PrawfsBlawg

Rationing Legal Services

In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor.  This only  only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.

To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?

I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.

I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.

The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.

While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.

- I. Glenn Cohen

JOTWELL: Coleman on Hoffman on federal rulemaking

The latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).

“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case

At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:

“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”

The exchange is all the more curious because, despite her scepticism, Kagan signed on to the Court’s holding that the Medicaid expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.

First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.

In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”

By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the

financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.

I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.

The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.

- I. Glenn Cohen

Sleep No More: Sleep Deprivation, Doctors, and Error or Is Sleep the Next Frontier for Public Health?

How often do you hear your students or friends or colleagues talk about operating on very little sleep for work or family reasons? In my case it is often, and depending on the setting it is sometimes stated as a complaint and sometimes as a brag (the latter especially among my friends who work for large law firms or consulting firms). To sleep 7-8 hours is becoming a “luxury” or perhaps in some eyes a waste – here I think of the adage “I will sleep when I am dead” expresses that those who need sleep are “missing out” or “wusses.” My impression, anecdotal to be sure, is that our sleep patterns are getting worse not better and that many of these bad habits (among lawyers) are learned during law school.

One profession that has dealt with these issues at the regulatory level is medicine. In July 2011, the Accreditation Council for Graduate Medical Education (ACGME) – the entity Responsible for the accreditation of post-MD medical training programs within the United States – implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. In a new article with sleep medicine expert doctors Charles A. Czeisler and Christopher P. Landrigan that just came out in the Journal of Law, Medicine, and Ethics, we examine how to make these work hour rules actually work.

As we discuss in the introduction to the article 

Over the past decade, a series of studies have found that physicians-in-training who work extended shifts (>16 hours) are at increased risk of experiencing motor vehicle crashes, needlestick injuries, and medical errors. In response to public concerns and a request from Congress, the Institute of Medicine (IOM) conducted an inquiry into the issue and concluded in 2009 that resident physicians should not work for more than 16 consecutive hours without sleep. They further recommended that the Centers for Medicare & Medicaid Services (CMS) and the Joint Commission work with the Accreditation Council for Graduate Medical Education (ACGME) to ensure effective enforcement of new work hour standards. The IOM’s concerns with enforcement stem from well-documented non-compliance with the ACGME’s 2003 work hour rules, and the ACGME’s history of non-enforcement. In a nationwide cohort study, 84% of interns were found to violate the ACGME’s 2003 standards in the year following their introduction.

Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law. I would love reactions to our proposals in the paper, but wanted to float the more general idea in this space.

 Obesity is a good example of something that through concerted action moved from the periphery to safely within the confines of public health thinking and even public health law. Is it time to do the same for sleep? Should we stop valorizing sleeping very little in our society? Should we be thinking about corporate and public policies directed to improving sleep pattern? What might that look like? One thought I have is about encouraging telecommuting to reduce commuting time, sleep rooms in offices? Of course, on the parenting sleeplessness sides many of the solutions are social support.  What about what we tell and model for our students? I try to impart to my students that extra hours spent studying well into the night will have diminishing marginal returns, but who knows if that message is imparted. I also worry that with the number of journals, moot courts, clubs, etc, we encourage our students to join at law school that we are enablers of sleeping too little and perpetuating the “superman” myth (and I do wonder about the gendered component here)... Real men don’t sleep. And then they perform badly at their jobs and get into car crashes….

- I. Glenn Cohen

JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriae

The new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.

Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys

The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.

Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.

I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.

I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.

Some Must Reads from the Mich LR Books Issue

I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more. 

Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.

The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.

And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course.  For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.

Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.  

In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces. 

Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?).  Enjoy!

JOTWELL: Mullenix on Sachs on personal jurisdiction

The new essay for JOTWELL's Courts Law has been posted:  Linda Mullenix (Texas) reviews Stephen Sachs How Congress Should Fix Personal Jurisdiction, which argues that personal jurisdiction is a mess and only Congress can fix it.

FSU Law Review Announces its Exclusive Submission Window

The Florida State University Law Review will be conducting exclusive spring cycle article reviews.  Any article submitted to this exclusive review between now and April 3d will be evaluated by April 11th.  By submitting the article you agree to accept an offer for publication should one be extended.  Any articles accepted through this review will be published in Issue 3 or Issue 4 , both of which are slated for publication in summer of 2014.  

If you have an article which you would like to submit, please e-mail an attached copy of the article and your cv and cover letter to swa11@my.fsu.edu with the subject line "Exclusive Spring 2013 Article Review." Feel free to cc' me.

JOTWELL: Erbsen on Cheng on trial sampling

The latest review essay for JOTWELL's Courts Law has been published: Allen Erbsen (Minnesota) reviews Edward Cheng's When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling (U. Pa. L. Rev. 2012). Cheng argues that non-traditional procedures, such as trial sampling, may produce more accurate results in certain circumstances than individual claim-by-claim procedures.

The iPhone, not the eye, is the window into the soul

 

It is great to be back at Prawfsblawg this year.  Thanks to Dan and the gang for having me back.  For my first post this month, I wanted to point everyone to the most important privacy research of 2012.  The same paper qualifies as the most ignored privacy research of 2012, at least within legal circles.  It is a short paper that everyone should read.

