has no mandatory minimum, it's possible that a judge will sentence in a smooth fashion. But I suspect that judges don't think about sentencing in a smooth way. Though there should presumably be cases where a person gets a modest sentence for attempted murder or attempted rape because the crime falls right around the border between preparation and attempt, I suspect such sentences are rare because judges focus on the bumpy names of offenses rather than their often smooth underlying facts.
Doron Teichman takes issue with this discussion in his interesting recent article. Teichman argues that criminal law already uses inchoate crimes to adjust punishment to confidence in guilt in a relatively smooth fashion. For example (p. 776-777):
By adding or removing objective elements to a crime and by relaxing or enhancing the mental state associated with the crime, the state can make the prosecution’s case harder or easier to prove. . . . Furthermore, the punishment attached to these evidentiary crimes can be set lower than the punishment attached to the primary crime they aim to deal with to account for the added evidentiary uncertainty associated with them. The emerging picture is of a de facto evidentiary graded penal regime. Defendants whose guilt can be proven beyond a reasonable doubt are subject to the full punishment attached to the original crime, while defendants whose guilt is more difficult to prove are convicted of the lesser crime and are subject to a milder penalty.
There is much more to Teichman's argument, but pertinent to this post, he concludes that "contrary to Kolber’s assertion that the law of criminal attempts is bumpy because at one moment a defendant 'has no criminal liability whatsoever, and just a moment later, he has sufficient criminal liability to receive several years’ incarceration,' viewed in its entirety, attempt law turns out to be rather smooth."
I have four replies. First, some disagreement on these matters might be attributable to differences in expectations about smoothness and bumpiness and how one quantifies them. For example, I too have noted evidentiary smoothing possibilities, especially around plea bargaining (p.678-680; 874-75), while Teichman, for his part, acknowledges that attempt law can be somewhat bumpy in his n.204. So two observers looking at similar data may still draw different overall conclusions. Second, your view might depend on whether you focus on individuals versus the system as a whole. The combination of preparatory crimes and attempt law may create some evidentiary smoothing systemwide, as Teichman notes. But in any particular case, dramatically different results follow if jurors have reasonable doubts versus an iota passed that standard. Such situations may be relatively uncommon on a systemwide basis but can still be very bumpy for particular individuals (and are perhaps not so unusual in cases that actually go to trial). Third, many scholars distinguish two aspects of attempt. One is the amount of actus reus which may gradually increase as a crime progresses. The other is seriousness of intent (which may be evidenced by a defendant's statements) that doesn't necessarily change or change as much as the attempt progresses, especially when intent is very strong from the get-go. Does punishment vary with confidence in the mental state or in the expectation the acts would continue to completion? Is punishment somehow keyed to both even though they change at different rates?
Finally, and most importantly, I have emphasized that when speaking carefully, we should identify smooth and bumpy relationships between a particular input and a particular output. If Teichman is right about matters of evidence, his conclusions about the smoothness of attempt are still too broad. Even if amount of punishment is smoothly related to confidence in guilt, there are other relationships that may or may not be smooth. Many seem to think that culpability gradually increases as one progresses along a criminal path (and perhaps harm caused as well if an attempt grows increasingly threatening over time). If they're right, punishment isn't simply about discounting expected future crimes based on our confidence they will be committed. If I'm 75% confident a defendant arrested for attempt was going to commit a crime that warrants 100 units of punishment, he wouldn't necessarily warrant 75 units now. After all, the person who does complete the offense likely engaged in additional bad acts with additional culpability that the defendant never committed, and that matters to some people. So whether or not the evidentiary relationship Teichman considers is smooth or bumpy, there are other pertinent relationships as well. (Special thanks to Doron Teichman for taking up the smooth/bumpy issue in his article which I highly recommend!)
What is a heckler's veto?
Paul's post about reexamining the doctrine surrounding the heckler's veto, in response to some comments on this post, leads to an open question: What is a heckler's veto and what is the doctrine surrounding heckler's vetos?
The phrase "heckler's veto" appears only 12 times in the U.S. Supreme Court's database, often in dissents or in passing, including in two non-free-speech cases. None involves the paradigm cases, which I think are the following: 1) Police arresting or restricting a speaker because the people around him become violent and threaten to hurt the speaker or damage property (this is Terminiello, Feiner, and the Nazis in Skokie); 2) Laws setting a legal standard that burdens a speaker because of actual or anticipated audience reaction (this is Forsyth County); and true no-platforming, in which a university denies or rescinds a speaker invitation or permit in response to threats of disruption. Close to the center are cases in which police or other authorities do nothing and allow the hecklers to attack or otherwise physically disrupt the speaker (there might be a DeShaney problem here, unless the speaker can show the failure to act was because of his speech). The point is that overnment must do something (or refrain from acting for a speech-discriminatory reason) to create the veto. The doctrine is clear--such vetoes are impermissible,* at least outside of narrow contexts (such as the community standards prong of obscenity or the "disruption" concern for student speech) or if there is a compelling interest in not having to spend hundreds of thousands of dollars on security.
[*] Although Feiner famously came out the other way, the prevailing view is that this no longer is good law.
The question--and there is no Supreme Court doctrine on this--remains if and when literal heckling, as a form of expression, becomes a heckler's veto without government action to halt the original speaker. Is it a heckler's veto if police or government officials do nothing and two speakers talk over one another until one gives up or is unable to proceed? We have to answer that question before we can figure out whether the heckler's veto doctrine must be reconsidered, because it is not obvious how that doctrine applies to these situations in the first place.
Tuesday, April 17, 2018
Is Gorsuch’s Dimaya concurrence the opening shot in a bid to revive the Non-Delegation Doctrine?
Eugene Volokh has noted that Justice Gorsuch’s concurrence in Sessions v. Dimaya looks like a “cross-over sensation,” because Gorsuch joined four liberal justices in ruling against the deportation of an immigrant. There is, however, a deeper signal buried in Gorsuch’s concurrence: By refusing to draw any distinction between civil and criminal cases insofar as VFV is concerned, Gorsuch seems to be reviving the non-delegation doctrine as a basis for striking down statutes. If the VFV doctrine applies, as Gorsuch says it does, “in civil cases affecting a person’s life, liberty, or property” and “criminal cases involving relatively modest penalties,” then it might also apply to any statute containing terms ambiguous enough to trigger Chevron.
Such an expansive version of VFV would fit with Gorsuch’s famously skeptical view of Chevron in his Gutierrez-Brizuela concurrence. So maybe the concurrence is best read as an opening bid to revise Chevron and/or the non-delegation doctrine, fulfilling his implied promise, in Eric Posner’s words, to “join Justice Thomas as one of only two justices to seriously oppose the administrative state in the last 50 years, at least.”
