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Friday, July 20, 2018

Marquette Law Review Symposium on The Ethics of Legal Scholarship

HI was delighted to participate in this law review symposium by the Marquette Law Review on the ethics of legal scholarship in the fall of 2017. I was a co-organizer but most of the hard work was done by the law review editors and by co-organizers Chad Oldfather and Carissa Byrne Hessick. The articles feature varied perspectives and topics. I hope those interested in academic ethics and especially legal academic scholarly ethics will read and enjoy this issue. (My own contribution is here. The SSRN version is here.)  

One specific goal we had, in the words of the symposium introduction, was to "arrive at" and publish "some common, generally agreed upon answers and principles." We thus lead off with a set of "Draft Principles of Scholarly Ethics." They should not be taken as having commanded the absolute consensus of all the participants, and we certainly do not claim that all legal scholars will agree on these principles. To quote the introduction again: "Our attempt . . . to put something specific on the table, agree on it, and share it with our colleagues was never meant to be a final and definitive answer to the questions that confront us concerning the ethics of legal scholarship. It was not meant to end the discussion. But we have attempted to provide a useful place from which to begin and continue such a discussion." We hope the draft principles will do this, serving as a jumping-off point for future discussion of this subject, which certainly is not going away and will if anything grow in light of both the rise of law professor participation on social media and the current political situation. 

Enjoy. Thanks again to both Chad and Carissa as well as the other participants, and congratulations to the Marquette Law Review editors involved in making this happen and bringing it to print.

Here is the table of contents for the issue:

 

  

Posted by Paul Horwitz on July 20, 2018 at 01:32 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, July 19, 2018

NFL and NFLPA enter standstill agreement on anthem policy

Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."

Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.

At least the President will have something new to tweet about tomorrow morning. (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).

I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?

Posted by Howard Wasserman on July 19, 2018 at 11:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

University of Illinois-Chicago to acquire John Marshall

Brian Leiter reports. The idea of UIC taking over John Marshall has been in the air for years. My experience clerking in Philadelphia and teaching at FIU suggested the advantages enjoyed by an urban public law school attached to a non-flagship university. FIU is a lot like UIC--urban, majority-minority, many first-generation students. And there is an opportunity to attract good students  who want to pay lower public tuition while staying in the city rather than moving to the non-urban flagship state university.

This could be interesting to watch.

Posted by Howard Wasserman on July 19, 2018 at 10:46 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Lindgren and Stolzenberg on SCOTUS term limits

In the L.A. Times. They suggest a constitutional amendment is required, while recognizing that not everyone agrees. But they suggest the states would support an amendment, given that 49 of 50 states have term limits or maximum judicial ages. The problem, they suggest, is that members of Congress may not want to do this for fear that it would cause the public to demand legislative term limits, as well.

Posted by Howard Wasserman on July 19, 2018 at 08:47 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Massachusetts fears Justice Kavanaugh

Following on this post: Josh Blackman writes that Massachusetts is moving to repeal its criminal prohibitions on abortion, adultery, and fornication. Democratic legislators explained that the move anticipated the Court overruling Roe and other cases, after which those laws would become enforceable.

Posted by Howard Wasserman on July 19, 2018 at 01:56 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Something New, Something Old, and Something Borrowed

Writing in the compliance space has been extremely rewarding for many reasons, but today I will highlight the new, the old, and the borrowed. 

Something New

Compliance is still considered new within legal scholarship.  Its newness makes it an extremely fun area to write in, because it is often the case that you are one of the first, or one of very few, academics who have written on a particular topic.  For me this has been most true, I think, with my work on corporate monitors (here, here, and here). There were certainly excellent articles (e.g., here, here, and here) written prior to my own work, but because there weren’t a large number or articles on the topic, I have been able to carve out a scholarly niche for myself.  As a result, when it comes time to have an academic speak or write on the topic of monitors, I often get asked.  I can’t always take on the opportunity, but it is fun to have something you are known for, and there is still quite a bit of room for that in the compliance area.

Something Old

And yet, many of the issues important for compliance today aren’t at all new.  A great deal of compliance scholarship is rooted in more established areas, like corporate law, corporate governance, and corporate criminal law.  The iconic Caremark decision is a case about compliance (see this symposium).  Within industry, compliance is an established field with a variety of “professional” organizations with hundreds of members.  This is nice, because while compliance is “new” within legal scholarship, it is also “old” in a way that provides a strong foundation for the scholarly work being done.  In one of my forthcoming articles, I use classic BA cases to serve as the basis for a new argument related to identifying the root-cause of compliance failures within organizations.  All that to say, you aren’t starting from scratch when you identify a problem to write about.

Something Borrowed   

Finally, because compliance is inherently interdisciplinary, it lends itself well to borrowing concepts from other fields.  For example, many compliance scholars spend a fair amount of time drawing on behavioral ethics research (e.g. here and here), which is a literature primarily found within business schools.  Additionally, I often find that when I present a paper someone in the audience from another discipline will suggest I read something that I have not come across, which turns out to be completely applicable to what I am writing about.  A couple summers ago, for instance, someone made a relatively offhand remark about how I should look at interagency coordination literature, which is in the administrative law area, and that literature ended up serving as the theoretical basis for my paper.

* * *

All that to say, part of what I like about writing in the compliance space is that it is new, but not too new, while allowing the flexibility to learn about a number of topics from other areas of law. 

Posted by Veronica Root on July 19, 2018 at 12:37 PM in Corporate, Criminal Law | Permalink | Comments (0)

Now (or soon to be) in Paperback: Beyond Legal Reasoning: A Critique of Pure Lawyering

9781138221307A brief pause for a semi-commercial announcement.  Actually, if we consider the royalties to which I am entitled from Routledge after deducting the cost of a professional indexer, there's very little commercial about it from my standpoint.

Beyond Legal Reasoning: A Critique of Pure Lawyering first takes a granular look at "thinking like a lawyer" - its logic and theory-making - and then at the perils of succumbing to it when one is not in the traditional "lawyer as warrior" mode.  My original title, Unlearning How to Think Like A Lawyer, still lingers in various descriptions.

Apparently the law library market is price inelastic and the publisher waits eighteen months before putting out a paperback edition.  That is now available for pre-order (release date: Aug. 24) at a fraction of the hard cover price.

But ... most of us write to be read, not for the several hundred dollars of royalties that an academic book generates for the author (translating into cents per hour for the time creating it).  If you are interested in a free taste, the preface is available on SSRN.   Or the entire book is available for free at any of these fine libraries.

Or, after the break, you can watch the presentation from last April at the Harvard Law School's Center for the Legal Profession:

Posted by Jeff Lipshaw on July 19, 2018 at 06:16 AM in Books, Deliberation and voices, Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (0)

Wednesday, July 18, 2018

Clopton on universal injunctions

At the Take Care Blog, Zachary Clopton (Cornell) argues that history, structure, and precedent "do not provide a once-size-fits-all answer" to the question of the propriety of universal injunction. Clopton's basic argument is that other doctrines, notably nonmutual issue preclusion and full faith and credit (and, I would add, precedent), protect non-parties. There is thus no blanket reason not to allow injunctions to do the same work, especially since all are grounded in policy concerns.

The difference is how hard we make non-parties work to gain those protections. Precedent and preclusion requires affirmative steps by the new party--file her own lawsuit and ask the second court to make use of the prior judgment or precedent. A universal injunction requires the non-party to do nothing more than request the first court to enforce the injunction and, perhaps, to hold the government in contempt. For reasons linked to Article III and the scope of constitutional claims, I favor requiring those non-parties to take those extra steps.

Posted by Howard Wasserman on July 18, 2018 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, July 17, 2018

My Mom Has Two Jobs

...that's the title of the debut children's book out today by the fabulous Professor Michelle Travis, USF Law faculty. Michelle's research focuses on employment discrimination, work/family conflict and disability discrimination. She wrote My Mom Has Two Jobs when she was about to go back to work after maternity leave and was seeking a way to explain to her two daughters the realities of working mothers. My Mom Has Two Jobs pays homage to working moms by celebrating the important work that women do both inside and outside of the home. The book also breaks down gender stereotypes by depicting women in a wide range of roles, including as a lawyer, engineer, firefighter, pilot, and military sergeant, among others. The moms and children in the book are also racially and ethnically diverse and the illustrations are fabulous. I've ordered my copies for my daughters and my friends' kids.

My Mom Has Two Jobs Children's Book for Working Moms

Posted by Orly Lobel on July 17, 2018 at 07:45 PM | Permalink | Comments (0)

The return of Skelly Oil and the Well Pleaded Complaint

MGM Resorts and affiliated companies, owner of the Mandalay Bay Resort and the adjacent fairgrounds at which Stephen Paddock killed 58 people and injured 500 others in 2017, has filed two federal declaratory judgment actions (one in California, one in Nevada), arguing that they are not liable to the victims of the shooting. The basis for the D/J action is the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002, a post-9/11 law designed to protect businesses from liability for acts of terrorism. Hundreds of injured or dead are named as individual defendants (the list of parties takes up the bulk of both complaints). The Nevada action is against Nevada citizens and asserts federal-question jurisdiction; the California action is against California citizens and asserts federal-question and diversity jurisdiction (MGM and its affiliates are Nevada and Delaware citizens). One lawyer for many  victims was typically calm and measured in describing this tactic as a "blatant display of judge shopping," verging on unethical, outrageous, and "really sad."

My thoughts, naturally, turned to federal jurisdiction. The news reports read as if MGM sought a declaration of non-liability based on federal law as against state negligence claims. If so, there would not have been federal-question jurisdiction under Skelly Oil, which provides that an anticipatory D/J action does not arise under when the underlying enforcement action would be a state-law claim with a federal defense that would not satisfy the Well Pleaded Complaint Rule. A D/J action arises under only if the hypothetical enforcement action would arise under, because the well-pleaded complaint asserts a claim in which the right of action and rule of decision are created by federal law. This means the California action could go forward based only on diversity jurisdiction but not federal-question jurisdiction, and the Nevada action must be dismissed..

Looking at the pleadings and the SAFETY Act, however, I think there is jurisdiction. MGM's argument seems to be as follows. Section 442 provides a federal cause action, with exclusive federal jurisdiction, "for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act." The law of the state in which the acts occurred provides the rule of decision, unless inconsistent or preempted by federal law. MGM's argument, based on the statute and implementing regulations, is that this was an act of terrorism and because MGM hired a vendor to provide security services, any claim based on failure of those security efforts can be brought only under federal law and in federal court,  and can only be brought against the seller of services and not against it as the buyer. I think that solves the jurisdictional problem. The enforcement action would arise under federal law in federal court because federal law provides the right of action in § 442(a)(1) and federalized state law as rule of decision, so the mirror D/J action also arises under. I do not know whether the argument works under the statute, but that is a matter of merits, not jurisdiction.

