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Tuesday, July 31, 2018

Radio discussion of NFL anthem policies (Updated)

Last week, I appeared on Gurvey's Law at KABC to discuss the NFL's national anthem policies; that discussion is in the first half-hour. I got pretty strident at points, although I am not especially strident in my position on this issue--as a matter of law, I accept that the NFL  can stop the players from kneeling (subject perhaps to CBA limitation). But one of the hosts insisted that anyone who refuses to stand for the anthem or God Bless America should leave the country, so I could not let that one go.

Update: Slate's Hang Up and Listen Podcast did a supplement (it starts around the 1:03 mark, although you may have to be a Slate-Plus member) to its prior discussion of US Soccer player Jalene Hinkle, apparently after numerous listeners wrote to ask how Hinkle differs from Colin Karpernick and other NFL players kneeling for the anthem. The hosts tried very hard to distinguish the situations, but basically landed on some version of: 1) Stop creating false equivalence between non-controversial messages against police brutality and messages of exclusion of historically disadvantaged groups; 2) teams and leagues can create their own messages, such as LGBT Pride, and compel players to go along with it. Number 1 is naked viewpoint discrimination--teams and leagues must allow player speech I agree with but not speech I disagree with. Number 2 swallows both situations--if teams can compel players to promote its preferred message, it always can do that, regardless of the message (pro-LGBT, pro-law-and-order, whatever).

Posted by Howard Wasserman on July 31, 2018 at 06:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Suffolk Hiring Announcement

SuffolkFrom my Appointments Committee colleagues:

Suffolk University Law School in Boston invites applications for up to three tenured or tenure-track faculty positions at the rank of assistant, associate, or full professor of law starting in the 2019-2020 academic year.  Candidates should have a strong academic background, a record or promise of significant scholarship, and a demonstrated commitment to excellence in teaching. Our primary curricular needs are Criminal Law and Contracts. We hope to hire candidates with combined expertise in one of those first-year subjects and one or more of our upper-level areas of need, which include Constitutional Criminal Procedure, Evidence, business law (especially Business Organizations, Securities Regulation, and Banking Law), Alternative Dispute Resolution, Health Law, and courses on race, gender, sexual orientation and the law. Consideration will be given to relevant practice experience.

Interested candidates should include in their application a resume or curriculum vitae and a cover letter addressed to Professors Joseph Glannon and Lorie Graham, Co-chairs of the Appointments Committee.  All materials must be uploaded to the Suffolk University website.

Suffolk Law is an equal opportunity employer and will give careful consideration to all qualified applicants regardless of race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, gender expression, genetic information, veteran status, or any other characteristic protected by law.  Suffolk Law is committed to a diverse faculty and strongly encourages applicants from historically under-represented groups. For more information on Suffolk Law’s commitment to diversity, please see this.  

Posted by Jeff Lipshaw on July 31, 2018 at 01:19 PM in Getting a Job on the Law Teaching Market, Lipshaw | Permalink | Comments (0)

Monday, July 30, 2018

Flipping the Classroom—Put your Students Through Mental Gymnastics

The following post is by Steven Baicker-McKee (Duquesne) and is sponsored by West Academic.


Last semester, I realized with about a month to go in my first year Civil Procedure class that I had a good six weeks of material left to cover. Yikes! I have no idea how it happened—I do not have a set schedule or pace for my class; rather, I try to calibrate my pace to the class’s understanding, slowing down when I see that glazed look on their faces and moving more briskly when I see heads nodding. Usually, it works out fine and I end up right where I need to be, with only one class at the end where I speed talk or break out some war stories. But last semester …

My solution was to flip the classroom for the last month. It was a technique I had played around with a little and wanted to explore more, but life kept getting in the way. I decided to turn my pacing blunder into a pedagogical opportunity.

My normal teaching approach involves a combination of learning modalities. I use PowerPoint extensively and try to have lots of images and not a lot of words on my slides (except for when I am displaying rule text or hypos). The majority of classes involves some sort of interactive exchange, but there is also some component that is purely me conveying information. My flipped class approach entailed taking the lecture/information conveyance component of my class presentation and making a short (10-15 minute) video where I simply lectured from my PowerPoints. We use Panopto for video capture at Duquesne, which is extremely easy to use and allows you to either capture only the audio while displaying the slides or to include a box with a video of your head doing the talking—I chose the former! Panopto also allows you to see who watched the videos and how long they spent watching.

My class met twice per week, and I recorded a video before each of the remaining classes. It really didn’t take much time—I took my existing slide decks, picked out the ones where I did most of the talking, and put them in a new deck. Then, I essentially did what I otherwise would have done in class for those portions. I’m not a perfectionist, so I did virtually no editing or second takes. If I messed up badly in the first minute or two, I started over. Otherwise, I just went with it.

The beauty of the approach is that class becomes entirely interactive. If you are a devotee of cases, you can spend the entire time Socratically challenging your students. I use Learning Civil Procedure (which I co-author), and we focus more on hypos than on cases. I have also become a fan of small group discussions. So, I put a hypo on the board, have the class break into small groups to work through the hypo, poll the class to see how they did as a whole, call on someone or a group to explore their answer and reasoning, add or change a fact in the hypo to tease out more nuance (perhaps with another group), etc.

Flipping the classroom did two extremely positive things. First, it allowed me to get through the material I planned to cover within the remaining class time. Second, it made me feel less time pressure during class. I felt free to play around with the hypos more because I knew I had already conveyed the essential information in the videos. I felt like my class discussions were deeper, richer, and more successful, and the class feedback overwhelmingly confirmed my sense—the flipped classroom videos were commonly included under “What aspects of the instructors teaching were most effective?” and “even more videos” was a common theme under “How could this instructor improve his/her teaching effectiveness?” Students commented to me that they felt better prepared for class and got more out of the classroom discussion, and also that they used the videos again when studying for the final.