Just for the record, I do not think very much of Gorsuch’s attack on Chevron. It seems to rest on one of two equally odd views that (1) statutes should not have gaps to fill, or (2) only judges should fill them (i.e., “say what the law is”). (For an excellent analysis that spells out the weaknesses of such a position, see Asher Steinberg’s excellent post on the Yale JReg blog). As for the non-delegation doctrine, if constitutional doctrines could be void for being excessively vague, then the NDD would qualify — as, indeed, would the VFV doctrine itself. I do not see five votes for reviving a doctrine that paradoxically gives judges uncabined discretion to forbid agencies from exercising uncabined discretion.
Since the SCOTUS granted cert in Gundy, however, we will find out soon enough whether Gorsuch can persuade any of his colleagues to join him on his quixotic mission to expand dramatically the courts’ exclusive role in saying what the law is. If Dimaya is any indication, then Gorsuch might be trudging down a lonely path: Although Justice Thomas is supposed to be skeptical about the administrative state, Gorsuch could not get Thomas’s vote for the proposition that the Due Process clause requires civil statutes to be clear enough to give citizens notice of their contents.
What about Calpurnia, Tom, and Scout?
The legal dispute over Aaron Sorkin's in-the-works stage adaptation of "To Kill a Mockingbird" took another turn on Monday when Producer Scott Rudin (and his production company, Rudinplays) filed suit in the Southern District of New York against the Harper Lee Estate. This sent me running for the pleadings in this and the Estate's action in the Southern District of Alabama, thinking it might make a nice exam question for Civ Pro. It turns out the Estate filed an Original on March 13 and an Amended Complaint on April 6. What changed?
Paragraph 38 of the original pleading cites to a March 5, 2018 letter from the Executor to Rudin and alleges that the Estate informed Rudin that the play "derogates or departs from the spirit of the Novel and
that it alters five of the Novel’s characters--Atticus Finch, Calpurnia, Tom Robinson, Jem Finch, and Scout Finch." Paragraph 38 of the amended pleading cites to the same letter and alleges that the play "derogates or departs from the spirit of the Novel and that it alters several of the Novel’s characters, including Atticus Finch and Jem Finch." So I guess the representation of Cal, Tom, and Scout is not problematic enough to warrant declaratory relief.
Foley on appointing a special master in the Cohen case
At the Election Law Blog, Ned Foley questions the potential appointment of a special master to review and determine privilege of the materials seized from Michael Cohen. He concludes:
Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case. If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).
I would add two things in support of Ned's conclusion. First, one reason this is a "politically charged case" is that the President has been relentlessly attacking the Department of Justice, including over the seizure of Cohen's documents.There is an unfortunate irony, and perverse incentive, that the President's attacks on the prosecution politically charge the case so as to require special procedures.
Second, DOJ uses filter teams, not a special master, when reviewing materials seized from congressional offices for possible Speech-or-Debate-protected materials. Such cases are at least as politically charged as this one, with the added bonus that they implicate the Separation of Powers when the executive investigates the legislature.
A Further Defense of Criminal Justice Books...
One more reason to write a book as a law professor - you could win a Pulitzer. Congratulations to Professor James Forman Jr. (Yale) for winning a Pulitzer Prize for his book "Locking Up Our Own: Crime and Punishment in Black America." It is a terrific book and a well-deserved honor.
Monday, April 16, 2018
Pacing change, changing paces: when and how to reform legal education
Derek Muller's ruminations on legal education and the profession are always interesting and thought-provoking. Today's post is no exception. It is worth reading and noodling over, and more than once. I certainly intend to do so.
Its normative claim, a tad hard to disentangle, but there in the middle and also at the end, is that reformers (radicals and moderates alike) may be pushing reform agendas with an urgency that is both counterproductive for our students and is insufficiently attentive to the historical evolution, steady and unsteady, in legal education. Perhaps change, but no so fast. And let us not through the baby out with the bathwater.
Yes indeed. Much to say, but let me focus on just two aspects of this dense post: The claim that we need to assess the efficacy of current curricular and administrative structures before undertaking big changes is clearly right; but slipping from that into the claim that there may well be little that is broken so as to warrant revision seems misguided. To be sure, there are reformers who would practice a version of zero based budgeting -- reform tabula rasa. Many folks on my twitter feed are of this variety; but few legal educators (and nearly no deans) are so inclined to recommend this, even as a thought experiment. We would do well, as Derek and I agree, to look clear-headedly at the mechanisms that are very successful, measured in many ways, and leave well enough alone. And this should be true at both the general level (take, for example, the welcome durability of the first-core core curriculum) and the granular level (say, the requirement of legal writing and of ethics). Few dispute this, and those that do undertake a heavy burden of explaining why the road to sound education and professional success of our students lies in root-and-branch reform.
But where the recommendations of reform are grounded solidly in judgments about what a dynamic, technologically impacted profession expects out of law graduates in 2018, 2020, and 2030, as based on input from myriad stakeholders and on the basis of good evidence, then the complaint that such reform has, as the emperor says to Mozart, simply "too many notes," does not compel. Students face a zero-sum world in law school, of that there cannot be any doubt, but the capacity to adjust to new modalities of pedagogy and modern structures of knowledge, including multidisciplinary knowledge and exposure to new subjects at the intersection of law, business, & technology is higher than I believe Derek imagines. Moreover, even in a zero sum world, it might be worth giving up other curricular expectations here and there in order to make this more promising world into a reality.
As to the tangent about administrators in Derek's valuable post, I would say, sure, our role as administrators -- deans and all others -- is to facilitate student opportunity and reduce unnecessary friction. At the same time, it is to enable opportunity and widen the lens of what a law student can and should do and what a modern professional ought to focus on in these precious three years. So, less time for reporting requirements ok, but fewer opportunities to be exposed to, say, lunchtime programs, interesting externships, bar-academy collaborations? No thank you. Idle hands and heads are the devil's plaything, but we might see our commitment to our students facing big expense as entailing a bazaar of opportunities and an exhortation to profit from the bounty of interesting initiatives enabled by a serious rethink of our curriculum.
Shocked and terribly sad to learn that Lynn Stout has died. Stephen Bainbridge shares emails from the UCLA and Cornell deans here. Lynn was an incredibly generous colleague who provided thoughtful commentary and much appreciated support to me and many other prawfs. Her passing is a real blow to the corporate law community. Fortunately, we still have her work, and I am grateful to hear that two new books are to be published. If you would like a quick sense of one of her more broadly applicable works, you could review the 2012 Prawfs Book Club for "Cultivating Conscience."
Re-Examining Doctrine is a Good Thing (But Not an Answer); With Some Thoughts on L'Affaire Blackman
In a response to Howard's post below about the "Blackman incident," Mark Tushnet has a valuable comment, citing to recent work by Jeremy Waldron, arguing for a particular interpretation of heckler's veto doctrine. Waldron is not the only one re-examining heckler's veto doctrine these days. Howard has asked questions about it in a number of posts, and several recent papers have done the same thing. Several recent books are also re-examining these questions in light of current events concerning campus speech. (Or non-events, or "nothingburgers," as our degraded current language would put it. Some have argued that there is no campus free speech "crisis" or even much cause for concern. These two posts argue against that view, but also provide copious links to arguments that worries about campus speech are vastly overblown. I provide these links as much to give readers access to the arguments for that position as to give access to the arguments against it.)