One more jurisdictional puzzle in the California complaint. The pleading asserts supplemental jurisdiction with respect to claims against any victim/defendants whose claims would be for less than the jurisdictional minimum. But § 1367(b) should preclude supplemental jurisdiction over claims between multiple plaintiffs and multiple defendants, because the first clause of (b) precludes supplemental jurisdiction over claims by plaintiffs against persons made party under Rule 20. Even accounting for the upside-down posture of the case, the D/J action involves claims against multiple defendants, all joined under Rule 20, which should prohibit aggregating amount in controversy this way.

Posted by Howard Wasserman on July 17, 2018 at 04:45 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Fourth Circuit on prosecutorial immunity

Prosecutorial immunity presents a problem. Immunity applies to all functions intimately associated with the judicial phase of the criminal-justice process, broadly defined. And it includes general office-wide policies relating to the judicial process, even if not to a specific prosecution. Courts have sought to draw a line between immune prosecutorial functions and non-immune administrative functions, namely employment decisions. But that distinction could collapse, because employment decisions may have some connection to a judicial proceeding or to judicial proceedings generally--for example, how to staff a case is an employment decision that implicates a prosecution and involves discretionary legal judgment. One way to avoid that collapse is to ask whether the § 1983 action requires that court to reconsider an underlying investigation or prosecution, a question that functionally turns on the identity of the plaintiff--immunity applies when the suit is brought by the target of the underlying prosecution, but it does not apply when the suit is brought by a non-target, such as an employee.

To take a simple example: Imagine the DA refuses to assign an African-American line prosecutor to a case because he believes the white prosecutor will be tougher on the African-American criminal defendant and push for a harsher sentence. If the defendant brings some sort of wrongful prosecution claim, immunity applies. If the passed-over line prosecutor brings a race-discrimination claim, immunity does not apply.

But the Fourth Circuit declined to accept that distinction. The plaintiff was a police officer who alleged that the state's attorney 1) subjected him to racial harassment by (gratuitously) reading aloud at a trial-preparation meeting letters and statements (that would be used as evidence) containing racial epithets and 2) retaliated against him for complaining about that conduct by refusing to call that officer as a witness at any future proceedings. The court held that trial prep and decisions about who to call as witness are immune prosecutorial functions, as they are intimately connected to the judicial phase of the criminal process, done while the attorney was acting as an advocate for the state. That this occurred in the employment context was irrelevant--"[t]hat a judgment about witness credibility or which cases to try has negative employment consequences - even readily foreseeable ones - does not change the underlying nature of that judgment."

This reasoning could broaden prosecutorial immunity in a way that swallows many employment claims. If discussing evidence and deciding what witnesses to call is prosecutorial, then it seems that an attorney could: sprinkle his trial-prep discussions with racial epithets; decide never to call any African-American police officer as a witness; decide never to prosecute a case in which the arresting officer is African-American; decide never to have an African-American police officer in the trial-prep meeting; decide never to assign a female attorney to work his cases or agree to work with a female attorney on his cases. There is no difference between creating a racially hostile environment and treating someone more poorly because of race or sex or whatever; all (if proved) violate Title VII and the Fourteenth Amendment. If they occur in the judicial phase, immunity should apply.

The court tried to avoid that end, insisting "it is only 'a certain kind of administrative obligation - a kind that itself is directly connected with the conduct of a trial.'" And "even in that context, if a prosecutor's alleged conduct cannot be connected to discretionary judgments about which witnesses to call and which cases to prosecute, then absolute immunity will not apply." But it is easy to connect employment acts to those immune discretionary judgments. The state's attorney can decide not to prosecute a case because the complaining officer is African-American or because the line prosecutor working the case is a woman. Either involves protected discretionary judgments. And the point of absolute immunity is that courts cannot look beneath the function and examine motive--if it is a prosecutorial decision (reviewing evidence, calling witnesses, pursuing cases), it is immune, even if the function is performed for no reason other than racial animus.

Posted by Howard Wasserman on July 17, 2018 at 01:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Alternative Facts from Court, the Anti-Vaccine Edition

In a very real sense, the anti-vaccine movement lives in an alternative reality. It’s a dark, frightening realitywhere there is a global conspiracy run by pharmaceutical companies that, apparently, controls most of the doctors, scientists, and health officials in the world, and every government. Where vaccines are poison and diseases are benign, and all that is bad in the world – or most of it – can be blamed on vaccines.

 

I want to use a recent FOIA stipulation to demonstrate how this is formed, how anti-vaccine  groups interpret reality to make it more sinister. This might also give some insight into the phenomenon of alternative facts more generally.

 

On July 9, 2018 a stipulation resolving a Freedom of Information Act (FOIA) case between an anti-vaccine group, Informed Consent Action Network (ICAN), and the Department of Health and Human Services (DHHS), was filed. ICAN requested from HHS “reports transmitted to the Committee on Energy and Commerce of the House of Representatives and the Committee on Labor and Human Resources of the Senate by the Secretary of HHS Pursuant to 42 U.S.C.  §300aa-27.” That section requires DHHS to work to improve vaccine safety and report on its efforts to the two congressional committees every two years.

 

The stipulation included DHHS’ statement that it conducted thorough searches and did not find any such documents. The natural implication is that such reports were never filed. Why they were never filed, I don’t know. It certainly may be a failure on the part of the DHHS – and on the part of the Congressional Committees that did not follow up – and the natural result would be for DHHS to start filing such reports. There may be more to it.

 

The interesting story is how the stipulation was described on anti-vaccine pages. To protect individual privacy and not shame private people, I will refer only to public pages and leading figures.

 

In a discussion of the case on an anti-vaccine web broadcast, anti-vaccine activist Robert F. Kennedy Jr. – who was the lawyer signing the stipulation for ICAN - said: “what HHS has admitted here is that there is no scrutiny; there is no vigilance.And of course, the gravamen of their strategy has been to make sure that vaccines are never safety tested.” Kennedy did not quite say there are no studies, but he suggested there is no monitoring of safety.

 

The show includes a caption that says: Government concedes: There are no safety studies on vaccines...”

 

Del Bigtree No Safety Studies

 

 

In a discussion on a popular anti-vaccine page, the same heading was used: “HHS concedes no afety studies on vaccines.”

 

Many other anti-vaccine pages followed through. To give one example, the page Oregonians for Vaccine Choice said:

“[DHHS] DID NOT DO ONE SINGLE SAFETY STUDY IN THE LAST 30 YEARS OR AT LEAST THEY STATE THEY HAVE NO RECORD OF ANYTHING!!”

 

To be fair, a few sites have tried to pull back and be more accurate – The World Mercury Project, an anti-vaccine outfit created by, among others, Robert F. Kennedy – explained that this is about not filing reports. Though it did it in a post connecting to the inaccurate statements by Mr. Kennedy and the inaccurate caption I described above, so the nuance may be lost. Similarly, Oklahomans for Vaccine Choice, after initially saying HHS did not do one safety study, corrected it to saying they did not file reports. But the general message was “no safety studies!”

 

That is, of course, not what the FOIA request was about at all. It is also incorrect.

 

The CDC provides a useful central page with links to various collections of vaccines safety studies by itself and other parts of HHS. While not part of HHS, at HHS’s request the National Academy of Medicine – formerly the Institute of Medicine – created several reports on vaccines safety, reviewing abundant literature and synthesizing it. In 2014, the HHS commissioned another large report on vaccines safety by another group. There are several federal committees overseeing vaccines safety, and four monitoring systems looking at vaccines safety, all connected to HHS.

 

Saying HHS did not do safety studies or did not work on vaccines safety for 30 years is simply untrue, or, in today’s parlance, alternative facts. But this is how this simple, straightforward court decision has been read on anti-vaccine sites, and that is the message being distributed. Again, I do not want to shame or target individuals, including leaders of the anti-vaccine movement, so have limited this to public pages.

 

This is how fake news are born, even in the face of a simple three-page court document. It is likely, at least, to widen the gap between firm believers in the anti-vaccine reality and the rest of society that realizes this is untrue, creating even more mistrust. Whether it will go beyond that is unclear. It is relatively easily disproven, so it might actually help demonstrate how unreliable anti-vaccine claims generally are. We will have to see. 

Posted by Dorit Reiss on July 17, 2018 at 09:13 AM in Culture, Current Affairs, Law and Politics | Permalink | Comments (4)

Monday, July 16, 2018

Colb on the presumption of innocence

This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.

Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.

Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.

Posted by Howard Wasserman on July 16, 2018 at 08:44 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (26)

There Is Nothing New Under the Sun - Xenophobia Edition

PapaParisPart of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files.  One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these.  The documents are tantalizing. 

For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children.  Before that, he was supporting his mother and sisters.  When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.)  Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick.  I have framed in my office my personal favorite:  the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected.  (I like to think that Hoover's two issues with Nathan were related to each other.)

For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer.  The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party.  Bojer himself described it to a reporter as follows:  "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York.  Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation.  There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England.  Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."

The American Civil Liberties Union attempted to intervene on Bojer's behalf.  (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.)  On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case.  Baldwin stated:  "The issue is far more than personal to him.  This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership.  It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party."  Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway.  He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

There was an interesting postscript to that story.  Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.

So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience.  The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country.  In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred.  Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered.  The ever oppressed alien is again victimized.  The term alien becomes synonymous with undesirable.  Deportation "drives" and "spectacular raids" then become common occurrences.  Wholesale deportation follows as a panacea for what ails the nation.  This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws.  Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions.  To espouse the cause of the under-privileged requires great courage.  Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis.  So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

And here's more.

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss.  As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes.  Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment.  Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself.  Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation.  Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

 Oh, and by the way, Nathan insisted to me many years ago that he was a Republican.

Posted by Jeff Lipshaw on July 16, 2018 at 07:59 AM in Blogging, Current Affairs, Immigration, Lipshaw | Permalink | Comments (1)

Sunday, July 15, 2018

ACLU in the NYT (Updated)

I was traveling last week, so I was unable to read and comment on last week's New York Times Magazine feature on the ACLU. The story emphasizes two themes--its litigation against the Trump Administration across a range of issues and the way it has looked to the NRA's political and electoral strategies for guidance.*

[*] The headline on the article in the print edition was A.C.L.U. v. Trump. The headline in the online article was Can the A.C.L.U. Become the N.R.A. for the Left.