The paper in question,Mining Large Scale Smart-Phone Data for Personality Studies, is by Gokul Chittaranjan, Jan Blom, and Daniel Gatica-Perez. Chittaranjan and co-authors brilliantly show that it is straightforward to mine data from smart-phones in an automated way so as to identify particular "Five Factor" personality types in a large population of users.  They did so by administering personality tests to 117 smartphone users, and then following the smartphone activities of those users for seventeen months, identifying the patterns that emerged.  The result was that each of the "Big Five" personality dimensions was associated with particular patterns of phone usage.  For example, extraverts communicated with more people and spent more time on the phone, highly conscientious people sent more email messages from their smartphones, and users of non-standard ring-tones tended to be those who psychologists would categorize as open to new experiences.  

There is a voluminous psychology literature linking scores on particular Big Five factors to observed behavior in the real world, like voting, excelling in workplaces, and charitable giving.  Some of the literature is discussed in much more detail here.  But the Chittaranjan et al. study provides a powerful indication of precisely why data-mining can be so powerful.  Data mining concerning individuals' use of machines is picking up personality traits, and personality predicts future behavior.  

The regularities observed via the analysis of Big Data demonstrate that you can aggregate something seemingly banal like smartphone data to administer surreptitious personality tests to very large numbers of people.  Indeed, it is plausible that studying observed behavior from smartphones is a more reliable way of identifying particular personality traits than existing personality tests themselves.  After all, it is basically costless for an individual to give false answers to a personality questionnaire. It is costly for an extravert to stop calling friends.  

Privacy law has focused its attention on protecting the contents of communications or the identities of the people with whom an individual is communicating.  The new research suggests that -- to the extent that individuals have a privacy interest in the nature of their personalities -- an enormous gap exists in the present privacy framework, and cell phone providers and manufacturers are sitting on (or perhaps already using) an information gold mine.  

It's very unlikely that the phenomenon that Chittaranjan et al. identify is limited to phones.  I expect that similar patterns could be identified from analyzing peoples' use of their computers, their automobiles, and their television sets.  The Chittaranjan et al. study is a fascinating, tantalizing, and perhaps horrifying early peek at life in a Big Data world.

Symposium on the gender gap in the workplace

FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013, this Friday, March 1. The conference is organized by my FIU colleague (and alumna Guest Prawf) Kerri Stone. Presenters include former guests Nancy Leong (Denver) and Marcia McCormick (Saint Louis), along with several top employment/employment discrimination scholars.

The symposium will be published in June 2013.

The Economics of the Infield Fly Rule

My longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is after the jump. Comments welcome.

No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.

The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies.

JOTWELL: Walsh on Crowe on the federal judiciary

The latest review essay for JOTWELL's Courts Law is now available: Kevin Walsh (Richmond) reviews Justin Crowe's Building the Judiciary (Princeton University Press 2012). Crowe's book provides a historical narative exploring the events and forces that made the federal judiciary powerful--particularly those that at work before the rise of Federal Courts as a field sixty years ago.

Eppur si muove

There is a good story by Adam Gopnik in the current New Yorker about Galileo--next year marks the 450th anniversary of his birth and there are several new books about him. This got me thinking about Galileo's status as a hero (or martyr) for free expression and about the free-speech ideals in play in his story.

On one hand, Milton mentioned the aging and imprisoned Galileo in Areopagitica (Gopnik says Milton visited Galileo during the latter's house arrest) as an example of the evils of official licensure. We often point to Galileo and his punishment by the Inquisition as Exhibit A in the need for epistemological (or epistemic) humility--that we cannot know what is true, what we hold as true may come to be shown false, and that the authorities should not enforce one version of scientific, political, or other truth. He represents the man proven right by history, thus the paradigmatic example of why government should not have the power to declare facts and ideas wrong.  

On the other hand, as Gopnik describes, some (notably Bertolt Brecht) have taken the position that Galileo was not a hero because he recanted rather than subject himself to torture or death for his beliefs.  Others (including historian Thomas Mayer, who has written two new books about Galileo's trial and the Italian Inquisition) insist that Galileo contributed to his own problems through hubris and pugnacity. He migh have avoided trouble by not taunting Pope Urban VIII or by presenting heliocentrism as a theory, on par with the Church's view, rather than as the one correct position that he himself believed. And several scholars argue that the trial, and its status as an illustration of the worst type of censorship, "is shrouded in myth and misunderstanding."

This leaves several interesting questions. Is Gopnik right that the myth of the trial in fact "seems pretty much right: Galileo wrote a book about the world saying that the earth goes around the sun, and the Church threatened to have him tortured or killed if he didn’t stop saying it, so he stopped saying it"? Or is that too simple? Should we accept a free speech regime that draws distinctions between what can be said generally and what can be advocated for as reflective of the speaker's true beliefs? Can a free-speech regime impose epistemological humility on individual speakers themselves (i.e., if the authorities must be humble as to what they know, must all speakers)?