While some of the comments following his post engage with him and with Howard, others, as I read them, are not kindly inclined toward the prescriptions some of those re-examinations suggest. This post is mostly about why I'm glad Mark and others are asking those questions, and why re-examining doctrine needn't lead to changes in that doctrine. But I begin with some general remarks about the Blackman incident and campus speech issues more generally.
As a fairly traditional civil libertarian on speech issues, I tend to side more with the basic existing heckler's veto doctrine than with the suggestions that have been made for its modification or reform. More generally, I lament that the number of fairly traditional civil libertarians seems to have declined. I worry especially about the possibility that their current numbers are less likely to include university administrators, or at least administrators who not only agree with those traditional rules but are willing to enforce them, even if it means disciplining students. Many faculty and other observers of the university complain tirelessly these days about administrators who, in the competition for students and tuition dollars, spend more time trying to make students or prospective students happy with things like lazy rivers than pursuing and insisting on the pursuit of the traditional university mission. Or they complain about the consumerization or corporatization of the university. Because many of the latter type of critics are often on board with a number of student causes and protests, they less often connect the dots between those concerns and the possibility that administrators are less likely to enforce rules governing and protecting campus speech. Enforcing rules and disciplining students is unpopular and threatens damaging publicity. Administrators who want to avoid making a vocal group of students unhappy, or who want to avoid sustained publicity for some campus incident, will strain to avoid imposing discipline, and to move past some incident as quickly and/or quietly as possible.
Friends who are undoubtedly wiser than I am have described this as smart policy. But I think they're ultimately wrong, as a matter of both policy and respect. That includes not only respect for the academic mission but also respect for students--including the students who are protesting and who, under this vision, might be subject to discipline, with due process but up to and including suspension and expulsion. I don't doubt that some administrators support the students or the values they champion, abhor hateful speech, and are acting--or believe they are acting--for that reason. But some may be acting simply to avoid bad publicity or out of worry about the university's position in the marketplace for tuition-paying students. And others may believe they are acting for the right reasons, but those actions may be influenced by more worldly and financially driven concerns. Sincere people like to keep their jobs and avoid tsuris too. Letting students heckle or no-platform, or occupy offices and buildings, may seem like a way of showing respect for those students. But it also may be a form of condescension, one that waits them out without actually attending or responding to their views. Telling people they are wrong, or breaking the rules, and are subject to discipline sometimes involves taking them more seriously than simply letting them do as they wish does. (Arguing that there is no "free speech problem" on campus can also be a form of condescension, incidentally, although I wouldn't say that about every such argument. It may be that only a small number of students are pushing to radically remake the rules governing speech on campus. But they have genuine ideas and positions, and those positions will have real implications and substantial consequences if they are applied seriously. Arguing that these students' protests and demands are no big deal can be pretty close to treating them as a minor inconvenience or the province of a few students on the fringes, and not really listening to what they are actually arguing for.) As one of my favorite Onion stories notes, sometimes respect includes both listening to someone and responding with a simple "No."
One bright spot in Josh Blackman's recounting of the CUNY incident was that an administrator spoke up clearly to remind the students of the rules governing the event and insist that they be followed. One may certainly wish she had stuck around to make sure the warning stuck, but surely some credit is due. Arguments (as in this thread, with apologies for linking to Twitter) that there was no problem with the Blackman incident because the heckling was brief and Blackman was ultimately able to speak, even if accurate, are incomplete and even misleading without recognizing the possibility that this occurred precisely because the administrator told the students to let him speak or face disciplinary consequences. If no administrator had spoken, we don't know whether he would have been able to speak, or whether the heckling would have concluded indefinitely and with the intention or result of making it impossible for him to deliver his remarks. (After I began drafting this post, Erica Goldberg pointed this out in the comments to Howard's post as well.)
This last sentence leads me back to Mark's comments. I am happy to give at least two cheers to Mark's straightforward willingness to revisit the heckler's veto doctrine, and the questions that this re-examination and similar efforts by others raise--even if they result in recommendations I don't agree with. It is equally important to note, however, that re-examining a case or doctrine doesn't have to end with a recommendation for change. Sometimes the re-examination may lead to the conclusion that the doctrine is right, or that proposed alternatives would be worse than the status quo.
Doctrine is not frozen in stone and not immune from criticism or re-examination. A responsible criticism of legal doctrine will acknowledge that it is doctrine, rather than arguing that the law one would like to see already exists and waving away inconvenient precedents. But there is nothing wrong with revisiting and questioning even decisions and doctrines that have attained semi-sacred or "super-precedential" status. Every decision is subject to potential criticism, and every position can be revisited. (And usually is, about once every generation--sometimes with legal consequences and sometimes without.)
That's true of the heckler's veto doctrine too, as important as I believe it is to free speech and First Amendment law. A number of the important decisions of the era that gave birth to the heckler's veto, and to many other important cases and doctrinal lines, may be right but are less than fully reasoned. Many if not all of them were deeply influenced by and rooted in the times that gave birth to them. Those decisions may not have an expiration date. But we should take them out and look at them afresh every now and again, especially as the events that engendered them fade in time, memory, or relevance.
I make this point in part because I see the frozen-in-stone approach from time to time in law and religion, where I do much of my writing. Particularly where its intersection with equality is concerned, I see arguments and articles that describe some set of cases or doctrines described as constitutional "settlements," or various questions as having been definitively "settled." Even if they are not so intended--they could be, but they could equally be the result of conviction, or life in an epistemic bubble, or both)--such descriptions often serve as conversation-stopping assertions. (That's even more true where such assertions are followed by descriptions of re-examinations of or arguments against those "settlements" as insidious, conspiratorial, outrageous, and so on.)
Such arguments can have some descriptive accuracy: some questions are generally treated as either settled or sacrosanct or both by the courts and the legal establishment. We can acknowledge that social fact, but it shouldn't prevent us from going on to question those "settlements." Those settlements too often come from under-reasoned decisions, or are closely linked to particular circumstances or moments in time. Even if they were exquisitely reasoned, none of them are perfect and all of them are subject to re-examination. That's especially true for law professors, whose tenured positions and lack of clients give them the luxury of being able to question even "settled" doctrines, and put them at one remove from having any professional stake in those doctrines. They do not have to spend their time convincing courts that some doctrine is "settled" or some case is "easy." They are free from the obligation to take care to use only the sort of language that judges will listen to or that is likely to persuade them. If anything, they're not just free to re-examine even sacred precedents or so-called "constitutional settlements" or "super-precedents," but obliged to do so.
