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Thursday, May 24, 2018

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

2018 Hiring Report - Subject Areas Over Time

Jeremy Bearer-Friend commented: "I wonder whether there are certain patterns over time for entry-level hiring by area of law. For example, whether tax hiring is constant even when total number of hires dips, or whether civ pro is generally 20% of the hires each year, etc. Some categories may be more consistently coded over time so this could be tricky to do but thought worth asking!"

I went through and cleaned up the data a little so that the categories were consistently coded over time and then did a cross-year comparison of hiring areas. Results follow. Note that these are the results for U.S., tenure track hires only--the same group on which I usually run the data aggregation.

Each year, candidates can list between zero and four subject areas in which they work. (In 2011 they were allowed to list a maximum of three; in all other years, a maximum of four.) 

First, I looked at all subject areas ("All Areas") that candidates listed in a given year. For example, if Candidate A listed "Tax, Con Law, Civ Pro" (interesting candidate!), then this person would be responsible for three entries in the below compilation. As you can see, Crim and Civ Pro lead the pack each year. Other 1L subjects are also very popular. (Click for bigger graphics.)

All Subject Areas Count.20180523
All Subject Areas Count.20180523
All Subject Areas Count.20180523

I did not see any areas where the raw number of hires stayed fixed across time, though the percentage of hires did seem to remain roughly steady.

Second, I looked at just Area 1 -- that is, the subject area that the candidate listed first. So, for example, Candidate A, our "Tax, Con Law, Civ Pro" candidate, would be responsible for only one entry on in this compilation: Tax. This might represent the person's main area of interest. The results were similar here. (Click for bigger graphics.)

Area 1 Count.20180523
Area 1 Count.20180523
Area 1 Count.20180523

Below the fold, a list of every subject area listed in any year. And for those of you who really want to play around with this, here is a link to the raw data, cleaned up a little. It is yearning for more pivot charts.

All Areas, All Years

Academic Success

Accounting

Admin

Admiralty

Advertising

Agency & Partnership

Agricultural

American Indian Law

American Legal History

Antidiscrimination Law

Antitrust

Appellate Practice

Arbitration

Arctic Law

Art Law

Banking

Banking

Bankruptcy

Behavioral Law & Econ

Bioethics

Biotech

British Legal History

Bus Orgs

Business Ethics

Business Law

Business Reorgs

Capital Markets Regulation

CED

Child/Family & State

Chinese Law

Civ Pro

Civil Litigation

Civil Rights

Civil/Comparative Law

Climate Change

Clinical

Collateral Consequences

Commercial Arbitration

Commercial Law

Community Property

Comparative Con Law

Comparative Law

Complex Litigation

Con Law

Conflicts of Law

Constitutional Design

Consumer Finance

Consumer Law

Contracts

Copyright

Corporate

Corporate Finance

Corporate Fraud

Corporate Governance

Corporations

Crim

Crim

Crim Justice Administration

Crim Pro

Criminal Defense

Critical Legal Studies

Critical Legal Theory

Critical Race Theory

Cross-Border Business

Cross-Border Insolvency

Cultural Property

Cyber Law

Cybersecurity

Death Penalty

Debtor and Creditor

Disability Law

Disaster Law

Dispute Resolution

Diversity & Law

Domestic Violence

Education

Elder Law

Election Law

Empirical Legal Studies

Empirical Methods

Employee Benefits

Employment Disc

Employment Law

Energy Law

English Legal History

Enivronmental

Entertainment Law

Entrepreneurship

Environmental

Ethics

Evidence

Experiential Learning

Experimental Methods in Law

Extradition

Family Law

FDA Law

Fed Courts

Federal Sentencing

Federalism

Feminist Legal Theory

Finance

Financial Institutions

Financial Reform

Financial Regulation

Financial Stability

Financial Transactions

First Amendment

Food Law & Policy

Foreign Relations

Freedom of Expression

Gender & Law

Genetics and the Law

Health Care

Health Care Financing

Health Care Reg

Health Law

Healthcare

History of Common Law

Housing Finance

Housing Law

Human Rights

IBT

Immigration

Immigration

Indigent Defense

Information Law

Information Privacy

Institutional Structures

Insurance Law

International Law

International Trade

Internet Law

Int'l Arbitration

Int'l Business Transactions

Int'l Civil Litigation

Int'l Con Law

Int'l Crim

Int'l Development

Int'l Economic Law

Int'l Economics Law

Int'l Energy Law

Int'l Financial Reg.

Int'l Human Rights

Int'l Humantarian Law

Int'l IP

Int'l Law & Dispute Settlement

Int'l Orgs

Int'l Trade and Investment

Investment Funds

Investment Law

IP

Islamic Law

Judicial Administration

Judicial Behavior

Judicial Writing

Jurisdiction

Jurisprudence

Juvenile Justice

Labor & Employment

Labor Law

Land Use

Law & Anthropology

Law & Development

Law & Econ

Law & Finance

Law & Gender

Law & Lit

Law & Neuroscience

Law & Philosophy

Law & Psychology

Law & Religion

Law & Science

Law & Sexuality

Law & Social Movements

Law & Social Science

Law & Society

Law & Sociology

Law & Statistics

Law & Tech

Law & the Economy

Law and Citizenship

Law Firm Management

Law of Democracy

Law of the Sea

Law of War

Law of Warfare

Legal Anthropology

Legal Ethics

Legal History

Legal Philosophy

Legal Profession

Legal Theory

Legal Writing

Legislation

Litigation

Local Government

Machine Learning

Maritime Law

Media & Communications Law

Media Law

Mediation

Medieval Law

Mergers and Acquisitions

Military Law

National Security

Natural Resources

Negotiation

Neuroscience & the Law

Nonprofits

Oil & Gas

Patent Law

Police Accountability

Political Theory

Post-Conflict Justice

Post-Conflict Obligations

Post-Conviction Crim Pro

Poverty Law

Poverty, Inequality, Race & the Law

Presidential Powers

Prison Law and Policy

Prisoner's Rights

Privacy

Private Int'l Law

Prof Resp

Property

Public Int'l Law

Public Law

Race & the Law

Real Estate Law

Real Property

Refugee Law

Regulation

Regulation of Police

Regulation of Risk

Regulation of Vice

Remedies

Roman Law

Rule of Law

Rural Development

Science & Law

Sec Reg

Secured Transactions

Sentencing

Sentencing Reform

Separation of Powers

Social Enterprise

Social Welfare Law

Sociology

South Asian Law & Politics

Statutory Interpretation

Tax

Tax Exempt Orgs

Technology Law

Telecommunications

Torts

Torts

Trade Law

Trademarks

Transnational Litigation

Trial Ad

Trusts & Estates

Venture Capital

Veterans Law

Water Law

White Collar Crime

Wills & Trusts

Work & Family

Workplace Law

Wrongful Convictions

Posted by Sarah Lawsky on May 23, 2018 at 07:22 PM in Entry Level Hiring Report | Permalink | Comments (2)

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

• The court did not rely on the "one good plaintiff" approach to standing. After finding that the four individual plaintiffs had standing, the court considered whether the Knight Foundation had standing on its own (based on wanting to read comments from one of the blocked individuals).

• The Court linked standing to Ex Parte Young and recognized that Young allowed for claims for prospective relief against federal officials as much as state officials. The latter can be based on § 1983 while the former are based on the judicially created equitable claim. But the precedents overlap.

• The big standing issue involved Trump's aide Daniel Scavino, who has the power to control access to the account (including blocking or unblocking users), but did not block the individual plaintiffs. But the plaintiffs remained injured so long as blocked. Because Scavino could unblock, their ongoing injury was traceable to him.

• The court discussed whether the President or Scavino were state actors in managing the account, although the analysis was buried in the public-forum analysis. By contrast, in Davis v. Loudon County Board of Supervisors, involving a local official blocking members of the public from her Facebook page, the court focused on state action.

• The court gave a lengthy discussion of whether a court can enjoin the President. It rejected the categorical argument that the President cannot be enjoined, acknowledged that courts must hesitate and balance separation-of-powers concerns, and found that an injunction here would only compel the President to act constitutionally without interfering with executive discretion. The court declined to resolve the issue, because an injunction against Scavino and a declaratory judgment offered sufficient relief. (The court's decision to issue only declaratory relief without an injunction highlights a point Sam Bray made--declaratory relief is a sufficient remedy where limited judicial oversight or management is necessary).

• The court's decision not to issue an injunction deprived it of an opportunity to make the injunction universal and prohibit Trump and/or Scavino from blocking anyone from his Twitter account, in a case in which such a non-particularized remedy is unwarranted. But this reminds us that a declaratory judgment should be as party-particularized as an injunction. If Trump or Scavino block people other than the plaintiffs from the account, they would not act inconsistent with the judgment and it would not alone be a basis for converting the D/J into an injunction. New Twitter users must sue to assert their own rights to their own judgments, regardless of whether the judgment is a declaration or an injunction.

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Prospective Enforcement of the Right to Effective Assistance of Counsel

This post is part of a series (see here, here, and here) exploring how prejudice rules affect the implementation of criminal procedure rights. Here I focus on the prejudice rules that the Supreme Court has woven into the constitutional definition of effective assistance of counsel. Specifically, I’ll take a look at how those rules impede prospective remedies that aim to fix broken indigent defense systems—which remain all too common across the country—before those systems predictably result in ineffective representation during plea negotiations or trial.

The prejudice rules for effective assistance of counsel claims are somewhat complex. The rule applicable to the vast majority of ineffective assistance claims comes from Strickland, which held that such claims require proof that the attorney’s performance was constitutionally deficient, as well as prejudice, which means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” To be sure, Strickland acknowledged that “prejudice is presumed” and so need not be separately proven “[i]n certain Sixth Amendment contexts,” as when there is (1) “[a]ctual or constructive denial of the assistance of counsel altogether,” (2) “state interference with counsel’s assistance,” or (3) “an actual conflict of interest” that “adversely affected [the] lawyer’s performance.” But in Cronic, a companion case to Strickland, the Court rejected a constructive denial of counsel claim under rather extreme circumstances, and remanded so that the lower court could apply Strickland. Cronic thus implied—and the Court’s later decisions have expressly confirmed—that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”

Neither Strickland, Cronic, nor any other Supreme Court decision has considered whether and under what circumstances a prospective, systemic ineffective assistance of counsel claim might be viable. (Strickland and Cronic, like most cases about ineffective assistance, involved post-trial defendants seeking habeas or appellate relief.) Yet the prejudice rules they produced have profoundly diminished not only the availability of postconviction right to counsel remedies—an effect the Court apparently intended, to preserve the finality of criminal judgments—but the prospects for prospective relief as well. Why? Because Strickland and Cronic opted to classify prejudice as a restriction on the scope of the Sixth Amendment right, naturally inviting its application in every remedial context involving alleged ineffective assistance, rather than as a harmless error rule, which has a narrower reach tied primarily to postconviction remedies.

To provide just one recent example, consider the District Court of Utah’s decision in Cox v. Utah. (For valuable resources about systemic ineffective assistance litigation in other jurisdictions, see the Sixth Amendment Center’s website or chapter three of the National Right to Counsel Committee’s 2009 report entitled Justice Denied.) There, two defendants in separately pending criminal cases brought a class action suit, on behalf of criminal defendants represented by public defenders in Washington County, against the state of Utah and related parties. They alleged that their right to effective assistance was “in imminent danger of being violated because the indigent defense program in Washington County lacks ‘sufficient funding, . . . workload limits, adequate contracting standards,” and other basic safeguards. The court dismissed the action, using Cronic and Strickland as its analytical framework.

With respect to constructive denial of counsel under Cronic, the court held that the plaintiffs had to meet a “hefty burden” of showing “widespread and systemic” attorney ineffectiveness. And it concluded that they had not met this burden—despite the complaint’s allegations that, among other things, “Utah is 48th out of 50 states in funding” for indigent defense and that one plaintiff’s public defender “has a workload of 350 cases, 80 percent of which are felonies.” After all, the court reasoned, these allegations were merely “reminiscent of the types of allegations made in . . . Cronic” that the Supreme Court had deemed insufficient to warrant an exception to the usual Strickland standard.

And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”

That said, some courts have developed creative workarounds to deal with the obstacles posed by the Strickland/Cronic prejudice framework. In Kuren v. Luzerne County, for instance, the Pennsylvania Supreme Court recently recognized a “cause of action whereby a class of indigent defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel.” In explaining why it did not regard Strickland as an impediment, the court reasoned that “[v]iolations of the right to counsel can occur in many different ways, and remedies for such violations are not limited solely to circumstances where prejudice can be proven. Only the remedy of a new trial requires a showing of prejudice.” Although I applaud this courageous ruling, it is not hard to see why Cox and many other cases (including the lower court’s decision that was reversed in Kuren) have endorsed the contrary position that the Strickland and Cronic prejudice rules are applicable, and ordinarily fatal, in prospective Sixth Amendment actions. And now that the Department of Justice probably will not continue submitting amicus briefs supporting indigent criminal defendants seeking pretrial relief against failing public defense delivery systems (as the Obama DOJ did in Kuren and several other cases), the path to success for such suits is likely to remain perilous.

Posted by Justin Murray on May 23, 2018 at 05:54 PM | Permalink | Comments (2)

SCOTUS takes employer side in class arbitration decision

Yesterday I went on the air with Larry Mantle of Airtalk, NPR to discuss Epic Systems Corp. v. Lewis.  I tried to channel the 4 Justices in the dissent with whom I agree. Justice Ginsburg read her dissent from the bench - calling Congress to amend either the FAA or the NLRA to clarify the tension they present between enforcing arbitration agreements and the protected rights of employees to engage in concerted activity. Though Justice Gorsuch unsurprisingly begins his decision saying that there can be disagreement on the policy but the law is clear, I agree with the dissent on both the law and policy. Nothing in the language of the FAA suggests that the NLRA, passed a decade after the FAA cannot grant employees to band together in arbitration when it concerns the terms and conditions of their employment. The FAA legislative history, as well as the language that eventually was enacted, further suggests that Congress did not intend to limit the rights of laborers. As Justice Ginsburg writes, joined by Kagan, Sotomayor and Breyer, the majority is "egregiously wrong". [in the Atlantic yesterday, a similar point: 

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.]

The battle isn't over - Justice Ginsburg in the end of her opinion tries to salvage at least discrimination arbitration, since Epic was about wage and hour: : “It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964”.  You can listen to my discussion with Larry Mantle on AirTalk here.

Posted by Orly Lobel on May 23, 2018 at 05:41 PM | Permalink | Comments (0)

On Diversifying Academic Panels and Conferences

This is an evergreen issue, but in response to a tweet by the twitter feed of the Feminist Law Professors blog, Mike Dorf has put up some thoughts on the question of diversity on academic panels and conferences, including but not limited to gender and racial diversity. I was involved in planning one conference this year, and am involved each year in planning the list of speakers and attendees for the Annual Law and Religion Roundtable (although the lion's share of this hard work is done by my friend and co-organizer Nelson Tebbe, and most of the rest of the work is done by our other co-organizer and friend, Rick Garnett). I've also helped plan a few other panels and conferences here and there, and have advised the Alabama Law Review on its symposium planning. I'd like to offer some thoughts of my own here.

As a preface, I should add a note by way of confession, since the tweet that sparked Mike's post suggested that men should refuse to appear on a panel if there is not at least one woman on the panel. I'm not sure that plea, if one agrees with it, should stop at gender, and a person interested in gender, race, class, and intersectionality might ask why the suggestion stopped there. Still, I must confess that I just appeared on a conference panel on which there were five men and one woman, who was "only" the moderator. (She happened to be the most impressive person on the panel, for what it's worth.) I found it striking and surprising. I will note, though, that panelists often don't know what the composition of a panel will be until rather late in the process, when they've already made a commitment to appear. I'm not rejecting the suggestion of the tweet, and in such situations one should at least write to the planners and urge them to see whether something can be done about it; better yet, one could ask or insist in the first place, upon accepting, that there be at least one woman (or what have you, including insisting that the panel is not all like-minded on the issue) on one's panel. But the timing and logistics are a complicating factor. I will note, in fairness to the planners of that conference, that the mix of men and women on the overall list of conference speakers was quite strong. I will also note that in past years, I've put up one or two posts (which I couldn't find, alas, but commenters who do are welcome to put up the links) examining the gender composition of panels at the AALS annual conference. Many were reasonably balanced. A number, often associated with particular sections, were composed of only one man or only one woman. A few, to my great surprise, were all men or all women. The AALS usually advises program planners to seek various balances, including gender balances, but the advice apparently doesn't always take, and I don't know whether it does any follow-up or not when it looks at the proposed speaker list and finds serious imbalances. 

Here are my thoughts, for whatever they're worth. 

Posted by Paul Horwitz on May 23, 2018 at 11:56 AM in Paul Horwitz | Permalink | Comments (4)

Antony Page appoined dean at FIU

I am delighted that Antony Page (Indiana-Indianapolis/McKinney School of Law) is the new dean at FIU. Antony had been Vice Dean at IU for the past six years. His job her is going to be continuing recruiting great students while helping get the word out about what we are doing here.

The FIU press release is below.

MIAMI (May 23, 2018) — Antony Page has been named dean of the Florida International University College of Law. Page joins FIU Law from the Indiana University Robert H. McKinney School of Law in Indianapolis, where he was vice dean and a professor of law.
 
“Today marks a significant moment in FIU’s history,” said Provost Kenneth G. Furton. “FIU Law is already a leader among Florida law schools, and Dean Page shares our enthusiasm for continuing its rise in the national rankings as well.”
 
Page is distinctively qualified to lead FIU Law into its next era of ascent among top American law schools. His tenure at McKinney followed years of public service, including as a diplomat in the Canadian Foreign Service. As vice dean, he played a key role leading McKinney, from launching new graduate interdisciplinary programs to developing initiatives that improve access to legal education. He is also an acclaimed teacher and scholar in corporate law and related subject areas, with publications in high impact journals like the Michigan Law Review, Emory Law Journal, and Boston University Law Review.  His previous legal experience includes private practice as a transactional attorney in the London and Los Angeles offices of New York-based law firm Sullivan & Cromwell and clerking for Judge Harry Lindley Hupp of the Central District of California and Judge Arthur Lawrence Alarcón of the U.S. Court of Appeals for the Ninth Circuit.
 
“I’m honored to be entrusted with leading FIU Law at this most important juncture for legal education,” said Page. “Significant transformations are taking place in the legal profession and FIU Law is developing a reputation as one of the country’s most forward-thinking law schools.”
 
Page will bring his ambitious vision to a law school that quickly is earning national acclaim. FIU Law graduates have finished number one on four of the past five Florida Bar Examinations. The College’s acceptance rate ranks 30th in the nation – and number one in Florida – according to U.S. News & World Report, and it was recently named the nation’s 17th Best Value Law School by The National Jurist
 
“We will maintain our student-centered focus, while also exploring new avenues to ensure that our students are prepared to thrive in a rapidly evolving profession,” said Page. “FIU is one of the world’s most globally minded universities, and it’s located in one of the nation’s most entrepreneurial and innovative cities.  We are ideally positioned to serve the legal profession and the community in Florida, the United States, and internationally.” 
 
Page’s term formally begins on July 30, 2018, but he is already beginning his first order of business: getting to know FIU Law’s students, faculty, alumni, and other stakeholders. “Our people are our greatest asset,” he said. “We’ll go as far as they will propel us.

Posted by Howard Wasserman on May 23, 2018 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (3)

Online JDs and legal education: might law schools disrupt themselves?

I confess I'm not a particular fan of the term "disruption" as used today, which seems to float everywhere by everyone who seeks to impress an audience when discussing technology (or, perhaps, when pitching it to investors or buyers). I use the term here some deliberate irony. Online legal education is growing, primary among master's degrees. But a recent proposal from the American Bar Association would offer greater opportunities for some online educational components in the traditional JD program. The Council moved ahead with plans to permit up to one-third of credits, and up to 10 credits in the first year, offered online.

So, with the advent and expansion of online legal education, might law schools actually disrupt... themselves? I thought I'd muse about what that might look like.

Typically, "disruption" is the idea of a new player dramatically changing how an existing enterprise operates: Netflix to home movies and cable, Uber to taxis, and so on.