Finally, is punishment and martyrdom the only way for someone to stand up for their free speech rights? Or does truth advance sufficiently simply because truth (particularly scientific truth) establishes something as reality, no matter that the government may insist the scientist must say about it. As Gopnik puts it, "the scientist can shrug at the torturer and say, Any way you want me to tell it, I will. You’ve got the waterboard. The stars are still there."

Reforming the Pardon Attorney Office: Some Preliminary Thoughts

I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.

And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.

Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.

In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.

Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.

Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.

*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment. 

Hall on standing in DOMA litigation

When SCOTUS granted cert in United States v. Windsor to consider the constitutionality of DOMA, I flagged my exchange with Matthew Hall (Georgia) in Fordham Law Review over whether the Bipartisan Legal Advisory Group (BLAG) had standing to represent the United States in the case (as well as whether the Prop 8 sponsors had standing to represent California in the same-sex marriage case).

Matt is back at it, with a new essay in Stanford L. Rev. Online explaining why BLAG lacks standing--it has not been authorized to litigate either by statute or by House resolution. Definitely worth a read, especially if it begins to look as if the Court will take the jurisdictional out in the case. If Matt is right that BLAG is without standing allows the Court to vacate everything that has happened thus far in the case and send it back to the district court to begin from scratch.

JOTWELL: Lahav on Klerman on Personal Jurisdiction

The latest from JOTWELL's Courts Law Section: Alexandra Lahav (U Conn.) reviews Daniel Klerman's Personal Jurisdiction and Products Liabiity, which considers the law-and-economics issues ex ante and argues for a simplified rule allowing a manufacturer to be sued in the state where the product is sold to the consumer.

Pendent Appellate Jurisdiction and the Collateral Order Doctrine

Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."

Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, I have a new essay up on SSRN in which I aim to demonstrate that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.

The practical effect of these beclouded expansions is only now becoming visible. Thus, in two recent high-profile Bivens cases, both the D.C. and Seventh Circuits (the latter sitting en banc) reversed a trial court’s recognition of a Bivens claim on interlocutory appeal of the denial of qualified immunity, even though neither court of appeals disturbed the district court’s underlying determination of non-immunity. And whatever might be said about the continuing viability of Bivens claims, lower courts have begun to piggyback other legal questions going to the merits onto interlocutory immunity appeals, as well.

In addition to flying in the face of longstanding precedent, the more troubling analytical implication of this trend is to both formally and functionally vitiate the longstanding distinction between litigation immunities and defenses to liability. To the extent that officer defendants might now be able to press most potential legal defenses on interlocutory appeal of a denial of a motion to dismiss even where they are not entitled to official immunity, such defenses will necessarily become functional immunities from suit in any case in which they are validly invoked — and will make it that much harder (and more expensive) for plaintiffs to recover even in cases in which they are not. If the Justices truly intended such a result, even if only in officer suits, one could at least have expected them to say more about it than the cryptic discussions that have sufficed to date. As the essay concludes, had they done so, they might have realized that such a result is incredibly difficult to defend as a matter of law, policy, precedent, or prudence.

Needless to say, I'd welcome comments, criticisms, objections, etc.!

Thomas on Solomon on civil juries

Suja Thomas (Illinois) has the newest essay on JOTWELL's Courts Law Section, reviewing Jason Solomon's The Political Puzzle of the Civil Jury, which examines the role of the civil jury as a political institution.

The Majoritarian Senate

Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog.  Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.  

In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures.  We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review).  The argument is simple, and one that a lawyer would certainly appreciate.  Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.  

Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering.  In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.

The paper is still a draft, so I would welcome any comments you may have.  Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals.  Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again.  More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators.  In other words, when it comes to filibuster reform, don't hate the game, hate the players. 

Empathy for the Devil

I wanted to flag a significant new article by Thomas Colby (GW), titled In Defense of Empathy (forthcoming in Minn. L. Rev). Colby makes the first detailed defense of President Obama's conception of empathy--importantly by explaining what empathy actually is, how it is distinct from sympathy, and why empathy is, in fact, an important characteristic for judges to possess. He also explains how empathy is, in fact, the opposite of the umpire analogy, while being no less about the rule of law. I have touched on similar points before, but it is nice to see this get a full-fledged scholarly treatment. Definitely worth a look.

Expresso Makes Life Easier for Law Review Editors. How about for Writers?

I wonder if many of you got the same email I did earlier from Jean-Gabriel Bankier over at bepress. I've reprinted most of it below and after the jump. Please feel free to weigh in with comments on whether these are positive developments for everybody or just some of the players in the submission game.

Working with the editors, bepress came up with a host of improvements to ExpressO which will radically improve the submission management experience for editors and give editors confidence that the information about the status of articles in their submission queue is up-to-date.

Here are a just a few of the highlights that are coming for the next submission season:

Integrated Auto-withdraw—when an author accepts an offer to be published through ExpressO, editors of other law reviews will be notified immediately and the submission will be automatically withdrawn from each law review's priority submission queue. Outside of being published, when an author simply withdraws their paper, it will also trigger the automatic withdraw from the pending submissions queue as well as notify the assigned editor.  