But it is equally important to note that "revisiting" or "re-examining" a doctrine or decision does not mean abandoning that decision, and may in fact result in the conclusion that it is more important than ever to retain and re-emphasize that rule. Re-examination may reveal that the doctrine is a pretty darn good one. It may suggest that any proposed alternatives are worse than the existing rule, or that even if those alternatives might be better in theory, either their actual application would be imperfect or the costs of transitioning from one legal regime to another would outweigh any benefits. One may decide that the context in which the rule was originally crafted has little application to the present--or that it has equal application to the present, or even that other conditions require a heckler's veto doctrine (or some other rule) even more than it was needed in the first place. I have suggested that the possibility that something is "settled" does not oblige us to treat it as sacrosanct or beyond academic criticism or re-examination. But that doesn't mean there isn't value in settlement; it just means it's not a conversation-stopper.
This point should be obvious enough, but there are reasons to make it. Observers of scientific research have noted for some time now that researchers have strong incentives to find "new and exciting results," or counter-intuitive ideas, which are more likely to attract prestigious publications, press attention, and so on. They have argued that we need to give more value and attention to negative findings. The same is true in law. On the whole, "Rethinking [X]" will do better, place better, and get more attention if, in addition to being in tune with the times, it proposes something new, different, or radical (or, more accurately, just radical enough but not too radical) than if the result of the rethinking is, "[X] is pretty darn good, or still relevant, or at least the best we can do." The fact that the conclusion is a negative one, or one in favor of the status quo, doesn't make the inquiry less important. The "Rethinking" part of "Rethinking [X]" may be driven by changes in facts, circumstances, law, social norms, legal ideas, current events, or other factors that make it important to look at the doctrine again; or enough time may have passed that it's worthwhile looking at the issues again. But the fact that it's important to re-examine the law in a particular area doesn't predetermine the result of that re-examination. Sometimes the best answer may be that the law is still the right answer and we should stick with it. Indeed, and without wanting to prejudge the results of what I hope will be an open-minded inquiry, one reason I'm grateful for Mark's comment, and for articles like Waldron's, is that they suggest that the time is especially ripe for a re-examination of the heckler's veto that supports its continued usefulness and encourages officials and courts to enforce it with renewed vigor. I'm grateful to Mark for inspiring such an inquiry.
Does the First Amendment Let Us Punish Pure Thought?
In my prior post, I noted a live question as to how, if at all, the First Amendment protects freedom of thought in cases (such as card counting) that might be deemed to lack expression. While the Supreme Court has talked a good show about freedom of thought, its precedents say little about how the Amendment would apply to a case implicating free thought but not expression.
The Seventh Circuit, however, has addressed the question more directly. In Doe v. City of Lafayette, Doe went to a public park, sat on a bench, and spent about fifteen to thirty minutes watching several children in their early- to mid-teens play in the park. Doe admitted having sexual thoughts about the children, including urges to expose himself or have sexual contact with them. But at least in part because of the high number of children present, his thoughts “weren’t realistic at the time” and “were just thoughts.” Doe was banned from entering the park and claimed that doing so violated his First Amendment rights.
While a three-judge panel agreed, the Seventh Circuit, sitting en banc, held otherwise. The en banc court said the ban was imposed because of Doe’s conduct (namely, going to the park) and only incidentally burdened his thoughts. So even this case doesn't perfectly get at the question of punishing pure thought. But interestingly, the Seventh Circuit speculated about how the First Amendment might operate independent of expression, stating in a footnote that if Doe’s pedophilic urges triggered First Amendment scrutiny, they would fall under an exception, just like child pornography does:
Even if we were to determine that Mr. Doe’s sexual urges somehow triggered First Amendment scrutiny, they would be excepted from First Amendment protection under the incitement and obscenity doctrines. Given the context in which the urges occurred and the action they precipitated, they were, in a very real sense, “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” . . . Furthermore, Mr. Doe’s urges, if they triggered First Amendment scrutiny, would be characterized as a form of child pornography, the possession and distribution of which has been held unprotected by the Supreme Court.
Of course, the court quickly reiterated that because Doe’s conduct did not involve expression, “it is quite unrealistic even to talk about
these doctrines in this case.” The quoted comments are nevertheless puzzling for at least two reasons. First, the Seventh Circuit mistakenly asserts that if Doe’s urges triggered First Amendment scrutiny, they would constitute a form of unprotected child pornography. In Ashcroft v. Free Speech Coalition, the Supreme Court struck down federal legislation that banned so-called “virtual” child pornography that appears to depict minors but does not actually depict real people. Even if Doe had a vivid imagination, were he to accurately draw the images in his head on paper, they would presumably constitute protected virtual child pornography rather than unprotected actual child pornography.
Second, the en banc Seventh Circuit seems mistaken when it suggested more broadly that freedom of thought has categorical exceptions in the way that freedom of expression does, if we accept its own admission that “[a] government entity no doubt runs afoul of the First Amendment when it punishes an individual for pure thought.” The Seventh Circuit’s view that the First Amendment protects pure thought, in conjunction with its assertion that there are excepted categories of thought, suggests that we can punish people solely for thoughts that fall under an exception. If so, it would mean we could punish people merely for having thoughts that would be libelous if expressed but that are never actually expressed. We couldn’t punish people merely for having fantasies and urges to rape directed at adults (protected thoughts) but could punish people merely for fantasies and urges directed at children (unprotected thoughts). Perhaps the Seventh Circuit intended such exceptions to only apply to thought combined with action or believed that other constitutional provisions would come into play, but it never qualified its discussion, and it is not obvious how the Seventh Circuit would justify excepting some categories of thought from protection but not others.
In short, the Supreme Court has never resolved whether the First Amendment protects thought alone or only when intertwined with expression. The Seventh Circuit suggests that they must be intertwined, but its discussion seems internally inconsistent or at least counterintuitive. (Adapted from Two Views of First Amendment Thought Privacy, 18 U. Penn. J. Const. L. 1381 (2016) (citations omitted).)
Legal Ed's Past
Last week, I suggested that there have been a lot of changes to legal education over the last century (and much of that has been much more recent). I wanted to offer a slightly contrarian perspective to the "Legal Ed's Future" series that Dean Dan Rodriguez so thoughtfully compiled. That is: Legal Ed's Past.
Each change I identified (depending on your math, around 38 of them, of varying degrees of significance, of course) came because of something. Something prompted "legal education," to the extent we can define it, to... well, do something. Respond to a perceived problem. Act.
Before moving too quickly (more on this adverb below) into the future, it might be worthwhile to consider changes from the past, and evaluating whether they are working effectively. While there is often a race to the next big change, there is, in my view, extraordinarily little (or, at least, we might agree, relatively little) critical evaluation of changes in the past. Taking the time to evaluate whether these changes are as effective as we believe them to be, or whether they are achieving our desired goals, is a worthwhile endeavor.