Law schools are understandably clamoring for outlets to earn revenue. The dramatic spike in innovative non-JD degree offerings from law schools is a testament to that. (The value proposition of these degrees remains deeply underexamined.) Some of these are online degrees.

But the JD has remained a largely brick-and-mortar, in-person experience. Schools have done some things to innovate in this area, including broadening externship opportunities and field placements. They have even recently permitted students to receive academic credit for paid externships.

The recent innovation has been led by schools like Syracuse proposing a mostly-online JD, and Mitchell|Hamline (or its predecessor) has offered one for some time.

But existing schools would be building on infrastructure that is decidedly not optimized for online legal education. And they risk demonstrating how their costly existing model is--perhaps undermining their own JD programs in the process. That is, if students are attracted to a significant component of the JD online, what happens to the much more expensive in-person JD experience?

The online JD has significant cost advantages for schools (that, presumably, will offer the program at the same price as in-person courses). Once an asynchronous course in contracts or torts is recorded, it rarely has to be updated or altered. And once the course is "built," it becomes fairly easy to teach repeatedly.

To the extent there are such asynchronous course offers or lecture-based presentations, what's the purpose of that "old-fashioned" law school experience--showing up, sitting in classes, costly enterprises?

Of course, I think there's value in the Socratic method (requiring interactive Q&A), and occasionally small group discussions, and other live and interactive components. Online JDs would eschew all these elements--or, at least, convert them into online experiences when offered in synchronous courses.

It might be that some schools will survive by converting their models into online ones, with dramatically lower overhead and greater ability to scale. That is, as they vie for enrollment, online components might be a way of attracting a new cohort of students.

This isn't to say that online JDs are good or bad. It's simply to indicate they're different--in particular, cheaper for law schools to operate in the long run. And if they're cheaper, what might that do to legal education?

One is the price might drop for legal education, but that seems highly unlikely--recall, schools are built on the brick-and-mortar experience, and they're not winding down those high-priced operations anytime soon.

It might "normalize," in a way, the online JD experience, to the extent that matters to prospective law students. And that might pressure many other law schools to follow suit.

It might also incentive new law schools--built on a lower cost, lower tuition model--to pop up and perhaps undercut existing law schools. That is, law schools might disrupt themselves by creating partly online JDs, making them perfectly ordinary for prospective students, and incentivizing new schools to undercut them in price in the future.

Then again, we might see the signaling function of attending a brick-and-mortar institutions, or at least the institutions that have been around for a long time. Perhaps we'll see a strata of separation between those with the luxury of a costly in-person JD degree (with all the benefits of three years in a social setting physically with other students), and perhaps the future legal services market might reflect that.

It's worth emphasizing perhaps I'm overreading this. It's only a partially-online JD component; it requires school buy-in; it may be that for students externing or studying abroad or moving to a city to work and complete classes in their final year, that these online JD elements are simply convenient devices for schools. And online degree-seekers are recruited mostly locally, anyway; spend a few minutes reading SEC filings with online education companies to see why they develop relationships with so many geographically different universities.

I've offered enough (rampant) speculation about the potential future impact of online components of a JD. But all that is to say that the future impact of online JDs, even as components of a mostly in-person experience, turns mostly on what law schools do with them. If they supplement existing programs, it may have a very modest impact; if they seek to replace existing programs and attract new cohorts of students, they might dramatically alter the landscape of legal education in the next 30 years.

 

Posted by Derek Muller on May 22, 2018 at 11:58 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Monday, May 21, 2018

Entry Level Hiring 2018 - PhDs and Clinical Hires

In the comments below, Orin Kerr raises two interesting questions. First, "One interesting question to see would be percent of hires over time that have a doctorate degree. "

Here, I've broken out the degrees by law doctorates (not counting JDs, of course) and other doctorates. In recent years the Yale PhD has come on the scene, thus increasing the law doctorates. (Click for larger image.)

There are indeed a higher percentage of PhDs, both law and otherwise, over the last two years. It will be interesting over the next few years to see whether this is a trend.

Percent PhDs.20180521

Orin also asks: "Am I right that these numbers are for all tenure-track hiring, whether for clinical positions or for non-clinical positions? I ask that because I have a vague impression of a trend toward making entry-level clinical positions tenure-track instead of non-tenure track. If that trend is happening -- a big if, of course --I wonder how that may be changing the tenure-track numbers you find." Below I've broken out the clinical tenure track hires over the years. There doesn't seem to me to be a notable change in this percentage in the last few years.

Clinical Percent.20180521

Posted by Sarah Lawsky on May 21, 2018 at 10:48 PM in Entry Level Hiring Report | Permalink | Comments (3)

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Spring Self-Reported Entry Level Hiring Report 2018

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2018. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes one hire requested not to be included in the spreadsheet at the date of this posting, although the person will eventually be included in the spreadsheet.)

Here is the full spreadsheet:

The data includes 75 tenure-track hires at U.S. law schools, at 56 different law schools.

Here are answers to some frequently asked questions:

Q: How does 75 reported hires compare to past years?

A: This is an improvement from 2017, and with this last year, it begins to look like we hit the “new normal” in 2014 and have seen fluctuations from around that level since then. The average number of hires per year since 2014 is 72.6. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)

Hires over Time.20180521

The ratio of hires to first-round FAR forms is also up slightly:

Hires per FAR.20180521
Q: You say the hires were at 56 different schools. How does that compare to previous years?

A: Many more schools hired this year than last year. The number of schools hiring was comparable to previous years since 2014.

Schools Hiring.20180521

Hires per school per year may also be of interest:

Hires per School.20180521

Q: How many reported hires got their JD from School X?

JD School.20180521

Yale 18; NYU 8; Columbia 7; Harvard 6; Stanford 4; Vanderbilt 3.

Schools in the “other” category with two JD/LLBs who reported hires: BYU, Chicago, Georgetown.

Schools in the “other” category with one JD/LLB who reported hires: American, Belarusian State U, Berkeley, Boston College, Boston University, Chicago-Kent, Cologne, Duke, Fordham, Georgia, Hebrew University, Kentucky, Lisbon, LSU, Michigan, Northeastern, Northwestern, Notre Dame, Penn, Queensland, UBC, UCLA, USC.

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued. 

Q: How many reported hires had a fellowship, degree, or clerkship?

55 (about 73%) had a fellowship; 41 (about 55%) had a clerkship; 52 (about 69%) had a higher degree. Three reported hires didn’t have either an advanced degree or a fellowship.

Nonproportional Venn diagram:

Venn Diagram.20180521

Q: Not as many fellowships...

A: Yes, the rate of fellowships remains high, though lower than it has been since 2012.

Fellowship Rate.20180521


 Q: From what law schools  did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

Fellowship School.20180521

Columbia 10; NYU 8; Yale 7; Harvard 6; Chicago 4; Georgetown 4; Other 24.

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 52 "highest" advanced degrees broke down like this:

Highest Degree.20180521

Ph.D., SJD, JSD, D.Phil. 36; Masters 7; LL.M. 9; MBA 1.

Topics ranged all over the map. For the 29 Ph.D.s, 7 had degrees in History or US History; 4 in Philosophy, 3 in Law, 2 in economics, 2 in sociology, and the other Ph.D./D.Phil. topics, each of which had only hire, were Anthropology, Comp Lit, Ethnomusicology, JSP, Law and Economics, Law & Society, Literature, Policy Studies, Political Philosophy, Political Science, Politics, and Statistics in Law and Government.

Q: How long ago did these reported hires get their initial law degrees?

Year of JD.20180521

Zero to Four Years (Graduated 2014-2018) 13; Five to Nine Years (Graduated 2009-2013) 38; Ten to 19 Years (Graduated 1999-2008) 23; Twenty or More Years (Graduated before 1999) 1.

Q: How do the "time since initial degree" numbers compare to previous years?

A: They are very similar.

Year of JD Chart

Q: Could you break the reported hires out by men/women?

  MenWomen.20180521

Men 38 (51%); women 37 (about 49%). (Let’s say this is right within +/-2 people.)

Based on a quick count of a number of years of spreadsheets that I happen to have, gender hiring over time follows. (I’ve left out the data labels because I am even less sure than usual of the exactness of the numbers, but they’re roughly right as reflections of self-reported hiring each spring—first Solum’s reports, then mine. And as always, 2010 is left out due to missing data for that year.) 

Gender over Time.20180521

Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Q: Is this available in an easy-to-print format?

A: Why, as it happens, yes!

Originally posted 5/21/2018.

Posted by Sarah Lawsky on May 21, 2018 at 10:43 AM in Entry Level Hiring Report | Permalink | Comments (4)

Sunday, May 20, 2018

Second Thoughts on the “First View” Principle

The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the "first view" principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area

In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.

  1. Byrd v. United States

Byrd supplies a straightforward application of the “first view” principle. In short, the Court notes that a position had not previously been raised, cites Cutter’s canonical statement of the principle, and then (without further explanation) declines to rule on the new position. 

Byrd now argues in the alternative that he had a common-law property interest in the rental car as a second bailee that would have provided him with a cognizable Fourth Amendment interest in the vehicle. But he did not raise this argument before the District Court or Court of Appeals, and those courts did not have occasion to address whether Byrd was a second bailee or what consequences might follow from that determination. In those courts he framed the question solely in terms of the Katz test noted above. Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), it is generally unwise to consider arguments in the first instance, and the Court declines to reach Byrd’s contention that he was a second bailee.

  1. Dahda v. United States

By contrast, Dahda declined to apply the “first view” principle. Without actually quoting the principle, the Court acknowledged that one of the government’s key arguments was new on appeal. The Court then gave some reasons to address the argument anyway – including the fact that the issue had been “fully briefed by both sides.”

We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below. It has been fully briefed by both sides. And as we may “affir[m]” a lower court judgment “on any ground permitted by the law and the record,” we see little to be gained by remanding this litigation for further consideration. [Citations omitted throughout]

  1. McCoy v. Louisiana

Finally, and most interestingly, is McCoy. The “first view” principle came up because the Court chose to resolve a structural error issue that the defendant had raised but that had not been adjudicated below. Most interestingly, the Court provided at least one reason for this choice: the state “explicitly chose not to grapple with” the structural error issue.

The dissent suggests that a remand would be in order, so that the Louisiana Supreme Court, in the first instance, could consider the structural-error question. “[W]e did not grant certiorari to review” that question. But McCoy raised his structural-error argument in his opening brief, and Louisiana explicitly chose not to grapple with it [cite to the passage from the state's brief block quoted below]. In any event, “we have the authority to make our own assessment of the harmlessness of a constitutional error in the first instance.” [Citations omitted throughout]

McCoy differs from Byrd and Dahda in that the defendant was raising a new “question” outside the scope of the question presented, rather than posing a new “argument” in support of a particular answer to the question presented. But that distinction would only seem to strengthen the case for declining to take a “first view” in McCoy. In its brief, the state made a similar point in the passage that the McCoy Court cited as a choice “not to grapple” with the defendant’s newly posed question:

McCoy asserts that the deprivation of his “right to make basic decisions regarding the objectives of his defense,” is structural error. Should the Court agree with McCoy that his constitutional rights were so violated, it should remand without addressing whether the error was structural or subject to harmless-error review. McCoy did not expressly present that question to the Court, and his petition for certiorari did not mention the remedy issue. Nor can the remedy issue be said to be “fairly included” in the question presented. It is not a “predicate to intelligent resolution of the question on which” certiorari was granted, and is not an alternative “argument in support of” the constitutional claim presented. See Youakim v. Miller, 425 U.S. 231, 234 (1976) (“ordinarily, this Court does not decide questions not raised or involved in the lower court”). [Some citations omitted throughout]

The McCoy dissent objected that the majority had transgressed the “first view” principle—which it calls the “the court-of-review maxim”—without adequate justification. And the dissent particularly criticized the Court’s reliance on the state’s asserted failure to “grapple” with the defendant’s new position.

We have stated time and again that we are “a court of review, not of first view” and, for that reason, have refused to decide issues not addressed below. [String cite]

In this case, however, the court-of-review maxim does not suit the majority’s purposes, so it is happy to take the first view. And the majority does so without adversarial briefing on the question. [Footnote reproduced below] Under comparable circumstances, we have refrained from taking the lead on the question of structural error. There is no good reason to take a different approach in this case.

[Footnote] Indeed, the Court actually faults the State for not “grappl[ing] with” an argument raised for the first time in petitioner’s opening brief. But how can it blame the State? This Court has said, time and again, that when “petitioners d[o] not raise [an] issue” until the merits stage, “we will not consider [the] argument.” That is also what our Rules say. Why is this case any different? [Citations omitted throughout the above three paragraphs]

Setting aside the specific dispute between the McCoy majority and dissent, the combination of Dahda and McCoy creates a conundrum. If your opposing party brings up a new argument or question, there seems to be no right way to proceed. A response on the merits will allow the Court to say that the issue is “fully briefed.” But a choice to rest on the “first view” principle could be treated as a decision “not to grapple with” the new issue. Either way would seem to lead to the same conclusion. This logic also suggests that the presence or absence of a response on the merits doesn't really play a significant role in the Court’s decision-making process, since either result seems to support the same conclusion.

But context could play a key role here. If the newly raised matter is one that the justices likely want to resolve even without adversarial briefing—perhaps because the issue seems easy or urgent—then the opposing party might as well try to argue the point, particularly if there is something to say that the justices themselves might not think of. But if resolving the issue without thorough briefing is likely to strike the justices as rash and unnecessary (or if the new position seems like a loser anyway), then a substantive response could be misguided. Similar reasoning also suggests that an opposing party’s response to a new issue could properly push the Court in one direction or another, depending on the overall situation.

More broadly, the Court’s varying use of the ostensibly strict “first view” principle reflects a healthy dose of discretion. And, if deployed uncritically, the principle could work as little more than a cynical cover for the justices to pick and choose the newly presented issues they desire. But there are often legitimate reasons to set aside the “first view” principle, as I’ve discussed in a prior post. And if the Court provides those reasons, then, in time, it might generate a small but helpful jurisprudence on when first views are appropriate.

Posted by Richard M. Re on May 20, 2018 at 09:00 AM | Permalink | Comments (7)

Friday, May 18, 2018

Talent Still Wants to be Free - Economist Opines and New Bills

Posted by Orly Lobel on May 18, 2018 at 11:39 AM | Permalink | Comments (3)

Loose Language in Murphy versus Deep Structure in McCulloch

Over the last couple of days, there has been an interesting pop-up symposium between Daniel Hemel, Ilya Somin, Brian Galle, and Jeffrey Schmitt over the true meaning of Murphy v. NCAA. Daniel (in the latest round) argues that the best reading of Murphy's definition of acceptable federal preemption excludes all "direct" federal prohibitions on state taxation and regulation. Brian Galle agrees, Ilya and I disagree, and Jeffrey has perhaps the best bottom line: "Murphy v. NCAA is Poorly Written and should be Narrowly Applied."

When I am confronted by loose language in a new precedent, my inclination is to sand off the rough edges and try to squeeze the new decision into the pattern of old cases in a way that conforms to common sense. Loose language in Murphy notwithstanding, Murphy should not be read to repudiate Congress' longstanding power to preempt state taxes and regulations, because that federal power of preemption rests on the same principle justifying state autonomy doctrine -- the principle that Congress does not need to commandeer state officials' services precisely because Congress can preempt state law. After the jump, I explain how a broad congressional power to preempt has, since McCulloch v, Maryland, been linked to a constitutional prohibition on Congress' commandeering state officials' services. Moreover, this tie between the pro-preemption and anti-commandeering rules makes sense. Put simply, the feds can create an alternative bureaucracy to regulate where the state bureaucrats refuse to implement federal law, but the feds cannot create an alternative citizenry to deregulate where state lawmakers refuse to waive state laws. Holdout problems, therefore, make preemption necessary (and, therefore, proper) and commandeering of state officials' services, unnecessary (and, therefore, improper).

1. What is the historical connection between the federal power to preempt state law and the prohibition on federal power to commandeer state officials?

As I argued 20 years ago, state autonomy from federal law is simply the mirror image and corollary of federal autonomy from state law. Both are creatures of this passage from McCulloch v. Maryland (emphasis added):

No trace is to be found in the Constitution of an intention to create a dependence of the Government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends.

By McCulloch's reasoning, a federal bank charter (McCulloch) or federal coasting license (Gibbons v. Ogden) automatically set aside state law, because the rights conferred by the federal law could not be impeded or even affected by the existence of state law. By extension, the feds could not conscript state officials to implement federal law, because (again) federal law could not depend on the existence of state officials. That's why Justice Story concluded in Prigg v. Pennsylvania (the first "state autonomy" decision) that the 1793 Fugitive Slave Act could not compel state judges to adjudicate disputes about recovery of fugitive slaves: "the National Government, ... is bound, through its own proper departments ... to carry into effect all the rights and duties imposed upon it by the Constitution." Put another way, it cannot be necessary and proper for Congress to depend on state officials to implement federal law, because (quoting McCulloch) on [federal] means alone was [the federal government] expected to rely for the accomplishment of its ends."

Collector v. Day transformed Prigg's federal obligation into state governments' rights, and the SCOTUS in cases like United States v. Sharpnack gradually repudiated the idea that the feds were barred from delegating federal duties to the states. The "state autonomy doctrine, however, still depends implicitly on the intuition first suggested by McCulloch that the feds have broad discretion to accomplish federal ends with purely federal means. Put another way, it cannot be necessary and proper for Congress to conscript states into implementing federal law, because the normal presumption is that Congress can design systems that do not depend in any way whatsoever on state officials. Of course, if state officials could harass federal rights-holders with state law, then the independence of those purely federal systems would be compromised. The doctrine of preemption allowing the Congress to blot out completely state laws intruding into federally regulated "fields" is just a way to curb such harassment.

2. But why cannot the feds simply purchase the right to preempt from states?

Daniel has provided an interesting and important policy argument that state autonomy might increase the progressivity of taxation by requiring Congress to raise revenue with more progressive federal taxes in order to purchase state officials' cooperation. This argument has very little application, however, to the problem of preemption, because federal purchasing of states' non-interference with federal rights poses gigantic the holdout problems. (Daniel briefly discusses transaction costs of intergovernmental bargaining at 48-52, but he ignores holdout problems).

As I explained in my '98 article (pages 899-901), the premise of federal regulation is that the federal law needs to be enforced in every state in order for the benefits of the law to be achieved. Federal law is, in this sense, like large-scale infrastructure. Because half of a bridge or subway is no good at all, the land purchaser must secure the cooperation of every owner of land needed for the project in order for the project to succeed. Likewise, because a federal statute will not work well in any state unless it applies to every state, every governor and state legislature must sign on to a federal statute for that statute to succeed. Each of the sellers, therefore, has an incentive to holdout for the largest possible share of the "assembly surplus," knowing that their lot is necessary for purchaser's ultimate success.

The holdout problem is much less pressing when the feds seek to purchase the services of state or local officials, because the costs of securing a substitute for state cooperation is much lower. As I noted in my '98 piece (pages 875-886), the feds can always bypass holdout state officials either by building up federal regulatory capacity or by hiring county or municipal help. The longstanding tradition of allowing Congress to preempt state laws, therefore, has an underlying policy justification that does not apply to federal efforts to "commandeer" state officials' services.

It is a happy coincidence when longstanding legal tradition also makes good policy sense. I am optimistic that some loose language in Murphy will not break apart what does not need any fixing.

Posted by Rick Hills on May 18, 2018 at 08:00 AM | Permalink | Comments (0)

Thursday, May 17, 2018

Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke

Katherine Franke (Columbia) was detained and denied entry by Israeli authorities earlier this month. The incident sparked a number of open letters objecting to her treatment. The letter, after the break, is from (some) Jewish law professors.

We, the undersigned, write to protest the refusal of the State of Israel to permit entry to Professor Katherine Franke of Columbia University Law School, along with Vincent Warren, executive director of the Center for Constitutional Rights. Franke and Warren arrived to meet with Israeli and Palestinian colleagues. They were questioned for 14 hours before being sent back home without entry. As colleagues of Professor Franke, we know her as a serious scholar of gender, sexuality, civil rights, and human rights and as the author of one book, numerous well-regarded law review articles, and a second forthcoming book. She holds a chaired professorship at Columbia Law School, where she has also served as vice dean, and she has testified before congress and contributed to several edited volumes.