It’s my goal to record a flipped video for virtually every class this coming year. Unless life gets in the way …

Posted by Howard Wasserman on July 30, 2018 at 02:01 PM in Sponsored Announcements | Permalink | Comments (0)

Investigations

The Organizational Sentencing Guidelines are meant to incentivize firms to create “an effective compliance and ethics program” that will “prevent and detect criminal conduct.”  This language serves as the basis for many organizations’ compliance programs.  The guidelines emphasize prevention and detection, thus firms create systems targeted to that admonition.  The Guidelines also assume, however, that failures will occur:  “The failure to prevent or detect the instant offense does not necessarily mean that the program is not generally effective in preventing and detecting criminal conduct.”  As a result, many firms expend a tremendous amount of resources on prevention and detection efforts with the knowledge that if they have robust prevention and detection programs, the sanction may be lessened. 

One of the themes that has struck me for the past year or so, however, is that many corporate scandals are significant not for their failure to engage in appropriate prevention or detection efforts, but instead for their failure to investigate claims brought to the organization’s attention.  Whether its complaints from Wells Fargo’s alleged whistleblowers or MSU’s athletes, misconduct within an organization that is allowed to fester often leads to scandals that are much more significant than necessary.  Having prompt, thorough, and complete investigations is just as, if not more important than, prevention and detection activities. 

As I review my case studies for my compliance course and determine whether I want to change to some more recent scandals, I am shocked all over again by the lack of response by so many organizations when confronted with allegations of misconduct.  Prevention and detection are important, but so are investigation and remediation.  Here’s hoping I have a bit less material to choose from next fall.

Posted by Veronica Root on July 30, 2018 at 08:25 AM | Permalink | Comments (0)

Saturday, July 28, 2018

Submission Angsting Fall 2018

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the July 2018 version). The article now also includes hyperlinks to law review websites.

Comments now appear from newest to oldest.

Posted by Sarah Lawsky on July 28, 2018 at 07:07 PM | Permalink | Comments (813)

Judge Leinenweber loves him some universal injunctions

Judge Leinenweber of the Northern District of Illinois made permanent his injunction in City of Chicago v. Sessions, prohibiting DOJ from enforcing regulations stripping federal law-enforcement funds from sanctuary jurisdictions. The new opinion mostly makes permanent the preliminary injunction entered last year and affirmed on the merits on appeal. The new element, as Ilya Somin explains, is the declaration of invalidity of a rule prohibiting jurisdictions from restricting communications with DHS and ICE, relying on Murphy v. NCAA (the NJ gambling case) for the proposition that federal law cannot restrict state or local lawmaking in this way.

The other issue is the scope of the injunction. The preliminary injunction was universal and accompanied by the most detailed judicial justification for universal injunction, but the question of scope is pending before the en banc Seventh Circuit.* Leinenweber made the permanent injunction universal (he continues to use "nationwide"), but stayed the universal scope pending the Seventh Circuit decision (so, for the moment, the injunction prohibits enforcement of the regs only as to Chicago). He recognized the conflict over universal injunctions, pointing to Justice Thomas' opinion in Trump v. Hawaii, as well as the scholarly work of Samuel Bray against universality and Amanda Frost in defense of it. The novelty of the question and the fact of the Seventh Circuit stay of the scope of the preliminary injunction satisfied the first prong (likelihood of success) of the stay analysis and none of the other prongs outweighed that.

[*] The Seventh Circuit panel affirmed the scope of the injunction, over a strong dissent on the scope question from Judge Manion. The court granted en banc review on universality.

Supporters of universal injunctions, including Judge Leinenweber and Prof. Frost, recognize that they should be rare and the exception rather than the rule. Even accepting (as I do not) that universal injunctions are sometimes proper, they should be limited to cases in which enforcement of a particularized injunction would be difficult--it could be easily circumvented,* individual plaintiffs face barriers to bringing individual cases, a particularized injunction leaves the plaintiff with less-than-complete relief, other mechanisms (class certification, organizational standing) would be ineffective. The paradigm would be Hawaii and the travel ban, which presented some unique problems, in that affected persons were all over the world and the plaintiff states could not identify all affected potential students or scholars.

[*] Think Texas and the DAPA injunction, because DAPA recipients could move to Texas.

But Chicago and sanctuary-city funding does not provide the appropriate case, something even Frost seems to recognize. An injunction particularized to Chicago remedies the constitutional violation as to Chicago (the invalid withdrawal of funds) and leaves Chicago with complete relief (it gets its money). Nothing that DOJ might do as to another city violates Chicago's rights or limits its relief, so there is no need for the injunction to go beyond Chicago.

This case shows why efforts to limit universality to unique cases fall flat. If a universal injunction is appropriate here, it is appropriate in every case challenging the constitutional validity of every federal law; there is no reason not to make all injunctions universal, something Leinenweber acknowledges is improper.

Posted by Howard Wasserman on July 28, 2018 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, July 26, 2018

More on the "Elam Ending" in Basketball (Updated)

I watched my first basketball game (in The Basketball Tournament) using the Elam Ending, the new rules designed to eliminate late-game fouling by a trailing team seeking to come back (the game clock is shut-off at the 4:00 mark and the teams play until one team reaches +7 points of the winning team when the clock was shut off). In this game, A lead X 80-74 at the 4:00 mark, so the target score was 87. X came back thanks to some big three-pointers and some sloppy offense by A to tie the score at 86. A won the game on a free throw following a questionable foul call on what looked like a clean steal that was about to lead to a possible game-winning fast-break for X.

1) X's offense during the untimed period still seemed rushed, in a hurry to throw up threes and get back a lot of points at once. Even with the clock off, there is a sense that, with A at 83 points, there are only a few possessions left, so they have to score in larger bunches, if not necessarily early in the shot clock.

2) I had thought that one goal was that with no clock, each team could execute its "normal" offense down the stretch, but I did not see that from either team. As I said, X seemed in a hurry to score and to shoot 3's. A seemed to tense up, not knowing how  to play in this odd situation.