I'll start with a few changes. One concern, at least one I've thought about, is that it may be that we are distracting our students with ever more things. The simplicity of earlier curricula has given way to increasingly-frenzied schedules. (In my location in greater Los Angeles, for instance, it’s not uncommon for my students to commute more than an hour a day for their externships.) Intensive courses, travel to advocacy competitions, periodic interim in-class assessments, meetings with administrators—the list grows seemingly each year. But as bar passage rates decline (not always explainable by declines in credentials), or if student attendance and participation may be suffering, might distraction or being stretched too thin be components in challenges facing law students today?
Or what about the single biggest complaint that I hear from employers time and again when I ask about what we as educators can do to help prepare our students for the profession—writing? Is the labor-intensive work of writing and editing—not to mention the labor-intensive work of teaching and grading those things—given insufficient attention or, worse, being pushed behind other expectations for our students? (Ed.: Rambling blog posts don’t help!) If the big ideas to change legal education aren't addressing the big complaint from employers, then are we missing something? And why is it that our existing changes--including robust legal writing courses and more elective upper-division drafting courses--have not been a sufficient cure?
One more: "practice-ready" graduates. We've saturated the curriculum with, as I mentioned, clinical courses, experiential courses, simulated courses, practicums, externships, and part-time jobs. Aren't these making our students "practice-ready"? If not, why is the answer, more or different? Are some of these working better than others? Do employers think some of these are working better than others? Recent graduates?
My confession is... I'm not confident on how to answer many of these questions. I have some hunches, but they are just that. Which leads me to two things that, I think, law schools should be doing before instituting new changes or anticipating how to develop programs for the future.
First, a very hard internal assessment of existing programs should take place. That includes evaluating what each program is supposed to do and whether it’s achieving what it was designed to do—or, if it’s not doing that, whether it can be improved, altered, or, perhaps, shut down. That probably includes some longitudinal studies of alumni. But these seem to be exceedingly rare. (One rare exception, in my mind: an important survey was a 2011 survey of George Washington University alumni on the most valuable elective courses. Others, like After the JD, have been valuable, but often at a macr0 level.)
Second, schools should reexamination the role of administrators. We’ve seen a dramatic increase in administrators in higher education generally and in law schools (at least when compared to faculty) specifically. Administrators (in my humble opinion) ought to view their objectives as reducing barriers or complications in students’ lives—greasing the skids, if you will, to make the student experience more seamless and providing greater opportunities to engage in the more meaningful activities, from deep thinking to rigorous writing to professional excellence. To the extent that administrators are adding more requirements to students (ed.: or faculty?)—taking precious hours from their days through lunch-hour presentations, reporting requirements, or other compulsory time-consuming activities, for instance—the law school does a disservice to its students. That’s not to say that students might need something new that hasn’t been done. But that should go through rigorous vetting and should only consume student time once the administration has figured out how to minimize the burden on student time.
Now, to "quickly," as in, "Before moving too quickly...." Many from the Legal Ed's Future posts might laugh out loud at this preface. The posts often had an urgency to them, critical of existing legal education perspectives and structures--change is too slow, the market is changing faster than legal education, we risk being left behind, etc.
I confess, I'm more Burkean when it comes to these matters. I think we may (may!) often get more mileage out of doing an existing thing better than chasing a new thing to incorporate into our catalog. I think that many of the changes over the last century reflect an episodic and, accordingly, incomplete view of what legal education ought to be. As each new thing is added or changed, it is usually in pursuit of a particular end that is no longer in sight, or that the means adopted do not meaningfully address that desired end. Legal education now contains vestigial changes of added cost and complexity with dubious value. Before lunging ahead into more such stuff, then, I think a little caution and perspective is in order.
Sure, such words can be the words of the obstructionist who demands "caution" as a means for inaction or to protect the status quo. But, for me, at least, I ask for a little charity. I'm not in a kind of "get off my lawn," "there's only one way to do things, the way we've always done them." I am whole-heartedly willing to embrace changes to legal education when a sufficient case has been made (and it's my instinct, occasionally with a little evidence, that many such changes in the last century have been for the better--for instance, moving away from a mostly-required curriculum where we expect students to memorize most of the existing law gave way once we saw the increasing complexity of law, the variety of ways it might be practiced, and increased specialization--even if I wonder whether our existing curriculum is the right balance of stuff). but I'd also like to look a little more comprehensively and with a greater appreciation of history than, I think, may be occurring in many of our well-intentioned and well-meaning debates.
Sunday, April 15, 2018
Naruto v. Slater, the so-called "Monkey Selfie" case, lives. The Ninth Circuit denied the Joint Motion to Dismiss the Appeal and Vacate the Judgment, filed after the parties settled. In denying the motion, the court relied on cases in which courts have declined to dismiss appeals following briefing and argument, particularly where the judges suspect a party settled to avoid adverse precedent. Oh, and Naruto was not party to the settlement. (H/T: A Civ Pro student who is interested in the case, since the Complaint is one of the models we use in class).
So now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading).
Saturday, April 14, 2018
If everyone is a Nazi . . .
Josh Blackman wrote at length about being the target of protests at CUNY Law when he went to do a Fed Soc lecture on free speech on campus. Josh's post includes photos of the gauntlet of signs he walked in the hallway, as well as events inside the room. After several minutes of organized interruptions (including one law student exclaiming "fuck the law") and a warning from school administrators, Josh was able to engage with some audience members and the protesters left the room, after which Blackman did Q&A with the remaining students for more than an hour.
The underlying premise of many protests and attempts at "no-platforming" begin from the premise that the appropriate First Amendment rule, whatever the First Amendment's scope otherwise, should be "no free speech for Nazis and white supremacists." Putting aside the other problems with such a rule, its core problem is that it seems inevitable that everyone becomes (or at least everyone who disagrees with you) becomes a Nazi and white supremacist who must be shut down. Many of the protest signs reflect this misunderstanding.Erica Goldberg tries to identify the line between the right to speech and the right to protest speech, drawing the line at "coordinated efforts to silence a speaker." Erica distinguishes "an errant 'hey, you're wrong'" from "an effective, premeditated campaign" to shout down a speaker invited to use a designated forum. She also suggests drawing a line around "[s]ubstantive, informed, respectful discussions" and "civil, open-minded, orderly discourse."
I have been trying to identify the same lines, focusing on location (protesters inside the forum v. protesters outside the forum). Erica suggests that some forms of protest, including some verbal protest, are permissible within the forum, which is broader than I had thought of going. But I question whether coordination or terms such as substantive, civil, and open-minded can do much work. The First Amendment does not trust the government to define these terms (and where they begin or end) anymore than it trusts the government to pay a principled line between unprotected outrageous caricatures and protected sharp political commentary. Or between a protected conservative and an unprotected white supremacist.
Friday, April 13, 2018
In Defense of Criminal Justice Books
I really enjoyed Professor Carissa Hessick’s post in defense of law reviews as well as the resulting thoughtful commentary about the subject. I don’t necessarily want to engage in that debate, but offer a related defense of books.