While much of her work has focused on gender equality and civil rights for African Americans, Professor Franke has been deeply engaged in and concerned about the status of Palestinians both within Israel and under the Israeli occupation. She has worked as a mentor to colleagues in human rights at Al Quds University in Jerusalem. Professor Franke had travelled to Israel as part of a civil rights delegation with the Center for Constitutional Rights and as an academic to meet with Columbia graduate students in Haifa and Ramallah and to meet with faculty at An-Najah University about a possible master’s program in human rights. She previously served as a member of the academic advisory council of Jewish Voice for Peace, an organization that supports elements of the Boycott, Divestment, Sanctions (BDS) movement.

Presumably, it is Professor Franke’s former affiliation with Jewish Voice for Peace and its position on BDS that led to her exclusion. The Knesset has passed a series of laws, most recently in 2017, directed against those who support a boycott, including those who support a boycott of settlement products in the occupied territories. In addition, and with the support of Prime Minister Netanyahu, the Knesset has passed several bills in recent years limiting the right to open and free expression. While some of us agree with Professor Franke’s substantive views, and some of us do not, we are united in our serious concern at her recent exclusion from the country, and the growing trend to exclude visitors based on their viewpoint and beliefs. Denying entry to those with dissenting views is a worrying sign of the erosion of democratic foundations in Israel.

A critical measure of a society’s commitment to democracy lies in its willingness to tolerate political views at odds with those of the ruling regime. We have seen examples around the world, from Turkey to Hungary to Venezuela, of increasing intolerance for dissenting views—and for the very principles of liberal democracy. By its latest action against Katherine Franke and Vincent Warren, the Israeli government has registered its own indifference to the core values of democracy and a deeply concerning unwillingness to tolerate dissenting viewpoints. As Jewish law professors dedicated to democratic values and academic freedom, we call on our academic communities and our academic institutions to stand in support of Professor Franke and the principles which were violated by the denial of entry. We also call on the Israeli government to reconsider its recent steps and permit Katherine Franke and all those who support peaceful political dialogue and engagement to enter the country.

  1. Richard L. Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, UCLA Law School
  2. David Abraham, Professor of Law, University of Miami Law School
  3. Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, UC Berkeley School of Law
  4. Libby Adler, Professor of Law and Women's, Gender, & Sexuality Studies, Northeastern University
  5. Erez Aloni, Assistant Professor, Allard School of Law at the University of British Columbia
  6. Scott Altman, Virginia S. and Fred H. Bice Professor of Law, University of Southern California
  7. Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  8. Jon Bauer, Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights, University of Connecticut School of Law
  9. Paul Schiff Berman, Walter S. Cox Professor of Law, The George Washington University Law School
  10. Susanna Blumenthal, William Prosser Professor of Law and Professor of History, University of Minnesota Law School
  11. Linda Bosniak, Distinguished Professor, Rutgers Law School
  12. Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley Law School
  13. Brenda Cossman, Professor of Law, University of Toronto
  14. Anne C. Dailey, Evangeline Starr Professor of Law, University of Connecticut Law School
  15. Joshua Foa Dienstag, Professor of Political Science and Law, UCLA School of Law
  16. David R. Dow, Cullen Professor, University of Houston Law Center
  17. Peter Edelman, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  18. Sam Erman, Associate Professor, USC Gould School of Law
  19. Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law, UC Berkeley Law School
  20. Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
  21. Ariela Gross, John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
  22. Bruce Hay, Professor of Law, Harvard University
  23. Deborah Rosenfield Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School
  24. Morton Horwitz, Professor, Emeritus, Harvard Law School
  25. Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities, Yale Law School
  26. Hila Keren, Professor of Law, Southwestern Law School
  27. Jeremy Kessler, Associate Professor of Law, Columbia Law School
  28. Karl Klare, George J. & Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law
  29. Diane Klein, Professor of Law, University of La Verne College of Law
  30. Pnina Lahav, Professor of Law and Law Alumni Scholar, Boston University School of Law
  31. Sanford Levinson, W. St. John Garwood and W. St. Garwood, Jr. Centennial Chair in Law, University of Texas Law School
  32. David Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law Center
  33. Michael Meltsner, Northeastern University School of Law
  34. Naomi Mezey, Professor of Law, Georgetown University Law Center
  35. Frank Michelman, Robert Walmsley University Professor, Emeritus, Harvard Law School
  36. Jennifer L. Mnookin, Dean and David G. Price and Dallas P. Price Professor of Law, UCLA School of Law
  37. Samuel Moyn, Professor, Yale Law School
  38. Judith Resnik, Arthur Liman Professor of Law, Yale Law School
  39. Darren Rosenblum, Professor, Pace Law School
  40. Tanina Rostain, Professor Georgetown Law Center
  41. Lawrence Sager, Alice Jane Drysdale Sheffield Regents Chair of Law, University of Texas
  42. Susan R. Schmeiser, Professor of Law, University of Connecticut School of Law
  43. Hilary Schor, Professor of English, Comparative Literature, & Law, USC Gould School of Law
  44. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
  45. Amy Sepinwall, Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania
  46. Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
  47. Jed Shugerman, Professor of Law, Fordham Law School
  48. Dan Simon, Richard L. and Maria B. Crutcher Professor of Law and Psychology, USC Gould School of Law
  49. Jonathan Simon, Professor of Law, UC Berkeley School of Law
  50. Joseph William Singer, Bussey Professor of Law, Harvard Law School
  51. Abbe Smith, Professor of Law, Georgetown University Law Center
  52. Brad Snyder, Professor of Law, Georgetown University Law Center
  53. Clyde S. Spillenger, Professor of Law, UCLA School of Law
  54. Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School
  55. Beth Stephens, Distinguished Professor, Rutgers Law School
  56. Simon Stern, Associate Professor of Law, University of Toronto
  57. Nomi Stolzenberg, Nathan and Lilly Shapell Chair in Law, USC Gould School of Law
  58. Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
  59. Adam Winkler, Professor of Law, UCLA School of Law
  60. Gideon Yaffe, Professor of Law & Professor of Philosophy and Psychology, Yale Law School
  61. Jonathan Zasloff, Professor of Law, UCLA School of Law
  62. Noah Zatz, Professor of Law, UCLA School of Law

Institutional affiliations listed for identification purposes only.

Posted by Howard Wasserman on May 17, 2018 at 04:45 PM in Howard Wasserman, Teaching Law | Permalink | Comments (15)

The sensational hype over lawless law school admissions

There's been a lot of hype about the proposal to end of the requirement that law schools use the LSAT in admissions. Some sources (here unlinked) fret about standardless admissions in law schools and a race to the bottom.

There are many reasons to doubt this. But I wanted to take a few (?) paragraphs to look at the recent past of the LSAT and the transition we may be experiencing.

Current admissions standards require admission of applicants "who appear capable of satisfactorily completing its program of legal education and being admitted to the bar" (Standard 501(b)), which "may" include considering admissions test scores (Interpretation 501-2). Beyond that is a separate requirement for a "valid and reliable admission test" (Standard 503). If a school uses something other than the LSAT, the school "shall demonstrate that such other test is a valid and reliable test" (Interpretation 503-1).

My eyes sometimes glaze over reading string cites to ABA standards, so I'll break in here. These rules simply put schools in the position of having to demonstrate that it's okay to use another test, like the GRE. Inertia, then, has been a major reason why schools mostly stuck with the LSAT. They always could've done something else, but it would require some work.

When the University of Arizona took the lead considering the GRE a few years ago, it had to carry a new burden to prove compliance. But given the sharp decline in applicants and LSAT test-takers over the last decade (improving this year), it seemed like a sensible move. Here was a pool of test-takers more than twice as large as the LSAT pool. Capturing a small percentage of them would be a tremendous advantage. Other schools soon followed suit.

But the burden to "demonstrate" that the test is "valid and reliable" has caused some concern. To start, the ABA hasn't offered much in the way of explaining what the evidence would look like. Schools could offer their best evidence from students who took both the LSAT & GRE, but others were worried whether that might be enough. ETS, which administers the GRE, came out with its own study to show that the test was as reliable, but then others wondered whether that would be enough.

It's worth pausing to note that there are already exemptions from the LSAT requirement. While schools under Standard 503 must require each applicant take a test, there's no rule as to how much weight that test score should receive (Interpretation 503-2). If you are a law school at a university admitting a student from your undergraduate program or another graduate program, you can admit that student without an LSAT score as long as the student scored in the 85th percentile of the ACT/SAT/GRE/GMAT, or was in the top 10% of the class, or had a 3.5 undergraduate GPA (Interpretation 503-3).

Furthermore, the LSAT is less effective than it once was. LSAC reports the highest score, which is less reliable than the average score of repeaters (UPDATE: it's worth emphasizing that schools also still receive the average of all scores and each score from each test; the ABA and USNWR permit using the highest score instead of the average, too); it now also permits unlimited retakes. LSAT is still a much better tool than, say, undergraduate GPA, and it offers (some) pretty good predictive value.

But the recommendation approved this week from the Council that may become final soon would abolish Standard 503 and all its interpretations. Instead, there'd just be 501: demonstrate that you have sound practices. It would also add an interpretation, newly renumbered at Interpretation 501-3: "Failure to include a valid and reliable admission test as a part of the admissions process creates a rebuttable presumption that a law school is not in compliance with Standard 501."

It's not terribly different from the previous rule, except that instead of "shall demonstrate," it's simply that schools have a presumption to rebut--no need to demonstrate a valid and reliable admission test. Demonstrating compliance by showing, say, low attrition rates and high bar passage rates may well be enough. Or, showing that your alternative test is valid and reliable would mean there's no presumption to rebut. (It's worth noting this also abolishes those other rules about taking from your own undergraduate institution--it's all in the same holistic bucket.)

I doubt this will suddenly be a race to the bottom--the bar pass rates and recent enforcement from the ABA should prevent much of that. So, the experimentation can truly begin. That I emphatically support. But will they?

I think many schools will be reluctant to do too much too drastically (but, I think, a few brave ones will!). Inertia matters. Rebutting a presumption matters. And risk-averse schools may become nervous about big changes to their admissions programs, only to see attrition one year later or bar passage rates three years later worsen and having to undo policies.

But beyond all this, USNWR will likely (unfortunately) drive a lot of decision-making. USNWR already converts GRE scores into their percentile equivalents for reporting LSAT medians. I'm not familiar with any evidence that this practice is warranted--I don't know if a 75th percentile score on the GRE is the same, worse, or better, than the 75th percentile on the LSAT. But, to the extent schools are driven by USWNR, they are likely to keep GRE scores, on percentile terms, roughly correlated with LSAT.

It also means that how USNWR in the future decides to handle bodies of students without any test score will be the true test of experimentation. Of course, if brave schools choose to do what they think is best for their students, USNWR be damned... but that's the stuff of rampant speculation.

Posted by Derek Muller on May 17, 2018 at 11:40 AM in Life of Law Schools | Permalink | Comments (4)

Introduction to Judicial Bullshit

My article, Supreme Judicial Bullshit, was just published by the Arizona State Law Journal (vol.50, p.141). Here is the adapted introduction (footnotes omitted):

According to one commentator, unlike certain political discourse, “law is the very opposite of bullshit.” To her, law is “a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale.” Yet, as I will suggest, there is no shortage of judicial bullshit.

You might think that judges, especially those with life tenure, could dispense with bullshit. There are many reasons, however, why judges bullshit, some of them quite strategic. It’s not easy for judges to resolve contentious issues that have flummoxed lawyers and ethicists for decades. Bullshit can help judges appear to address profound questions without actually staking out provocative positions. Indeed, judicial bullshit may sometimes provide the best path forward.

Judicial bullshit is often easiest to spot when judges wax philosophical; hence many of the clearest exemplars come from bioethics cases. Consider, for example, these two sentences from the U.S. Supreme Court’s joint opinion in Planned Parenthood v. Casey, which reaffirmed the fundamental constitutional right to abortion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” If you teach constitutional law or health law, you’ve probably read this passage many times. But have you ever stopped to figure out what it means? It seems to express a lofty commitment to personal liberty, indirectly associating abortion rights with the most fundamental aspects of our humanity.

On closer reading, however, the passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Governments rarely seek to limit people’s rights to define concepts. Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the Justices meant that we should be free to reach our own conclusions about the mysteries of life, but it would have been much more straightforward just to say that. And again, the passage concerns liberties associated with freedom of thought rather than the liberties of bodily autonomy that are at the heart of the abortion debate.

Lastly, it’s not clear precisely what “these matters” refers to in the second sentence. Presumably, these matters are existence, meaning, and the universe and not rights to define concepts of these things. Still, beliefs about existence, meaning, and the universe aren’t the sorts of things typically thought to “define” attributes of personhood. Attributes of personhood are usually qualities that entitle people to basic rights. For example, perhaps abilities to feel pain, be self-aware, or form complex desires constitute attributes of personhood. But how can beliefs about existence, meaning, or the universe (or beliefs about rights to define such concepts) constitute attributes of personhood? Surely humans with no beliefs about these things still have rights to life.

“So what,” you might say, “if the Justices would fail their Philosophy 101 exams?” Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the joint opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way, as we will see, philosopher Harry Frankfurt famously characterized bullshit. The joint opinion references lofty ideas without wrestling in any careful way with those ideas.

How tragic, it may seem, that the authors should get a failing grade in philosophy in one of the most philosophically rich and important cases in the nation’s history. But while it’s possible the joint opinion authors simply lacked the acumen to evaluate what they wrote or failed to carefully compose or edit their prose, the case is so important and closely-scrutinized that the failure to make clear, precise statements might have been exactly what was intended.

I will argue that, among many potentially overlapping reasons, judges sometimes resort to bullshit to: keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, seem as though their hands are tied, and seem principled rather than strategic. I make no strong claims about whether or when courts ought to bullshit, but there are probably appropriate occasions.

At the same time, bullshit lacks transparency, and we should avoid it absent good reason. The “mystery passage” above is quoted in full in hundreds of law review articles and many court opinions, including famous cases such as Lawrence v. Texas, Washington v. Glucksberg, and People v. Kevorkian. Rather than recognizing bullshit for what it is, the vast majority of these scholarly and judicial sources seem to endorse its content. They take the passage to actually mean something with genuine legal implications. Indeed, if judges believe the passage has legal implications, then in fact it probably does. But given the lack of transparency underlying bullshit, judges and scholars should pay keen attention to its use to see what may be hiding in the background.

In Part I, I discuss Frankfurt’s understanding of bullshit and illustrate possible instances of judicial bullshit in a wide range of bioethics cases, especially those decided by the U.S. Supreme Court. In Part II, I examine several potential instances of bullshit in the joint opinion in Planned Parenthood v. Casey to show the role bullshit can play more broadly in a single opinion. Casey concerns the particularly controversial issue of abortion and arguably uses bullshit to deflect attention from the thorny philosophical questions at its core. I don’t take a position as to whether the joint opinion should be applauded or condemned for its apparent reliance on bullshit, but I do highlight ways in which judicial bullshit reduces transparency in ways that may be troublesome.

The composition of the Supreme Court may change dramatically in the coming years, and many of the Court’s apparently-settled constitutional cases will reopen for debate in ways that few scholars predicted. Now is a particularly timely opportunity to reexamine the philosophical arguments underpinning those and other decisions to see where bullshit must be replaced by careful argumentation and where bullshit might be the best we can hope for.

Posted by Adam Kolber on May 17, 2018 at 01:57 AM | Permalink | Comments (28)

Wednesday, May 16, 2018

Murphy v. NCAA’s Escape from Baseline Hell

Justice Alito’s opinion in Murphy v. NCAA is not elegant. But it does the trick: With the good ol’ “Direct”/“Indirect” distinction and sheer judicial fiat, SCOTUS managed to extricate itself from baseline hell, an infernal location in which the Court tends to find itself w.r.t. Printz’s distinction between “negative” preempting prohibitions and “affirmative” commandeering mandates.

Being a frequent tourist in baseline hell, I will say a word after the jump about why SCOTUS might have finally found that hellish environment intolerable and therefore ditched the “affirmative”/“negative” distinction w.r.t. state autonomy. I will also argue that the SCOTUS’s new “direct”/“indirect” distinction is best understood as leaving old-fashioned preemption unscathed, contrary to a suggestion by Daniel Hemel. (And, I might add, a good thing too — again, contrary to an excellent follow-up post by Hemel, who likes the taxation consequences of state autonomy just a tad too much, even for a decentralziation-loving guy like myself. But that’s a topic for another post). (BTW, for a typically interesting response to Hemel, see Brian Galle’s post).

Finally, I will suggest that the “direct”/“indirect” distinction might confer on states a new immunity from federal laws that try to prohibit states from conferring benefits like university seats and drivers’ licenses on state residents. 8 U.S.C. §1621 is one such law, forbidding states from conferring any “grant, contract, loan, professional license, or commercial license” on unlawfully present aliens. If my analysis of Murphy is correct, then this federal effort to prevent unlawfully present aliens from getting drivers’ licenses and the like is probably unconstitutional.


1. How is Murphy an escape from Baseline Hell?

Murphy is an elegant illustration of how disagreements about baselines can make a hash of distinctions between “negative” prohibitions and “affirmative” mandates. The Professional and Amateur Sports Protection Act (PASPA) makes it unlawful for a State “to ... authorize by law or compact . . . a ... betting, gambling, or wagering scheme based . . . on” competitive sporting events. New Jersey has repealed its old ban on sports betting. The NCAA and the United States said that it has thereby “authorized” such betting: NJ’s repeal is, therefore, preempted. New Jersey said that it has merely refrained from prohibiting betting, so “preempting” the repealed was tantamount to requiring the continuation of (aka “commandeering”) the state prohibition.

Of course, as a formal matter, both sides are correct: The answer depends on whether the “normal” baseline is defined by a world without any state ban on gambling or instead a world in which states routinely prohibit such gambling. Unless SCOTUS wants to define what constitutes the “normal” (or normatively desirable) state of affairs, SCOTUS is stuck in baseline hell — i.e., that hellishly futile debate about whether a decision constitutes a “negative” failure to provide a special benefit or an “affirmative” imposition of a special cost.

2. Does Murphy’s new “Direct”/Indirect” distinction threaten any sort of traditional preemption?

I think not, but Daniel Hemel disagrees. He notes that Murphy condemns any “direct” regulation of states and notes that lots of federal prohibitions on state taxation seem to be such “direct” regulations. (These prohibitions certainly do not mention any private persons to whom they might apply).

I think that he might be overreading Murphy. Here’s why.

Alito’s opinion sidesteps preemption by arguing that federal laws may set aside state law whenever the former “imposes restrictions or confers rights on private actors” and “state law confers rights or imposes restrictions that con­flict with the federal law.” The federal law then operates by the Supremacy Clause’s conflicts of law rule to set aside the state law because “the federal law
takes precedence.”

All of Daniel’s examples of federal laws that preempt state taxation confer a right on private individuals to be free from such taxation. The same goes, of course, for doctrines like the dormant commerce clause and analogous federal statutes. Indeed, such federal laws typically appear in litigation because a private party raises them as federal preemption defenses to state causes of action.

In short, a federal law setting aside state law (“deregulatory nationalism,” if you will) is safely insulated from “state autonomy” doctrine just so long as a private party can assert that federal law as a defense in litigation against the preempted state law.

Daniel argues that, if “words have any meaning,” then Murphy’s effort to save preemption must fail, because the result in Murphy falls within this exception for preemption literally construes. In Daniel’s words

any law that says “states cannot authorize X” can be redescribed as a law that says “private actors are prohibited from doing X notwithstanding any state law that authorizes them.” If this sort of redescription maneuver works, then Murphy itself should have come out the other way, because the challenged provision of PASPA could be redescribed as a permissible regulation of private actors (which the Supreme Court said it was not).

I think that Daniel’s argument overlooks Murphy’s emphasis that PASPA does not confer on either the AG or any private party any right to bring a cause of action against private gamblers. “If a private citizen or company started a sports gambling operation, either with or without state authorization,” Murphy states, “§3702(1) would not be violated and would not provide anyground for a civil action by the Attorney General or any other party.”