3) There still was an intentional foul. Leading 86-84, A intentionally fouled, giving X two free throws to tie the game, and give A the ball back with the chance to win, rather than risk a game-winning three. But this is equivalent to current practice of fouling up 3 in the closing seconds and a strategy I expected to survive.

Update: The Ringer considers NBA games with historically famous endings (including Michael Jordan's end-of-Bulls-career-game-winner) that would have been changed, while The Big Lead does the same with college games.

Posted by Howard Wasserman on July 26, 2018 at 11:40 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Law School Classroom Techniques: Myth- or Reality-Based?

IMG_0162My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Invariably, when I finally get the results of the blind grading, several of the top performers turn out to be students who never said a word.  I harken back to my own experience.  I was never a shrinking violet in class before I went to law school.  Indeed, I have been described in the past as something of a manic expressive.  My law school organized our first-year class into small sections of about twenty-five students each.  I recall vividly the first day of class - Contracts - having read the case of Groves v. John Wunder and having no clue about anything when I was done.  Two of my classmates went on to distinguished academic careers. They and a whole bunch more in the class seemed to know what they were talking about, and had opinions from day one.  I was sufficiently intimidated on the first day never to say a word unless called on, particularly in large classes, for the next three years.

My suspicion is that the relationship of oral participation in class - and the pedagogical methods that encourage or require it - to learning outcomes or post-graduation success is grounded more in myth than reality.  I suspect the myth originates in the conception of lawyers as barristers and the purported efficacy of the Socratic method.  I have a further suspicion that it gets further support from the tenure process. That is, if you are a pre-tenured professor and being observed for tenure committee evaluation purposes, the observer is going to have a much harder time determining if you are effective if the students don't say anything but are nevertheless thinking deeply.  The availability heuristic is at work.  Orally participating students constitute available information, whether or not it is information on which one can reliably reach a conclusion.

Stay tuned for my next contrarian rant on the subject of banning laptops in the classroom. 

Posted by Jeff Lipshaw on July 26, 2018 at 03:09 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (12)

Ode to Law School

I loved law school.  It was the most fantastic, rewarding, engaging, and challenging of experiences.  My group of friends in law school included a medical student.  As graduation approached, my med school friend and I went to lunch, where she declared that I was the only one of the bunch who really, genuinely loved the law.  While I’m not sure if that is an accurate assessment, it is certainly true that I love the law. 

I have, however, been frustrated lately, because I have spent weeks trying to rewrite the introduction to a paper.  A paper I started working on two years ago.  I’m actually still excited about the paper and its potential, but this is way too long to be tinkering with an introduction.  So long that I’ve started to wonder whether I should drag the file to the recycle bin, declare it a lost cause, and move on to different half-written project.

But today, my frustration left.  Today, there has been a line of iCLEO students sitting outside my colleague’s door to discuss their exams, and it reminded me of what it felt like to be an idealistic, incoming law student.  It also reminded me that in a few weeks what is currently a sleepy, quiet building will be bustling with activity and excitement.  A whole new group of students will be here and at least some of them will end up loving the law as much as I do.  Just the thought makes me smile.

So as I contemplate the fact that I’m almost a month in to my seventh year in this particular office, on what is a truly beautiful camps, I am going to try really hard to channel my joy of law school.  And finish this darn introduction.

Posted by Veronica Root on July 26, 2018 at 02:55 PM in Life of Law Schools | Permalink | Comments (1)

JOTWELL: Wald on Lobel on the legal profession saga behind the toy story

We all love Jotwell, and every time one of my own pieces of scholarship is reviewed by Jotwell I am thrilled. But this one is a particular honor. Professor Eli Wald, a national leader in the study of the legal profession, reviews my book You Don't Own Me, with a particular eye on how the court battles over ideas, ownership and market dominance offer insight into the role of outside counsel, in house lawyers, judges, jurors and the client-attorney relationships in shaping our economies and culture. As always, Wald is insightful and perceptive. Here is a taste:

You Don’t Own Me is a colorful telling of the Bratz v. Barbie battle, a modern David and Goliath decade-long dispute fought by MGA Entertainment and toy giant Mattel. It is a story of competition, innovation and greed, economic espionage and corporate personalities larger than life, of creativity and its legal treatment, of dolls, and ultimately of American culture itself. In Professor Orly Lobel’s masterful hands this award-winning book1 effectively mixes legal analyses and business insights to offer a compelling read.

At the same time, if you dig a little deeper, You Don’t Own Me is also a fantastic account of the legal profession saga behind the toy story, examining the various roles legal actors–outside counsel, in-house lawyers, judges and jurors–played in the litigation, and their interactions with clients, related parties, and the general public. In particular, Part III, titled Warring Titans (Pp. 125-243), is a must read for lawyers and law students interested in contemporary law practice.

 

You can continue reading the whole review here. And of course, read the book - it's in hardcover, kindle, audible, and soon paperback.

Posted by Orly Lobel on July 26, 2018 at 02:18 PM | Permalink | Comments (0)

Wednesday, July 25, 2018

Tribute(s) to Prof. Joshua Dressler

The latest issue of the consistently excellent Ohio State Journal of Criminal Law includes a bunch of tribute-essays from the field's heaviest hitters about CrimProf extraordinaire Joshua Dressler and his work.  I don't think it's a stretch to say that Dressler is a legal-education treasure.  I've been using his casebook (now a joint project with Stephen Garvey) since 2000 and I know that hundreds of my former students are more-than-grateful to his Understanding Criminal Law for cutting through the fog created by my lectures!   Take a look a the volume, and raise a glass to Joshua!       

Posted by Rick Garnett on July 25, 2018 at 11:15 AM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Tuesday, July 24, 2018

Three items for light reading and listening

Two unconnected items I found interesting.

1) David Sims of The Atlantic on the 20th anniversary of Saving Private Ryan and the sense of bitterness and pointlessness reflected in that and other of Spielberg's later movies. One of my early Prawfs post asks whether Private Ryan "earned" the sacrifices made for him and this ties into that.