Scholars have always written books as well as traditional law review scholarship. Some books are scholarly, some are not. Some have price points that only libraries and family relations buy, and some are priced for ordinary readers (or those few people who still buy books). Some are descriptive, or historical, or critical, or literary, and some are political and of cultural relevance. I don’t want to generalize because there are over 300,000 books published in the US every year, and many in the legal academy have written, edited, contributed, or enjoyed different types of books.
But, I do want to comment on a phenomenon in the criminal justice space. About, how in 2017 books by law professors began driving the national conversation about criminal justice reform. These books were scholarly and also impactful in terms of generating interest in the ideas they were addressing. These books were reviewed by mainstream news outlets, and the resulting media coverage elevated both the scholars and their ideas. While many of these ideas were also featured in law reviews articles, publication of the book provided a broader platform for scholarly ideas and impact.
Here are a few books from 2017 (and I would encourage others to add to this list):
- Angela Davis, Policing the Black Man: Arrest, Prosecution, and Imprisonment
- Sharon Dolovich & Alexandra Natapof, The New Criminal Justice Thinking
- Cara Drinan, The War on Kids: How Juvenile Justice Lost its Way
- Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement
- Barry Friedman, Unwarranted: Policing Without Permission
- John Pfaff, Locked In: The True Causes of Mass Incarceration
As in all things, one can debate the merits of different forms of scholarship, but I would argue that writing a book offers a form of expertise and legitimacy that while not superior to traditional scholarship has more currency to shape ideas. In writing about criminal justice reform, the type of format has a distinct advantage in generating interest in the underlying ideas and sometimes changes in law, policy, or consciousness.
The question for law professors is what are the costs and benefits of this form of scholarship. Should the recent interest in books shape how professors prioritize their publication choices? Should this phenomenon be resisted or encouraged by the legal academy?
The myth of the stagnant law school curriculum
I didn't want to jump too quickly into the legal ed discussion after 60-some posts over 5 weeks here at Prawfs. But Dean Dan Rodriguez highlighted a comment from ABA President Hilarie Bass today, and I thought I'd stew on that for moment (before returning to legal ed next week). The comment: "We are teaching in law schools the same way we have for 100 years."
Even if a paraphrase, it's consistent with several comments to that effect in the early posts of the Future Legal Ed posts. Instead, I confess I find laments among some that we’re living in a Langdellian environment of legal education largely incorrect and want to share a few brief thoughts on what legal education looks like today as opposed to a hundred years ago.
Langdell envisioned a two-year, entirely fixed, classroom-based curriculum without an accrediting body; we now have a three-year, mostly-elective, some field and some classroom curriculum that the ABA at times micromanages. We had an entirely optional system of education that was unnecessary to take the bar exam; now, it's a precondition to the bar in most jurisdictions (indeed, it makes one wonder why the ABA is still accrediting law schools). Faculty spent little time engaging in the scholarly enterprise; today, that is emphatically not the case.
True, most first-year curricula today include substantial common-law courses using the casebook method and a (highly modified) version of the Socratic method so yes, a first-year student in 1918 might have expected a prawf to cold call on him (ed.: not a lot of hers back then) and ask to recite the facts of Hadley v. Baxendale (which isn't a terribly Socratic question, to be honest). But most first-year courses are not year-long courses as they were 100 years ago; we have exams (err, "assessment") at the end of the semester, not the end of the year (think The Paper Chase); legal research and writing has moved from nonexistent to (typically) a 4-unit course in the first year; courses like legislation, now-mandatory ethics, or electives are now a part of many first-year curricula.
We’ve seen a dramatic rise in student assistance related to career development, academic success, bar preparation, and professional formation. Students engage in more clinical courses, experiential courses, simulated courses, practicums, externships, part-time jobs, and study-abroad programs. There are more journals, more advocacy competitions, and more student organizations.
Schools have dramatically altered their curricula over the last couple of decades. Schools have seen a surge in intellectual property, international/comparative law, and alternative dispute resolution courses since 1992. (Note: the ABA also has a 2002-2010 study, but sadly a free PDF is not available.) Schools have, in contrast, cut back on admiralty, products liability, agricultural law, and trusts & estates. They’ve developed increasing specialization or certificate programs. Upper-division drafting courses (such as contract drafting, litigation drafting, and legislative drafting) have exploded in popularity.
Now... to briefly take another example, Westlaw uses the same Keycite system it’s been using for 150 years, but few, I think, consider this a sufficiently-similar touchstone to say that Westlaw is “basically” the same as it was back then. So what is it about legal education that attracts this myth that it looks basically the same?
My sense is that some believe legal education is not changing (or has not changed) quickly enough. But rather than state that we need to do X, Y, and Z (although that inevitably comes), or that we're not doing it quickly enough, a false narrative is projected onto legal education: you haven't changed, you see, so now is the time to start. In reality, I think, we dramatically understate the changes in legal education when we ignore these many, many changes over the last century (indeed, mostly over the last half-century, and some in the last decade). Maybe more is required. But it is assuredly not because a lack of change.
(It’s a slightly different reflection than Professor Harold Krent’s correct and important observation that law school has changed significantly in the recent past, or from Professor Deborah Merritt's that past changes have been welcome, grudguing, slow, and perhaps without the impact we may desire.)
So, what about these changes? Were they good, right, beneficial, useful, valuable? More on that to come....
Thursday, April 12, 2018
Harvard Law School Program on Corporate Governance Fellowship Announcement
From the Harvard Law School Program on Corporate Governance and Financial Regulation:
The Harvard Law School Program on Corporate Governance and Financial Regulation is pleased to announce the availability of positions of Post-Graduate Academic Fellows in the areas of corporate governance and law and finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.
Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.
Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at [email protected]
Card Counting and the First Amendment
Neuroscientists continue to get better at reading our minds. (Technically they correlate observable brain data to our reported thoughts, but what else could mind reading be?) Here, for example, MIT researchers showcase a non-invasive method of assessing thought using neuromuscular impulses in our faces that activate when we think about particular words. It may someday help people with certain speech difficulties or serve an even broader audience in next generation Google Glass-type devices. We can get much more direct neural information if we connect electrode arrays directly to the brain though such approaches are obviously too invasive to have widespread general uses. The law has yet to wrestle much with government invasion of our minds through new brain technologies (query: can the government force you to use the MIT device above to unlock your smartphone?), but this may change in the future.
In Two Views of First Amendment Thought Privacy, I explored a hypothetical question that could be raised even today. Namely, could the government criminalize card counting at blackjack? Card counters keep track of public information (the other cards played at the table) and engage in some mental computations to turn the odds of winning in their favor. It is already a serious crime in many places to use a device to count cards, but could the state criminalize card counting that just uses your mind?