The article does not get into the controversy over the ACLU's First Amendment work, its role in Charlottesville, or the recent controversy over its policies on representing certain speakers in First Amendment cases. None of the political and litigation effects discussed in the piece involve the First Amendment. The article downplays the degree to which this reflects major changes to ACLU activities. It states this is "not the first time the A.C.L.U's mission has shifted," pointing to its birth in the 1920s to protect radicals and unionists and the slow discovery of the benefits of litigation in those efforts. But that was a shift in tactics, not a shift in mission. The print article describes the ACLU has having become a "rapid legal assault force against the Trump Administration." But the Administration's many sins have not involved limiting speech rights, so that role has required less work on free speech and more on immigration, due process, equal protection, and voting rights. All of which is important. But it is different than what the group has historically focused on.

Update: Marin Cogan in The New Republic explores how the ACLU's competing agendas and roles conflict in the Age of Trump. No mention of the Times Magazine story or of the representation guidelines, although it discusses the negative reaction by many affiliates to the organization's representation of Milo Yiannopoulos or the Charlottesville Nazis. Cogan offers an interesting conclusion--the NRA succeeded because of political polarization, in which certain issues (e.g., gun rights) are entirely associated with one political party. But resistance to sharp ideological boundaries is part of the ACLU's (First Amendment) DNA, so its continued desire to appear (and perhaps remain) non-partisan will frustrate and disappoint liberals hoping it will become the single organization to promote their interests.

I cannot tell if Cogan believes this is a good or bad thing.

Posted by Howard Wasserman on July 15, 2018 at 07:28 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, July 13, 2018

Two interesting civil rights puzzles (Updated)

No connection, other than being news stories while on a driving vacation.

1) A Cook County Parks District police officer resigned when video emerged of a drunk man harassing a woman renting a covered picnic area, while the officer watched and did nothing, despite requests from the woman. The drunk man, who was arrested when other officers arrived, was screaming about the woman not being American and should not have worn a Puerto Rico t-shirt in America.

The fun puzzle is imagining the woman's lawsuit against the officer (putting aside that she suffered minimal or nominal damages and a lawsuit may not be worth the candle). Under DeShaney, the officer cannot be liable under due process for failing to act to stop the drunk man or otherwise protect the woman. She would have to bring her claim either under equal protection, that the officer failed to act because she is Puerto Rican, or free speech, that the officer failed to act because he disagreed with the message on her t-shirt or, perhaps, because he agreed with and wanted to support the drunk man's anti-Puerto Rico speech directed against her.

Update: Erica Goldberg argues that much of what the drunk man did was pure speech, so the officer would have violated his First Amendment rights had he intervened sooner. I interpreted the video as being more in-your-face and threatening (and thus less purely protected expression), giving the officer leeway to step-in sooner than he did. But I see Erica's point that this can be read as obnoxious counter-speech.

2) Democratic-controlled states, anticipating overruling of Roe/Casey, are moving to update and enact protective abortion laws. Many progressive states still have on the books the restrictive abortion laws from the early 1970s that became unenforceable following Roe.

This shows the downstream effects of the reality of constitutional litigation. Roe declared invalid Texas' blanket ban and enjoined Texas from enforcing that law; it not remove the law from the Texas code. It also did not repeal the laws of any other state (nor did it enjoin other states from enforcing their laws, although most states declined to enforce, knowing they would lose when courts applied Roe. That's the idea of judicial departmentalism).

Those laws remained on the books, unenforced, a vestige of a past constitutional regime and a past policy position. States lack any incentive to go through their books and remove or update those laws, assuming that the past constitutional regime does not return and the laws remain unenforceable. Facing the return of that regime of no federal constitutional protection for terminating a pregnancy, meaning plenary legislative authority on the subject, states must legislate their preferred abortion policies. For states wanting to maintain liberal reproductive freedom, that means combing the books and eliminating old laws that no longer reflect current policies.

Posted by Howard Wasserman on July 13, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

Image.1531193713927But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Posted by Jeff Lipshaw on July 13, 2018 at 08:53 AM in Books, Culture, Film, Lipshaw | Permalink | Comments (0)

Teaching Compliance

During bar study, July 4th is a big “you don’t have much time left” marker, and that is how I feel about the academic summer.  As soon as the fireworks have died down, I start thinking about teaching.  I love teaching.  I love teaching Contracts to 1Ls, in part, because it is hard to imagine a greater privilege than being able to help introduce the law to a brand new set of students.  But I also love teaching my Compliance course, because it allows the students to confront legal issues that are still being debated and determined.

Developing my Corporate Compliance & Ethics Seminar was both exciting and challenging.  At the time I started teaching it there was one compliance casebook (it is excellent), but I wanted to use a different set of materials for a seminar.  As many of you know, coming up with a set of materials for a course from scratch is time intensive, but it is also very rewarding, particularly when it overlaps with your scholarly interests. 

I decided to break my course up into modules and to use case studies as a vehicle for learning each concept covered.  Module I covers introductory materials like the Organizational Sentencing Guidelines, the importance of self-policing, as well as some background reading in behavioral ethics.  In Module II, we go through different actors within compliance efforts, like regulators, gatekeepers, and whistleblowers.  In Module III, we cover substantive compliance areas.  I have traditionally covered the Foreign Corrupt Practices Act, Antitrust, the False Claims Act, and Title IX.  In Module IV, I merge the theoretical concepts we have learned in class with some more practical concerns.  This latter module has changed each year I’ve taught it, with last year focusing on conflicts of interest and sanctions for compliance officers.  Finally, I weave in coverage of applicable Model Rules of Professional Conduct throughout the course.  

In other words, there is a whole lot of information crammed into a 14 week course, but it has generally been quite successful.  I use some classic exemplars for case studies—like Enron and Siemens—but I also use current events when I can.  For example, during last year’s whistleblowers class, I put together materials from the Wells Fargo scandal.  The mix of (i) case studies, (ii) theoretical background reading, and (iii) Model Rules has sparked intensive discussions about the role lawyers play within compliance efforts and where the boundaries should be when defining the scope of responsibility that lawyers should have for ensuring successful compliance programs are created and developed.  It is fun to teach, and the students seem to enjoy the concepts learned.  And because this is a class where the law is still quite dynamic, I’m looking forward to amending my antitrust and whistleblowers sections next week!

Posted by Veronica Root on July 13, 2018 at 08:27 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (0)

Thursday, July 12, 2018

JOTWELL: Wasserman on Mitchell on writs of erasure

I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.

Posted by Howard Wasserman on July 12, 2018 at 09:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Vaccine Safety Resources for Teaching and Litigation

 

Anyone teaching about public health and vaccines – whether in the context of a public health law class or a traditional health law class with a section on vaccines - could benefit from a quick introduction to the scientific issues surrounding vaccines, including potential claims about safety concerns. To make life easy for those seeking such information, the Vaccine Education Center of the Children’s Hospital of Philadelphia (VEC) put together a collection of the strongest referenceson several commonly raised safety concerns. The collection was created through a collaboration between Dr. Stanley Plotkin, MD, Dr. Paul Offit, MD, and Dr.  Heather Bodenstab, PharmD.  

The logic behind the effort is that it is rarely possible to be familiar with all anti-vaccine arguments, especially since in today’s social media world claims change very fast, and few experts or professors can keep up with them. Similarly, an expert in evolution will not be familiar with all claims put forth by creationists, or an astronomer with flat earth claims. The library includes summaries of the most relevant, scientifically-based studies on each topic as well as links to a topical overview from elsewhere on the VEC website. It can help law professors be  prepared to address these common claims without requiring them to spend long hours tracking anti-vaccine claims and researching answers. It can also help lawyers and expert witnessesin cases related to vaccines, and could be of value to anyone interested in the science of vaccine safety.

 

Posted by Dorit Reiss on July 12, 2018 at 08:31 AM in Teaching Law | Permalink | Comments (0)

Wednesday, July 11, 2018

Hiring Committees 2018-2019

Please share in the comments the following information related to the 2018-2019 law school faculty hiring season:

(a) your school;
 
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); and/or
 
(g) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Posted by Sarah Lawsky on July 11, 2018 at 10:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (12)

Is competitive eating a sport?

I should have written this last week, after watching the Nathan's Hot Dog Eating Contest on July 4, but I never got around to it. Anyway, is competitive eating a sport? The announcers spent a lot of the broadcast talking about how 11-time champion Joey Chestnut trained and worked his mouth, jaws, esophagus, and digestive tract to take and swallow such large amounts of food.

My four-part definition of sport is: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. Numbers 2-4 are satisfied--it is a competition, no machines are involved, and the skill of eating and swallowing is performed to the end of consuming lots of food. So the question is whether chewing and swallowing qualify as large motor skills.

Posted by Howard Wasserman on July 11, 2018 at 08:55 AM in Howard Wasserman, Sports | Permalink | Comments (8)

Tuesday, July 10, 2018

The Court’s Religious Jurisprudence and Vaccines

 

The Court’s Religious Jurisprudence and Vaccines

In my last post, I pointed out that for over a century, for good reasons, courts have upheld school immunization mandates, including in the face of challenges based on the First Amendment’s free exercise clause. Two federal Court of Appeals cases in 2011and 2015reaffirmed this. The courts’ approach is based in part on powerful dictum in Prince v. Massachusetts, and in part on Employment Division v. Smith. All the courts upholding California’s new school vaccine legislation, SB277, echoed that view.

An important qualification is that states that do provide an exemption face constitutional limits that seemed designed to make the exemption hard to police and easy to abuse (though each by itself can be justified). States cannot require a clergy lettersupporting an exemption claim, because that discriminates in favor of organized religion. States cannot refuse an exemptionto a member of a religion that supports vaccines – for example, a Catholic or Jew – on the basis of that alone, if she claims a personal religious objection to vaccines. And when state law, itself, does not require evidence of sincerity, several courts have ruled that officials cannot add that requirement. State officials must accept any claim of religious objection at face value.

This makes a religious exemption very hard to monitor. Most of the users of this exemption are likely refusing vaccines for non-religious reasons. Having a religious exemption – when courts have consistently found it is not required – is likely a poor policy choice.  

One question is whether the recent Supreme Court jurisprudence will change the current judicial consensus that a religious exemption is not required in vaccine mandates. This is a narrow application of these decisions (and far from inclusive, because I want this post reasonably short); but this exercise can highlight some potential risks of the court’s recent religious jurisprudence even the supporting justices seem not to desire.  The current Supreme Court majority has been fairly cautious in its handling of the religious cases. But we are facing a potentially different composition of the court – and who knows? (For more detailed discussions of the religious jurisprudence on this blog, seehere,here,hereand here, for example. For a recent discussion of a paper on appointments on this blog, see here).