To avoid Murphy, federal laws merely need to create a cause of action against a private party for engaging in some federally forbidden activity accompanied by a preemption clause barring any state law from authorizing that which federal law forbids. The problem with PASPA is that it did not contain this “direct” federal prohibition on private gambling.

Murphy, therefore, does not so radically broaden the anti-commandeering rule as to threaten federal preemption. Contrary to Daniel’s post, I think that federal limits on state taxing authority are, I think, safe.

Note also that, under my analysis, Murphy might spare 8 U.S.C. § 1373, the provision that bars state and local governments from interfering with their employees’ aiding the federal government. To the extent that such employees can assert section 1373 as a federal defense against state or local disciplinary action, section 1373 would seem to qualify as a federally conferred right falling squarely within Murphy’s exception for preemption that incidentally sets aside state law.

3. How Murphy might eliminate 8 U.S.C. Section 1621’s ban on states’ conferring benefits on aliens

But Murphy does broaden state autonomy doctrine in some important ways. Consider, for instance, 8 U.S.C. §1621(a), which provides that “an alien who is not [otherwise qualified by the statute] is not eligible for any State or local public benefit [as defined in the statute].” This statute purports to tell states on whom they can confer various benefits like drivers’ licenses and seats in public universities. This federal law not only looks like a “direct” regulation of state and local governments but also does not contain any defense that any private party could easily raise in litigation. Section 1621 does not allow any private person to set aside some state regulation or tax: Indeed, states’ giving (for instance) a driver’s license to one private person hardly looks like a burden on another private person sufficient to confer standing to sue on the latter.

So I think that 8 U.S.C. §1621 must bite the dust post-Murphy.

And a good thing, too: There is something deeply absurd about the federal government’s telling state and local governments not to spend their own money as they please when no specific individual is harmed by such spending. That absurdity could find a place to hide in “baseline hell,” because a federal law barring unlawfully present aliens from receiving drivers’ licenses could be characterized as a “negative” prohibition rather than an “affirmative” mandate. Murphy‘s getting rid of that particular baseline inquiry leaves §1621 out in the cold.

Posted by Rick Hills on May 16, 2018 at 07:11 PM | Permalink | Comments (7)

Wrapping Up "Punishment and Moral Risk" Discussion

My thanks to Stephen Galoob, Mary Sigler, Chad Flanders, Chelsea Rosenthal, and Emad Atiq for a thoroughly interesting informal symposium on Punishment and Moral Risk. Each piece had a distinct voice and perspective on the topic.

In my next post, I'll talk about some bullshit.

For the record, here are links to the response pieces and my further replies:  Emad Atiq (reply), Chad Flanders (reply), Mary Sigler (reply), Stephen Galoob (reply), and Chelsea Rosenthal (reply).

Posted by Adam Kolber on May 16, 2018 at 01:15 PM | Permalink | Comments (0)

New Constitutional Law Jot: "#Resistance, With Candor"

Jotwell, of which I am a co-editor of the Constitutional Law section, specializes in calling attention to new articles we "like lots." I liked Sandy Levinson and Mark Graber's recent article, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, lots. And here is my "jot" discussing that article, titled #Resistance, With Candor

Liking an article lots is not the same thing as agreeing with it completely or not having serious questions and potential objections to it. In the jot, I set out Levinson and Graber's recommendations for courts dealing with actions of this administration and their reasons for those recommendations (which are virtue-based!--I'm happy to see so many people are now interested in aretaic questions in law), commend them for the candor of those recommendations, and raise broader questions about what their approach means and how it would be applied. An obvious question is how we can distinguish acceptably "Publian" presidents from unacceptably "anti-Publian" presidents. But I am more interested in another question, which I have said and continue to think deserves more attention: What's the goal or end game? Here's an excerpt from the jot:

Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? . . . 

This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance. . . . [A] resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.

There's more, of course, including an application to the travel ban case and some thoughts about so-called constitutional "settlements." It's long for a jot--of course; I wrote it--but short by legal academic standards. Enjoy! 

Posted by Paul Horwitz on May 16, 2018 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 15, 2018

Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?"

In Emad Atiq's response to my Punishment and Moral Risk, he states that he finds "negative retributivism" especially plausible and describes it as follows: "Punishing a person who does not deserve to be punished is morally impermissible." In the first sentence of his response, he writes, "Adam Kolber suggests that negative retributivism requires impossibly high degrees of credence in individual desert claims for punishment to be morally permissible." He goes on to argue that negative retributivism avoids my critique.

As a preliminary but important matter, I simply don't believe that negative retributivism falls under my critique in the first place. I write, for example, "I will focus on a pure deontological form of retributivism that takes desert to ordinarily provide a sufficient reason to punish without reliance on other possible goals of punishment like deterrence, incapacitation, and rehabilitation." Later in the paper, I have a section called "traditional hybrid theories" that explicitly discusses "limiting retributivism" which is the same or a close cousin to the "negative retributivism" Atiq favors. Atiq doesn't address this portion of my paper at all (and the arguments there are meant to be suggestive and not exhaustive in any event).

The reason I don't address Atiq's form of negative retributivism in my central argument about justification is that negative retributivism does not purport to justify punishment. As Atiq recognizes, it is simply a constraint on punishment. So the negative retributivist needn't assent to all nine of the propositions I discuss. For example, she might deny that "those who commit serious wrongs deserve to be punished (or to suffer) in response." After all, she merely views desert as a limitation on punishment, not something that necessarily provides an obligation or even a reason to punish (and the proposition probably implies at least a reason to punish).

Indeed, a person could be a serious consequentialist with the exception that she views negative retributivism as a limit on punishment. In my paper, I argue that consequentialism is less subject to my epistemic challenge than traditional forms of retributivism. Negative retributivism could require even less punishment than pure consequentialism; so it is on firmer justificatory ground than the retributivists I focus on. I do say things in the paper that might apply to negative retributivists, but it all depends on what their underlying justification of punishment is not their limitation on punishment.

In a footnote, Atiq writes that he takes negative retributivism to be among the views I target, even though "[t]he view that Kolber treats as paradigmatically retributivist is one that treats desert as a sufficient condition for punishment, not just a necessary condition." Still, he writes, "[w]hat I say in defense of negative retributivism applies with full force in the case of this alternative position, so long as it is consistent with ends like crime prevention being treated as valuable and as pro tanto reasons to punish (subject to the desert constraint). The "so long as" condition makes Atiq's version of negative retributivism sound a lot like consequentialism. So the short answer is, I think the portion of my paper Atiq focuses on has limited application to the retributivist view he finds most plausible. 

Atiq also describes a principle he calls "CERTAINTY:  Punishing a person without at least 90–95% credence that the person deserves to be punished is morally impermissible."  He points out, quite correctly in my view, that nothing about retributivism entails CERTAINTY.  Where I disagree is with his view that I support CERTAINTY (see, e.g., Atiq p.141 ("[Consider] Kolber's own reasons for thinking that the retributivist is committed to CERTAINTY"). I never suggest that retributivists need a justificatory standard of proof anywhere near as high as 90%. Most retributivists would readily concede that they need at least 50% confidence punishment is deserved (otherwise they would think it more likely that punishment is undeserved than deserved), and I suspect that the standard must be substantially higher than that to match the values that seem to underlie retributivist commitment to the beyond-a-reasonable-doubt (BARD) standard. But I don't expect retributivists to endorse a principle as demanding as CERTAINTY. 

Let's put these concerns aside for now and turn to what I think is the heart of Atiq's argument: Atiq argues that just because a person believes that juries should find that a defendant committed all the elements of a crime beyond a reasonable doubt does not mean the person believes defendants should only receive punishment when they deserve it beyond a reasonable doubt. So far so good. The BARD standard itself does not compel us to have a high overall justificatory standard. But I never claim that it does. Rather, as I repeatedly state, my focus is on the values that I attribute to retributivists who believe in the BARD standard. They typically defend the standard in Blackstonian-type terms: e.g.,  better ten guilty people go free than one innocent person be punished. The ratio takes a position on how to value the risks of error as to factual issues (or, perhaps more precisely, risks of error as to the satisfaction of the elements of a crime).

Once again, though, I don't claim that there is a logical entailment between belief in the Blackstone ratio and a similar hypothetical ratio for errors of deservingness more generally. Indeed, I acknowledge some reasons why one might differentially value these errors to some extent. But I do argue that it's hard to see why a retributivist's Blackstone-like ratio for errors of fact would be all that different than her Blackstone-like ratio for errors of desert. The reason is that the traditional retributivist justifies punishment in terms of desert. So it seems inconsistent to give radically different valuations to different ways of being undeserving. If punishment is underserved, it's not clear why it should matter all that much to retributivists the reason that it is undeserved.

Atiq tries to explain why different kinds of desert errors could be relevant to retributivists but does so by referencing consequentialist considerations that, as I discuss above, are supposed to be screened off. In a footnote, Atiq wonders whether his view of BARD involves a reinterpretation or rejection of the Blackstonian view. Either way, though, my argument concerns the values that retributivist commitment to the BARD standard seems to reflect and are not, generally speaking, consequentialist values. (Even if I hadn't screened off Atiq's flavor of negative retributivism in my piece, Atiq should argue not only that consequentialist considerations could lead to a divergence between the standard for factual guilt and for deservingness more generally but also that the consequentialist considerations he supports would still lead to a BARD standard at all. If his view doesn't lead to a BARD standard, then it is obviously outside the scope of my argument. And note that any consequentialist argument for the BARD standard is likely to be quite tentative since consequentialist commitment to the BARD standard depends on many hard-to-predict empirical considerations.)

After setting the BARD issue aside, Atiq asks whether the core retributivist prohibition on punishing the undeserving prevents retributivists from taking significant risks that they are punishing the undeserving. (Traditionally, the prohibition has been described in terms of punishing the innocent, but of course, I have no objection to treating it as a prohibition on punishing the undeserving.) Atiq argues, correctly in my view, that the traditional prohibition on purposeful and knowing inflictions of undeserved punishment does not directly apply to merely risking inflictions of undeserved punishment. That's why I don't locate the force that pushes retributivists to avoid excessive moral uncertainty in the deontological prohibition against punishing the undeserving.

As discussed, the force of my argument stems from the Blackstonian-type values that seem to underlie traditional retributivist support for BARD. Notice that even though the Blackstone ratio is typically described in terms that lack a mental state qualification such as "intentionally, knowingly, or foreseeably," the ratio is understood to refer to risk taking. That's why Blackstonian-style commitment to BARD is relevant to my argument. It reflects a tradeoff between errors of undeservingness. And, again, while Blackstonian errors refer more explicitly to the satisfaction of the elements of a crime, it is a very small further step to think that retributivist commitment to Blackstone-type ratios will lead them to similar ratios about errors of deservingness more generally.

Finally, though I don't think it bears on the argument in my paper, in conversation, I posed a challenge to Atiq's support for the deontological prohibition on purposely or knowingly inflicting undeserved punishment on a particular individual. Here's how Atiq describes it:

Kolber in conversation raises the following objection to my overall view:

Suppose that there’s a new public policy proposal that will save one million lives each year, but, unfortunately, it will require us to increase our punishment error rate a bit. Indeed, it will cause precisely 100 more innocent people to spend life in prison than would otherwise. These one hundred people weren’t targeted in anyway, and almost all people would prefer the substantial improvement in life expectancy from the plan relative to the rather tiny chance of being erroneously punished.

The negative retributivist might accept this deal on consequentialist goods. But now suppose that the policy makers ask the retributivist whether she would like to know who the 100 people would be. Kolber imagines my retributivist covering her ears, for identification would dramatically change the moral situation and prevent her from accepting the policy. Kolber is right that this reaction would be absurd. The reason it would be absurd is that in refusing to know the identities of the 100 innocents, the caricatured retributivist is imposing an artificial constraint on her epistemic situation. If members of the larger population were surveyed for their objection to the policy, they might reasonably ask: do we know who the innocents will be, and, more importantly, would I be one of the innocents? It is no response to this concern to say: we have the names written somewhere but we are not looking so we cannot tell you. The critical difference between this case and the standard case of undeserved punishment is that information concerning who the undeserving is [is] not available, either to the policy makers or the individuals being punished. The lack of knowledge concerning the identities of the undeservingly punished is not the result of a failure of enquiry. [Atiq drops a footnote here: "I recognize that here lie dragons: it is a hard question when lack of knowledge is attributable to the knower in the sense that the knower bears responsibility for the uncertainty and when it is not. We do not need a theory of this distinction for present purposes. The point is just that there is a distinction that is manifestly important from the moral point of view."] 

In the objection Atiq discusses, I question why it should matter whether we know the identity of the particular person being undeservedly punished. Atiq believes that he resolves my objection by saying that when one doesn't know a person's identity, we will treat it as knowledge of the identity if the lack of knowledge results from a mere failure of inquiry.

But as he foresees in a footnote, "here lie dragons." What constitutes a failure of inquiry? One method to determine when there is a failure of inquiry is to engage in a cost-benefit analysis that compares the value of the information we hope to obtain to the time and other resource costs of engaging in the inquiry. But why should the happenstance of costs of the inquiry bear on the moral permissibility of saving one million lives? Even if we don't use a cost-benefit analysis, retributivists will presumably identify some sort of duty to inquire lurking here. Shouldn't that duty be rather weak when a stronger duty would jeopardize one million lives? Atiq cannot respond to such important questions simply by adverting to a duty of inquiry and asserting that he identifies "a distinction that is manifestly important from the moral point of view."

To make matters even messier, imagine the following dialogue between a prosecutor and the sort of retributivist Atiq envisions:

Prosecutor: We can save an enormous number of lives this year, but it will require us to punish one innocent person.

Retributivist: Do we know who it is? Because if so, I disapprove.

Prosecutor: Well, we've engaged in a quite searching inquiry, far beyond the minimum required of us. The person looks like this [a photo is shown to the retributivist].

Retributivist: Then I disapprove of punishment. If we know who will be undeservedly punishment, there is a firm deontological prohibition against proceeding.

Prosecutor: All I said is that he looks like this. This is a photo of John Robinson. He might be the one who gets undeservedly punished but it might also be his twin brother, Steve Robinson, who looks virtually identical. So, you see, we really don't know who will be undeservedly punished.

I doubt Atiq's retributivist would now assent to the undeserved punishment, but why not? Is the pool of two people too small? What if there were ten or one hundred clones and we don't know which of the ten or the one hundred it would be? What if the prosecutor came to the retributivist not with a photo but with a physical human being and said we've got the person but we don't the person's identity. It could be one of one hundred different people as far as we know. Can the retributivist proceed to undeservedly punish now? What if we have the severed finger of the person who will be undeservedly punished but we do not yet know to whom it belongs?

I have trouble seeing the moral relevance of the possible distinction at play here that is supposed to be manifestly important. My own inclination is that morality should be pushing us to worry quite a bit about lives unseen for we are much more likely to neglect statistical lives than identified lives. Here lie dragons indeed. There may be dragons on my side as well, but I think there are too many on Atiq's side to confidently assert that the distinction he relies on is manifestly morally important.

While I believe Atiq largely responds to arguments that I don't make, working through his claims reveals a remarkable level of agreement between us. For example, we both seem to think that traditional retributivist beliefs entail little about moral uncertainty and that consequentialist views are less vulnerable to my epistemic challenge than pure retributivist views. The main source of disagreement, I think, concerns the nature of the retributivist values underlying the Blackstone ratio. Atiq seems to think that the Blackstone ratio entails nothing about the relative values of other errors of deservingness, while I say that, entailment is not at issue--it's still a small step from the retributivist values underlying the Blackstone ratio to the claims I make. Atiq's response helpfully encourages exploration of Blackstonian values and pushes me to explore the boundaries of the kinds of retributivism that likely adopt such values. 

I am grateful to Atiq both for his thoughtful response paper and for our conversations surrounding it, and I hope that we continue the conversation in the future.

Posted by Adam Kolber on May 15, 2018 at 04:22 PM | Permalink | Comments (4)

Monday, May 14, 2018

Brady “Materiality” and the Anemic Implementation of Prosecutors’ Disclosure Obligations

Building on previous posts (here and here) examining how various kinds of prejudice rules impact the efficacy of criminal procedure rights, here I take a close(ish) look at Brady’s prejudice requirement. As mentioned before, the modern Brady doctrine is something of an outlier in constitutional criminal procedure because it classifies prejudice, or “materiality,” as an element that defines the scope of the defendant’s underlying procedural right. (This, at any rate, is what the relevant Supreme Court decisions seem to say—see, e.g., here, here, and here—though some lower court judges, and even several justices, admittedly construe them differently.) Ordinarily, courts define constitutional rights without regard to outcome-determinative prejudice and permit appellate and postconviction courts to consider prejudice (via the harmless error doctrine) only when determining whether an error warrants a remedy. Yet under the Supreme Court’s Brady decisions, no prejudice means no error—at least since Bagley (1985), and possibly earlier. I will not dwell here on the Court’s many purported justifications for placing the Brady rule on this unusual doctrinal path. Instead, I aim to show how the Court’s choice has subverted effective implementation of the Brady right in ways that a harmless error rule would not have.

First, Brady’s materiality element may impair constitutional implementation by appellate and postconviction courts by assigning to the defendant the burden of proof regarding prejudice. Harmless error rules ordinarily place that burden on the prosecution—requiring, for most constitutional claims that are preserved and raised on direct appeal, that the prosecution prove “beyond a reasonable doubt” that the errors were not prejudicial. Modern Brady law, by contrast, requires the defendant to establish a “reasonable probability” that, had the prosecutor disclosed the suppressed exculpatory evidence, the outcome at trial would have been different.

I suspect—and the Supreme Court apparently intended—that these variations in the appellate/postconviction burden of proof probably make a difference in some unascertainable fraction of cases. Yet I doubt that they often make or break a defendant’s prospects for prevailing on a Brady claim. And regardless, what I find more interesting (and troubling) about Brady’s materiality rule lies in its effect on other actors—especially prosecutors, trial judges, and legal ethics regulators—who also have important roles to play in Brady’s implementation. Which brings me to:

Second, Brady’s materiality element restricts prosecutors’ constitutionally required disclosure obligations and thus, presumably, reduces the quantity of exculpatory evidence that prosecutors voluntarily reveal to the defense. By using prejudice to define the scope of the Brady right (and the corresponding duty it imposes on prosecutors), the Supreme Court has invited prosecutors to suppress evidence—even evidence that is exculpatory for Brady purposes—if they, the prosecutors, don’t think there is a “reasonable probability” that disclosure would result in a defense verdict. (Materiality aside, Brady requires prosecutors to disclose “exculpatory” evidence—generously defined as any information that is even minimally “favorable” to the defense—that is “known” to the prosecution.) Given confirmation bias and other impediments that scholars have thoroughly discussed elsewhere (see, e.g., here, here, and here), it’s hard to imagine that even the most well-intentioned prosecutors often come by evidence that they regard as so favorable to the defense that it could plausibly make or break the government’s prospects at trial. (Perhaps recognizing this problem, some chief prosecutors “instruct[] all the attorneys . . . to focus on ‘favorability’ . . . , while ignoring the issue of ‘materiality.” These prosecutors deserve our applause. But needless to say, many have not followed this course.) To the extent, then, that prosecutors accept the Supreme Court’s invitation to disclose exculpatory evidence only if it is reasonably probable that the evidence will affect the outcome favorably to the defense, we should expect them to turn over very little evidence indeed.