Expedite Preferences— editors will be able to set expedite preferences and share those preferences with submitting authors. For example, editors can inform authors that they will give priority to expedite requests from peer law reviews (editor creates list of peers but the list is not shared with the authors). They can also avoid wasting time on articles that have asked for a hundred or more expedite review requests: they do so by choosing a ceiling and then give priority to expedite requests that are distributed to no more than a ceiling number of law reviews simultaneously. Editors will be able to update their preferences at any time depending upon whether they are looking to slate lots of pieces or are pretty much full for the season.

Priority Submission Queue—ExpressO will be introducing many new features to help keep submission queues accurate and up-to-date. Editors will be notified (by email) only of expedite requests that meet their preferences based upon the criteria they have set and shared with authors. A priority submission queue will filter out articles that fail to meet the law review’s set expedite criteria. Also, authors and editors with expiring expedites will be reminded to take action. Authors will be reminded to expedite a new offer/offer extension or withdraw the article. Editors will be reminded to review the submission.   

Certified Expedite Requests—editors will be able to easily confirm the legitimacy of an expedite request. If an author has an open offer from another law review using ExpressO, that offer will be reflected in the editors’ priority submission queue. This kind of transparency will save editors time since they will no longer have to follow up with authors on incomplete expedite requests  or with other law reviews to confirm the offer.

Closed Communication After Rejections—when a law review rejects a submission the author will no longer be able to communicate with that review through ExpressO. 

Fast—our submission management software for law reviews will be substantially faster.

Bepress is proud of the impact ExpressO has had on the legal publishing over the past 10 years, and is dedicated to providing new tools to increase efficiency in law review submission management. Please contact me if you have any questions. I would love to hear any suggestions for what we might do in the future to help law reviews.

Finally, these tools you will need to manage your submissions will be free in 2013.

 

Green Bag's Got a New Issue...

The latest issue of Green Bag is available with links below the fold. Bear in mind the symposium to which you might wish to contribute on Orin's latest opus.

Volume 16, Number 1 (Autumn 2012)

Flip Book

Streak Along with an Ambulance

Ex Ante

Our Mistakes • Supreme Court Argument Form • Thoughts for a Year • Denial and Consolation • The Flip Book

To the Bag

Edward L. Carter and Edward E. Adams, Misjoinder and the Mysterious Opinion

John L. Peschel, Enjoyed but not Enjoined

Articles

Julian Aiken, Femi Cadmus & Fred Shapiro, Not Your Parents’ Law Library: A Tale of Two Academic Law Libraries

Ira Brad Matetsky, The Harlan Fund

John V. Orth, Charles Dickens and the Sovereign Debt Crisis

Allen Rostron          , Factoids

J. Harvie Wilkinson III, The Lost Arts of Judicial Restraint

From the Bag

Ross E. Davies, The Popular Prosecutor: Mr. District Attorney and the Television Stars of American Law

Unknown, The Case of the Racket Witness

Ex Post

Orin S. Kerr, A Theory of Law

 

Article Spotlight: The Merger Agreement Myth

So I wouldn't describe myself as a corporate law enthusiast, but I wanted to highlight a recent and provocative article authored by my Pepperdine colleague Robert Anderson and his co-author Jeffrey Manns, titled The Merger Agreement Myth, 98 Cornell L. Rev. (forthcoming 2013).  The article has gotten quite a lot attention and has been written up by Reuters, the ABA Journal, and Dealbreaker (full disclosure: some of the write-ups push the envelope on the somewhat more modest - and thoughtful - claims in the article).  In any event, here's the abstract for the piece.  Enjoy!

Practitioners and academics have long assumed that financial markets value the deal-specific legal terms of public company acquisition agreements, yet legal scholarship has failed to subject this premise to empirical scrutiny. The conventional wisdom is that markets must value the tremendous amount of time and money invested in negotiating and tailoring the legal provisions of acquisition agreements to address the distinctive risks facing each merger. But the empirical question remains of whether markets actually price the legal terms of acquisition agreements or whether they solely value the financial terms of mergers. To investigate this question, we designed a modified event study to test whether markets respond to the details of the legal terms of acquisition agreements. Our approach leverages the fact that merger announcements (which lay out the financial terms) are generally disclosed one to four trading days before the disclosure of acquisition agreements (which delineate the legal terms). We focused on a data set of cash-only public company mergers spanning the decade from 2002 to 2011 to ensure that the primary influence on target company stock prices is the expected value of whether a legal condition will prevent the deal from closing. Our analysis shows that there is no economically consequential market reaction to the disclosure of the details of the acquisition agreement. Markets appear to recognize that parties publicly committed to a merger have strong incentives to complete the deal regardless of what legal contingencies are triggered. We argue that the results suggest that dealmakers and lawyers focus too much on negotiating “contingent closings” that allow clients to call off a deal, rather than on “contingent consideration” that compensates clients for closing deals that are less advantageous than expected. Our analysis suggests drafting recommendations that could enable counsel to protect clients against the effects of the clients’ own managerial hubris in pursuing mergers that may (and often do) fall short of expectations.