Basically everyone who plays blackjack engages in some mental computations just to decide whether to hit or stick. For the state to allow some mental computations but not others seems like what we might call "thought-content discrimination": the state picks certain methods of mental computation to permit and some to prohibit. When I asked law professors at several faculty workshops whether the First Amendment would prohibit the state from criminalizing card counting, hands were split about evenly.
In the paper, I present the case that card counting might be protected by the First Amendment, though I don't purport to do more than show the argument's plausibility. I realize that it's an uphill battle because there is little case law testing what thought protections, if any, the Amendment has outside of contexts that also include expression. Hence the two views of First Amendment Thought Privacy: (1) The Amendment protects freedom of thought itself (what I call the independent view), or (2) it only protects freedom of thought when linked to expression (what I call the intertwined view). Existing case law does little to distinguish the two views but the answer may have implications for the privacy of card counting (where the activity is not obviously expressive) and implications more broadly for the future as brain-related technologies improve.
Is Free Speech Becoming the Next Scare-Quote Domain?
Granted that the plural of anecdote is not "data." Still, I was interested, in reading this first-person account by Josh Blackman of the protests and heckling that greeted his recent visit to CUNY Law School, to see this picture of a tweet from what appears to be the Twitter account of CUNY's National Lawyers Guild chapter:
Note the use of scare-quotes around "free speech." I'm not precisely sure about why it was used here, although Blackman's account suggests that students assumed the speech would be provocation dressed up as free speech but really aimed at getting attention and reaction, in part because the announced subject of the talk was free speech on campus. (Provocation is also free speech, of course, and free speech-as-provocation on and off campus is at least as old as Paul Krassner and Abbie Hoffman) Actually, Blackman had intended to speak about originalism, he writes, but "the students were not able to find any other professors who were willing to participate in the event," and the subject of the talk was ultimately changed to free speech on campus. No faculty members could be found to participate in that event either, according to the story.
But I'm less interested in its origins or rationale than in its very appearance. It comes not long after I saw--which means it must have traveled some distance--a tweet by writer Amanda Marcotte, reading:
Students of law and religion are familiar with this phenomenon, of course, as the phrase "religious freedom" has, since 2014 and peaking around last year or the year before, become increasingly rendered in even more-or-less serious media accounts as "'religious freedom.'" This went as far as its scare-quoting in a statement by the Chairperson of the United States Commission on Civil Rights in a report titled Peaceful Coexistence. The point of this epidemic of punctuation, of course, was to contest particular definitions of or assumptions about the meaning of religious freedom, albeit only in one direction. Contestation is a fine and legitimate thing, and an interesting phenomenon to observe. Of course, it can be done more or less deeply or shallowly. Scare quotes fall decidedly in the latter category. It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path. Although it does absolutely nothing to improve clarity, accuracy, understanding, discussion, or justice, I'm sure it will be noted with interest by social observers and greeted with delight by typographers who charge by the character.
https://t.co/o8CaFcvsof The process is complete. “Free speech” is now being used primarily, perhaps exclusively, as a right wing code for white nationalism.— Amanda Marcotte (@AmandaMarcotte) April 2, 2018
Want this job? Move five times in eight years
As usual, Professor Sarah Lawsky's tireless diligence here at Prawfs has yielded a treasure trove of information regarding entry-level hiring. Browsing this year's report, I can't help but notice the serial credentials that these impressive hires have: a fellowship (maybe two), an advanced degree (maybe two), a clerkship (maybe two), not to mention law firm, government, corporate, or public interest jobs wedged in between. (Most have some non-clerkship legal experience, and many have five or more years' experience.)
But, as I look at the litany of jobs, I can't help but wonder about a major barrier to entry into the legal academy: the flexibility to move several times in a short period of time early in one's career. Few of these hires stacked all their experiences in a single city. Many moved time after time after time for one- or two-year jobs, before heading off to grab the next credential.
I think about my own experience: South Bend to Saint Louis to Chicago to State College to Malibu (and it easily could have been more), one- and two-year stints along the way. Four children born in four different states. And others have far more experiences than I had. I was very fortunate to have an extraordinarily flexible spouse and the financial ability to handle these transitions (at least for as long as I needed to do so).
But it's also made me reflect that many do not have this flexibility. Those who secure a concentration of experiences in a single (usually very large) city; those who postpone family life; those with socioeconomic means to take low-paying clerkships and fellowships, and to move repeatedly; those with a mobile spouse or children not yet enmeshed in a social group--these are just a few of the groups that can enjoy what one might (uncharitably) call a kind of hazing: "Want this job? Move five times in eight years."
Candidly, I understand that there's a kind of arms race out there among schools and prospective law professors. The candidates get still more glowing credentials, and it becomes very easy to rely on those proxies (e.g., clerkships, advanced degrees, and fellowships). The market has grown ever tighter over the last decade, and with fewer openings comes tougher expectations. Candidates remain on the market for longer periods and cycle through additional fellowships. And that leads to candidates with ever-longer publication records, which in turn requires future prospective candidates to take the time (and a move or two) to improve their own publication records. (Indeed, some come to the market with tenure-worthy track records!)
I don't really have easy answers to this. Maybe today's entry-level law professors are simply better than they were a decade ago because of these many accomplishments. Maybe we can't de-escalate the arms race of credentials--and maybe the backlog of prospective law professors is not going away anytime soon. Maybe these proxies are simply a better way of measuring future quality (then again, maybe a clerkship is just a job). And existing publication records are, I think, better than guesses about future scholarly ability.
All the same, I wonder if the pendulum has swung too far to often demanding far too much of too many would-be law professors. And while I'm not sure what the right result is, or whether it's something law schools can even control, I do think we underestimate how much the present system may be shaping the market of prospective law professors, and perhaps in ways that are not only unanticipated but perhaps even undesirable. If that's the case, I hope it's something law schools (and hiring committees in particular) can begin thinking how to address.
Some Reasons to Randomize Cold Calling
After guest blogging at Prawfs once or twice per year for many years, it's now been almost 2.5 years since my last stint. I'm looking forward to blogging about some of my scholarship since then, but I begin with the evergreen topic of cold calling.
The best way to cold call depends on what you're trying to accomplish. If your goal is to get students to air more accurate or carefully considered answers, you might lean on methods that give students advance warning, such as a panel system where students know in advance when they are eligible to be called on. Panels likely create less anxiety for students in total but do not encourage broad student preparation for class.
To encourage broad student preparation, I will suggest, there are good reasons to select students at random rather than using other semi-arbitrary methods professors tend to use. First, doing so reduces the probability that a professor purposely or inadvertently favors (or disfavors, depending on your view) particular students. Second, even when a professor is as fair as possible, some students may have the mistaken impression that a professor is favoring/disfavoring certain students. A transparent method of random selection can fix the misimpression by making the cold calling process feel less personal. Finally, using traditional approaches to cold calling, a cold-called student is less likely to be called on again in the near future, possibly fighting against the goal of encouraging student preparation.