2) Howard Bryant on the objections by some veterans to the commercialized faux patriotism and militarization of sports. (Bryant is the author of The Heritage: Black Athletes, A Divided America, and the Politics of Patriotism and the article is outgrowth of some of the interviews he did for the book). Bryant is the guest in the first segment of this week's Hang Up and Listen podcast.

3) Slate's Christina Cauterucci criticizes the decision of the US Women's Soccer team to call up Jaelene Hinkle for an upcoming tournament. Two years ago, Hinkle declined a spot on the team for "personal reasons," which this spring she revealed to be objections to wearing a kit with rainbow-colored numbers to mark Pride Month, consistent with Hinkle's opposition to LGBT rights. Cauterucci argues that US Soccer "sold out" its LGBT players and fan base. Cauterucci is in the second segment of the podcast. Unfortunately left unsaid in this article and in the podcast segment is that it is impossible to adopt Cauterucci's argument and argue that NFL players should not have to stand for the anthem, without engaging in some pretty blatant viewpoint discrimination.

Posted by Howard Wasserman on July 24, 2018 at 04:46 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Infield shifts and limiting rules

Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the decline is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).

In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.

I had thought of the possible responses to shifts as aesthetic, because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.

So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.

Posted by Howard Wasserman on July 24, 2018 at 11:31 AM in Howard Wasserman, Sports | Permalink | Comments (5)

Pragmatism and Compliance

One of the reasons I enjoy working in the compliance area is its pragmatism, which I think is reflected in two important ways. 

First, compliance is a pragmatic area of study for students.  I have seen this with both my actual compliance students and my research assistants.  For example, one of my former students went on to apply for a position with the SEC Student Honors Program and was eventually placed with the Office of the Whistleblower.  She emailed me shortly after starting the program to explain how she felt prepared for the placement, because we had covered the SEC whistleblower program during class.  Similarly, my summer research assistants often email me after on-campus interviewing to explain how their summer working for me was helpful to them during the process.  Because much of the “law” I rely upon is not available on Westlaw/Lexis, I tend to conduct specialized training for my research assistants where we cover what an enforcement action is and different methods of identifying and analyzing information that is not available in case law databases.  For those students who end up in a regulatory or white collar practice for the summer or after graduation, they tend to have a bit of a leg up on their counterparts who may have little to no awareness of these sorts of enforcement documents.

Second, compliance is an area that has huge applicability and ramifications for practicing attorneys.  I love that each of my projects tackles a concrete problem confronting practitioners and leaders within industry and attempts to help them sort through potential solutions or considerations they should take into account.  When I send out my reprints, I probably send about 20% to people in practice at law firms, in-house at corporations, or senior government officials.  To my delight, I often get a response back, which allows me to have informal conversations that help me get a better understanding of the challenges and struggles faced by those within industry.  These conversations almost always help me to sharpen my ideas.  And I am hopeful that these interactions will aid me when I eventually transition to some qualitative projects, which I plan to start working on in a couple years.

There are, of course, other ways in which working in the compliance space is pragmatic; just as there are other scholarly areas with similarly pragmatic attributes.  But the pragmatism—for both my students and my scholarship—associated with compliance work is one of the things I enjoy about working in the area.

Posted by Veronica Root on July 24, 2018 at 10:36 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (0)

Pine Tar at 35

Today marks the 35th anniversary of the PineTar Game, when the umpires overruled a home run and called out George Brett of the Royals for having too much pine tar on his bat, only to have the league reverse the decision, reinstate the home run, and have the teams complete the game (from two outs in the top of the ninth with the Royals leading). The game even produced scholarship on statutory construction and judicial decisionmaking. Video after the jump.

 

Posted by Howard Wasserman on July 24, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Liability of Doctors Accepting Unvaccinated Patients

Over the past few years, discussions on whether a doctor can, or should, be liable if she accepts unvaccinated patients and they infect other patients with a preventable disease have arisen repeatedly. This is not a theoretical possibility. For example, in 2008, in San Diego, an unvaccinated child returning from Switzerland with measles infected several children, among them four patients in his pediatrician’s office, three of them infants too young to vaccinate. One of those infants had to be hospitalized.

I have heard arguments that doctors who accept unvaccinated patient should be liable in torts if this eminently foreseeable result materializes. I disagree, and will explain why.

Behind the question of tort liability is the question of whether it is reasonable for doctors to accept unvaccinated patients to their practice (I’m intentionally glossing over professional liability or not, to keep this short, but happy to address that in the comments). Unvaccinated patients are at substantially higher riskthan vaccinated ones to contract and transmit a preventable disease. But the question is not simple, and is a matter of intense debatewithin the profession.

On one hand, accepting unvaccinated patients creates a risk that they will bring in an infectious disease and infect others. In one tragic example in Germany, two babies infected in that scenario died from a fatal measles complicationslowly, in agony, years later. In addition, doctors point out that if patients do not trust doctors enough to accept vaccines, the doctor/patient relationship is already flawed. While blind trust is likely neither necessary nor desirable, rejecting something as basic as vaccines implies very deep mistrust that can interfere with good treatment. Finally, if the goal is to provide the best medical care to the child, not vaccinating means the doctor is failing her duty – and if the threat of dismissal from the doctor’s office pressures parents into vaccinating, goes the argument, the child is better served.

On the other hand, rejecting unvaccinated patients can mean – depending on the area - leaving unvaccinated children without medical care. Not only is this punishing them for their parents’ error, these children may need medical care more than others. It also means giving up on the chance to change those parents’ minds – and risking that they may end up in practices that are friendly to non-vaccinating, where the higher rate of unprotected children would increase the risk of outbreaks.

In response to the risk of infection in the waiting room, some doctors point out that it exists from diseases that are not vaccine preventable, too, and refusing unvaccinated patient would not eliminate it (though it will reduce the risk from preventable diseases). A better solution to the risk is separating out sick and well waiting rooms, they argue.

For years, the American Academy of Pediatrics opposed dismissing unvaccinated patients. But in August 2016 it changed course, giving what some perceive as limited approvalto pediatricians who choose to dismiss non-vaccinating patients if it’s done as a last resort.