JOTWELL: Pfander on Burbank, Plager, and Ablavsky on judicial departure

The latest essay in the Courts Law section of JOTWELL is by Jim Pfander (Northwestern), reviewing Leaving the Bench (forthcoming in U. Pa. L. Rev.), by Stephen Burbank, S. Jay Plager, and Greg Ablavsky. Burbank, et al. with an empirical and qualitiative analysis of why federal judges retire or take senior status, countering the prevailing political science narrative of political motivations and, Pfander argues, reminding us that judicial behavior "resists simplistic modeling and one-dimensional explanation."

Have a look at Jim's review, as well as the original article which is a great read and potentially timely, especially if SCOTUS decides to hear the judicial pay challenge this term.

2013 CrimProf Shadow Conference at LSA in Boston

This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.

--

Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here: http://www.lawandsociety.org/boston2013.html

For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.

The paper panels will cover a range of subjects.  Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.

We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area. 

In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.

We would also like to identify people who are interested in serving as moderators or discussants for our various panels.  So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.

In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.

If you would like to participate in the Shadow Conference in Boston:

By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.”  That email should include:

(a) an expression of interest

(b) an indication of whether you would like to participate in a book or paper panel

(c) a description of your topic (an abstract would be preferable)

(d) whether you are also available to serve as a moderator or discussant

(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel

(f) if necessary, a heads up if you are contemplating participation on another LSA panel

Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.

Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference.  (The LSA folks get kind of annoyed with us if our participants drop out.  And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)

Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv. 

Thank you, and we look forward to seeing many of you in Boston.

Carissa (& Danny)

Steven Lubet on "John Brown's Spy"

A new book worth checking out: Steven Lubet, a regular reader and commenter here on Prawfs and my former trial advocacy professor and , has published John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook. From the Yale University Press website:

John Brown's Spy tells the nearly unknown story of John E. Cook, the person John Brown trusted most with the details of his plans to capture the Harper's Ferry armory in 1859. Cook was a poet, a marksman, a boaster, a dandy, a fighter, and a womanizer—as well as a spy. In a life of only thirty years, he studied law in Connecticut, fought border ruffians in Kansas, served as an abolitionist mole in Virginia, took white hostages during the Harper's Ferry raid, and almost escaped to freedom. For ten days after the infamous raid, he was the most hunted man in America with a staggering $1,000 bounty on his head.

Tracking down the unexplored circumstances of John Cook's life and disastrous end, Steven Lubet is the first to uncover the full extent of Cook's contributions to Brown's scheme. Without Cook's participation, Brown might never have been able to launch the insurrection that sparked the Civil War. Had Cook remained true to the cause, history would have remembered him as a hero. Instead, when Cook was captured and brought to trial, he betrayed John Brown and named  fellow abolitionists in a full confession that earned him a place in history's tragic pantheon of disgraced turncoats.

Catalyzing Sports Fans (and the Rest of Us)--early draft now available

I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.

In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs). 

 Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties. 

 

JOTWELL: Vladeck on Collins & Nash on federal crime in state court

The new review essay in the Courts Law Section of JOTWELL is by our own Steve Vladeck, reviewing Michael G. Collins and Jonathan Remy Nash's Prosecuting Federal Crimes in State Courts, published last year in Virginia Law Review. Steve argues that their detailed historical analysis has broader implications for the ability of Congress to authorize any type of adjudication in non-Article III tribunals.

Swing Staters Have All the Fun

As we march forward towards election day I must admit I'm starting to have a bit of "swing state" envy.  I mean, let's face it, it's not as if you East Coasters will tuck in the kiddies and stay up all night, biting your nails until the California results are in.  Everyone knows how our story ends.  Besides reducing polling costs, the certitude of the California vote means that presidential candidates only need visit us in Los Angeles to make a withdrawal at "Bank Hollywood"--and that makes me a bit cranky and, yes, jealous of you in electorally glamorous states like Ohio et al. 

Admittedly, the only election law nuances that I know are that (i) the "swing state" phenomena is a consequence of our Electoral College system and (ii) most states, including California, cast their electoral votes in "all or nothing" fashion, rendering the minority vote irrelevant to the national result.  I also know that not all are fans of the Electoral College and a recent proposal, called the National Popular Vote, would basically abolish it and turn presidential elections into a single national election.  A number of states (California included, of course) have signed on.

That pretty much exhausts my knowledge of election law.  Fortunately, my colleague, Derek Muller, knows much more.  Derek has written a fascinating piece titled Invisible Federalism and the Electoral College that will be coming out soon in the Arizona State Law Journal.  In his article, Derek argues that proponents of the National Popular Vote undervalue the importance of the Electoral College's support of "invisible federalism" principles.  Derek sets forth a strong argument that election law should be left to the mandate of individual states and that state-run elections should continue to operate intra-state, rather than be dumped into a national bucket of votes.  For instance, felons can vote in some states but don't have a right to vote in others.  In that regard (paraphased through my own naive lens of the subject), the Electoral College may not help California get noticed by candidates, but it may better support Federalist ideals if we continue to let states decide issues like voter eligiblity rather than homogenize the process in a national vote.  Hmm, felon voting--not sure that would change the California results either.  So for now, it looks like you on the East Coast can still get your beauty sleep and I'll still be cranky.

A New Essay on the Roberts Court and the Press: Not a Free Press Court?