That said, constitutional law is of course not the sole repository of prosecutors’ disclosure obligations. Nonconstitutional law and professional ethics rules often impose disclosure obligations that go further than Brady and even, in some jurisdictions, require disclosure of all exculpatory evidence without regard to materiality. But many parts of the country still lack significant criminal discovery safeguards beyond those furnished by Brady. And relatedly…

Finally, in some jurisdictions, courts have cited Brady offensively to gut alternative methods for ensuring a fair level of prosecutorial disclosure. Consider, for instance, the Louisiana Supreme Court’s recent decision in In re Seastrunk (from fall 2017). The issue in that disciplinary action was whether the nonconstitutional disclosure obligations of prosecutors, under Rule 3.8(d) of the Louisiana Rules of Professional Conduct, are “broader than” or “coextensive” with those prescribed by Brady, especially with regard to materiality. The text of Louisiana’s version of Rule 3.8(d) tracks the elements of Brady almost verbatim—except that it contains no reference, whether implicit or explicit, to materiality. Although a fair interpreter of text might take this omission as a clue of some sort, Louisiana’s high court construed Rule 3.8(d) as implicitly containing a materiality restriction identical to Brady’s. By doing so, the court informed Louisiana prosecutors—who, to say the least, do not have a great track record of Brady compliance (see, e.g., here and here)—that neither the Constitution nor professional responsibility requires them to disclose exculpatory evidence that, in their view, would not change the outcome of a trial.

It is commonplace for scholars, and increasingly judges, to complain that Brady has fallen far short of its early promise. Although Brady’s many problems certainly do not all stem from its materiality element (for other key problems, see here), the prior observations suggest, I think, that the materiality doctrine forms an integral part of the story behind Brady’s failure. Agree? Disagree? Other ideas? I look forward to your comments!

Posted by Justin Murray on May 14, 2018 at 06:08 PM | Permalink | Comments (5)

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Reply to Rosenthal's "Response to Adam Kolber’s 'Punishment and Moral Risk'"

In Chelsea Rosenthal's interesting and carefully-crafted reply to my Punishment and Moral Risk, she is "sympathetic to the idea that we must account for moral uncertainty, and not only factual uncertainty, when determining whether we are justified in punishing" but is "not persuaded that this has the implications for retributivism that Kolber suggests." I break her discussion up into seven main points.

First, she argues that the nine retributivist propositions I examine are importantly different. Some cast doubt on retributivism, while some, she writes, cast doubt on whether particular retributivist standards are satisfied (footnotes omitted throughout):

Doubts that retributivism is the correct theory of when to punish are fairly different from doubts about whether the standards set up by retributivism are satisfied in a particular case . . . . [I]t is not clear how uncertainty about whether retributivism is the correct theory could play a comparable role in his argument—because this involves doubts about whether retributivism’s standards are the correct ones in the first place. These doubts do not suggest that punishment will often be unjustified under retributivist standards (Kolber’s claim); they are just doubts about whether to adopt those standards. Of course, if these doubts are abundant, they might, themselves, provide good reasons to reject retributivism, but this would be independent of Kolber’s argument.

My central claim is that retributivists cannot be sufficiently confident to justify the punishment of particular offenders consistent with certain values they typically hold toward the beyond-a-reasonable-doubt (BARD) standard. I don't take those values to represent a core feature of retributivism--just a common one. (Rosenthal anticipates this view in her fn. 3.) It's true that my nine key retributivist propositions are somewhat varied in their sources of error, but I don't see why that matters. In order to justly punish some particular offender, a retributivist must believe all nine are satisfied. And because confidence in all nine will always (or virtually always) be lacking or unreasonable, the paper becomes a broad indictment of retributivism.

Second, Rosenthal states "[D]oubts about the correctness of retributivism do not have to lead the retributivist to doubt whether punishment is justified. Instead, we might have someone who doubts retributivism because they have some sympathies for alternative theories of punishment, under which punishment is easier to justify." Were this to happen, I would count the paper successful. It's not as though one is a retributivist and is stuck there forever. If a retributivist begins to shift ground, he may shift to other theories and so his view that punishment is justified may stay largely the same, but he'll hold that belief for different reasons and with different implications for the nature of just punishment. The key from my perspective is that such a retributivist is not justifying punishment on traditional retributivist grounds. Indeed, such a retributivist may be following exactly the sorts of hybrid approaches that I discuss later in the paper (as Rosenthal recognizes).

Similar comments apply to Rosenthal's claim that "[u]ncertainty, for example, about whether 'suffering (or punishment) is an appropriate response to wrongdoing' raises doubts about whether retributivism is a plausible theory of punishment, rather than doubts about whether to punish a particular defendant." Agreed. I count it sufficient to raise doubts about whether an offender's punishment is justified on retributivist grounds. Maybe I needed to drive that point home more clearly in the paper, because I view it as kind of implicit. Of course, if one was a retributivist who is led to drop that view, he may be less confident that punishment is justified tout court, at least momentarily. 

Third, Rosenthal has a worry about circularity: 

Ultimately, too, using general doubts about retributivism to support Kolber’s argument has an air of circularity to it. Kolber wants to show that retributivist standards of proof cannot be met, in part because of doubts about the rightness of retributivism. This requires us to apply retributivism’s standards of proof to the question of whether retributivism is correct—in order to suggest that those standards are unlikely to be satisfied. But, I am unsure what it means to do this. We would be stipulating that retributivism’s standards are correct in order to use them to address whether retributivism is correct. The circularity is made more troubling by the suggestion that the standards would not ultimately be met—that is, that we would not be justified in adopting the retributivism whose standards we were using for the inquiry.

First, I'm not sure that the offender-specific propositions are so retributivism specific. Retributivism is a view about when punishment is morally deserved, and I think it's silent about at least some of the offender-specific propositions (e.g., whether some particular offender engaged in the acts charged, whether some particular conduct should be criminalized). Second, even if there were some overlap, it should be addressed by the same measures that I put in place to enable us to multiply confidence in the propositions: namely, each proposition assumes the truth of the prior propositions. This isn't a matter of circularity: this is a matter of deliberately assuming the truth of prior propositions to allow the math to focus on new elements of uncertainty.

Fourth, Rosenthal makes a point about forced choice which I entirely agree with. If you accept my central claim that retributivists cannot be sufficiently confident to justify the punishment of particular offenders consistent with certain values they typically hold that lead them to support the BARD standard, they could decide: (1) to drop retributivism, (2) to drop the view that punishment is justified, or (3) to drop the BARD standard or the values that I claim lead them to support it. 

Fifth, like some others, Rosenthal also wonders how closely my criticism is geared toward retributivists as opposed to consequentialists. I say that the sort of epistemic challenge I discuss potentially affects both. At least in terms of moral risk, however, I think the challenge is more serious for retributivists (who subscribe to the values underlying BARD).  For consequentialists, the standard for factual guilt is itself a matter of consequentialist calculation. So though consequentialists may be surprised by whatever comes out of the consequentialist calculation, it cannot conflict with consequentialism. It may mean that we need to punish a lot more or less than we do now. By contrast, I claim, the values underlying retributivist commitment to BARD seem to put a thumb on the scale against punishment in a way that, I claim, makes it too difficult for retributivists to be sufficiently confident to punish particular offenders.

Sixth, Rosenthal helpfully notes that the "instructional standard of proof" about factual guilt in criminal cases (BARD in the U.S.) might be different than the justificatory standard of proof as to factual guilt in criminal cases. In other words, we might really have a standard of factual guilt below BARD, but we have to use BARD for jurors to achieve appropriate results overall. I don't think this is a typical move for retributivists, but it might make sense; indeed, the values underlying BARD may demand it--given the way retributivists typically value errors of deservingness relative to underdeservingness, they might want to make it even harder for jurors to convict. The option might not be available to all retributivists, though, as some retributivists might hold standards of transparency that conflict with this approach.

Overall, though, I doubt this approach helps retributivists much to avoid my main concerns. While it might loosen retributivists up a bit in terms of the values underlying BARD, it's too insubstantial to have much effect. Suppose you think BARD is supposed to direct jurors to something like 95% confidence while our actual justificatory standard with respect to factual guilt is 90%. I don't think much changes, especially because if we're willing to punish with 90% true confidence, we've thereby introduced a lot of permissible error before getting to the tricky philosophical stuff. It will be hard to even end up above 50% confidence in the conjunction of all the propositions. (Incidentally, it's not obvious why retributivists would even have a justificatory standard with respect to factual guilt rather than just an overall justificatory standard for deservingness, but that's a matter for another day.) 

Finally, we turn to the topic of portfolios of beliefs, and I encourage people to keep an eye on Rosenthal's work in this area (see, e.g., her dissertation at her n.14). As I state and as Rosenthal recognizes, my work here is admittedly speculative and is really meant to lay groundwork for future scholarship that people might choose to pursue. So I don't think we have much to disagree with here. Rosenthal states, though:

On [Kolber's] view, combining beliefs well can reduce our risk of moral wrongdoing or help us to navigate difficult moral questions. But, at least on one natural reading, this seems to get the relationship between our beliefs and our choices backward. We may combine financial investments in ways that increase or decrease our total risk, but it does not seem that we can do this with beliefs. First, risk-reduction would be the wrong reason to hold a belief under many epistemological theories. If beliefs should aim at truth, for example, it would be a mistake to select beliefs in order reduce our risk of moral wrongdoing—and, in any case, it is not clear that we could select our own beliefs successfully.

More fundamentally, though, how risky an action is will depend upon the plausibility of moral views that condemn it; we do not adopt beliefs about those views in order to reduce (or increase) the risk. Instead, we manage our risk by adjusting our actions in light of the plausibility of different moral views.

There is, indeed, a deep debate about whether we ever should adjust our beliefs based on certain practical considerations that do not affect the truth of those beliefs. (Newcomb's paradox might be thought to raise questions of the sort.) But I wasn't seeking to take a stand on that controversial issue. In the paper, I make no claim that we ought to change our credence in particular ground level claims about morality in order to reduce our moral risk. So if I didn't rule out the reading Rosenthal considers, I simply intend to remain agnostic about it. The portfolios of beliefs discussion, however, also involves second-order claims about how we ought to think about our ground level moral beliefs. So maybe the discussion of portfolios of beliefs is meant to alter beliefs in the limited sense that some people might not have been thinking about morality using such a tool and the availability of the tool might itself alter the way people think about morality. Maybe that's the sort of belief change Rosenthal was sensing from the paper. I'm not sure. At least in Rosenthal's critique, I think she's referring to changes in ground level beliefs.

I end by expressing my appreciation for Rosenthal's deep and well-informed analysis. Among many benefits, I'm sure it will help me more clearly explicate pertinent concepts in future writing. 

Posted by Adam Kolber on May 14, 2018 at 12:07 PM | Permalink | Comments (0)

Sunday, May 13, 2018

Liberalism for Conservatives: The Art of Separation

There has been a lot of writing lately by Catholics criticizing “liberalism.” Patrick Deenen insists that “liberalism” has failed us by undermining community, religion, and morality with its relentlessly individualistic anthropology. Adrian Vermeule argues that “liberalism” is a religion of secular materialism that denounces all other beliefs as superstitious bigotry. I have criticized Deneen’s understanding of “liberalism” here and Vermeule’s here, but these criticisms imply that I have some other conception of “liberalism” in mind.

So here a rival understanding of liberalism. To my mind, “liberalism” refers the ideology supportive of rules and governmental institutions designed to protect the jurisdiction of differentiated social institutions —- e.g., churches, newspapers, families, lawyers, universities, and the like — from inappropriate encroachments by each other and the government. The space preserved by these rules and institutions is known as “liberty” (hence, the term “liberalism”). The rules and institutions that provide this protection include due process of law, independent courts, juries, separation of executive from legislative powers, freedom of the press, and so forth.

So understood, “liberalism” is, in Michael Walzer’s phrase, “the art of separation.” Contrary to Ryszard Legutko, liberalism is not a “modernizing project” commenced by the Jaobins but rather a tradition-preserving project commenced by the English Civil War and the Glorious Revolution. Far from being tied to scientific materialism, this version of “liberalism” as Institutional Separationism is closely tied to Western European Christianity: As Harold Berman argued more than three decades ago, Pope Gregory VII may have invented this liberalism in the 10th century when he defended separate jurisdictions for church and state.

After the jump, I’ll give an explanation for why my brand of “liberalism” is truer to the usage of the term and the history of the practices most commonly associated with the term than Deneen’s or Vermeule’s. Moreover, I’ll also urge my fellow conservatives, especially Catholic conservatives, to sign up. International and cosmopolitan institutions governed by universalist principles like the Catholic Church depend on liberalism as institutional separation to protect them from the homogenizing force of populist nationalism.


1. Liberalism properly understood is institutional separation

First, let me re-state my version of “liberalism” a little more plainly and pedantically. The liberal as institutional separationist believes that, in a socially differentiated world, different institutions should govern different parts of society according to different principles. Families should generally determine the best interests of children; lawyers, the best interests of their clients; universities and colleges, the proper pursuit of academic disciplines; churches, the proper worship of God; etc. Liberalism as Institutional Separation requires that these jurisdictional divisions be protected, using various procedures like jury trial, independent courts, limits on properly governmental purposes, private property, separation of legislative and executive power, etc., to protect this institutional separation.

2. Will the Real Liberalism Please Stand Up?

One might reasonably ask why I think my usage of the term “liberalism” is better than Deneen’s or Vermeule’s (or Ryszard Legutko‘s or any number of other self-described anti-liberals).

Let’s start with the history of the word itself. “Liberalism” on its face celebrates liberty. Every political party that has ever had the term “liberal” in its name, from Gladstone’s to Nick Clegg’s, has been committed to important constraints on government that protect the liberty of individuals and institutions from the homogenizing political and social forces. It is still the case in Europe that “liberal” parties like the FDP stand for more limits on the power of the state than Socialist or Christian Democratic parties.

If one wants more evidence from common usage, consider how Chinese intellectuals like Beida law prof He Weifang use the term “western liberalism” (西自由主义): They understand “liberalism” not to be a modernizing force that forces all private organizations to adopt progressive norms but rather to be those rules that protect private organizations from all homogenizing norms. (Incidentally, these self-described Chinese “liberals” are not fans of secular materialism: They are disproportionately Christians).

Of course, some of the people who call themselves “liberals” have pressed for some pretty illiberal regulations in the name of Progress. But “progressivism” is not “liberalism.” Taking intrusive regulation of private institutions to be the defining character of “liberalism” just because some self-described liberals have sometimes — not always — pushed for some sorts of intrusive regulation is like taking the defining characteristic of “Nazism” to be promotion of fast transportation because Hitler happened to be a champion of the autobahn.

3. Isn’t your version of “liberalism” just Classical Liberalism,” aka “libertarianism”?

Nope. Liberalism as Institutional Separation is neutral on the question of how property entitlements ought to be divided up or whether contracts ought always to be enforced. Different stripes of “liberals” can debate over whether and to what extent transactions ought to be blocked or property, periodically redistributed. Liberals simply insist that, however property and contract be defined, the definition should not give some single sovereign the power to re-make society in any particular image. Instead, contract, property, and other legal rules ought to preserve the independent jurisdictions of socially differentiated institutions (family, church, newspaper, business, government, trade union, etc).

4. So what is Liberalism as Institutional Separation Against?

The arch enemy of the liberal is the “absolute monarch” — that is, the single ruler who claims unlimited power to govern every other institution, free from constraints that keep each institution, including the government, in its own lane. It follows that, far from being the progenitor of liberalism, Thomas Hobbes was the 17th century’s most famous anti-liberal. Likewise, Robespierre was not the founder but the destroyer of “liberal” institutions. (I would take these propositions, by the way, to be worthy of publication in the Social Theory Journal of Duh, except that people like Deneen and Vermeule repeatedly conflate secular materialism with “liberalism” without much explanation beyond the cliche that Locke is somehow Hobbes’ “intellectual heir”).

5. Why should Catholics be especially supportive of liberalism as institutional separation?

Catholics might have invented the concept of institutional separation back in the 10th century, and Catholics, as members of a cosmopolitan organization with universalist principles, are among those with the most to gain from maintaining the “institutional separation” ideal.

First, consider the idea that liberalism as institutional separation has a Catholic pedigree. Gregory VII championed the principle that the church should enjoy autonomy from secular monarchs, introducing the germ of the idea of liberalism as institutional separation into 10th century Europe. Harold Berman has famously laid out the revolutionary implications of this idea. I met Berman back in 1988, but I only appreciated his insight that western civilization is defined by the co-existence of different legal regimes within a single state after having spent sixteen months living in the People’s Republic of China. Neither the Qing Empire nor the Communist Party ever accepted the idea that a single regime could tolerate legally autonomous institutions.

Second, consider how early modern monarchs aspiring to absolute power made the Catholic Church their special target, precisely because the Church defended its status as a legally autonomous trans-national institution. Even ostensibly Catholic monarchs like Louis XIV had no tolerance for a genuinely independent Church, because Louis sought absolute and undivided sovereginty over everything in France. That’s arguably why Pope Innocent XI, as described by Steven Pincus, was Louis XIV’s bitter enemy, supporting the Glorious Revolution against Louis’s ally, James II: The Pope realized that an all-powerful even if ostensibly Catholic monarch would never tolerate an independent church.

The heirs of Louis XIV are not liberals but populist nationalists who similarly aspire to absolute sovereignty within their nations. Do not get too cosy with guys like Hungary’s Victor Orban or Poland’s Jaroslaw Kaczynski. Yes, they champion some causes favored by Catholics, but, as champions of undivided popular sovereignty, they are no more likely than Louis XIV to protect an international, cosmopolitan institution like the Catholic Church.

Posted by Rick Hills on May 13, 2018 at 11:30 AM | Permalink | Comments (10)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, May 11, 2018

On mixing academic and journalistic writing (Updated)

Olga Khazan at The Atlantic summarizes a new article by Austin Frakt, Aaron Carroll, Harold Pollack, and Keith Humphreys--all academics who write for newspapers, blogs, and other popular outlets--discussing the rewards and challenges of writing for popular journalistic outlets and audiences as an academic.

From my limited experience writing regularly here and at SCOTUSBlog and dabbling with op-eds in newspapers or magazines, it seems to me there are two issues--one is style/tone, the other is level of detail and support. The latter obviously decreases in these formats--writing 500-1000 words on a germinating idea that will get 20,000 in a full article means less detail and support. A blog post or opinion recap is not meant to be a full scholarly analysis. I find style/tone to be trickier--I assume readers here are law-trained, which I sometimes forget when writing for a different audience that is law-interested but not law-trained.

Update: I also agree with Frakt, et al. about speed, which is unnecessary for academic projects. I am a slow reader and processor, so the process of quickly turning around a report on an argument or opinion is painful for me. I also tend to rush when pressed for time and make bad grammatical mistakes or fail to provide the right links (as happened in this post--the link to Khazan's piece is fixed).

Posted by Howard Wasserman on May 11, 2018 at 02:20 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Adrian Vermeule’s Anti-Liberal Chic?

I cannot tell whether Adrian Vermeule is perfecting what I will call, as a nod to Tom Wolfe, the style of “anti-liberal chic.”

Tom Wolfe’s 1970 essay describing " Leonard Bernstein’s party for the Black Panthers was delicious satire, because the swanky opulence of Lenny’s Park Avenue penthouse was glaringly inconsistent with the Panthers’ message of militant racial struggle that Bernstein pretended to endorse, indicating that the ostensible endorsement was merely a fashionable pose. Anti-liberal chic is just the right-wing version of Lenny’s faux Left radicalism. The performer who conveys anti-liberal chic attitude appears to attack the basic principles of liberal democracy for the sake of the frisson that comes with being a dangerous iconoclast. But the basic presuppositions of the performer’s life suggest that attack is really just a pose.

Vermeule’s talk on the relationship between liberalism and democracy, delivered at the invitation of the Polish Consul-General, sounded a bit like Lenny in his Park Avenue penthouse. It is a little hard to tell, however, because Vermeule’s remarks were so cagey. He may have said that a government’s harassing its critics through police surveillance and arbitrary arrests is a legitimate democratic choice. Or he might have said merely that Jarosław Kaczyński‘s Law and Justice Party in Poland has not actually been engaging in such non-liberal behavior. After the jump, some thoughts on why that very ambiguity is the kind of coy flirtation with authoritarianism that might qualify as anti-liberal chic


1. What did Vermeule say?

Vermeule was asked to discuss whether Poland’s election of the Law and Justice government suggested tension between liberalism and democracy. Vermeule responded to the question by asserting that liberal critics of the Polish government suffer from “professional hysteria.” Poland, after all, is not nearly as repressive as China or Saudi Arabia, so why all of the fuss? Those “nonliberal” Polish voters who elected Law and Justice politicians are, according to Vermeule merely protecting “the particularistic solidarities that are constitutive of so many of the goods of human life” from “experimental individualist projects of self-actualization by educated elites.” Liberals who protest against this regime are just peeved that Polish voters rejected some liberal effort at this sort of cultural erasure by rootless cosmopolitans, thereby “expos[ing] the elite character of the liberal project.”