What about tort liability? The question is whether it is malpractice – or general negligence – to have unvaccinated patients. In both case, I think the answer should be no. There are simply too many good arguments supporting seeing unvaccinated patients to say that seeing them is unreasonable. There are very valid arguments for not seeing them, and I do not think there is a reasonable claim that a doctor that refuses such patients is acting unethically or should be subject to liability, either. But there are also valid reasons to keep accepting unvaccinated patients.  

The position of the professional association also supports both views. This is a case where there are, in fact, two schools in the profession, both have merit, and neither position is unreasonable. In some circumstances, doctors accepting unvaccinated patients may be negligent in other ways. For example, maybe knowing a patient is unvaccinated is a reason to keep such patients, when ill, especially away from others, or in some circumstances see them in isolation. But just the decision to accept unvaccinated patients should not, in itself, lead to liability.

I do think there is a reasonable case for liability in other circumstances. For example, there are strong grounds to hold doctors who recommend foregoing vaccinating without good medical reasons liable to their patients, if patients get a preventable disease, and to third parties they may infect. There are also good grounds to hold parents who do not vaccinate liable to third parties (or their children) in the right circumstances – and the usual rule that there’s no duty to act should not be a barrier.

But for the reasons above, I do not think accepting non-vaccinating patients should, by itself, lead to liability.

I would be curious to hear other views/positions.

Posted by Dorit Reiss on July 24, 2018 at 09:01 AM in Torts | Permalink | Comments (8)

Monday, July 23, 2018

interesting Class Participation Idea

I run my class on an all-volunteer basis because I was raised in a system that did not have cold-calling and I dislike it. But this nifty idea from Nathan Robinson, which he claims he learned from James Forman, holds some promise. He hands each of his students a card with three colored stripes and instructs them to write their name on all three stripes, and then to fold the card so that only one color is showing at the time (follow the link to see the handiwork involved--it's pretty straightforward.) Then:

Each student places their name card in front of them, and positions it so that one side faces the discussion leader. They are told that they should rotate the card so that the color the discussion leader sees is either red, green, or yellow. The meanings of the colors are:

RED – I do not wish to be called on.

YELLOW – I do not mind being called on.

GREEN – I would like to be called on.

Green is therefore the equivalent of raising your hand. Yellow is the equivalent of being open to cold-calling. And red means opting out of cold-calling. The students are asked to default to yellow, but are told that they should not hesitate to go red if they do not wish to speak. (The discussion-leader should have their own namecard, and should turn it to red and keep it there for a while so that students know this is acceptable.) At the end of each session, the instructor collects the cards in a box and hands them out at the end of the next class.

Thoughts?

Posted by Hadar Aviram on July 23, 2018 at 04:52 PM | Permalink | Comments (12)

Sunday, July 22, 2018

I am shocked, shocked to find that Court-packing is going on in here

I do not want Brett Kavanaugh on the Supreme Court, just as I did not want Neil Gorsuch on the Supreme Court. But some of the complaining from my ideological compatriots is embarrassing. 

It starts with Charles Schumer's suggestion that Trump should have nominated Merrick Garland, which Sen. Sheldon Whitehouse endorsed as an example of a "really legitimate nominee," in contrast with whoever Trump is inclined to nominate. Now Dahlia Lithwick cannot believe that Kavanaugh believes that it is OK to pack the Supreme Court with justices who will not turn out to be ideological disappointments, as Warren, Souter, and O'Connor were. (Poor Justice Brennan has been forgotten on this list). She writes of Kavanaugh that "now the young lawyer who predicted that where there was a will, there was a way to pack the courts, has himself gone on to become the 'predictable' nominee who won’t let the party be Soutered or O’Connored again."

Well, yes. Of course Presidents can pack the Court with Justices they believe are ideologically simpatico and will remain so. FDR spent 12 years doing that. And imagine that Hillary Clinton had won and gotten a Democratic Senate, then renominated Garland and been handed Kennedy's retirement. I doubt Lithwick and other liberals would complain that Clinton had nominated Patricia Millett or Goodwin Liu, who would pack the Court with a six-Justice liberal majority inclined to protect and expand constitutional protection for abortion rights, racial minorities, etc. And liberals would be running around to ensure that either nominee would be predictable in their decisionmaking on key constitutional issues and that Democrats would not be "Whited" or "Frankfurtered" on major issues.

It is time to change the discussion around SCOTUS appointments by rethinking several things:

1) There are not going to be any more Warrens or Souters and we really need to stop talking about the possibility. Both appointments are, in political terms, ancient history. Republicans care too much about judicial appointments and the Federalist Society (which was in its infancy when Souter was appointed) is the incubator through which most conservative lawyers and judges come up; both guarantee that serious nominees will have a clear and obvious legal and constitutional vision. The polarization in the political parties now maps onto judges likely to be serious candidates under those parties. Republicans like David Souter or William Brennan do not exist anymore and neither to Democrats like Felix Frankfurter. As Mike Dorf puts it, a "mainstream Republican appointee and a mainstream Democratic appointee are ideologically quite distant." So a Republican President will appoint consistent judicial conservatives. As I Democrat, I hope the next Democratic President will appoint consistent judicial liberals.

2) Because of that polarization, new legal issues or regimes are unlikely to arise that shake-up the constitutional order or split constitutional allies. FDR packed Court with New Dealers because that is what mattered to him. In the late '40s and early '50s, the legal landscape shifted to a focus on civil liberties and individual rights. FDR appointees such as Black, Douglas, and Murphy went one way, Frankfurter another. I cannot envision any new, unthought-of issues that are going to become salient that will not have an obvious preexisting Federalist/Non-Federalist (or Democratic/Republican) alignment. No high-profile constitutional issues are suddenly going to unite Kagan and Kavanaugh.