The abstract for my new essay , Not a Free Press Court?, is as follows:

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.

I wrote this small essay, which is now available on ssrn,  for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).

A Job Talk Flashback

This week I had the interesting--and by interesting I mean slightly terrifying yet highly productive--opportunity to present my most recent article to my own faculty.  It was my first such formal, colleague workshop since my original job talk.  The article I presented will be published in Fordham Law Review this spring and is titled, Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers.  In it I make both a quantitative and a normative analysis of agency emergency powers with some surprising and intriguing results.  If you are interested, you can read the full abstract after the jump.

I will note, despite how oddly disconcerting it is to present a paper to colleagues I both admire and know well, in the end I found the resulting mentorship invigorating--I recommend the process to all you pre-tenureds out there.  And now that I'm done, I'm going to Disneyland!  (No, really, I am).

 

Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers
 

Fordham Law Review (forthcoming)
ABSTRACT

    That state and federal agencies have emergency powers, is well known.  Much less is known about the process and circumstances under which these powers are exercised--subjects that divide scholars into two theoretical camps.  Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and "deossification" of regulatory action.  Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement.  In response, this article presents new empirical research that shows a starling rise in the actual use of federal emergency power (the "good cause" exemption) and extensive use by certain state agencies of their comparable emergency rulemaking powers.  After conducting a novel and comprehensive normative analysis, this article concludes by offering an approach to reharmonize the efficiency/public participation trade-off for emergency rulemaking at both the state and federal level:  (i) to restrict federal agency emergency powers in language and structure and (ii) to increase agency flexibility at the state level.  Discussion of these proposals is particularly timely, as not only has the general level of emergency rulemaking increased, but federal and state administrative agencies must now gird themselves for an increased burden on agencies that regulate health insurance programs.  In this arena in particular, the empirical evidence reveals intense tension between administrative efficiency and public participation and a compelling need for an immediate rebalancing of these competing interests. 

10 Works that Mattered Most (to you!)

Via SSRN, I just stumbled across Rick Pildes' little essay for the Int'l Journal of Constitutional Law, which is celebrating its 10th Anniversary by asking a gaggle of distinguished prawfs what 10 works have most influenced them and their academic work. Check it out and keep a watch for the contributions from the others: Justice Stephen Breyer, Catherine MacKinnon, Philip Bobbitt, Jeremy Waldron, Seyla Benhabib, Sam Issacharoff, Martin Shapiro, and Michel Rosenfeld.

Feel free to add your own voices in the comments.

FSU Law Review Announces its Exclusive Fall Submission Window for Volume 40

Adam Kramarow, the Senior Article Selection Editor at the FSU Law Review, has asked me to pass this along. (Feel free to cc me on your submissions.)

The Florida State University Law Review is now conducting exclusive spring article reviews. Any article submitted to this exclusive review between now and October 15, 2012 will be evaluated and responded to by October 26, 2012. By submitting the article during this window you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Volume 40, which is slated for publication in 2013.

If you have an article which you would like to submit, please e-mail an attached copy of the article and your CV and cover letter to ask05@my.fsu.edu with the subject line "Exclusive Fall Article Review." (The character after the k in Adam's email address is a zero, not an "o".) This opportunity also applies to articles you may have submitted to FSU LR earlier this season but you need to resend the piece under the appropriate subject line. If you have submitted an article for review through ExpressO, you will have to resubmit it through this process to be considered under the exclusive review process. We look forward to reading your articles.

JOTWELL: Epstein on Greenhouse on the Supreme Court

The new essay for JOTWELL's Courts Law is by Lee Epstein, reviewing Linda Greenhouse's  The U.S. Supreme Court: A Very Short Introduction.

Practical scholarship

Over the summer, Dan and I wrote a short piece for The Atlantic arguing for the creation of "Fan Action Committees," through which fans could collect and give money to free agent players to lure them to join fans' favorite team. We currently are working, along with Michael McCann, on a longer version of the piece.

As even non sports fans probably know, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.^* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.

Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.

See, scholarship can have a practical effect.

    ^* Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.

More free speech and ideology

Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.

I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?

Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.

Snap!

Feel free to discuss in the comments.

Cf. Wow.

A couple reading suggestions and the schedule for the NYU Crim Theory Colloquium

N.B. This post is basically for crimprofs and those interested in crim theory.

Apropos Rick's recent mention that he assigned an old favorite of mine, the Speluncean Explorers, for his first crim law class, I thought I'd share some (self-serving) recommendations, since this week marks the onset for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  (After the jump, I also share the schedule for the crim law theory colloquium at NYU this coming year.)

As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and for a contemporary flourish, a nod to Jeff Murphy or Michael Moore or Herb Morris. Murphy, Morris, and Moore deserve huge kudos for revivifying the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  

For those of you looking to give your students something more meaty and nourishing than Kantian references to fiat iustitia, et pereat mundus, you might want to check out either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. The goal for this coming year is to workshop papers on and by:

September 10: Re'em Segev (Hebrew U, visiting fellow at NYU); James Stewart (UBC, visiting fellow at NYU)

October 29: Amanda Pustilnik (U Maryland); Joshua Kleinfeld (Northwestern)

November 26: Dan Markel (FSU); Rick Bierschbach and Stephanos Bibas (Cardozo/Penn)

January 28: Rachel Barkow (NYU) and Eric Johnson (Illinois)

February 25: Miriam Baer (BLS) and Michael Cahill (BLS)

March 18: Josh Bowers (UVA) and Michelle Dempsey (Villanova)

April 29: Daryl Brown (UVA) and Larry Alexander (USanDiego)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is going to be the fourth and fifth semesters of these colloquia. Let me know if you'd like to be on our email list for the papers.