In Burwell v. Hobby Lobby, HHS actually raised a concern about negative effect on vaccines coverage by employers, and Justice Ginsburg’s dissent raised that as well. However, since the case focused on a Religious Freedom Restoration Act (RFRA) question and not a first amendment question, it did not directly address school immunization mandates. The majority referred to Smith as the standard for applying the First Amendment, and took pains to distinguish its discussion of RFRA from that context. However, the majority’s extremely narrow reading of what is an acceptable least restrictive means to address a religious issue can affect the way federal district cases and state courts influenced by the Supreme Court approach immunization mandates if they apply strict scrutiny. The majority may have seen this as unlikely, but it’s a possible outcome. That said, two courts in California addressing this after Hobby Lobby – a federal district court in Whitlowand the Second Appellate District’s  opinion inBrown– found that immunization mandates meet the least restrictive means test to achieve the compelling interest of disease prevention, each on a different basis. Whitlowfound that since the goal of the law in question was “total immunization”, any non-medical exemption would not achieve it, and the law was the least restrictive means to it. The Court of Appeal in Brown v. Smith, on the other hand, found that immunization mandates are the “Gold Standard” for preventing diseases.

 

Masterpiece Cakeshop v. Colorado Civil Right Commissionwas also carefully and narrowly decided, based on a finding that the Colorado Commission in question was hostile to the baker’s religious objections. It did not overturn Smith, and did not touch on immunization mandates. However, it could be used by opponents in the right circumstances to try and claim hostility to their religious claims. For example, in a case attacking Michigan’s requirement that people seeking exemptions have a discussion with the Department of Health’s personnel – with a plaintiff with religious objections to vaccines -  the Sixth Circuit’s rejectionof her claim was in part based on the lack of a constitutional right to an exemption. If plaintiff claimed special hostility to her religious objections, and it wasn’t unlikely she would, Masterpiece Cakeshopcould be used in support.

In short, so far, the Supreme Court’s jurisprudence on religion does not undermine the existing jurisprudence upholding school immunization mandates without a religious exemption. However, it creates potential arguments that plaintiffs can use to challenge the mandates in court. More than that, the growing religious jurisprudence – which should include the recent Becerracase overturning California’s law requiring pregnancy centers to provide information about abortion services – suggests a possible change in the Supreme Court’s general approach to religious arguments. This, in turn, could increase the protection of religious claims in many contexts, including school vaccination mandates, potentially putting the public health of communities at substantial risk.

Posted by Dorit Reiss on July 10, 2018 at 11:57 AM in Constitutional thoughts, Religion | Permalink | Comments (6)

Monday, July 09, 2018

Constitutional Politics, Court Packing, and Judicial Appointments Reform

The following post is by Matthew Seligman, a VAP at Cardozo. It is a short version of his new paper.

In the aftermath of Justice Kennedy’s retirement announcement, several legal scholars have suggested that Democrats should add seats to the Supreme Court when they retake the Presidency and Congress.  Jed Shugerman, for example, advocated expanding the Court to 15 if Trump’s replacement nominee is confirmed, on the ground that no President under investigation for conduct that plausibly could lead to impeachment has appointed a Justice who might rule in his own case.  In addition to that conflict-of-interest principle, Ian Samuel suggests packing the courts in response to prior rounds of Republican hardball—most notably the Republican Senate’s refusal to consider Judge Garland’s nomination to succeed Justice Scalia.  Samuel is aware of the obvious implication of initiating a cycle of retaliatory court packing, as Richard Primus explained in the Harvard Law Review Blog in response to Steven Calabresi and Shams Hirji’s proposal last year that Republicans expand the courts of appeals by dozens or even hundreds of judgeships.  An escalating cycle of packing and re-packing the courts would offer fleeting advantage to one side and then the other (assuming neither side is able to permanently entrench its political dominance).  And the cost would be steep: undermining the legitimacy, public acceptance, and even basic functioning of the courts. 

The irregular Supreme Court appointments process has been a problem for centuries.  Allocating substantial power based on the vagaries of the timing of deaths and retirements is no way to run a constitutional democracy.  And the best solution on offer has been around for decades or more: a term limit on Supreme Court Justices of 18 years, joined with fixing the number of Justices at 9 and a regularized schedule of appointments every 2 years.  The primary problem with this solution, whether it is to be sought by statute or by constitutional amendment, is actually making it happen.  Constitutional amendments are exceedingly challenging to achieve even on issues with lower ideological stakes and when the parties’ willingness to cooperate is much higher than it now is.  A statutory compromise on the judicial appointments process would be extremely challenging in its own right, in part because such a statutory measure could be reversed by a single party in control of Congress and the Presidency.  We live in an era, we are told, of constitutional hardball.  With the continuing collapse of constitutional norms, it seems less likely than ever that the parties could cooperate to solve the problem.  So, it may seem, we are likely to see the initiation and escalation of continuing cycles of court packing.

In a new essay, I argue that this understandable pessimism is a mistake.  I offer the counterintuitive conclusion that in this moment of cratering cooperation, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good.  The readily apparent prospect of imminent court packing changes the game.  Precisely because the threat of endless escalation is now so salient, both parties are positioned to recognize the value of pursuing a long-term solution over securing short-term and ephemeral partisan advantage. 

Here’s how:

Escalation in constitutional hardball predated the present moment, but its inevitability now presents itself to us with perhaps greater clarity than anything that came before.  There was, perhaps, some uncertainty about the opposing sides’ strategies and potential responses in this iterated game when it came to the abolition of the filibuster or with respect to how late in a President’s term the Senate will consider a Supreme Court nominee.  Court packing is different.  Once the cycle of court packing begins, that uncertainty will likely evaporate.  Each party will be certain—or as certain as one can be when it comes to law and politics—that the other party will re-pack the courts with ever greater numbers.  Moreover, unlike other hardball moves like the elimination of the filibuster, court packing admits of no clear limiting principle.  The parties can eliminate the filibuster only once.  But once the parties start packing the courts, there is no natural stopping point.  And both parties know that.

That shift from uncertainty to near-certain knowledge of imminent escalation with no foreseeable stopping point is the unique circumstance that may change the game.  The players now know that the other side’s strategy would be hardball, and that those strategies will inevitably lead to endless escalation—an outcome that is worse for everyone (I assume) than cooperating.  That alters the payoff matrix in a critical respect.  Neither party has any reasonable hope of achieving unilateral dominance through the hardball of court packing, because it knows that the other party will respond by playing the hardball of court packing as well.  Thus, due to the newly shared perception of impossibility of achieving dominance through hardball about the courts, for the first time the parties’ self-interested incentives point to a strategy of binding cooperation.  Accordingly, precisely because the threat of escalation has become so salient and so apparently inevitable, judicial appointments reform through a constitutional amendment may be more attainable than it ever has been before.

Posted by Howard Wasserman on July 9, 2018 at 03:24 PM in Article Spotlight | Permalink | Comments (12)

Coase and Fireworks

493l4SRQTVOydKrgKSgSugIn my continuing effort to demonstrate what the mundane world looks like through the eyes of a nerdy law professor, today we will talk about Ronald Coase, recipient of the Nobel Prize in economics, and fireworks.

Before we had dogs, I liked fireworks, at least the professionally staged kind.  Up here in Charlevoix, Michigan, every year in late July the town has a week-long event called Venetian Festival.  The highlight on Friday night is a spectacular fireworks show out over the lake for which our deck is effectively a front row seat.  For the last seventeen years or so, however, I have not been out on the deck nor have I seen the fireworks.  No, I am back in a closet with the door closed, comforting our dog(s) who is/are going batshit crazy.

With the professionally staged fireworks, at least I know when to go into the closet and when I can come out.  It's the private ones that really drive me crazy.  In Massachusetts, where we live nine months of the year, I don't have worry.  Private fireworks are illegal, end of story.  

Here in Michigan, however, we have to deal with one aspect of the state legislature's Year of Living Stupidly.  In 2011, the same year it passed the law eliminating the requirement that motorcyclists wear helmets, Michigan first permitted the sale of fireworks in the state.  In 2013, it amended the law to permit local units of government to ban the use of consumer fireworks, but not on national holidays, the day before or the day after a national holiday.  (It also allows any city in the state with a population greater than 750,000 - there is only one - to ban them between midnight and 8 a.m. on such holidays, and only between 1 a.m. and 8 a.m. on New Year's Day.)

The reasons for my sitting on the beach and, like a complete dork, reading Ronald Coase's The Problem of Social Cost follow the break. If he had the house next door, and had the same issues I do, what might he say about it?

Our local unit of government, the City of Charlevoix, and the surrounding Charlevoix Township each enacted ordinances banning the private use of consumer fireworks to the extent permitted by the Michigan statute.  Thus, for three of the days we are here during the summer (July 3-5), we have to deal with the possibility that some *)&(*^*^&$ is going to be responsible for random and unexpected fireworks activity that turns our dogs' brains into petroleum jelly and causes them to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.  

The rest of the summer we can be fairly sure that our nearby neighbors won't be using consumer fireworks because of the local ordinance.  If they did out of a misunderstanding of the law, and they were to ignore our friendly suggestion that they obey the law, we would be within our rights to call out Charlevoix's Finest. Fullsizeoutput_de4

Here's the problem.  If you happened by my earlier discussion of riparian rights, you saw this Google Earth picture. It so happens that I took the above picture just about at the tip of the red arrow.  The city proper is largely to the left (west) of the tip of the arrow.  The township pretty much ends at the other end of the arrow.  Every thing else to the right, including that peninsula (known as Pine Point) that looks sort of like India, is in Hayes Township.  Hayes Township has never passed an ordinance banning fireworks.  So just after it gets dark, for much of the summer, we are treated to a fireworks display that carries very nicely, sound and otherwise, across the mile or so to our house.

Where our dogs, having dog-like senses of hearing and smell, proceed to have their brains turned into petroleum jelly and thereupon to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.

Now, I know that the reason for all of this fireworks activity under the current legal regime is the result not of, as Coase might hypothesize, a railroad needing to run a railroad even if sparks cause crops to catch fire, or industries needing to burn fuel even if it causes air pollution nearby.  It is the product of market activity in which the total value of production exceeds the cost of such production, and consumer activity in which the utility engendered by playing with toys that make loud booms and bright flashes exceeds the cost of such activity, at least for those engaged in it.

The social cost occurs across the lake at my house, where I am contemplating the purchase of doggy Xanax.

The popular takeaway - the "Coase Theorem" - applied to my situation is this.  In a world of zero transaction costs, the total net social welfare of setting off fireworks, on one hand, and my distress in dealing with the dogs does not depend upon the initial allocation of rights.  Assuming that we valued noise and peace in the appropriate ranges, either the celebrants would pay me for the right to have the rockets' red glare or I would pay them to cease and desist. 