3) Republicans are better at this and, polls from 2016 suggest, care more about it. But why is that? Perhaps because it is easier to create fervor to fight against something than to fight for it. The Federalist Society formed as a response to the perceived excesses of the Warren Court and liberal constitutionalism and the need to fight back against it. Republicans harvested support from religious activists over the need to push back against Roe and doctrines limiting religion in schools (and, soon, other places in society). There is a fear of attack and loss; control of the courts is essential to defending against that attack. By contrast, liberals view liberal constitutionalism as a failure, a Hollow Hope that did not and cannot achieve social change, at least not alone. But disappointment at not achieving full social change through the courts seems to have metastasized into apathy about the courts and the need to elect Democrats to the Senate and White House so they aggressively fill judicial vacancies.*

4) Much is being made of Trump filling vacancies at a record pace in the first two years of an Administration. This could represent GOP concern (represented by the roles of Leonard Leo, Don McGahn, and Senate Republicans more than Trump himself) in contrast to the apathy of Obama (who had a Senate majority for six years) and Bill Clinton (who had a Senate majority for two years). But the rules of Senate engagement are different than they were even four years ago. So we can wonder what the next Dem President with a Senate majority will try to do.

5) That Republicans are better at this should not be grounds for liberals and Democrats to say stupid things, such as suggesting that a Republican President appoint a Democrat to the Court or complaining that a Republican President is packing the Courts. I would hope that President Hillary Clinton would have laughed at a suggestion from Mitch McConnell. And I would hope that liberal journalists would laugh if someone in the National Review complained about Clinton packing the courts.

Posted by Howard Wasserman on July 22, 2018 at 04:23 PM in Howard Wasserman, Law and Politics | Permalink | Comments (12)

Will Baude on Madison's Constitutional Liquidation: A Triumph for Baude, A Failure for Madison?

Will Baude has produced an erudite and thought-provoking piece on “constitutional liquidation” written with his trademark clarity and grace: It is a pleasure to read and a cinch to understand. Here’s the gist of Baude’s paper. In a Federalist Paper, a veto message, and several letters written late in life, Madison famously argued that a series of decisions by Congress, the courts, and the President over a long enough period of time could “liquidate” (meaning clarify) constitutional ambiguities in ways binding on other interpreters after the liquidating decisions. Baude reduces these various statements to an admirably simple three-part theory in which (1) a course of deliberate practice by political leaders interpreting (2) ambiguous or vague constitutional terms (3) results in a settlement of those terms’ meaning accepted not only by the political leaders but also by We the People. In theory, liquidation holds the promise of eliminating the Constitution in Exile — that is, prevailing constitutional interpretations that are stubbornly pressed by purists who think the Powers that Be are getting it wrong. Liquidating decisions deprive those constitutional exiles of their status as legitimate Pretenders, because those decisions represent not just one interpretation among many but the interpretation endorsed by We the People.

There have been other discussions of how political precedents clarify constitutional ambiguities by (among others) Dick Fallon, Brad Clarke and Trevor Morrison, and Shalev Roisman. Baude’s piece, however, is the first of which I am aware that relentlessly focuses on Madison’s idea on liquidation, thereby simultaneously 1) providing CliffNotes for Madison’s later writings and 2) combining departmentalism with with Ackerman’s style of constitutional moments to 3) give us a spare, plain, usable theory of constitutional settlement. It is a hat trick of constitutional history and theory, so clearly laying out the essence of Madison’s theory that we can easily evaluate its strengths and weaknesses, rejecting it if it turns out to be a bust.

After the jump, I will suggest that the theory is indeed a bust. Baude’s exposition, I will argue, shows that truly liquidating decisions in the Madisonian sense are almost impossible to obtain and, therefore, practically useless for permanent constitutional settlement . The weak point is Madison’s effort to enlist popular sovereignty to bless liquidating decisions: Madison’s theory requires We the People to express opinions about constitutional arcana through elections following constitutional precedents set by the political branches. That’s a lot to ask of us voters — too much, in fact. This does not mean that repeated appeals to the People cannot settle constitutional questions for a time — but the time is generally temporary. With rare exceptions, the constitutional Pretenders can always make a bid to return from exile by challenging the existence or scope of some earlier “liquidating” decision.


1. How can the public ever determine the constitutional basis for a collective political decision?

Let’s take the example of the First Bank of the United States as an illustration of the impracticality of liquidation theory for settling constitutional disputes. The constitutionality of the Bank turned on whether a private bank with an exclusive right to hold and lend the federal government’s revenue for twenty years, 80% of the stock of which is owned by private investors, constitute a “necessary and proper” means for the execution of one or more of Congress’s enumerated powers. In 1791, Congress endorsed the idea that such a Bank was indeed necessary and proper, but, in 1811, Congress refused to recharter the Bank. Madison argued in 1816 that, despite that 1811 vote, there had been a long course of congressional decisions upholding the bank’s constitutionality.

How did he know? The problem is that, when Congress debates whether a law satisfies ambiguous constitutional standards like the Necessary and Proper clause, it is very difficult for voters to determine whether their decision is based on legal or policy grounds. For such mushy constitutional standards, the two sorts of grounds can be indistinguishable. Madison himself argued in 1791 that the power to charter the Bank was too “important” to be left to implication, because a monopolistic bank threatened citizens’ equal liberty and Congress’s legislative sovereignty. His argument against the Bank’s constitutionality was, therefore, simultaneously an argument against the bank as bad policy. Members of congress in 1811 likewise freely mixed policy and constitutional reasons that were indistinguishable from each other. (Henry Clay, for instance, rejected the Bank’s legality and wisdom in 1811 but later reversed his constitutional judgment because his policy judgment had changed).

Given how difficult it is to disentangle policy and constitutional grounds when the latter consist of mushy, policy-laden constitutional terms (“necessary and proper,” “reasonable,” “needful,” etc.), it is impossible to say that the public acquiesced in a congressional decision endorsing the Bank’s constitutionality in 1811. The public typically does not pay a lot of attention to the reasons for a legislative decision: Few read floor speeches or tote up votes. Even if a lot of congresspersons explicitly declared that they believed that the Congress had (or lacked) the power to charter a bank, how in the world would the public know?