2. Is Vermeule saying that Poland’s doing fine because it is not illiberal? Or because illiberalism doesn’t matter to democracy?

Because Vermeule never described in any detail why anyone was actually upset with the Law and Justice Party, it is hard to tell whether he is applauding Polish anti-liberalism or instead denying that any such Polish anti-liberalism actually exists. This silence rendered Vermeule’s whole speech mystifyingly ambiguous.

On one hand, Vermeule might be suggesting that EU critics of the Polish government are being hysterical because the Polish government has not actually been anti-liberal. Sure, the government has been criticized for cracking down on dissenters. According to Amnesty International, Poland’s Law and Justice government arrested anti-government street demonstrators arbitrarily, deprived them of a right to see a lawyer, and subjected them to harassing police surveillance. That government also signed into law a statute that criminalizes any statement charging the “Polish nation” with complicity in the Holocaust. The government not only did not condemn, but even refused even to acknowledge the existence of, marchers in Warsaw’s Independence Day chanting “white Europe!”

But nobody’s perfect. Poland still has a robust civil society, an independent judiciary, and a reasonably free press. Compared to China or Saudi Arabia, Law and Justice’s petty repressions seem like small potatoes. Likewise, the Polish Sejm’s giving itself the power to select members of the national judicial council (i.e., the body responsible for nominating Polish judges) might not be a cause of concern, because those judges will still enjoy some protections from the majority party like civil service tenure. Moreover, the Sejm’s electoral accountability might suffice to deter blatant legislative attacks on judges who resist the majority party. The EU’s invoking Article 7 to strip the government of its EU voting rights is, therefore, a hysterical over-reaction, because Poland essentially still remains a liberal democracy.

The problem with this benign interpretation of Vermeule’s talk is that Vermeule never offered any such defense of Poland. Instead, he seemed to say that it is hysterical to protest any law as undemocratic if election that produced the legislature was “free and fair” and “the passage of legislation” was “according to constitutional procedures.” One does need to be Alexander Meiklejohn to believe that this is a pretty anemic definition of democracy. If the purpose and effect of Poland’s new law on the selection of judges were to staff Polish courts with stooges from the Law and Justice Party who will uphold prosecutions of all and only anti-government demonstrators, then how is such a law consistent with “free elections” in the future? Such a slender definition of democracy seems to be “one person, one vote, one time.” If one believes that the democratic right to choose one’s leaders is inalienable, then Vermeule’s minimalist definition of democracy looks simultaneously anti-democratic and illiberal.

3. Is Vermeule just flirting with anti-liberal chic?

In the end, it might be that Vermeule is just indulging in anti-liberal chic. By refusing to acknowledge that some sorts of procedural protections are necessary for a regime to count as democratic, he allows his audience to speculate that he is a seriously bad-ass radical anti-liberal, someone who does not blanch at laws that make the courts into the majority party’s tool. Think of such a gesture as like wearing a Che Guevara tee shirt — a really cheap way to signal one’s willingness to offend without putting any specific cards on the table about one’s own specific views about, say, the acceptability of locking up demonstrators who offend the regime in power.

This studied ambiguity with which Vermeule brushes aside liberal criticisms of the current Polish regime as elite “hysteria” makes me a little queasy. If Vermeule thinks that the Polish government is not at risk of using the police against political opponents, then he should say so (and say why). If he thinks that it does not matter whether the police harass the regime’s opponents because those opponents offend the “particularistic solidarities” of Polish voters, then he should also say so. The former sort of statement would make him an ordinary liberal. The latter sort of statement would make him an ordinary anti-liberal. But mocking the Polish government’s critics as “hysterical” without explaining why seems less like any sort of liberalism or anti-liberalism and more like a chic gesture worthy of Lenny.

Posted by Rick Hills on May 11, 2018 at 12:02 PM | Permalink | Comments (27)

How to evaluate multiple choice questions on your exam

Professor Matthew Bruckner asked about how to evaluate multiple choice questions, so I thought I'd share how I go about reading my analysis report for multiple choice exams. (It's also a much-needed move away from blogging about idiosyncratic preferences in legal education....) To do that, I'll offer a portion of a redacted analysis report, and how I use it.

McqWhew. This was actually the first run of my multiple choice on one exam, for reasons I'll explain in a moment. It's an excerpt from an exam with more than 30 multiple choice questions. (If you have the opportunity to take advantage of these reports, do so!)

Let's start at the top. The higher the reliability coefficient (a figure between 0 and 1), the better your exam is at distinguishing among test-takers. It's really evaluating how consistently individuals performed across questions. As a rough rule of thumb, I aim for a figure above 0.5, but I don't get down if it's below that. It's worth noting this is only a rough way to estimate the quality of the exam, and the figure is much less valuable in an exam with a relatively small number of multiple choice questions or few students. A low figure may mean the exam is too easy (too many people got too many answers correct and it's not differentiating students), too hard (problem in reverse), or poorly drafted (students have to guess at ambiguous questions)--low figures are a red flag. It also might mean you simply have a group of students that are all of like ability, but I've found that's less likely the explanation.

Along the left are a few clues to help evaluate each question. The first is the total percentage who answered each question correctly; you can see figures ranging from 89.58% to 18.75%. A high percentage of correct answers can be okay if you want to test simple or straightforward concepts; too many, and the test is too easy. And vice versa. Questions with a low answer rate--say, below 40%--are a flag for me to see if they're simply difficult or if I did something wrong.

The next three columns--upper 27%, lower 27%, and point biserial--are ways of evaluating the quality of individual questions. If those with high scores (i.e., upper 27%) on the overall exam typically answered a given question at a high rate, and those with low scores (i.e., lower 27%) on the overall exam typically answered a given question at a low rate, it means that it's helping separate performance in the class.

Take Question 5: about 71% of students got it right, but 100% of the top-performing students go it right, compared to 46% of the bottom students. That relationship translates to the point biserial. A 0.58 biserial on Question 5 means there's no red flag with this question--it's separating performance among test-takers. It may even be a sign it's a good question. (These are measured on a -1 to 1 scale.)

Now, that also means that low biserials are a red flag--if the questions aren't separating the top from the bottom students, there may be a problem with the question.

If there's a low biserial but a high total percentage correct, then it just means the question is pretty easy and there's not much that the question is doing to separate students. Consider Question 15: nearly 90% of the class got it right, with 100% of the top and 100% of the bottom, giving it a dismal -0.05 biserial. But it's not too harmful--it just means that it's an easy question, maybe something to weed out in the future. (Then again, sometimes I like to include easy questions to test certain basic concepts.)

But if there's a low biserial and a low total percentage correct, I may have a problem--perhaps my question has a defect, or I bubbled in the wrong answer on my master Scantron. Sure enough, look at Question 11: 15% of the top students and 8% of the bottom students got it right, for a biserial of 0.13 and a total percentage correct of just 18.75%. That's a big signal for me to go check my work. Sure enough, I bubbled in the wrong answer on my Scantron sheet, so I could send it back for a redo.

I feel much more confident in asserting that low biserials are a red flag, and high ones are the absence of a red flag. That's also a reason why I'd then correlate the essay answers with the multiple choice answers. With some concession that they're testing different things, we'd hope to see a strong relationship between the two elements of the exam.

In short, there's a wealth of information in these reports. They can help you troubleshoot problems on your exam. If you plan on re-using some questions again in the future, or have the opportunity to modify them, the results can help you improve them for future use.

Posted by Derek Muller on May 11, 2018 at 09:11 AM | Permalink | Comments (10)

Thursday, May 10, 2018

Because it's International *Shoe*

For the third straight year, most of my Civ Pro students completed extra-credit "creative projects," including video skits, parody songs, board games, poems, and crossword puzzles. I stole this idea from former GuestPrawf Josh Douglas and I love how it has caught on. Students know about it from year to year and they seem to have a good time with it.

Among my favorites this year was a series of buttons that one student made. One button read "Certain Minimum Contacts," then the rest contained a drawing of a different type of shoe bearing the name of one of the tests for purposeful availment ("stream of commerce," "Effects," "Seek to Serve," etc.). Pretty cool-I can wear the appropriate one to class when we cover each of the tests.

But until someone pointed it out to me today, I did not understand why the student drew shoes.

I need a vacation.

Posted by Howard Wasserman on May 10, 2018 at 05:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

To Dismiss or Transfer a Mockingbird

My recently-administered-but-still-to-be-graded  Civ Pro exam was built around the lawsuit over the Aaron Sorkin-penned stage adaptation of To Kill a Mockingbird, including questions on personal jurisdiction. On Monday, as my students were taking the exam, the district court denied Rudin's motion to dismiss for lack of personal jurisdiction. The court concluded that there was purposeful availment given the contract with Lee (an Alabaman) and her ongoing influence over the script, along with the fact (downplayed in Rudin's brief) that Rudin pursued Lee in Alabama (through emails to Lee and her Alabama attorney) for some time to get her to enter into negotiations. But the court transferred the action to the Southern District of New York under § 1404, finding that the private interest factors (mainly the location of witnesses) favored New York and that Lee's choice of forum received less deference because of her inequitable action in suing rather than meeting with Rudin to discuss concerns with the script.

All of which became moot today, when the Estate and Rudin "amicably settled" the litigation.

Posted by Howard Wasserman on May 10, 2018 at 05:28 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Teaching in Two-hour Blocks

For many years, before moving to UNLV this year, I taught Constitutional Law as a four-hour course in two, two-hour blocks. Two hours is a long time even with a ten-minute, mid-class break, so last year, I split the two hours. I taught the first hour before lunch and the second hour after lunch. And I think it went much better that way. It felt much more like two one-hour classes than one two-hour class.

I also used the lunch break to meet with students over lunch so we could talk about the course in a less formal setting.

Because I was teaching a required first-year course (second semester), we didn't have to worry about creating conflicts with too many other classes, as might be a problem with an upper-level course that crosses two scheduling blocks.

I'm now teaching the individual rights part of Constitutional Law as a three-credit course, so I can't continue my experiment. But I recommend it to others who find a two-hour stretch challenging.

(It's great to be back for a visit. Thanks very much for including me this month.)

Posted by David Orentlicher on May 10, 2018 at 02:33 PM in Teaching Law | Permalink | Comments (2)

Entry Level Hiring: The 2018 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Friday, May 18. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Friday, May 18.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 18, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 10, 2018 at 01:28 PM in Entry Level Hiring Report | Permalink | Comments (0)

Call for Proposals - Second Annual Equality Law Scholars' Forum

From Tristin Green, Angela Onwuachi-Willig, and Leticia Saucedo:

Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 9-10, 2018 at UC Davis Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018.

Full drafts must be available for circulation to participants by October 19, 2018.

Proposals should be submitted to:

Tristin Green, USF School of Law, tgreen4@usfca.edu.  Electronic submissions via email are preferred.

Posted by Sarah Lawsky on May 10, 2018 at 11:49 AM | Permalink | Comments (0)

Law schools marketing to law professors

I received tenure last year (hooray!), and we all know what that means: I'm now on 200 law school mailing lists. I'm one of the cohort of USNWR "peer" voters. And I get more law school marketing (or, in the crass lingo, "law school porn") than I ever thought imaginable.

It's not clear to me why law schools market in the first place. A merger & name change will raise your peer score; a big scandal will drop your peer score (perhaps indefinitely); a couple of other schools have figured out ways to elevate the quality of their institutions and materially change their peer scores; but otherwise, they've been very sticky for two decades. Indeed, there's not much evidence that peer score drives USNWR ranking; if anything, the opposite might be true.

But let's put all that aside and operate under the fiction that these marketing materials can materially affect what law professors think of law schools. What marketing works best?

I have no marketing background. And perhaps my reactions are idiosyncratic. But after receiving about 100 emails and 100 tangible marketing materials, I feel confident about a few things.

On physical mail:

  • School alumni magazine? Straight into the garbage.
  • Anything in an envelope? Straight into the garbage.
  • A photo of a Supreme Court justice who spoke at your school? A bemused smile... then straight into the garbage.

The physical mail I've enjoyed the most (to me)--and this one I've received for many years now, even as a non-voter!--is the University of Virginia's annual issue of a few articles from their faculty in the past year. I usually find at least one thing I'd want to read.

A couple of schools have sent along trinkets, which I find remain on colleagues' desks. Does it translate into a better peer score? Perhaps....

And I vastly prefer physical mail to email. Physical mail has a much higher cost to the sender; that, I think, tends to temper the kinds of materials that are sent. And it also has a much lower cost to the recipient: a couple of times a week, I glance through a stack and quickly discard as I walk, with little time or disruption.

But email. It's much lower cost to the sender to send to thousands with a single click, and higher cost to the recipient because it's not time-delayed. So it should be no surprise that email is far worse, in my view....

Then again, I loathe email. (My colleagues will attest to this.) And still worse is (1) email from a list I never signed up for and (2) that arrives outside of business hours (that's 11 am to 5 pm ET to account for us West Coasters). The ping of the phone is the worst. (Ed.: then turn off your phone!) I think an email from a stranger is akin to ringing the doorbell when I'm in the bathtub--extraordinarily obnoxious and assuredly counterproductive. (Particularly bad are emails that lack an "unsubscribe" feature.)

So, reactions on email:

  • Large stock photo at the top of the email? Into the trash.
  • Alumni newsletter? Into the trash.
  • A letter from a dean explaining how this school's not doing the typical marketing email? Into the trash.

Of the 100 emails, one jumped out as interesting (again, to me) was the University of Richmond. Simple, direct, relevant. (To be fair, several others followed this kind of template, too.)

And that's when I realized it. The only think that would really move me about an institution are things like new hires or recent publications. (That and, of course, clean design and simple presentation.) Those are the kinds of things that might make me think, "Huh, they've got great people!" And probably the only thing that might budge a peer score.

Perhaps others have different reactions. Perhaps I am idiosyncratic. And law schools are doing lots of things other than just hiring faculty and producing scholarship. But... that's what the other elements of rankings, or other rankings, are designed to capture, I think--job prospects (e.g., an element of USNWR), student satisfaction (e.g., Princeton Review's rankings), and the like. Peer scores are, I think, simply doing something different. (Again, maybe not to everyone.) And, I think the big disappointment with "law school porn" is that it's not often designed to highlight these things that schools are doing. But perhaps others enjoy scrolling through a stuffed inbox each morning in September and October....

Posted by Derek Muller on May 10, 2018 at 09:10 AM | Permalink | Comments (5)

Dialogical Reply to Flanders's "How Much Certainty Do We Need to Punish?"

And now for something a little different. Chad Flanders has written a reply to my Punishment and Moral Risk article in the form of a dialogue between fictional versions of ourselves. He uses "ChadF" (or just "C") to refer to fictional Chad Flanders and "Kolbert" (or just "K") to refer to fictional Adam Kolber. It seems only appropriate to respond with a dialogue as well.

[SETTING: Outside an independent bookstore in Brooklyn.]

C: Hey Kolbert, fancy seeing you two days in a row. Stay back, this is a new shirt!

K: Yeah, sorry I caused you to spill your coffee yesterday. And sorry that when I went to buy you a new one, I passive-aggressively complained about the high price of coffee these days. I guess I just wasn't myself. I even felt like some of the words I said weren't really my own.

C: Weird! I feel that way right now. There's probably some expression in German that perfectly captures the feeling. Anyway, no sweat about the coffee. In fact, overall, we probably agree about more than we disagree.

K: True, most importantly perhaps, we agree that how people treat uncertainty about desert can sensibly vary from situation to situation. I believe typical retributivists are far more willing to allow the deserving to go free than the undeserving to be punished. So they have higher credence requirements for state punishment than for, say . . .

C: . . . getting annoyed that someone spilled coffee on you.

K: Exactly. And all of this fits with what you wrote in your email, even if I wouldn't put matters exactly the same way.

C: Anything we talked about yesterday you disagree with or want to clarify?

K: Well, since you asked, in my paper, I don't defend full-blown free will skepticism. I simply raise doubts about free will. So some people might go about their ordinary lives believing in free will, apologizing for spilling coffee and so on. It's only when the risk of moral error get seriousness enough that they need to worry about being wrong about free will and related issues. 

C: What else?

K: I like your point about Bernie Madoff. 

C: Right, to oversimplify, I implied that one might feel more confident that Bernie Madoff deserves punishment than confident in all of your abstract philosophical propositions required to show that he deserves it.

K: I'm sure people may have that "feeling," but it does seem problematic. In a way, the main point of the paper is to reveal that retributivists have more confidence in their punishment of particular offenders than is warranted. Maybe there's some back and forth equilibrium here such that one's confidence in the guilt of particular offenders might somehow bolster confidence in the individual propositions required to show that punishment is just. But my approach is pushing for a kind of consistency that most retributivists have ignored.

C: I see. You make it sound like retributivists are committing the conjunction fallacy.

K: I don't know, but your Madoff example might point to the possibility. I'd put it this way: Suppose someone said, "I realize my chances of picking the right numbers for any one of the six lottery number draws is rather small, but I still think my chance of winning the whole thing is pretty good." You'd have solid ground to challenge that person's reasoning.

C: But you admit that there may be some cases where retributivists actually have enough confidence to punish?

K: I'm not so sure about that. It depends on how one estimates confidence levels in the propositions. If a retributivist had very high confidence in the four general propositions (e.g., 99% each), and the particular case seemed rather easy as to each of the five other propositions (99% confidence each), the retributivist would have a maximum of 92% confidence in the conjunction. Is that sufficiently high to punish consistent with retributivist values? Maybe. But even if it were sufficient, I have my doubts that a reasonable person could have such high levels of confidence in free will and related matters.

C: I see. So maybe when I said that retributivism might be something we're committed to as an idealization of the real world, you didn't completely agree. 

K: Right. There are idealizations and there are idealizations. Depending on how one fills in the probabilities, justified retributivism may simply be too far removed from the land of plausible aspirations. (If you're idealization allows for the elimination of moral risk, though, then sure, my criticism wouldn't apply anymore. So it all depends on what we're allowed to idealize.)

C: What about my claim that you underplay the important retributivist value of giving people the punishment they do deserve?

K: Retributivists strike a balance between the good of punishing those who deserve it and the bad of punishing those who don't. They will, indeed, vary in how they strike that balance, so you're right that nothing is logically entailed about this balance just from retributivism itself. But I speak specifically of those retributivists who subscribe to the values that seem to underlie the Blackstone ratio. And I find it unlikely that retributivists have good grounds for treating errors about facts all that differently than they treat other errors of deservingness. But short answer: My consistency argument against retributivists only applies to those that think it substantially worse to punish those who don't deserve it than to punish those who do (and I think this relative weighting is rather common among traditional retributivists).

C: I see. So have you found our conversations helpful?

K: Absolutely! You haven't felt picked on, have you?

C: Not at all! Besides, growing up with the name ChadF, I'm used to it. Nobody expects my name to have that final "f" sound. And people are always writing "ph" instead of "f," and it's a pain when I give out my name over the phone. 

K: I could imagine. By the way, you said yesterday that you were working on a reply to my paper. How's it going?

C: It's going well. Do you think you'll blog about the replies when you do your Prawfsblawg guest stint? 

K:  Probably not. I worry readers may get sick of the topic if I first blog about it and then post responses to all five replies. We'll see.  But if I do, I hope people know that I'm grateful for our conversations these last couple of days. They've really clarified several matters. And thanks for putting together the group that wrote the replies. It's a treasure trove!    

Posted by Adam Kolber on May 10, 2018 at 08:24 AM | Permalink | Comments (2)

Wednesday, May 09, 2018

Prejudice, Legal Realism, and the Right/Remedy Relationship

Last week, I sketched the contours of a criminal procedure puzzle that’s been on my mind lately. To briefly recap, the puzzle I’m exploring has to do with the unusual way in which courts conceptualize prejudice in two of criminal procedure’s most important doctrinal areas: (1) the Brady rule, which requires prosecutors to disclose (some) exculpatory evidence to the defense as a matter of Due Process, and (2) the Sixth Amendment right to effective assistance of counsel. For both of these rules, the Supreme Court has held that prejudice is an element of the defendant’s constitutional entitlement, which means that if no prejudice ensues from a prosecutor’s failure to disclose exculpatory evidence or from ineffective assistance of counsel (“IAC”), then no constitutional error occurs. By contrast, in most other areas of criminal procedure, courts consider prejudice only in specific remedial contexts—typically as part of harmless error review in appellate or postconviction proceedings—and do not characterize it as an element that restricts the scope of the underlying procedural rights.