It works like this. Let's assume that the pricing system works costlessly and the only actors are A across the lake who wants to use fireworks and me.  The cost to me of insulating my house against fireworks noise is $100.  If the default rule is that the fireworks can't be used without my consent, and the value to A of his (and it's always a "he") activity is more than $100, then A ought to be willing to pay me up to $100 to shoot off fireworks (the cap being $100 because for that amount he can pay for the insulation of my house).  If there is no regulation against fireworks, and I value silence at more than $100, I ought to be willing to pay A up to $100 to have him stop.  In short, with a smooth and costless pricing system, you get the same result regardless of the initial legal entitlement. But, of course, the idealized world of zero transaction costs doesn't exist, and so even if the world only consisted of A and me, and the transaction costs of paying off A creates a total cost to me that exceeds the value of silence, I won't do it, even if without transaction costs it would have been the more efficient result.  And it's not just A and me.  It's many of the good citizens of Hayes Township and many of the good citizens of Charlevoix.

Is there a market solution to my problem?!!?  It turns out that Coase didn't articulate a theorem (or at least that wasn't his object in the article).  There were no helpful hints on how to articulate a default rule so as to minimize transaction costs with the aim of an optimal allocation of resources.  In fact, he never used the word "theorem" or the term "transaction costs."

I recommend Pierre Schlag's critique of the morphing of what Coase said in Social Cost into neo-classical law and economics.  At the beach the other day, I confirmed Pierre's statement that you can get the entire basis for what others now call the Coase Theorem by page 8 of Coase's original 1960 article and skip the remaining 36 pages (actually there's a piece of it at pages 15-16 as well).  Pierre's critique is not of Coase's article. His point was that the popular takeaways - mainly Chicago Law and Economics - have transformed Coase's point into something else entirely. It wasn't Coase who developed the L&E focus on using neo-classical economics to justify legal rules, or to focus on the reduction of transaction costs in pursuit of an idealized efficient solution.  Moreover, in a different piece, Pierre observed that the L&E approach to transaction costs itself is neither theoretically intelligible nor operationally applicable.

To the contrary, according to Schlag (and, by my reading of Coase, he is right), Coase had a far different goal in Social Cost. Coase wanted neo-classical economics to take account of the real world, in particular the effect of law and legal institutions on resource allocation.  Coase's main object was to criticize the prevailing acceptance among neo-classical economists of the idea of Pigouvian taxes.  He wanted to demonstrate the problem with Pigou's approach to externalities - namely, to impose taxes or bounties to the extent that the social cost of an activity exceeded the private cost to the actor.  

Coase was skeptical of Pigou's entire approach.  The bounties or taxes were likely to be overbroad.  Indeed, the focus on making an actor's private costs equal to the total social cost of the activity was misplaced.  In the foregoing example, suppose the social cost of fireworks noise is $200 to me.  Coase criticized the knee-jerk remedy merely of taxing the activity in the amount of $200, because it is possible, in an appropriately free market, that it would only cost $100 to achieve an optimal allocation of resources. In short, the appropriate way to judge externalities (Coase didn't use that term either) was to assess the total effect on social costs both for the actors and those affected by the actors and not simply to add costs to deter the unwanted activity.

But, wait. If the market is not going to work, am I out of luck?  I don't think so.

If Professor Coase lived next door and I were to walk over there and find him, like me, huddled in a closet with his batshit crazy dogs, I don't think, based at least on what he said in The Problem of Social Cost, that he'd rule out the idea of having government rather than the market decide how resources are to be allocated. Firms get organized when there are opportunities for value-enhancing transactions, but only under a scheme where less expensive intra-firm administrative costs substitute for higher costs of market transactions. And then there is the case of something like fireworks noise, "which may affect a vast number of people engaged in a wide variety of activities" and so "the administrative costs might well be so high as to make any attempt to deal with the problem within the confines of a single firm impossible.  An alternative solution is direct Government regulation."  Here, Coase observed that "[t]he government is, in a sense, a super-firm (but of a very special kind) since it is able to influence the use of factors of production by administrative decision."  Coase pointed out that the "government is able, if it wishes, to avoid the market altogether, which a firm can never do."

That is an interesting point up here along the lake. Yes, government regulation can be overbroad and inefficient. 

But equally there is no reason why, on occasion, such governmental administrative regulation should not lead to an improvement in economic efficiency. This would seem particularly likely when, as is normally the case with the smoke nuisance, a large number of people are involved and in which therefore the costs of handling the problem through the market or the firm may be high.

But you have to get down to cases and not deal in abstractions. Coase thought economists and policy-makers over-estimate the advantages of government regulation, but all that does is suggest that government regulation should be curtailed. "It does not tell us where the boundary line should be drawn. This, it seems to me, has to come from a detailed investigation of the actual results of handling the problem in different ways."  The problem even with local government regulation is that it doesn't fully account for all of the social costs, because the board of supervisors in Hayes Township has not enacted the same ordinances as Charlevoix and Charlevoix Township, and parts of Hayes Township are closer to my living room than parts of my own city.

So, here I am, 1,778 words into this blog post, and discovering that, if Ronald Coase were my neighbor, I might well get him to join me in an effort to get the county or maybe the state government to understand there is a social cost to fireworks.  Not everything needs to be dealt with in terms of markets.

In this article, the analysis has been confined, as is usual in this part of economics, to comparisons of the value of production, as measured by the market. But it is, of course, desirable that the choice between different social arrangements for the solution of economic problems should be carried out in broader terms than this and that the total effect of these arrangements in all spheres of life should be taken into account. As Frank H. Knight has so often emphasized, problems of welfare economics must ultimately dissolve into a study of aesthetics and morals.

I suspect he'd agreed with me that, for fireworks, as elsewhere, "[in] devising and choosing between social arrangements we should have regard for the total effect." We could gather up the dogs and all those suffering from PTSD and march on township hall to tell them just that.

Or maybe he would tell me that I had over-thought the issue and suggest reading more appropriate for the beach.

Posted by Jeff Lipshaw on July 9, 2018 at 09:54 AM in Deliberation and voices, Law and Politics, Legal Theory, Lipshaw, Property | Permalink | Comments (5)

Sunday, July 08, 2018

Northwestern University Law Review Exclusive Submission Window

From an email I received earlier this week.

________

 

Summer Exclusive Submission Track: July 2018 - NOW OPEN!

The Northwestern University Law Review's Summer Exclusive Submission Track is now open and will be open from July 1 - 15, 2018. Articles should be submitted as Word or PDF attachments to Senior Articles Editor Kendra Doty at kendradoty2019@nlaw.northwestern.edu. Please kindly title the subject line "2018 Exclusive Submission Track." For all articles submitted in accordance with the instructions outlined below, the Law Review guarantees Articles Board consideration and a publication decision by July 31, 2018.

Articles receiving a publication offer via the exclusive submission track will be published in Volume 113 in late fall of 2018 and early spring of 2019. Participating authors must agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision back from us. Authors not receiving publication offers are free to submit elsewhere after notification of our publication decision, which will occur no later than July 31, 2018. 

Please note that by submitting an article via the exclusive submission track, the author agrees to accept a binding publication offer, should one be extended.

If you have any questions, please contact Kendra Doty, Senior Articles Editor, at kendradoty2019@nlaw.northwestern.edu

Posted by Veronica Root on July 8, 2018 at 10:03 AM | Permalink | Comments (1)

Merde and Break a Leg!

It is summer conference season, more or less - tomorrow Bar Ilan University Law Faculty is holding a book event for You Don't Own Me (come if you are in Israel - its at noon and open to all), last week I gave a talk in Amsterdam and later this week - speaking in Madrid - so I thought I'd share something I just learned from some of my hosts - the origin of the wish - Merde that performers give each other before a performance. While there are lots of theories about where "break a leg" comes from, there appears to be a consensus that the French Merde! or the Spanish wish mucha mierda comes from the time when participants would come to the theater in horse carriages. The performers would glance outside to the street and hope to see a mountain of horse poop - sign of a full house...

So here's to a summer and a new academic year with lots of Merde!

 

Image result for horse carriage

Posted by Orly Lobel on July 8, 2018 at 06:05 AM | Permalink | Comments (0)

Saturday, July 07, 2018

Love and Fear in Research and Writing

This week I had the pleasure to tag along to my life scientist friends to hear the opening talk of a large biology/cancer research conference in Amsterdam. The speaker was Uri Alon from Israel's Weizmann Institute and I loved what he had to say. He spoke about the emotional aspects of being a primary investigator, running a research lab and mentoring students. I found his talk to be universal and insightful also for us lawprawfs and social scientists. Also - he plays the guitar during his talks - and he even improvises a song with requests from the audience. You can him here on related themes and his famous "I got scooped" song.

 

 

 

Posted by Orly Lobel on July 7, 2018 at 04:25 PM | Permalink | Comments (0)

AALS Call for Papers: “New Voices in Legislation”

 

The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2019 AALS Annual Meeting in New Orleans, LA.  This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles.  Scholars whose papers are selected will present their work in small panel sessions.  A senior scholar will moderate each panel and lead discussion about the draft article.

Eligibility:  The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less.   All scholars, whether or not presenting a paper or moderating a discussion, are welcome to attend the program and participate in discussions.

Submission Requirements: Submissions should be drafts of articles relating to legislation and the law of the political process, including articles related to legislative structure, the legislative process, the budget process, statutory interpretation, and deliberation.  Submissions should be near completion and should not exceed 30,000 words, including footnotes.  The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2019.  However, articles that already have been submitted to journals for publication, and accepted for publication, are not ineligible for this reason.

Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Anthony O’Rourke, aorourke@buffalo.edu, by Sunday, October 1, 2018.  Selected participants will be notified in early November 2018.  Final drafts of those who are selected must be submitted by December 15, 2018.

Senior Scholars: If you are interested is serving as a commentator for one of the junior papers, please contact Anthony O’Rourke, aorourke@buffalo.edu.

Posted by Howard Wasserman on July 7, 2018 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Friday, July 06, 2018

How Susan Collins avoids being "disappointed" as abortion rights are eliminated

Kevin Drum predicts the Susan Collins path with respect to the confirmation of Justice Kennedy's successor (aka, the fifth vote to eliminate constitutional protection for a woman's right to terminate a pregnancy): Trump nominates a Justice certain to overrule Roe; Collins is convinced after an hour-long conversation that the nominee has "undying respect" for stare decisis; Collins declares herself satisfied and votes to confirm; eighteen month later, the Court overrules Roe; "Collins will announce that she’s disappointed." I have been saying much the same thing, which is why media coverage and interviews about Collins support for abortion rights are so mind-numbing, because it pretends that something other than what Drum says is a possibility.