The impossibility of inferring public acquiescence to a congressional interpretation of the Constitution from a bunch of speeches is nicely illustrated by Baude’s discussion of Representative Madison’s effort to shape the meaning of a congressional vote on subsidies for cod fishermen in 1792. Madison was concerned that the vote could be construed to endorse a congressional power to give bounties for the promotion of fisheries, a matter arguably not within Congress’s jurisdiction. So Madison successfully urged that the vote be characterized as a vote to give the fishermen a rebate on tariffs paid on salt to cure the fish, on the theory that a tariff rebate did not enlarge the spending power of Congress. Baude notes the “irony” that this fine-grained legislative maneuver to shape the reasons behind a legislative decision was lost on Justice Story who later construed the vote as an endorsement of a broad spending power. But there is more than just irony here: if Justice Story could not figure out the true basis for a congressional vote on a tariff rebate, then how are voters to do so? But if voters cannot correctly interpret the reasons underlying a congressional vote, then how can we infer that the public acquiesced in those reasons?

The constitutional meaning of that codfish bounty (or tariff rebate) vote is even more opaque than Baude acknowledges. If Congress has the power to selectively rebate tariffs to subsidize favored activities, then Congress has limitless power to use “tax expenditures” as a substitute for the spending power. This would greatly expand the tariff power, by allowing it to be used not only to raise revenue and protect domestic industry from foreign competition but also to direct subsidies to favored industries at the expense of other domestic producers who have to pay the full tariff. Was Madison endorsing this view of the taxing or commerce-regulating power? That interpretation of Madison’s position seems odd, given Madison’s desire to cabin Congress’ powers — but it is also perfectly consistent with Madison’s speech and vote.

In short, it is extremely difficult for the public to determine whether a congressional decision is based on a view about policy or instead an interpretation of constitutional law. The point is analogous to Shalev Roisman’s point in an excellent 2016 article: The grounds of politicians’ decisions being difficult to infer, one cannot easily infer that those politicians acquiesced to some branch’s action simply by tolerating it. I would add only that the problem of winnowing apart outcome and reasons is exacerbated by Madison’s effort to characterize these decisions as appeals to the People. If lawyers like Joseph Story cannot easily determine the grounds for a congressional decision, then a busy voter will likely find such decisions impossible to decipher. Yet liquidation theory rests on the heroic assumption that ordinary voters somehow have an opinion about such grounds.

2. How can the public tell whether or not allegedly liquidating decisions are limited by their factual context?

Suppose that Congress really did approve of the bank’s constitutionality in 1811 or 1816. Suppose the electorate construed this decision as resolving the Bank’s constitutionality. Suppose that dissenting voters grudgingly acquiesced. (I have read much of the newspaper literature from this period, and all three of these positions strike me as dubious — but let’s pretend). Should those decisions be limited to the factual context of the time? Would new facts allow the liquidating decision to be overturned or limited? If so, liquidating precedents will be as ambiguous as the constitutional text they purport to clarify.

Consider, again, the Bank of the United States. In 1816, the Congress granted the Second Bank a charter, presumably endorsing its constitutionality. In 1819, the United States was hit by a devastating financial panic that revealed substantial corruption and mismanagement at the Second Bank. In 1820, debates about the admission of Missouri lead to a constitutional crisis about Congress’ power to define the status of slavery in territories newly admitted states. In 1822, Charleston authorities purport to uncover a conspiracy by Denmark Vesey to start a slave rebellion, leading to heightened fear about attacks on slavery. By the 1820s, John Randolph, an “Old Whig” from Virginia was warning southerners to reject the National Republicans’ (Monroe’s and later John Quincy Adams’) infrastructure program, because a broadly construed federal power could be used to take away their slaves.

Do these new facts allow a later Congress or President to argue that the Bank really was not necessary and proper after all — that the earlier decision was made under mistaken facts? The answer depends on the scope of those earlier precedents. If the earlier Congress intended to make an abstract decision about the legality of the Congress’ conferring a charter in the Bank come what may, then the change in factual circumstances is irrelevant to the liquidating decision’s “holding.” But perhaps that decision was highly qualified by the facts then known about banks and the federal government.

Baude nicely presents the elusiveness of construing a liquidating decision’s holding, concluding that “the dictum/holding distinction has sometimes proven elusive in judicial precedent and may be more so in liquidation.” That strikes me as a colossal understatement: It is nearly impossible to infer the grounds for a congressional vote when typically only a small percentage of the members give elaborate reasons seems ludicrous. It is hard enough to infer the narrowest grounds for a SCOTUS decision lacking a majority opinion: How is one to infer the narrowest grounds for a decision in which dozens of “judges” vote, most give no reasons, and the reasons given by the few leaders who deliver substantial speeches all differ from each other? By contrast, applying Marks'"narrowest grounds" test to splintered SCOTUS precedents, with only nine voters and a handful of opinions, should be a breeze. Yet the SCOTUS just ducked clarifying Marks: It is hard to believe that they will be equal to task of applying an analogous test to Congress' liquidating decisions.

Here’s an example to illustrate the opacity of political decisions. I give my students a summary of the 1802 debate over the repeal of the Circuit Judges Act and ask them to summarize the “holding” of that decision. It is an impossible task, despite the fact that the debate over the Repeal Act was expressly styled as a decision about Constitutional meaning. The issue was Congress’ power to eliminate judicial offices and thereby de facto deprive a sitting federal judge of his seat during good behavior. The Congress voted to repeal the Circuit Judges Act — but why? Did a majority believe that Congress could “fire” federal judges? Hard to say. Some members like Senator Breckenridge denied that federal courts had any power of judicial review and argued that the “good behavior” clause of Article III did not apply to Congress at all; others, like Representative Varnum, argued merely that eliminating an office entirely was not really the same as removing someone from an office that continued to exist. What was the “holding”? My students never agree, because the members’ speeches varied in their reasons, and no one voted for anyone else’s speech.