If you were to randomize cold calling, how should you do it? It's important that the randomization method be quick so as not to distract the class and interfere with the flow of discussion. Here's the method I think I would use: At the beginning of the course (or once the roll is finalized), put the names of all enrollees into rows in a spreadsheet. Then append, say, four more copies of the names, so that if you have a class of 50 students, you'll have 250 names. Associate a random number with each instance of a name (e.g., use Excel's rand() function), and then sort the whole list based on the random number. Finally, number each name from 1-250 and, ideally, use multiple columns to get it all on one page that you distribute to students early in the course. Then, at the beginning of each class, select a single random number from 1-250 (say, using a free app on your smartphone) and write that number on the board. This number represents the place on the list where you will begin cold calling that day and will then proceed sequentially down the list.
Aside from being quick and low hassle on a daily basis, this method has some additional advantages. First, unless you cold call very rapidly, most students will realize once the first number is selected that they are unlikely to be cold called on that particular day. Those students will have already prepared for class anyway (your key goal by hypothesis) and can now enjoy the class with lower levels of anxiety. Second, students who realize that they are likely to be called on will have extra incentive to pay attention and are unlikely to be day dreaming when called on--a moment in class that can be awkward for everyone and detract from the class's energy and focus. Finally, those students who expect to be called on during a particular day will likely use brief pockets of time (e.g., right before class starts, during ten-minute breaks if you have one) to further refine their preparation. Such mini-preparation, though distracting if the whole class does it, can give the few students likely to be called on a chance to better articulate their thoughts and helps with our subsidiary goal of encouraging students to air more accurate and carefully-considered thoughts.
I have misgivings about cold calling and rely on it considerably less than my peers. I offer no general defense of cold calling by any means. But to the extent one uses it at all with the main goal of boosting class preparation, there are good reasons to randomize either across the whole class or within large panels.
Wednesday, April 11, 2018
When Citizens Become the Product
With Mark Zuckerberg testifying on Capitol Hill this week, it seems worth raising the related issue about how police technologies turn citizens’ data into the product. The old adage that all tech companies are really data companies and you are the product is now reemerging in our collective consciousness. But data companies are not just targeting your Facebook feed; they are also targeting the public infrastructure of policing and city services.
Imagine you are cash-strapped city facing a violent crime problem and a sophisticated Silicon Valley company offers you free analytical services to reduce crime, clean up your archaic computer systems, and improve city services. As a mayor, do you turn it down?
Imagine you are an underfunded police department facing public rebuke for failing to take police accountability seriously and a company offers you free body cameras for your entire department. As a police chief, do you turn it down?
These questions do not lend themselves to easy answers even though they already have been answered. In New Orleans, for six years Mayor Mitch Landrieu took Palantir’s free offer to pilot its social network analysis to reduce shootings, implementing the technology without much public oversight. Police departments all across America have taken Axon’s offer of free police-worn body cameras, creating long-term contractual relationships for data storage and analytics.
These examples reveal the temptation of the digital age – by trading data for services city governments are getting needed improvements seemingly for free. But there is always a cost. Here the cost runs to the citizen. And, unlike with personal data where you can control whether you give up your photos to Facebook or perhaps delete your account with big data surveillance you cannot consent to the collection and have no voice in the decision.
This is why it matters. Without careful ground rules about data, cities can give up valuable public information for private commercial gain. Linking together city databases might be very helpful to predict crimes or identify areas in need of city services, but the same public data can also be quite valuable for real estate developers, retail businesses, or consumer services. Who owns the linked data and analysis? Who benefits? Who controls third party use if sold? Similarly, police surveillance footage is helpful to monitor police behavior, but it also captures the daily actions of citizens going about their lives. Without control over the data, companies can mine the footage to study patterns of movement, dress, and consumer preference. Police officers could inadvertently become the data collection instruments for private enterprise trying to figure out the best place to build the next Starbucks with a host of open questions about who can use and profit from the publically-collected but privately-controlled data.
As we move into an age of big data policing these questions are only going to grow. As public-private partnerships increase and as “the Internet of Things” becomes embedded in the design of city infrastructure, the temptation to trade public data for private services will expand. While currently, companies like Palantir and Axon have recognized that overtly monetizing the public data they collect might create bad optics, as we have seen with Facebook sometimes companies can lose control of what is happening with their data.
So who is advocating for more citizen control over citizen data being traded to private companies for public goods? With the exception of a few progressive cities like Seattle, Oakland, Berkeley, and around Boston and the warnings of national civil rights organizations, there has been little discussion about any public oversight of public surveillance technologies. And, even in those more engaged communities the focus is on privacy and the dangers of big data surveillance, not the commodification of public data.
This should change. The technologies of public surveillance – predictive policing, police body cameras, artificial intelligence enabled cameras, automated license plate readers etc., – are also data collection systems filled with valuable data points. Just as the awareness of your Facebook data being commodified and used to manipulate election cycles offers a moment to reflect on the power of digital platforms, so too should city contracts between governments and private companies be scrutinized to see how citizen data is being used and protected. Because unlike a single Facebook user who has no ability to shape global “terms of service” big cities do have real power to protect citizens’ interests in their negotiations with companies. City lawyers can write contracts to protect public data and personal information, and refuse to deal with companies who will not restrict third party access. City governments can demand democratic oversight of public data.
And here is where the lawyers and law professors come in. Lawyers can think about risk and reward before the technology is implemented. Lawyers can do the risk analysis of risk analytics.
America’s growing feeling of betrayal animating the fury toward Facebook is not that we gave up our secrets to a private company – we knew we were doing that – but more the loss of control over the data to manipulative third party actors. The uncomfortable wake up call, however, is that as single users contracting with a large data company we really cannot control third party misuse. We interact at the whims of the platforms without the ability to contract about our data. But, cities can and should do a better job when using our public data. If citizens are the product, city governments should be our protectors. And lawyers and law professors can show them the way.
Truth, Trust, and the First Amendment in the Digital Age
The University of Missouri Schools of Law and Journalism co-sponsored a symposium last week at the National Press Club in D.C. entitled Truth, Trust, and the First Amendment in the Digital Age. C-Span carried the symposium, including the keynote by the inestimably fabulous First Amendment attorney Floyd Abrams.
If you're interested, the panels and keynote are available to watch on C-Span at this LINK:
Barbara Cochran of the School of Journalism moderated the journalism panel, which included remarks by:
Peter Baker, The New York Times
Dan Balz, The Washington Post
Major Garrett, CBS News
Hadas Gold, CNN
Clarence Page, Chicago Tribune
Chris Buskirk, American Greatness
Margaret Talev, Bloomberg News
I moderated the media law scholars and media lawyers panel, which included remarks by:
Amy Gajda, Tulane University School of Law
Ronnell Andersen Jones, University of Utah College of Law
Mary-Rose Papandrea, University of North Carolina School of Law
Charles Tobin, Ballard Spahr LLP
Sonja West, University of Georgia School of Law
Kurt Wimmer, Covington & Burling LLP