But this piece by Leah Litman offers another way for Collins to avoid disappointment, by offering two paths by which the Court can eliminate the constitutional right to abortion without uttering the words "Roe is overruled." The first is by finding that the various state restrictions on abortion (short of an outright ban or criminalization) do not impose undue burdens and thus are subject only to rational scrutiny, which they survive. The second is by expanding the government interest in not "facilitating" abortion, which could be taken to its logical extreme that "allowing abortion under law facilitates abortion," so the state is justified in a ban. Either approach would eliminate abortion in many states and make the "right" impossible to exercise for many people, but without uttering the magic words.

And Collins will not be "disappointed." She can say, "well, the new justice did not overrule Roe, which is what I was concerned with." And she will not be smart enough (or care enough) to know what really happened.

Posted by Howard Wasserman on July 6, 2018 at 08:51 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Compliance & Diversity

All of the Supreme Court speculation circulating this week took my mind to places that I suppose are pretty atypical.  When I was a law student, I really wanted to clerk, but the University of Chicago had guidelines requiring each student to limit their clerkship applications to fifty judges or less.  As a result, I poured over my list of judges meticulously and asked many people advice about who should be on the list.  One of the people who looked at my list said quite bluntly – “Most black clerks are hired by black judges; keep all of the black, appellate court judges on your list.”  So I basically did.  As it turns out, I had two judges (a white woman and a black man) call me for interviews, and I did ultimately clerk for a judge who is amazing, kind, smart, organized, generous, and also black.  When I went for the circuit-wide clerkship training, I did note that the only two black people in attendance were one of my co-clerks and me.  And a black classmate emailed me shortly after his circuit-wide clerkship training to comment on the fact that he was the only black clerk in attendance. 

Thus, while all the interests groups are lining up to make their pitches about what the important qualities are in a Supreme Court Justice, my mind has turned to the fact that the small number of black appellate court clerks leads to a paucity of black, Supreme Court clerks (how many black, appellate feeder judges are there?), which narrows the field of those persons of color who might one day be on one of these lists.  Clearly, I digress and in doing so have skipped some pertinent intellectual and factual steps in the interest of writing a short-ish post.

My digression, nonetheless, has some relevance in that it may help to connect my interest in diversity to my interest in compliance.  I think sometimes people read my work and feel like the articles I have written on diversity in the profession are unrelated to my compliance work.  They are not.  Individuals attempting to create diverse organizational cultures and those attempting to create compliant organizational cultures and those attempting to create ethical organizational cultures are all addressing the same basic question. One could state the question in a few ways, but here is one:  How does one create a culture that promotes a particular set of values—diversity, compliance, ethics—and actually get buy-in of the organizational members in an effort to achieve the culture one has set out to create?  The question has no easy or simple answer.  Instead, the question requires step by step consideration of the external and internal forces that contribute to the creation of organizational cultures.  When one considers the questions as related, it opens up a number of scholarly approaches.  For instance, in a forthcoming article discussing antidiscrimination efforts within the bar, I rely on literature about the damaging effects created when an employee feels like s/he must remain silent.  I could just as easily use that same literature when talking about sexual harassment at Fox News or internal whistleblowers at Wells Fargo. 

There are certainly very good reasons to think about diversity, compliance, and ethics on their own, but there are upsides to approaching the concepts as if they are one, although perhaps not in the same law review article.  Happy weekend! 

Posted by Veronica Root on July 6, 2018 at 07:58 AM in Corporate, Culture, Judicial Process, Workplace Law | Permalink | Comments (1)

Thursday, July 05, 2018

The Law and Custom of Riparian Rights

If you want a break from constitutional law, this post is for you. 

We spend our summers by a lake in Michigan, and every year I am reminded when I get here that riparian rights are under-appreciated as grist for the academic “law and society” mill.  They are kind of like space savers in crowded urban street parking spaces that people have shoveled out in after blizzards (see Susan Silbey's article); the difference is that I don't think somebody with a single family home and no driveway would have thought that there was a legal right to the "street bottom" extending out from the property.  No, there the "property" right accrues on account of the work invested in clearing the spot.  And, as Susan's study notes, the property is denoted with all sorts of artifacts: "old chairs, traffic cones, milk crates, light weight tables, dead house plants, or other noticeably bulky objects."
Riparian (1)
In contrast, riparian rights are law, not custom.  And they are really cool - for a lawyer, kind of the gift that just keeps giving.  

What you see in the picture to the left is the northwest section of Lake Charlevoix.  Under Michigan law, to figure where the riparian rights go, you have to first decide what the shape of the lake is, circular, oblong or irregular.  Lake Charlevoix in total is irregular, but this section of the lake is circular, so one's riparian rights get determined by drawing a line from the point where the boundary line of the property meets the lakeshore to the center of the lake.  Aalsburg v. Cashion, 14 Mich. App. 91, 100 (1968). What we see here is the riparian area for a lot with about a 150 foot frontage.  

If you own riparian land, as here, you have certain exclusive rights to the lake bottom in your riparian area.  One is to erect and maintain a dock and to permanent anchorage off your shore. Lake Charlevoix is a navigable waterway with access to Lake Michigan and ultimately to the Atlantic Ocean, so everybody has the right to use the surface of the lake, including the right to temporary anchorage, but not to the lake bottom.  In other words, if you are a member of the public, you can swim through somebody's riparian area, but you don't have the right to wade with your feet on the bottom.  On the other hand, the lake at that spot in the middle is about 110 feet deep, so one's practical use of the lake bottom as riparian owner is somewhat limited.  And, finally, you can't use your riparian rights to cause hazards to navigation, or to unduly interfere with the riparian rights of others.  Thies v. Howland, 424 Mich. 282, 287-88 (1986); West Michigan Dock & Market Corp. v. Lakeland Investments, 201 Mich. App. 505, 513 (1995).  So setting a permanent mooring with a swim raft a mile out into the lake, just so you can get away from it all, is likely going to be problematic as well.

Okay, with that background, let's get to the really interesting clash of custom and law after the break, where we'll once again see that there's lots of unauthorized malpractice of law goin' on round here.

 Here is the hypothetical conflict between law and custom.  As indicated in the diagram below, A, B, and C all own lakeshore property.  A and C have their docks as shown.  B decides that putting the dock in the center of the property blocks his magnificent view of the lake.  B thinks that he should be able to put out a dock perpendicular to the shoreline anywhere on his property, because the black dotted line what he thinks makes sense because docks always are perpendicular to the shore.  A is annoyed because she used the C side of her dock as a swimming area, and the B side for her boat.  With B's dock where it is, A is going to have a hard time maneuvering her boat into the space. 

Riparian-PPTBut B is mistaken (and it's a common mistake, made even by surveyors who don't know the law). B's actual riparian rights are bounded by the red lines.

A has two potential legal claims against B. The first one is that B has unreasonably used his riparian rights so as to interfere with A's use. But that is going to be a toss-up, because B can argue that A isn't denied use of the area; A just has to dock the boat on the other side.

The second legal claim is not a toss-up at all.  B is a trespasser.  Summary judgment for A.

Here, however, is the law and custom problem for A.  A has to be careful what she wishes for, because winning her case against B means that C has exactly the same claim against A.  And that domino effect will continue all along the lake.  If A has to use law as a remedy, what was a perfectly fine arrangement for many people has the potential to get screwed up because one person (B) was intransigent.

By the way, in Michigan, Lake Charlevoix is known as an "inland" lake. It turns out that the law is different if you own property that abuts Lake Michigan or another of the three other Great Lakes that border the state.  This is because the Great Lakes are considered to be the equivalent of an ocean, and the common law of the sea applies.  The state owns the lake bottom up to your high water mark. Under the "public trust doctrine," the question will be whether somebody can walk across your beach at low tide. The answer is "yes," under Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58 (2005).  But Glass explicitly limits its discussion to the Great Lakes and not to "inland lakes."

In our next installment, we'll be discussing the law of capture in Arkansas oil and gas doctrine, and whether it applies to drilling for salt water ions like bromine (NaBr).  Or if Daniel Plainview were in Arkansas and in the bromine drilling business, could he drink your milkshake?

UPDATE:  I take the point of the commenter.  The docks are not perpendicular to the shoreline and I shouldn't have used that word because the shoreline is curved.  The real point is that the docks align with the property lines between the A, B, and C lots.  

Posted by Jeff Lipshaw on July 5, 2018 at 04:23 PM | Permalink | Comments (2)

Socio-Emotional Learning in Law School

Hello, Everyone! Happy to be back on Prawfs and blogging this month. I plan to talk about the Trump/Sessions criminal justice policy, the Golden State Killer case, new and unresolved issues in California corrections, the Manson Family's parole hearings (which is the topic of my upcoming book Yesterday's Monsters with UC Press), animal rights and personhood, and various other issues. But I'll start with pedagogy.

Last year I was delighted to attend the Greater Good Science Center's Summer Institute for Educators. It was a fantastic experience that dramatically impacted my pedagogy in the subsequent year and bore amazing fruit.

The Institute is open to all educators, k-12 to university level. I was not surprised, but somewhat disappointed, to find that I was the only law school professor in attendance (I hope this will change!). The premise of the Institute is to open faculty at all levels to the many ways in which we can introduce socio-emotional skills into our classrooms, in a way that enhances our students' mindfulness, gratitude, overall happiness, compassion, empathy, and other qualities that improve their lives beyond the material. Law schools have made big strides in that respect--Ronda Magee's work is just one example--and my own school has a meditation group. But the Institute inspired me to extend the reach of beneficial, healing methods and themes into every class I teach. Here's Prof. Magee explaining more about how this could apply directly to our law school experience:

This is of great interest to me, because I teach criminal justice topics that are highly politicized and have high emotional valance. I want my students to feel comfortable enough to discuss these topics with their classmates and to profoundly explore their opinions, and even disagreement, in a constructive, compassionate environment. The general climate of my classes, as of the Bay Area in general, is that my students tend to be politically progressive, and there's quite a bit of self-policing that goes on into discussing issues of race, class, and disability, in the context of policing and constitutional rights.

The Summer Institute faculty are researchers in their own right, many of them psychologists, and the research to which they exposed us convinced me that creating an environment where thoughtfulness, empathy, and self-care (and care of others) was at the forefront would improve the outcomes of class. It was a truly transformative week, in which we talked not only about our values and ideals, but also about actual techniques to apply in the classroom. It was helpful that the organizers grouped us into "families" based on the educational environment we worked in--I was in a group with university professors--and thus we came up with ideas on how to run a better classroom for everyone.