Does this distinction make any practical difference? In The Path of the Law, Holmes famously defined law as “prophecies of what the courts will do in fact, and nothing more pretentious.” Inspired by this conception of law, one might dismiss the distinction I’ve identified as unintelligible or, at best, unimportant. After all, when applying any of the doctrines discussed here—Brady, IAC, and harmless error—appellate and postconviction courts will deny a remedy for alleged criminal procedure errors that are not prejudicial. Because our “prophecies” about how these courts will act does not vary across all three doctrines, it is tempting to conclude—as does Dan Epps in a provocative forthcoming article—that they are “functionally indistinguishable” from one another.

I respectfully disagree—with Holmes as to the nature of the right/remedy relationship, and with Epps regarding prejudice law. The grounds for my disagreement with each of them are intertwined. My concern with Holmes’ theory of rights and remedies—at least when applied to constitutional law (as Daryl Levinson and others have done)—is that it is unduly court-centric. By reducing the import of law to remedies supplied by courts, Holmesian legal theory obscures the fact that nonjudicial actors often make important contributions to rights enforcement. Likewise, I worry that Epps overlooks or underestimates the value of criminal procedure enforcement by nonjudicial actors when he equates the denial of appellate and postconviction remedies for nonprejudicial errors (via harmless error review) with the idea, reflected in Brady and IAC law, that nonprejudicial “errors” are not true legal errors at all. Relatedly, Epps also neglects the fact that trial judges often enforce rights that—unlike Brady and IAC, but like most criminal procedure rules—lack a prejudice element even when nonenforcement of those rights at the trial level would not prejudice the defendant and thus would not result in a remedy on appeal.

That’s my theory, anyway—what does the evidence show? In future posts I will show that, for Brady and IAC, (1) there are a number of potentially valuable enforcement mechanisms besides appellate and postconviction remedies, but (2) the prejudice element that the Supreme Court built into the definition of both rights has compromised the efficacy of these alternative enforcement strategies. Specifically, the built-in prejudice rule for Brady undermines, either directly or indirectly, (1) the scope of pretrial disclosure required of prosecutors by the Constitution, (2) the scope of disclosure required by professional ethics rules for prosecutors, and (3) efforts by trial judges to order prosecutors to fully disclose all exculpatory evidence without regard to prejudice. And for IAC, the Supreme Court’s prejudice requirement stands in the way of (1) prospective actions challenging chronically underfunded indigent defense systems through class actions or other devices and (2) attorney malpractice suits by criminal defendants.

Stay tuned as I build my case for these claims in later posts. In the meantime, please send your comments if you think I might have missed other potential lines of argument or would otherwise like to share your thoughts. And thanks to those of you who previously commented on the first installment!

Posted by Justin Murray on May 9, 2018 at 06:25 PM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (4)

Wild, Wild Duplass Brothers

Last night, I had the pleasure of hearing the Duplass Brothers speak at Symphony Space about their new book, Like Brothers. Michael Ian Black brought his usual wit to host the session. Mark Duplass (The League, Your Sister's Sister, The One I Love, The Mindy Project, Togetherness, etc.) and Jay Duplass (Transparent, The Mindy Project, Togetherness, etc.) have been on quite a tear lately as actors, producers, directors, etc. 

You may not have heard yet about a documentary they recently executive produced: Wild Wild Country. Here's the current description on Wikipedia: "[A] Netflix documentary series about the controversial Indian guru Bhagwan Shree Rajneesh (Osho), his one-time personal assistant Ma Anand Sheela, and their community of followers in the Rajneeshpuram community located in Wasco County, Oregon. It was released on Netflix on March 16, 2018, after premiering at the Sundance Film Festival." (citations omitted)

Legal scholars may find interesting the following topics that arise in varying degrees (light spoilers in this paragraph if you're ultra sensitive): Church-state relations, criminal law, medical non-consent, immigration law, election law, fraud, land use, gun rights, bioterrorism, and more. 

The documentary is six episodes, each about an hour in length. While perhaps it could have been cut down to, say, four episodes, I think many viewers will crave more after watching all six.

Posted by Adam Kolber on May 9, 2018 at 10:24 AM | Permalink | Comments (0)

On Student (and Faculty) Evaluations: Some Good Reading and One Modest Proposal

The Chronicle of Higher Education has published an interesting lineup of pieces on end-of-semester student evaluations, a perennial subject of interest for academics. The "con" side is represented both well and more thoughtfully than usual by Michelle Falkoff, a clinical associate professor of law at Northwestern. The title of her piece (which she may or may not have chosen or approved)--Why We Must Stop Relying on Student Ratings of Teaching--is subtly indicative of that thoughtfulness. It is not a plead for abandoning them, but against relying on them solely or heavily. The main argument often brought out against them is made here, and in another piece: student evaluations tend to treat women and people of color differently and worse. Beyond that, however, they may also display "biases that fall outside traditional categories of discrimination," including "student negativity toward classes they perceive as overly challenging or taxing," that "harm an institution’s ability to use student evaluations to gauge instructors’ effectiveness." These trends have been added to by other negative features as universities move toward online evaluations, which have reduced the number of students filling out the forms and tend to adopt the snark of other online writing.

The "pro" side is also represented in the issue, refreshingly, in a "Defense (Sort Of)" of student evaluations by Kevin Gannon. Gannon writes that student evaluations are "a flawed instrument" at best and a "cudgel used against faculty members" at worst. But he argues that whatever students don't know about what they're evaluating, they are still "experts on what they experienced and learned in a course, and they ought to have a voice." And he too cites studies, which suggest that despite their flaws, student evaluations are still some of the best measures of faculty effectiveness.

My desire here is not to take a side between some reductive version of "pro" and "con," although some professors do have a fairly reductive negative view of student evaluations. One reason for that reluctance is my fairly blindered perspective. Like all professors, I have received nasty and unhelpful evaluations. (I have also, to my shame, had bad semesters in which the evaluations reflected the fact that I did not teach as well as I should have. I try to take those moments to heart, weeding out merely hostile rants but looking for common complaints that suggest areas of improvement and trying to implement them in the next class. What I ought to do every semester, but generally don't, is survey my students at least once early or in the middle of the semester, while there is still time for mid-stream improvements.) But students, so far as I can tell, don't judge me for what I wear (and I often dress unconventionally for class), don't apply irrelevant criteria for evaluation, and don't impose other unreal or uneven expectations or stereotypes on me. If I received such evaluations as a matter of course and knew that the data suggested they were likely to be more hostile because of irrelevant factors, I would not be keen on them either. Since I don't face such barrages, I am inclined to accord greater weight to the complaints of those who do. (I am not a fan, however, of those popular videos of professors reading hostile student evaluations, half in pointed humor and half in anger, just as I'm not a fan of the endless stream of "It's in the syllabus" complaints professors favor on Facebook and elsewhere. Students should be treated with respect, given that they are both a main part of our callings and the source of our livings. Everyone vents and jokes about their jobs, but more dismissive professorial treatments of students are all too common in the private and only semi-private spaces of social media.)

As Gannon argues, though, students still deserve a voice in their educations. If they are not simply "consumers," neither are they inconveniences or adversaries. And there is certainly such a thing as more or less effective instructors. What I admire about both his and Falkoff's pieces is their refusal to throw the baby out with the bathwater by, say, suggesting that we get rid of student evaluations while remaining vague and cursory about proposed "alternate methods of evaluating teaching effectiveness." Falkoff, in particular, rather than simply launching arrows at student evaluations, builds on her extensive experience to offer a host of reforms we might consider. Falkoff believes that "holding instructors to high standards is important, and student feedback is relevant." But she believes that we should treat them as only one piece in a "more holistic strategy in which multiple factors contribute to a more accurate, consistent, and well-rounded assessment." Similarly, Gannon argues that the "best faculty-evaluation systems are multilayered and employ a number of different measures," including "faculty narratives, peer observations, reflective dialogue, and sample teaching materials." 

Neither writer talks much about how we could improve student evaluations themselves. Doubtless there's a literature out there on that subject, and doubtless there are costs and benefits of moving to a better set of questions, including a drop in response rates (although clearly the approach of using online, "press a number between 1 and 5"-type evaluations has not resulted in a great response rate either). We could certainly aim to write better and more specific questions, and encourage detailed and specific responses rather than either numbers alone or general invitations for comments that allow students to rant at will. And rather than simply hand a set of evaluations (or a website address) and a brief and mechanical set of instructions to a student to read, we could do in the evaluation-distribution process to explain their purpose and prompt students to offer more serious responses. (Maybe the job of distributing student evaluations or links to those evaluations, and explaining them, should be given to higher-level staff.)   

On the "holistic" side, I do have one proposal to make. Many complaints about student evaluations note that students may not know as much about teaching and about the goals of a particular class as do seasoned instructors themselves (although, in law, few professors learn by anything other than experience and a marginal amount of mentoring by senior professors who may lack little serious pedagogical knowledge themselves; we are not necessarily much more expert about teaching than our students are). I agree that faculty evaluations of faculty teaching should be a major part of the evaluation process. I would suggest the following:

1) Every tenured faculty member should be obliged to visit an equal, and substantial, number of their colleagues' classes each and every semester--say, ten classes per semester--and offer feedback to those instructors and to the administration about the classes they visit. The list of whom to visit and the dates of those visits should be randomly assigned. Every faculty member, including tenured faculty, should receive at least two or three visits by different faculty members every semester.  

2) Those evaluations should involve more than a cursory visit to the class, and sometimes an incomplete visit at that. Professors should be obliged to read the material for that lesson and the syllabus for the course, and stay for the entire class.

3) Evaluations should be always be written and always be detailed. They should follow a set of rubrics designed in advance, including areas of effectiveness, areas of weakness, concrete suggestions for what should be improved or changed and what should be retained and enhanced, and so on. 

4) As I noted, those evaluation visits should emphatically include visits to tenured as well as untenured professors. Length of tenure is no guarantee of good teaching, it is easy to become complacent, and everyone's teaching can be improved.  

5) The law school administration, either directly or through a faculty committee or both, should be obliged to read, collate, and evaluate all those evaluations--not primarily for purposes of evaluating individual teachers, but for purposes of evaluating how well the faculty as a whole teach, what common flaws (if any) they display, and what the best practices are on the faculty. They should be required to write an annual report for all faculty members setting out this evaluation and set of recommendations about what to do and not to do. They should follow this up with a mandatory, dean-and-faculty-led meeting for all faculty to discuss that report, and especially best and worst practices. 

6) Professors who fail without good cause to visit the requisite number of classes and take their evaluation duties seriously, say by failing to write a report or not making it a serious and detailed report, should face penalties, from public shaming to the withholding of one's paycheck or summer research grant until one has completed one's requirements.

What I like about this proposal is that it is burdensome and widely distributed. Tenured faculty members have a duty to their law school, to their colleagues, to their students, and especially to students and to junior colleagues. It should be taken seriously, not just paid lip service. A few professors who are more willing to engage in service than others, and who thus face a disproportionate burden of service as a result, should not be made to do all the work for their colleagues. This is a collective and indefeasible duty. There are good reasons to worry about student evaluations, especially poorly designed and hastily administered ones. But there is an obligation to provide serious alternatives, to make them good ones, and to treat them as a responsibility of the entire faculty, individually and collectively. Teaching is a or the central part of our job, and we should be obliged to take it seriously, both at an individual level and at a collective and institutional one. And, despite the serious reasons to dislike student evaluations, tenured professors who merely take pot shots at them from the side should be obliged (along with everyone else) to be heavily involved in making sure our students receive the best possible instruction.

I think faculty members who take seriously either their teaching responsibilities or their faculty governance responsibilities, or both, will welcome such a proposal. I should think that faculty members who worry most (and most understandably) about bias in the evaluation process should welcome a system that is more serious and systematic in providing a better means of evaluation alongside (and not simply replacing) student evaluations--which, to be sure, ought to be improved as well and should not be given undue weight, at least without culling them, looking for genuine patterns and problems, and so on. (Student evaluations should also ideally be offered more than once and not simply on the penultimate day of class.) They too should be happy to be a part of the solution, even if it is burdensome, as long as it is universally distributed.

I suspect that it is just possible that a few professors will stamp their feet and complain about having to do a great deal of extra work. (No doubt one or two will find a way to work the phrase "academic freedom" into their diatribes.) But I don't think that, say, 30-60 hours per semester spent on mandatory duties aimed at improving the teaching quality of our institutions is an unreasonable demand on us, given the importance of teaching in general, especially in a professional school, and the fact that teaching and service are both major components of our duties as professors. And it is frankly a good thing to smoke out those professors who enjoy complaining but are less than eager to do something about the things they complain about.

I should add that various universities and law schools may already do some of these things. Some schools, for instance, have post-tenure review, and others may simply take our teaching responsibilities more seriously. I'm happy to hear in the comments about more concrete examples of what schools are already doing. And I'm happy to hear about alternatives, both for improving (rather than eliminating altogether) student evaluations and for improving faculty evaluation of teaching--although I think it is valuable and important for the latter to involve serious and universal duties on the part of the tenured faculty.          

 

Posted by Paul Horwitz on May 9, 2018 at 07:45 AM in Paul Horwitz | Permalink | Comments (18)

Tuesday, May 08, 2018

Reply to Sigler's "Humility, Not Doubt"

What is the nature of moral truth? Should we treat uncertainty about moral claims the same way we treat uncertainty about scientific claims? These are some of the deep questions implicated by Mary Sigler's much-appreciated response to my article on Punishment and Moral Risk.

In my paper, I argue that retributivists need to believe at least nine key propositions to justify punishing particular individuals, and when we multiply our confidence in each proposition, reasonable retributivists will likely have too much doubt to punish consistent with the values that seem to underlie retributivist commitment to the beyond-a-reasonable-doubt principle. After a very clear and crisp summary of my main claims, Sigler presents her central criticism of my methodology (footnotes notes omitted throughout):

The problem with Kolber’s indiscriminate list of retributive propositions is that most of the entries on the list represent moral, rather than empirical, claims. And moral claims differ from empirical claims precisely in that they are not testable or otherwise susceptible to proof or falsification. Instead, moral belief (to the extent that it is critically examined) is generally a product of argument and reflection, not proof. By assimilating moral and empirical claims, Kolber attempts to apply a quantitative standard of proof to moral claims, which can neither be reliably measured nor empirically proved. . . .

The aim of the approach [Sigler advocates] is thus not to “prove” the validity of a moral principle, but to evaluate whether it fits within the broader scheme of principles already taken—provisionally—as fixed. Whereas a foundationalist attempts to deduce his moral conclusions from authoritative premises (e.g., the word of God), a coherentist recognizes that his enterprise will necessarily “involve a large element of trial and error and muddling through.”

So I take Sigler's central criticism to be that we cannot meaningfully assign confidence to the non-empirical propositions I use. I have two main responses. First, I don't see how anything Sigler says affects our ability to assign levels of confidence to moral claims. Many hold coherence views about the truth of scientific propositions. They consider how a claim fits with other scientific beliefs they already hold. Yet they can still estimate their confidence in scientific propositions. Indeed, it may be precisely because we hold our beliefs with varying levels of confidence that we can even sort through a web of beliefs. If all our beliefs were equally weighted in confidence, we'd be in big epistemic trouble. True, moral claims are not empirically testable in the same way as many scientific claims. But why does that affect our ability to hold them with different levels of confidence? 

Consider: If we couldn't weigh our confidence in various beliefs, how would you know whether you believe X as opposed to not-X? Or know whether you find claim A, B, or C the most compelling? True, none of this means that we can come up with precise percentages. But as I say in the paper, rough percentage estimates simply make my arguments more elegant and tangible. If such numbers cannot be accurately estimated, we could run very similar arguments by asking if one holds each proposition with very high, high, medium, etc. levels of confidence. Confidence in the conjunction of all nine propositions will have to be less than one's confidence in one's least confident proposition, perhaps quite a bit less. But the argument is cleaner if one can at least give rough estimates in percentage terms. Moreover, are there moral claims that you are more confident about now than you were ten years ago? How could that be if we cannot estimate our confidence in various propositions?

Note, too, that I make no claims about how people ordinarily think about moral propositions and whether they typically think about their credence in various claims. Even if they don't ordinarily think this way, retributivists still need to confront the challenge that their justification requires belief in several propositions, each of which cannot plausibly be held with complete confidence. I realize, too, that there is disagreement about the fundamental nature of subjective probability, so there's clearly going to be disagreement when estimating the strength of our probabilistic beliefs. But I don't see how Sigler shows that such disagreement varies along the same divide as the empirical/moral line.

Of course, some people may doubt that moral propositions have truth value at all. But the argument in my paper is addressed to retributivists who purport to justify the punishment of particular individuals, and I don't think such retributivists typically deny that moral claims have truth values. And that leads to my second reply: even if I'm wrong about the ability to assign confidence to moral propositions, I'm not sure that helps retributivists much. When a prisoner makes the legitimate hypothetical inquiry to the retributivist, "how confident are you that my punishment is deserved?" it does not seem like a satisfying answer to say, "I don't know; I can't calculate confidence levels in moral propositions." Failing to explain one's level of confidence in the face of quite reasonable doubts seems like it's own sort of failure of the justificatory process. 

Sigler writes: 

A process of “muddling through” may not inspire high levels of Kolber-confidence, but it reflects the only viable process suitable to the moral domain, and it entails humility—the recognition that further argument, reflection, and experience may reveal a better answer.  In the meantime, we need not doubt—or hedge against—what Ronald Dworkin calls the “face value” view of our propositions—that genocide is truly wrong, for example, or that wrongdoers really deserve to suffer punishment. For “any reason we think we have for abandoning a conviction is itself just another conviction, and . . . we can do no better for any claim . . . than to see whether, after the best thought we find appropriate, we think it so.” Absent empirical testing and definitive proof (unavailable in this domain), the only way to establish a working moral proposition is “through substantive normative arguments.” Until we encounter a better argument, we have reason to credit the truth of our considered convictions. Accordingly, application of the BARD standard (or other quantitative metrics) represents a misapprehension of the nature of moral truth, producing a category mistake that imposes an inapt quantitative measure to gauge the soundness or strength of a moral proposition.

I couldn't agree more about the importance of humility, but I think my approach is entirely consistent with it: recognizing the weaknesses in one's beliefs is a way of demonstrating humility. None of that shows how I misapprehend the nature of moral truth. Take the very example in the quote that "genocide is truly wrong" and that "wrongdoers really deserve to suffer punishment." Perhaps wrongdoers shouldn't be made to suffer but should just be preventatively detained and/or given rehabilitative treatment. Whether that's true or not, I think all reasonable people should be more confident about the genocide claim than the claim about wrongdoers. We ought to vary in our confidence levels about moral propositions. Exactly how to convert the weight of these beliefs into numbers is challenging but comparisons of this sort can give rough estimates and the details, again, needn't be spelled out because precise quantification isn't essential to the argument.

Sigler also calls me out for perceived mistakes in my discussion of particular individual propositions. These discussions, however, are not meant to give definitive arguments about major moral questions. They are simply meant to stimulate readers unfamiliar with them to give rough estimates about their confidence levels in pertinent propositions. For example, when discussing free will, I mention some data about the rather deep-seated differences of agreement among professional philosophers. Sigler responds:

As Kolber correctly notes, despite his penchant for citing disagreement, we cannot “straightforwardly determine our confidence” in a moral proposition by taking a poll. But this disclaimer is much more devastating than he allows. Absent an argument about why these differences of opinion have any implications for moral truth, we cannot evaluate the significance of moral disagreement.