Working in Haircurlers and Bathrobes at 1 First St., NE

In a fit of dubious restraint, Jay Wexler has omitted to share with you this recent funny essay on Salon.com.

I now understand why he makes hair jokes for an outfit like Salon.

JOTWELL: Wasserman on several takes on cameras in the courts

I wrote the newest essay in JOTWELL's Courts Law Section, reviewing two new discusssions of video cameras in the Supreme Court--one by Nancy Marder in Arizona State and one by Lisa McElroy in BYU. Both are good articles presenting different takes from distinct perspectives.

The New Green Bag is Out

Our friends at Green Bag have a new issue.

Table of contents with links appears after the jump.

Summer 2012 (vol. 15, no. 4)

Ex Ante

Mistakes • Bad Paterno • Justice Precedent • York v. Yale • Cumulative Confessional

To the Bag

Peter Owen • Nicholas Frankovich

Articles

Justice Owen J. Roberts on 1937, by Edward L. Carter & Edward E. Adams

It’s Now the John Roberts Court, by Erwin Chemerinsky

What Were They Thinking: The Supreme Court in Revue, October Term 2011, by John P. Elwood & Eric A. White

Who Shot Charles Summers?, by Kyle Graham

A Pronouncing Dictionary of the Supreme Court of the United States, by Sally Pei et al. (with the Pronouncing Dictionaryspreadsheet)

From the Bag

Marshall’s Maps, the U.S. Reports, and the New Judicial Restraint, by Ross E. Davies (including John Marshall’s Atlas to Marshall’s Life of Washington) small • large

Review

Multivariate Analysis Through Narrative History, by Alfred L. Brophy

Ex Post

The Supreme Court of Canada, Brick by Brick, by Andrew Frape & Cattleya Concepcion

Front & Back Matter

Frontispiece & Masthead

Acknowledgments, Credits & Featured Books

 

Three Parents and a Baby

For those looking to talk about any family law topic other than the latest TomKat maneuvers, some pending state legislation may do the trick.

A state senator (in California, natch) has proposed legislation allowing a child to have more than two legal parents.  Any parent would have to meet existing definitions of parenthood, and courts would continue to allocate custody and visitation according to the best interests of the child, including denying contact where appropriate.  But whereas existing law requires courts to choose a maximum of two parents, those with the strongest claims, the proposed bill  would eliminate the cap.  Sponsor state senator Leno offers numerous rationales for the bill including giving more discretion to judges to recognize bonds between parents and children, reducing foster care placements, and increasing children's access to financial support, health insurance and inheritance rights.  Perhaps most significantly, Sen. Leno defends the bill as adapting to the changing needs of families: "The bill brings California into the 21st century, recognizing that there are more than Ozzie and Harriet families today."

I wasn't surprised by this bill, only by how long it took for someone to propose it.  The data is overwhelmingly clear that families don't now, and it's doubtful they ever did, conform to an idealized heterosexual mother and father model.  The growth of assisted reproductive technology (ART) and of unmarried cohabitating couples, both gay and not, as well as the large number of remarriages and stepparents, mean that many children consider multiple adults to be a parent of one type or another.  For instance, the 2009 Current Population Study report estimates that about 12% of all children live with a stepparent (a number experts consider to be an underestimate) and the 2010 census reveals that another 3% live in households with a parent and her or his unmarried partner.  In line with this reality, a few state courts, as well as a Canadian court, have recognized the possibility of more than two legal parents for a particular child.  Numerous scholars have also called for an expanded understanding of legal parenthood, including me and Melanie Jacobs of Michigan State (see Overcoming the Marital Presumption, her latest of a series of articles on this topic). 

Another thing that surprised me is the vehemence of some people's reactions to the bill.  (Although many would say that I should know better by now how worked up folks get about other people's family structures, and they'd be correct).  The comments mostly range from the straightforward if unilluminating (It's not okay for children to have more than two parents.  It's completely weird...") to the outright abusive.  (In fact numerous media outlets including the Sacramento Bee had to shut down comments on the story due to hate speech).   Critics have argued that it will confuse children, compared it to polyaromy and polygamy, and connected it to the ongoing controversy over whether marriage gay couples can marry.  Yet none of the critiques that I have seen---and I've been surfing for days--seem to address the fact that this bill doesn't expand the definition of parenthood, but rather it only allows for more people fitting this definition to be involved with a child, if that's in the child's interests.

The bill has passed the senate and is up for hearing in the state assembly next week.  It is widely expected to pass, but I'm sure not without more furor.  I'm looking forward to posting more on other family law and ethics issues in the coming month.  Thanks to Dan for inviting me.