I ended up applying many of these insights in both my large (about 80-90 students) Criminal Procedure class, as well as in a small seminar, Environmental Criminology, which I co-taught with a like-minded friend, David Takacs. The seminar enabled us to really get to know our students, who were bright and curious, and to allow them to take charge of their own education and that of their classmates. 

The first thing we did was start our class with something awe-inspiring (awe has been linked to greater interest in the material and better educational outcomes.) We shared with the class a beautiful essay about the solar eclipse. Subsequently, at the beginning of every week, we started class with a poem related to the class, to give everyone a moment to ground and center before starting our discussions.

Naturally, we needed to convey knowledge, and there was a reading list, but we went about discussing the readings in nontraditional ways. Specifically, we emphasized collaborative group work and roleplaying. For example, when discussing an article about the economics of caviar smuggling in Europe, we split our seminar class into three groups: poor fishermen in the Caspian Sea, smugglers with a boat, and German executives responsible for high-end caviar sales. Each group was required to talk about their circumstances and incentives and to inquire whether legal prohibitions on smuggling would alter their behavior (and how.) The group work required our students not only to step into the shoes of people whose life conditions were very different from their own, but also to collaborate with each other. The success of this exercise led us to trust them with more and more student-led work, such as drafting their own climate change laws (and coming up with legislative priorities on climate change.)

One conversation I was particularly impressed with involved environmental ethics. The students discussed, in pairs, their orientation in terms of environmental values: anthropocentric, biocentric, and ecocentric. Not everyone was in agreement--in fact, there was wide diversity in terms of perspective--but the conversations were so rich and deep that we were widely impressed.

Early on, we decided that we would relinquish our control over the discussion to the students. We used a rubber toy, which the students tossed to each other as a squishy "talking stick" throughout class. Of course, since we knew more about the subject than they did, they tossed the ball back to us when questions about the material came up; but once we gave up our authority to run the discussion we were pleasantly surprised at how well the students stayed on topic, challenged each other to think, and graciously gave and received control. This method of running the classroom also led to a more-or-less even social footprint in the classroom, so that the discussion was not just dominated by a vocal few aiming to impress us. 

At seminar presentations, we did not intervene, introduce the speakers, or run the discussion. We gave time limits and distributed notepads to all participants, inviting them to write down feedback for each other after each presentation. We were blown away by the high quality of the conversation and the constructive offers they made to each other about improving their papers.

The outcome of this method was astounding. The seminar papers the students wrote were the best papers, bar none, that either of us had seen in any class we taught before. Six of the papers were published in various law reviews, one was a runner-up for a prestigious award, and the students reached out to policymakers on their own initiative to offer suggestions. Also importantly, the students became fast friends with each other. On the last class we distributed greeting cards and invited them to write each other a good-luck-on-finals and thank-you for the seminar note. They took their time doing it and wrote lengthy, thoughtful, and kind missives to each other. We have since learned that they remained on very warm and friendly terms with each other after the seminar was over.

Implementing this method was a bit more challenging in my large Criminal Procedure class, but there, too, I found that it paid off to invest in the social and emotional climate of the class. I introduced the talking stick method and found, to my surprise, that it works in a large class almost as well as in the small one! The students could interact with each other on an interpersonal basis even in the large lecture hall, and comfortably assumed control of the discussion as well as returned their attention to me when I needed to chime in. Moreover, our work on empathy paid great dividends. Teaching policing in an environment of a complete disintegration of trust between police departments and the communities they serve can be very difficult. But we found that we can see even very contentious topics from both perspectives, and moreover, understand that neither the police nor the community are a monolith. It was a supportive environment that enabled both my students who had law enforcement background and my students who had criminal records or criminal victimization experience to interact feeling that they would not be judged or retaliated against.

People warned me against doing the notecard exercise in the big class, arguing that cynical or mean students could use them to bully each other. But I prefaced the exercise by inviting them to write the kind of notecard they would like to receive. I personally handwrote good-luck cards to all of them, and included each of my cards in the same envelope as the card from a fellow student. The feedback was incredibly positive and people came into the exam feeling that, rather than competing against their classmates (an inevitable aspect of the curve) they were buoyed by their fellow students.

I am so grateful for the opportunity to introduce these methods to my pedagogy, and plan to do even more of that in the coming year. This might read as very touchy-feely to some folks, but there are ways to exhibit care for our students' wellbeing that would fit with nearly everyone's personal style. What do you do in the classroom to enhance your students' social and emotional experience?

Posted by Hadar Aviram on July 5, 2018 at 03:32 PM | Permalink | Comments (2)

UCI Supreme Court Term in Review

UC-Irvine will host and livestream the 8th Supreme Court Term in Review next Monday, July 9. Panelists include UCI faculty Leah Litman (a participant in our Prawfs symposium) and Alexandra Natapoff, along with Erwin Chemerinsky, Justice Goodwin Liu of the Supreme Court of California, and Erin Murphy of Kirkland & Ellis; Rick Hasen will moderate.

Posted by Howard Wasserman on July 5, 2018 at 02:35 PM in 2018 End of Term | Permalink | Comments (1)

Tuesday, July 03, 2018

Vaccines Mandates Win in Court


Thank you, Howard, for letting me contribute as a guest blogger this month. For the past five years, I have been involved in the vaccine wars.

Vaccines have tremendous benefits. In the United States, vaccines prevent tens of thousands of deaths and millions of hospitalizations each year. Their risks, while real, are very small. And yet, a misguided minority rejects vaccines, and in some communities, their numbers are disturbingly high. One place they made little headway in are courts - as this state example, mirroring the national jurisprudence, demonstrates.

In 2015, after a measles outbreak centered on Disneyland, California, in a contentious, high intensity legal process, passed Senate Bill 277 (SB277), a bill removing the personal belief exemption from California’s immunization law. SB277 became law on June 30, 2015 when Governor Jerry Brown signed it. Since California did not have a separate religious exemption, the effect of the law was to almost completely remove non-medical exemptions to California’s school immunization law. Unsurprisingly, opponents turned to the courts. After losing in three federal district courts and two state superior courts, two groups of plaintiffs appealed. On July 2, 2018, a California Court of Appeal released the first appellate decision upholding the law. This case was brought by eight plaintiffs seeking to send their children to school unvaccinated, represented by a lawyer who was openly anti-vaccine.

There is a large literature showing  that states with easier to get exemptions have lower vaccination rates and that higher rates of exemptions are associated with more outbreaks of preventable diseases. School immunization requirements work: they increase vaccine rates, and they reduce rates of outbreaks, sometimes completely eliminating them (other things that may lead to outbreaks even when vaccine rates are high. For example, we need a better pertussis vaccine. But even there, non-vaccinating increases the risk and makes things worse).

Opponents’ strongest arguments were that the mandate violated California’s constitutional right to education, violated the First Amendment’s freedom of religion guarantee, and impermissibly interfered with parental rights. Even these, as the Court of Appeals – correctly – pointed out, were not convincing.

The Freedom of Religion arguments runs into two related precedents - Employment Division v. Smith, under which generally applicable, neutral on their face laws do not have to provide religious exemptions, and Prince v. Massachusetts, which in a statement that is not part of the ruling but still persuasive found that religious freedoms do not exempt parents from vaccine requirements, because “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”In a line of Federal Circuit courts mandates without religious exemptions were also upheld. There’s a question on how the recent religious freedom decisions by the Supreme Court will affect this jurisprudence, but that deserves a separate discussion (hint: right now, likely not at all, but it may be a warning for future).

Parental rights are not, and never have been, absolute. Even if they extend to the right not to vaccinate a child against a preventable, potentially fatal disease, they likely do not extend to a right to send that child to school unvaccinated and risk others.

I will address the right to education separately, but in short, the appellate court, following a previous federal district court decision, found that the leading case on the right to education in California – Serrano v. Priest– did not apply in this context, since it looked at a combination of the right to education and a suspect classification – wealth – and there was no such classification involved here. Even if strict scrutiny applied, the Court of Appeal said, the mandate would survive, since preventing diseases is a compelling interest and school mandates are the right means to serve it.

To repeat some of the language:

“…compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,” and community immunity wanes if large numbers of children do not receive required vaccinations.”…. We agree with Whitlow’s conclusion: “The right of education, fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a State’s interest in protecting the health and safety of its citizens, and particularly, school children[.]”

 

Indeed.

At least in this area, so far, the courts stand solidly behind science and the public health.

Posted by Dorit Reiss on July 3, 2018 at 09:34 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (42)

Sponsored Post: Teaching Remedies

The following post is by Samuel L. Bray (UCLA School of Law, soon decamping for Notre Dame) and is sponsored by West Academic.

Last year I joined Emily Sherwin as an editor of a remedies casebook: Ames, Chafee, and Re on Remedies. We worked together on the second edition, which was published in December by Foundation Press. In this post, I want to sketch some of the ways this remedies book is distinctive and why you might or might not want to use it.

We hope the book is a volume of logic, but first a page of history. The book is a lineal descendant of James Barr Ames’s Cases in Equity Jurisdiction (1904-1905), and its title is a homage to Ames and two of the other editors in the long history of the book, Zechariah Chafee and Edward Re. (Edward was no relation to the brilliant Richard—I asked.)

A remedies teacher confronts three threshold questions, and how they are answered will determine the shape of the course. The first is about organization, the second is about equity, and the third is about restitution. On each of these our book takes a different approach than some other books.

First, the course can be organized in one of two basic ways. One organization is by substantive area, such as tort remedies, contract remedies, and public law remedies. The other organization is by transubstantive remedies—first damages, then injunctions, for example. My view is that the transubstantive approach is the only one that justifies the existence of a course on remedies—the value of this course, and for that matter this field, is that we can understand remedies better and deeper by seeing how they work across the substantive domains. Consistent with that, our book has an introductory section and then three major divisions: “Damages,” “Equity,” and “Unjust Enrichment and Restitutionary Remedies.”

Second, a remedies teacher has to decide what to do with equity. Here is where the biggest difference lies between our book and a leading remedies casebook, Doug Laycock’s Modern American Remedies. Doug is the leading scholar of remedies, and his work reflects his brilliant scholarship in the book and article both named The Death of the Irreparable Injury Rule. He does not treat the irreparable injury rule, more conventionally the requirement of “no adequate remedy at law,” as an organizing principle, and his treatment of the law/equity distinction is skeptical.

Our book takes a different tack. The distinction between law and equity is pervasive in American law. This is not true only in the jurisdictions that have separate courts or divisions for equity (Delaware, Tennessee, Mississippi, New Jersey, and Cook County, Illinois). Rather it is true in case after case in state and federal courts—including recent U.S. Supreme Court decisions such as Petrella and SCA Hygiene, that held that laches is an equitable defense that applies only to equitable claims, not to legal ones. In our view, to prepare students to litigate in a world where the law/equity distinction still has currency, remedies should be taught without embarrassment about the law/equity distinction, and its functional value should be explained, not just questioned.