To be sure, the data are only meant to help spur readers on. But it strikes me as not at all unreasonable to consider such data. Imagine a student in her first week of an introductory philosophy class who believes she has solved the problem of free will. Telling this student that the problem of free will stretches back centuries and that professional philosophers have spilled enormous amounts of ink on it likely should reduce the student's confidence in her own solution if she wasn't already aware of how much attention the problem has received. None of this entails that the student's solution is wrong. But some data of the sort I mention can, at a minimum, serve as rough-and-ready proxies for more careful analysis and that's all that I use it for in the paper.

Finally, Sigler challenges my discussion of "portfolios of beliefs" in the context of threshold deontology (roughly, the view that we can be deontologists with firm moral prohibitions against certain conduct (e.g., torture) yet violate those prohibitions when the consequences of observing those provisions (say, the expected death of thousands) are sufficiently awful). I argue that one might be a kind of threshold deontologist who basically believes in deontology, but when the risks of being morally wrong are sufficiently high, he acts like a consequentialist would. The gist of Sigler's criticism is that my solution is too easy. A good threshold deontologist should experience the deep moral regret of situations requiring tragic choices that exemplify threshold deontology, and she doesn't believe that portfolios of beliefs permit that.

The matter seems closely connected to a bigger debate about whether there can be genuine moral dilemmas--situations where whatever you do is morally wrong, even if you did nothing morally wrong to get into the situation in the first place. I have my doubts about the existence of true moral dilemmas, just as I have doubts about whether one ought to experience moral regret in the situations Sigler envisions.

More importantly though, even if I concede that there are true "moral remainders" in such situations, I don't see why those who hold portfolios of beliefs cannot accommodate Sigler's request. The epistemic threshold deontologist that I discuss is rather confident in deontology. When she breaks a deontological prohibition, she can still feel deep regret. Maybe those regrets are reassured a bit by her belief in the modest possibility that consequentialism is true. But I don't see why her fallback beliefs should dominate her moral psychology. Again, I likely see these matters differently than Sigler does. Yet when I try to enter her mindset, I see many ways in which epistemic threshold deontologists might generate the kind of moral remainders Sigler seeks. 

There is much of great value in Sigler's reply, and for reasons of time and space, I haven't addressed all of her keen and thoughtful arguments (but will try to do so in the comments if readers have particular interests). In the meantime, I extend my warmest thanks to her for a most valuable discussion.  

Posted by Adam Kolber on May 8, 2018 at 02:57 PM | Permalink | Comments (0)

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, May 07, 2018

JOTWELL: Coleman on Wexler, Robbennolt, and Murphy on #MeToo Justice

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice exploring restorative and transitional justice in the #MeToo Movement.

Posted by Howard Wasserman on May 7, 2018 at 09:49 AM in Article Spotlight | Permalink | Comments (0)

Heckler's vetos and equal protection at Colorado State

Heckling becomes a heckler's veto when government action ratifies private preferences; ratification is necessary to create a First-Amendment-violative veto as opposed to a stand-off between competing speakers. That framing helps explain the real problem underlying the recent incident involving two Native-American prospective students on a tour at Colorado State. And it exposes the key shortcoming and blindspot in the lengthy, heartfelt letter on the incident from CSU President Tony Frank.

Two Native-American high schoolers from New Mexico were part of a CSU tour group. A woman on the tour became nervous around the two and called university police, complaining that the students' dress, manner, and quietness showed that they were definitely not part of the tour. Police questioned the boys (the body cam video is linked in the President's letter) for about five minutes before letting them go, at which point the campus group had moved on, so the two left campus. Watching the video, the officers are polite and never aggressive, although the questioning ("why didn't you answer the questions of others in the tour group when they asked") reflect a baseline of suspicion. The President expressed regret for the events and related how the school was using social media to reach out to the family because other attempts to contact them have been unsuccessful (read "we are publicly demagogueing them into responding to us and accepting our apology"--the weakest part of the letter).

The President uses his letter to call attention to the "battle with hate within our communities," to insist that "[t]here is no place for hate at Colorado State University," and to urge people to return from summer break "with a commitment to be a little kinder, a little better, to work a little harder at seeing each other’s point of view, and to use our voice." This emphasis on stopping private bigotry among members of the CSU community ignores  the role of government, particularly police, conduct. Private bigotry is inevitable and, in some contexts, constitutionally protected; it becomes a problem when government lends force to that private bigotry, even if only in a five-minute Terry stop. If the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, and should be, her business. The problem arose because CSU lent its coercive power to her bigotry, thereby causing an injury to the two boys. By shifting the emphasis on what everyone else can do to battle prejudice, Frank's letter exonerates his own governmental entity.

Posted by Howard Wasserman on May 7, 2018 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

China’s “404” Internet Management: The Crippling Practical Powerlessness of Legal Omnipotence

Since 2015, I have now spent about sixteen months living and teaching in Shanghai, and I am sometimes asked by friends in the States about whether I have personally seen evidence of the intensifying crackdown on political and cultural dissent. I always respond that I am not in a good position to collect such evidence, because I am able to talk only with Chinese citizens who speak English, and I read Chinese Weibo posts at a painstakingly slow speed. Those limitations give me a perspective too limited to be very illuminating.

Despite this disclaimer, I pick up a bit more information than one would ordinarily get when living in the States, simply because I have gotten to know personally many more English-speaking Chinese (mostly academics and governmental officials). After the jump, I will share a couple of stories that they have shared with me that suggest some of the ways in which censorship is intensifying. Both stories illustrate the self-defeating character of the Communist Party’s effort to control information: These controls allow the Party’s enemies to undermine the Party, and they spawn the very distrust that the Party wants to suppress. My bottom line (which basically tracks Carl Minzner‘s analysis in his excellent new book, End of an Era: Nothing leads to such crippling practical powerlessness in government as much as the government’s political and legal omnipotence.

1. Getting “404’ed” in the Shen Yang (沈阳) scandal

My first story concerns the censorship of an essay on internet policy and the Shen Yang (沈阳) scandal written by one of my friends, an academic at a prominent Chinese university who I will call “Professor Wang” (not his real name). Shen Yang is a literature professor, until recently a member of the faculty at Nanjing University, who has been accused by former students of sexually abusing a classmate and causing her to commit suicide when Shen was a young professor at Peking University twenty years ago. The scandal was brought to light by a social media campaign launched by one of those classmates, a campaign that also raised the larger question of the Chinese professoriate’s abuse of their power over their students. The campaign to prevent professors from abusing students, however, has predictably been the target of governmental censorship.

Professor Wang’s essay was posted when the Chinese government was still trying to remove references to Shen Yang from the internet. In the first part of his essay, Professor Wang offered some observations on the use of “404” as a tool with which manage public opinion (“当404成了处理舆情和公关的工具”). “404,” of course, refers to the error message one receives when one searches for an item that has been removed from the internet. The gist of Professor Wang’s argument was that 404 error messages, devoid of reasons or logic, were a lousy way to manage public opinion. Precisely because such censorship is unaccompanied by reasons, it can be deployed by well-connected private persons for reasons having nothing to do with protecting the reputation of either the Party or the government. For instance, “404ing” discussion of the accusations against Shen Yang benefitted only those administrators at Peking University who may have given Shen Yang a pass back in 1998. Why should the Party risk its own reputation by allowing these well-connected insiders to blot out discussion of the Shen Yang case with 404 messages? Those messages, after all, convey to the public the idea that the Party was standing behind these administrators and the accused rapist that they seemed to be protecting,

In an irony that the Chinese have gradually come to expect, Professor Wang’s essay on the problems with “404ing” online content was itself “404ed.” After being viewed about 75,000 times in a few hours, Weixin removed it with the following message: “This content cannot be viewed, because it violates the law. [We have] received complaints that this content violated ‘Interim Provisions on the Administration of the Development of Public Information Services Provided through Instant Messaging Tools.’ See details.”

So what do those “Interim Provisions” say? Issued in August of 2014, these rules had both legitimate and authoritarian purposes. On one hand, China was awash with marketing scams and fake news often spread through Sina Weibo’s micro-blogs. On the other hand, citizen-journalists were embarrassing the government with information posted on those same micro-blogsthat could be used by real journalists. The 2014 rules tried to solve both headaches simultaneously by regulating micro-blogs and other social media with the rules applicable to traditional news media. As Hu Yong, Peking University journalism professor and internet entrepreneur and prolific blogger explained, Aricle 7 of those 2014 rules requires that any individual who comments on public affairs through a Weibo micro-blog or WeChat message must obtain a license by “undergo[ing] examination and verification by the instant messaging service provider.” What constitutes covered reporting on public affairs? According to Hu Yong, pretty much everything except a picture of a latte: Pre-existing 2005 rules define “reporting on current events” to include any “reports and comments related to politics, economics, military affairs, diplomatic affairs, and so on, and reports and comments on sudden social occurrences” (emphasis added). So unless Professor Wang actually obtained a license from Weixin by “undergo[ing] examination” (whatever that might mean), he cannot legally say anything about China’s internet policy on WeChat or a Weibo micro-blog.

So the Party has tamed social media, right? Not at all: There are still millions of unlicensed journalists out there, because, with over 340 million active users, Sina Weibo cannot possibly “license by examination” everyone who expresses an opinion about current events. On top of Weibo, Tencent’s Weixin (WeChat to westerners, and the platform used by Professor Wang) provides another venue through which to circulate one’s views. All of those hundreds of millions of people will inevitably say stuff about current events, and neither Sina Weibo nor Weixin nor the government can take down every clever censor-evading meme fast enough to slow the tide. (To evade blockage of #Metoo, Chinese feminists post pictures of a bowl of rice and a bunny: Cooked rice (米) is pronounced “me,” and bunny (兔), “too”).

In particular, censorship of the Shen Yang case now seems to have been overwhelmed by sheer numbers. After the micro-blogs and WeChat accounts were flooded with thousands of angry comments about Shen Yang case, the government stopped trying to protect him. Although Shen Yang insists on his innocence, he has been fired from Nanjing, his reputation in tatters.

That might be a happy outcome in this one particular controversy. (Shen Yang’s defense that he was merely comforting a psychologically disturbed student who was the aggressor against him seems unbelievable on its face, and it seems even less credible in light of the other complaints of sexual misbehavior leveled against him by other students). But the episode illustrates what Professor Wang’s essay argued: The 404 policy is an invitation to mob rule. An information policy that relies on unreasoned “404”-type censorship invites unreasoning 404-evading comments. There is strength in numbers: Flood the internet with simple, relatively anonymous, more or less identical slogans suitably disguised rice-bunny style, and the government will surrender. Post an intelligent essay with arguments and qualifications, and, at least if it gets enough attention to irk some anonymous insider, it will be 404ed. This is Gresham’s Law for internet commentary: Unreasoned comments, with the aid of the government, drive out reasoned ones.

Professor Wang’s essay also illustrates how the Party’s suspicion of “troublemakers” can make trouble for the Party. As Professor Wang noted, censoring articles without giving reasons whenever someone complains that the writer is an unlicensed journalist invites complainants with something to hide to suppress reports of their own corruption. That may have happened with Professor Wang’s essay. Or not: Given the unreasoned quality of 404 error messages, no one can tell. But the broad power to remove virtually any comment on any current event from the internet empowers underlings relatively low in the Party hierarchy to mask their misdeeds, just so long as they have a pal in the Internet Information Office, Weibo, or Weixin who is willing to do them a favor. Of course, the Party might eventually discover these misdeeds without the help of social media — but, in the meantime, the public’s building anger at those misdeeds will taint the Party, especially since on-line efforts to expose the misdeeds are suppressed with infuriating 404 messages that bear the apparent imprimatur of the Party’s internet law.

2. A Party Member’s Anger at the RBY Day Care Scandal

One of my discussions with a member of a Party “leading group” at a Chinese university suggests the way in which the Party’s effort to maintain a tight grip on the flow of news was backfiring against the Party. That Party member — call her Ms. Liu (again, not her real name) was upset over reports that broke last November about allegations that employees at Red Yellow Blue (RYB) Care, a Beijing day care center drugged and sexually abused the children entrusted to them. Initially, the Chinese press published reports about the allegations, causing a furor among middle-class Beijing parents. Then someone issued an order to the press to stop the reports: A story that was formerly on the front page suddenly disappeared. A woman who had suggested that the military personnel were involved with the abuse was detained and charged with "using the internet to fabricate and disseminate fake news," and references to RYB were scrubbed from Weibo.

My friend wanted to know whether I could get more information about the case from the other side of the firewall: With young children of her own in day care, she was worried about how widespread the risks were. As for the motivations for suppressing the story, my friend suspected the worst: She speculated that the day care center, which happened to be near to a military base and run by the spouse of a retired military officer, had protection within the Party.

Censorship of those RYB stories, in short, did not stem the rumors but simply increased the suspicion. My friend was not a “troublemaker” or anti-Party malcontent: To the contrary, she was exactly the sort of hard-working patriotic Party stalwart that Xi Jinping needs to implement whatever policies will be part of his New Era Socialism with Chinese Characteristics. Yet the Party’s own censorship policies were stoking her suspicions. It is possible, of course, that someone ordered the suppression of the news stories to protect well-connected insiders. It is also possible that the authorities worried about netizens’ spreading false rumors that would stoke public anger against a falsely accused day care center. (As the Amiraults’ case indicates, day care center workers have been falsely accused and unjustly punished for child abuse that likely never occurred as a result of public hysteria). Judging from the government’s reaction to the notorious Hainan school child abuse case as documented in the “Hooligan Sparrow” documentary, a third possibility also seems likely: The government had no interest in protecting the perpetrators but also felt that netizens’ publicizing the scandal caused the government or Party to lose face. Regardless of the motivation, the Party’s information policy seems to stoke the very rumors that, for whatever reason, they were trying to suppress.

There is now a voluminous literature on why the Party’s leadership engages in censorship that seems ultimately to undermine the Party itself. Carl Minzner’s End of an Era provides a crisp overview of costs. Without a robust civil society and independent press or bar, the leaders of the Party must mostly rely on their bureaucratic agents to report on each other’s misdeeds. But it is basic principal-agent theory that reducing competition among agents increases the agents’ power to control information. The Party’s legal omnipotence to suppress all competing sources of information arguably has made the Party dependent on purely internal sources — and those sources have maximum power to collude against the people at the top of the Party’s pyramid.

As I noted at the beginning of this post, I lack the knowledge to assess whether this hypothesis of omnipotence that ultimately leads to powerlessness is actually supported by the facts. The data points of Professor Wang and Ms. Liu, however, suggest that, when it comes to authoritarian suppression of civil society, nothing fails like success.

Posted by Rick Hills on May 7, 2018 at 09:09 AM | Permalink | Comments (0)

Sunday, May 06, 2018

Bray on conflicting universal injunctions

One of the problems with universal injunctions is the risk of conflicting universal injunctions--Ct I enjoins government to do X universally, while Ct II enjoins government to refrain from doing X, universally. This almost happened with DAPA--after affirmance of the Fifth Circuit injunction prohibiting enforcement of DAPA, lawsuits were filed in federal courts in Illinois and New York, seeking declarations that the Fifth Circuit injunction did not affect enforcement of DAPA in states that were not party to Texas; those cases were dismissed before courts reached that point.

The situation may arise again over DACA rescission--judges in the Northern District of California, Eastern District of New York, and District of the District of Columbia have issued universal injunctions requiring the federal government to continue enforcing the DACA policy and granting or renewing DACA status for eligible recipients. As Sam Bray discusses, seven states have filed suit in the Southern District of Texas (naturally), seeking a universal injunction prohibiting the federal government from granting or renewing DACA status. If issued, it would create imposing directly conflicting obligations on the government--required by one court to continue granting DACA status to all persons everyone, required by one court to refrain from granting DACA status to any persons anywhere.

Bray describes a "fight to the death" between universal injunctions and the principle that a judgment resolves issues between parties to a lawsuit, but does not conclude the rights of strangers to those proceedings.

Posted by Howard Wasserman on May 6, 2018 at 11:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Judicial departmentalism and U.S. v. Nixon

The potential controversy over the special counsel issuing a grand-jury subpoena for President Trump offers a nice illustration of judicial departmentalism, outside my usual focus of constitutional litigation. The theory of judicial departmentalism is that Supreme Court precedent is binding within the judiciary but not on other branches and other actors, who remain free to engage in their own, independent legal and constitutional analysis, even if it diverges from controlling judicial authority and sets non-judicial actors on a contrary course of action. A corollary  is that the executive is not bound to follow precedent with which he disagrees, but must obey a judgment entered against him in a specific matter.

So how does this stand-off play out?

Step One: The President, his lawyers, and the executive-branch lawyers can decide, in their own best constitutional judgment, that a President is not subject to a testimonial subpoena (which is not precisely covered by United States v. Nixon) or even that Nixon was wrong. They also can give controlling weight to non-judicial sources of advice, such as OLC opinions. And they can act on their constitutional understanding by refusing to comply with the subpoena, without being said to be "disobeying" or "ignoring" the courts or acting contrary to law or to their oaths.

Step Two: Faced with that response, the special counsel will move in federal court to enforce the subpoena. All federal courts will be bound to follow Nixon and other judicial precedent and will order the President to testify. All levels of the federal judicial hierarchy are similarly bound, unless SCOTUS wants to overrule Nixon, which I doubt, or the document subpoena/testimonial subpoena distinction is a meaningful one. Now Trump is compelled to obey. And his refusal constitutes disregard for the courts and to his oath.

A wise lawyer at Step One will be aware and will advise his client as to what will happen at Step Two, perhaps prompting different behavior at Step One. A wise political adviser might do the same. The point of judicial departmentalism is that compliance with precedent is a matter of prudence, choice, and political incentives, not legal compulsion. Legal compulsion comes only from Step Two.

Posted by Howard Wasserman on May 6, 2018 at 09:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Announcing "Online Workshop on the Computational Analysis of Law"

I thought this might interest some Prawfsblawg readers. I'm not one of the organizers, but see the email address below if you have questions:

 Workshop Notice and Call for Abstracts

 There is a growing interest among scholars from across a variety of disciplines and around the globe in the use of computational tools to study the law. Unfortunately, researchers in this field sometimes lack a critical mass of colleagues with similar interests. The Online Workshop on the Computational Analysis of Law (OWCAL) was created to help remedy this situation by providing a regular opportunity for scholars to receive feedback and gain exposure to new techniques and questions.

The purpose of the workshops is to highlight the best and most innovative scholarship in computational legal studies and to build an intellectual community in support of this new field. In recent years, the digitization of legal texts and developments in statistics, computer science, and data analytics have opened entirely new methodological approaches to the study of law. These new methods build on traditional empirical legal studies by treating the information contained in the text of legal documents as data that can be subjected to quantitative analysis.

The workshops are held online during the second week of each month. Each workshop is based on a draft paper (to be circulated a week prior) and consists of a presentation as well as short comments from a named discussant, with the majority of time reserved for a question-and-answer session with workshop participants. 

Participation in OWCAL is open—RSVP by June 1, 2018. If you are interested in participating during the 2018–2019 academic year, RSVP to owcal@law.virginia.edu with the subject line “OWCAL RSVP” and you will be added to the participant list. By responding, you agree to participate on a regular basis, and at a minimum you commit to make a reasonable effort to participate in half of the workshops that are scheduled during work hours in your time zone. A schedule for the first term will be released in August, and the schedule for the second term will be released in December. Given the global nature of the enterprise, we plan to hold sessions at various hours to accommodate participants in different locations, based on presenters’ home time zone.

WCAL is current soliciting abstracts for presentations to be held over the 2018–2019 academic year. Abstracts should be between 150–500 words and explain motivation, methods, and early results (if any). Projects need not be complete to be considered, but presenters should be prepared to circulate a draft paper the week prior to their workshop. Projects at an early stage can be scheduled for later in the term to allow time for additional work. Abstracts should describe work that treats legal texts (broadly understood) as the basis for quantitative analysis. Both descriptive and casual projects are welcome. 

Abstracts are due July 1, 2018. Abstracts should be submitted to owcal@law.virginia.edu with the subject line “Abstract Submission.” Multiple author works are welcome. Preference will be given to OWCAL participants. Note: RSVPs and abstract submissions should be sent in separate emails.

Posted by Adam Kolber on May 6, 2018 at 04:54 AM | Permalink | Comments (0)