3. Are We the People allowed to change our mind and overrule our own liquidating decisions?

One of the best parts of Baude’s article is his discussion of whether a liquidating settlement is permanent - -whether, in his words, liquidation can be liquidated. His analysis is balanced and subtle, and the best evidence of his fair-mindedness is that, in the end, Baude punts. He concludes that it is uncertain whether mere normative disagreement with a prior liquidating decision should be sufficient reason to overturn them but that nonetheless such decisions do seem to get overturned on such a basis.

I take this inconclusiveness to be baked into Madison’s liquidation theory. The problem is that a normative theory cannot answer a problem of positive prediction. We need to know the circumstances in which a prior decision will actually be stable, not when decisions ought not to be questioned because somehow Pure Ideal of the People signed on to it. If stability is what we value, then we should identify those conditions under which a decision will actually stick. Those conditions give us a much sounder sense of what it means for We the People to bind ourselves than a lot of high-flown rhetoric about voters’ somehow endorsing stuff that they most likely ignore. Daryl Levinson and Ben Sachs have written a great summary of the practical methods by which policies actually become entrenched against change. Some of these methods involve changing the people’s baseline of expectation about what government should do. (Think of how Social Security Old Age insurance, for instance, is regarded as something akin to a an untouchable contract by voters). Madison’s theory does not attempt any such positive identification of the circumstances that lead to true entrenchment. It therefore seems to me more like constitutional hand-wringing, hectoring us that certain things should happen even when they self-evidently do not happen without offering any reasons to bridge the gap between “should” and “will.”

An example will illustrate my frustration with this sort of moralistic style of constitutional theory. In 1850, Congress enacted a set of laws self-consciously designed to address the South’s complaint that the North was disobeying the Fugitive Slave clause of Article IV, section 3, while simultaneously addressing the North’s worry about Southern slave-catchers’ kidnapping free black citizens in violation of the Fifth Amendment’s Due Process clause. This “Compromise of 1850” had all the trappings of a liquidating settlement to determine the meaning of Article IV and Due Process. It was highly visible. Clay, Webster, and Calhoun, all lions of the Senate, were the leading actors. Both Parties, Whig and Democrat, signed on, and most of the public seemed quite relieved immediately in the wake of the decision. For a moment, at least, an ambiguity in the Northern citizens’ duties to return fugitive slave seemed to have been liquidated.

So why did this decision not stick? Why did not the public feel itself bound by it? Some did: After all, they signed on to it, at least according to Madison’s theory. But some joined a new political party that rejected the “precedent.” Why?

The answer, of course, is that Northern citizens changed their minds. They became frustrated by the operation of federal slave-catching commissioners and increasingly mobbed slave-catchers who tried to use them. The public, in short, thought that they had a right to overrule their own precedents. On Madison’s account, these citizen reneged on a decision that established the meaning of ambiguous provisions in Article IV. But if We the People actually do not think that the decision is binding — if we think that we can overrule our old decisions because we changed our minds — then what is the sense of saying that we defied our own popular will? Why not instead say that Madison’s theory of how We the People make Our decisions stick is simply mistaken? Theories of “popular stare decisis” surely ought to reflect how real people act, just as judicial stare decisis should reflect how courts behave. But Madison’s theory is more wishful thinking than positive prediction.

4. If apparently liquidating decisions rarely liquidate constitutional ambiguity, then why did Madison write all of those letters in the 1830s?

Here’s a hypothesis about Madison’s motivation in pressing his liquidation theory in his last years. He was an aging Framer who saw his life’s work — a Constitution that would last for ages — crumbling away, eroded by increasingly polarized debates over slavery. To stop the erosion, Madison needed some constitutional compromises —say, the Missouri Compromise — to stick. He needed the educated public to stand by congressional decisions that they did not like on the grounds that those decisions resulted in settlement that everyone had a voice in making. The idea that those decisions “liquidated” constitutional ambiguity served this end. Madison could oppose purists on both sides — Southern purists like Calhoun, Northern purists like John Quincy Adams — with talk of the legally obliging force of liquidating decisions. The problem with the theory, however, is that no one really felt legally obliged: The theory was devoid of predictive power. In the end, Madison the hard-headed political scientist of Federalist #51 had become Madison the finger-wagging scold.

None of these weaknesses in Madison’s theory reflects badly on Baude’s exposition of it. In fact, as I noted above, the mark of Baude’s excellence as an expositor is that the weaknesses in the theory can easily be seen, like cracks in a crystal-clean windshield. It is a great paper that brilliantly reconstructs a theory of constitutional settlement. It is no one’s fault but Madison’s that such a theory does not really reflect how We the People settle anything.

Posted by Rick Hills on July 22, 2018 at 01:49 PM | Permalink | Comments (1)

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 (Updates)

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. [Update: It took a day longer than I expected, but the tweet that arrived had the advantage of blatant lies about the content of NFL player contracts. And I like the response of NFLPA President Eric Winston] (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?

Second Update: Conor Friedersdorf of the The Atlantic urges NFL players to square the circle--continue protesting while not playing into Trump's hands. The problem is that the anthem remains their most visible expressive platform. If any flag- or anthem-related protest will be demagogued by this President, as surely will be the case, I am not sure what the players can do.

Posted by Howard Wasserman on July 19, 2018 at 11:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

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 (5)

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 (6)

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); 
 
(g) the website, if any, that candidates should use to obtain information about the position or to apply;
 
(h) the number of available faculty positions at your school; and
 
(i) whether you are interested in hiring entry-level candidates, lateral candidates, or both.

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.

Originally posted July 11, 2018; updated August 10, 2018, to reflect that the spreadsheet now includes (1) website links and (2) whether the committee is interested in entry level candidates, lateral candidates, or both. 

Posted by Sarah Lawsky on July 11, 2018 at 10:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (62)

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 (9)

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 [email protected]. 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 [email protected]

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, [email protected], 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, [email protected].

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)