Finally, a remedies course has to decide what to do with restitution, that unwieldy amalgam of remedies and substantive law. In our book, restitution is given its own section, but care is observed in distinguishing between restitutionary claims and remedies that are legal (such as quasi-contract for a mistaken payment) and restitutionary claims and remedies that are equitable (such as constructive trust). That distinction between legal and equitable restitution matters for defenses, for the jury trial right, for priority in bankruptcy, and for the availability of a remedy under statutes such as ERISA that authorize “equitable relief.”

Many other points could be made about our book. It is light on notes—it is not replacement for a remedies treatise such as Dobbs and Roberts. Private law tends to predominate, rather than public law. (There is, however, a new chapter in this edition on remedies against the government—including discussion of qualified immunity and structural injunctions.) Our casebook tends to have more state cases than federal cases. Many points are taught with two cases, one from contract and one from tort, which allows students to better understand a principle as they see it applied in more than one context.

One final note should be stressed. The remedies we have in American law were never developed according to some kind of master plan. On the first day of remedies class I contrast a city like Washington, DC, which was developed according to such a plan, and a city like Boston, where cowpaths turned into cartroads which turned into streets. Remedies is like Boston. It is therefore unusually important in the field of remedies to understand the historical background, since it is not just background—the path dependence is strong. That is why each of the major divisions of our book begins with a discussion of history. That sets our remedies book apart from other casebooks. As with each of the points discussed in this post, it will work well for some remedies teachers and courses and not for others. De gustibus.

Posted by Howard Wasserman on July 3, 2018 at 07:49 AM in Books, Sponsored Announcements | Permalink | Comments (0)

Monday, July 02, 2018

Hiring Posts - Schedule

An approximate schedule of law school hiring posts follows, based off the dates of the release of the first FAR distribution and the AALS conference . Because the dates of the FAR distribution and AALS conference are approximately three weeks earlier than last year, all the below dates are similarly earlier. 

Wednesday, July 11: Hiring committee post. (Last year's post here.)

Thursday, August 16: FAR distribution 1 released.

Thursday, August 23: Law School Hiring post (reporting interviews and callbacks; last year's post here). (Because all the information is collected on a single spreadsheet, we don't need separate posts for interviews and callbacks, as in the olden days.)

Thursday, August 23: Clearinghouse for Questions (last year's post here). 

Thursday, October 11, through Saturday, October 13: Hiring Conference.

Monday, October 29: VAP post (last year's post here).

Late February/early March: Begin entry level hiring report data collection.

Posted by Sarah Lawsky on July 2, 2018 at 01:00 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Repost--Colorado Law Review Exclusive Submission beginning July 9

The Colorado Law Review is excited to announce its exclusive submission track for Volume 90. We welcome innovative and thoughtful submissions on any topic of legal interest and look forward to reading scholarship that presents solutions to today’s most challenging legal questions.

This exclusive submission track will remain open from Monday, July 9 to Sunday, July 15, 2018. All pieces submitted will then be reviewed by the Colorado Law Review’s complete article selection committee and publication decisions will be issued by Sunday, July 22, 2018.

In exchange for this expedited full board review, authors agree to withhold their work from submission to competing publications until decisions are released.  Additionally, authors agree to accept a binding publication offer if an offer is extended. All articles selected for publication will be published in the spring of 2019.

For consideration, please send all submissions in PDF format, including manuscript, CV, and cover letter, to Marisa Hazell, Executive Editor of the Colorado Law Review, at executiveeditorcu@gmail.com. If you have already submitted your manuscript via Scholastica, we ask that you please resubmit your materials to the above email address before the July 15 deadline.

Posted by Howard Wasserman on July 2, 2018 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Self-Plagiarism (and the First and Second Laws of Textual Physics)

June is my intense writing month, by and large, and I just finished up a draft that, as I said elsewhere, may not be ready for Broadway, but is ready for out-of-town previews on SSRN.  (If you are curious, it's titled The Persistence of "Dumb" Contracts. It ponders the extent to which artificial intelligence could take over the non-blockchain contract drafting lawyers have been doing for hundreds of years.)

If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night); you either take the leap or you don't.  Not to decide is to decide.

Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay?  (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.

First off, let's define plagiarism.  I'll go with the definition we give our students: "taking the literary property of another, passing it off as one's own without appropriate attribution, and reaping from its use any benefit from an academic institution."

Second, self-plagiarism is indeed an issue,  There's a nice piece on this at the RIPS Law Librarian Blog, specifically about this issue in the law review context.  There are two sins that fall under "self-plagiarism" that are not what I'm talking about.  The first is creating many publications from the same study.  (Even that strikes me as overbroad - you can do a popular piece and an academic piece from the same material and not be committing a faux pas, as long as you disclose it.) The second is more serious, which is actually submitting the same work to different journals and permitting it to be accepted in multiple places.

The third issue is the one I'm most likely to encounter in my own work - what the RIPS bloggers call, in a less pejorative way, text recycling. That seems fair, because (apart from copyright issues if the journal holds it) you really aren't passing off someone else's intellectual output as your own. The RIPS bloggers are thoughtful about this.  If you are building on a body of work, it does seem silly to have to reinvent the wheel or have part of your article oddly set off in block quotes because you used it before.  On the other hand, they point out that editors and readers have a right to know if what they are reading is not original work, even if if originally it was yours. Not surprisingly, they advocate a sensible policy.  If you are using it again, disclose it either in a footnote, a in-text reference, or a general disclosure like you regularly see in a book preface when some of the chapters had earlier iterations as law review articles.

The lesson I learned this month, however, was slightly different.  I had inserted a footnote to the effect that much of the discussion on a couple pages had first appeared in my own piece, appropriately cited. The RIPS people would have been satisfied. The problem was one that, frankly, I didn't see, and it took another reader to point out.  I'm going to call it "textual inertia," or even better, "Lipshaw's First Law of Text Recycling." It goes like this:  "Every piece of text, once written, tends to remain in that state of drafting unless an external force is applied to it."

There is a Second Law as well: "The relationship between a text's mass (m), the ease by which it can be edited (a), and applied force (F) is F = ma, where a text's mass is directly proportionate to how pretty a word processor makes it look on the page."  What this means is that if you were to handwrite the text in a scrawl on a legal pad, you don't need much force to edit it.  But if you cut and paste the prior text into Eugene Volokh's wonderful law review article template, it becomes very hard to move.

That's why it's so hard to edit even a piece where you haven't recycled text. But when you recycle, chances are you really aren't making the same point that you made before.  It's the idea underlying the text that has relevance in this newer piece.  But it's so damn easy to cut and paste, and once you've done that, the First Law sets in.  And, as my friend who read the draft pointed out, that particular passage sounds like a tangent not quite related to the point of the article.

* By the way, my usual blogging home, at least on issues relating to legal education, lawyering, legal thought, etc. is now Paul Caron's iconic Tax Prof Blog.  This entry will be self-plagiarized, I mean cross-posted, over there.

Posted by Jeff Lipshaw on July 2, 2018 at 08:08 AM in Article Spotlight, Lipshaw | Permalink | Comments (2)

Compliance

Many thanks to Howard for arranging to have me contribute as a guest blogger this month!    

A few months before I began my tenure-track position in 2014, I was nervous that my seemingly diverse research interests were going to create problems for me down the line.  I had interests in professional responsibility, corporate governance, workplace law, and organizational misconduct, which meant I did not feel like I “fit” neatly within a field of legal research. I knew that my research was all connected, but I felt like conveying that connection to others was sometimes a bit difficult.  Thankfully, I had a wonderful conversation with a senior scholar who said something to the effect of:  “You just research compliance.  It is kind of new, so people may not realize it, but that is what you are doing.”  These words were instantly clarifying and gratifying.  I suppose I knew I was researching compliance issues, but not having met many scholars who defined themselves in that way at that time, I did not realize it was legitimate to actually use the compliance title to describe my work. 

Today, compliance has developed into its own, albeit some might still say new, field.  There are several law schools with centers, programs, or areas of study in compliance.  The ALI is working on a set of Principles of the Law in Compliance, Enforcement, and Risk Management.  And there are a variety of compliance-specific conferences that I can attend.  Compliance is, however, an interdisciplinary field.  Some people writing in the space describe themselves as corporate law scholars, some as criminal law scholars, and there is quite a bit of very good work being done by business school professors.  Personally, while I self-identify as a compliance scholar, I do so with the caveat that I draw on research from several areas within legal scholarship and organizational behavior.  More specifically, the underlying research question that motivates my scholarship asks how one might address dysfunctions within organizations in an effort to create more productive, healthy, and ethical environments within firms.     

This month I’ll be blogging a bit about my compliance research, but also about the experience of working within a field that is (i) still emerging and (ii) interdisciplinary in scope.  For me this has been a really exciting endeavor, but it does have its own set of challenges to work through.  But for now, I will just wish you all an early Happy July 4th. 

Posted by Veronica Root on July 2, 2018 at 07:55 AM in Blogging, Corporate, Criminal Law | Permalink | Comments (0)

Sunday, July 01, 2018

Signing off, and a call for papers

Thanks so much to Howard and the Prawfs crew for hosting me this month!

I wanted to my guest-blogging month by highlighting a call for papers. The Center for Professional Ethics at Case Western Reserve University School of Law will be sponsoring a panel on ”Ethical Challenges in the Role of In-House Counsel“ as part of the CWRU 2018 Leet Symposium on November 2, 2018. We plan to select one panel member from the call for papers. The author will be awarded a small cash prize, and travel and lodging expenses to participate in the Conference will also be covered. Papers are due a month from today, though submissions need not be polished (half-baked submissions are still appreciated!). More details are available here, and I'm also happy to answer any other questions by phone or email.

Posted by Cassandra Burke Robertson on July 1, 2018 at 10:37 PM | Permalink | Comments (0)

Rotations

Welcome to July. Thanks to the participants in our second annual End-of-Term symposium, which turned out to be a lot more eventful (and depressing, for some of us) than expected; they will be finishing up this weekend. We will see you all again next June.

And welcome to our July visitors--returning guests Hadar Aviram (Hastings) and Jeff Lipshaw Suffolk) and first-time guests Dorit Reiss (Hastings) and Veronica Root (Notre Dame). Thank you for joining us.

Posted by Howard Wasserman on July 1, 2018 at 08:31 AM in Blogging, Howard Wasserman | Permalink | Comments (1)