Flouting Atkins, Again?

Over at Co-Op, Danielle Citron has an important post up on how Texas is slated to execute Marvin Wilson, and thereby circumvent the Supreme Court's decision in Atkins v. Virginia, which prohibits the execution of the mentally retarded. Check it out and send luck and props to Lee Kovarsky for trying to keep it real.

Wow.

Scalia's proving to be a bigger diva than I ever expected.

“He’s a court of appeals judge, isn’t he?” Scalia, 76, said of Posner. “He doesn’t sit in judgment of my opinions as far as I’m concerned.”

 

Scholarship for the Courts: A Different Kind of Cert Pool

Via Dave Hoffman's post having to do with the questionable utility of non-elite journal experience for law students, I came across our own Matt Bodie's spirited defense of student participation in the legal scholarship world. And by looking up Matt's article I stumbled upon Ross Davie's new piece for the Journal of Law, entitled "In Search of Helpful Legal Scholarship, Part I."  It is written with Ross' characteristically light and perceptive touch and the gist of his "opening remarks" is that there should be some vehicle by which the courts (particularly the SCT) are made aware of the relevant scholarship on an issue, e.g.,  when the Court grants cert on a particular case. Here's a taste:

Professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know 

scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt. 

(Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure 

that frees them to speak truth not only to power, but also to each other. But rather than 

giving the Justices stacks of  memos evaluating every single law review article (as the clerks in the cert pool 

do with petitions in every single case), the professors should take a different kind of case-by-case approach.

Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices 

a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the 

Justices or their minions can read the helpful scholarship themselves. Each  list should be in the form of 

(and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief.”

I like this suggestion a lot. Ross suggests that the AALS or JOTWELL could do something like this in terms of organizing a cert pool of scholars. What do y'all think? I would guess that the list would be of interest not only to the courts/justices but also the litigants to some extent, especially when the litigants are not as savvy as the usual elite sct bar practitioners.

Btw, if you've not been keeping up with Green Bag or the Journal of Law,  some links for the latest issue of Green Bag are after the jump.

Green Bag

Volume 15, Number 3 (Spring 2012)

EX ANTE

Mistakes • Bobble Berring

TO THE BAG

James J. Duane • George A. Heitczman • George W. Liebmann

ARTICLES

Curtis E.A. Karnow, Similarity in Legal Analysis & the Post-Literate Blitz

Pierre N. Leval, Remarks on Henry Friendly on the Award of the Henry Friendly Medal to Justice Sandra Day O’Connor

James Oldham, Only Eleven Shillings: Abusing Public Justice in England in the Late Eighteenth Century (Part 2 of 2)

David Roe, Little Labs Lost: An Invisible Success Story

Laurence H. Silberman, The Development of “Final Offer Selection”

FROM THE BAG

Ross E. Davies, The Pastiche Prosecutor: A Speculative Introduction to Mr. District Attorney

Unknown, Smashing the Taxicab Racket

REVIEW

Cedric Merlin Powell, Identity, Liberal Individualism, and the Neutral Allure of Post-Blackness

EX POST

John L. Kane, Jr., The Inmate

Alice B. Richards, Studying for an Evidence Final on a Cold Winter’s Night

 

 

The Collection Gap

Along with Ezra Ross (now of UCI), I have started a new blog, The Collection Gap, which deals with regulatory enforcement failure.  The blog was inspired by our article, The Collection Gap: Underenforcement of Corporate and White Collar Fines and Penalties, 29 Yale L. & Pol'y Rev. 453 (2011), which found that agencies are leaving billions of dollars in criminal, civil and administrative fines and penalties uncollected, even where offenders have the ability to pay.

One of the things that drove us to pursue this topic was the fact that, while there was much debate about whether or how much to fine corporations, there was little if any discussion about whether the fines that were imposed were ever actually collected--which obviously impacts deterrence and institutional legitimacy, among other things.  Agencies like the EPA get the benefit of announcing big headlines ("Biggest fine ever against polluter X..."), but are not held accountable for failing to follow through.  Part of the problem is simply resources, but we believe that to a large extent it has to do with insufficient incentives at the institutional and individual levels.

I would welcome thoughts or suggestions about other situations in which problems with policy implementation threaten to undermine the policies themselves.  It's the type of thing that often doesn't get much attention, but could have a lot of practical impact regarding how government actually operates and affects people's lives.

Just the FACs: Fan Action Committees and Fan Support

Dan and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (along with sports law guru Mike McCann of Vermont) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

In Praise of Praising Legal Aid Lawyers

A brief essay on Forbes.com has made the rounds this week, In Praise of Legal Aid lawyers. The piece focuses on criminal defense legal aid lawyers, and why society should appreciate their work. The essay doesn't add anything too unfamiliar to this discussion. But it effectively and efficiently makes the case to both lawyers and non-lawyers for valuing public defenders--as evidence by all my current and former public defender friends on Facebook who posted and re-posted this link.

Some jurisdictions, such as Florida, still sadly seem not to get the need for a fully viable indigent defense system. I suppose funding will always be a challenge. But a lot of good indigent defense policies nevertheless have gained traction to help the criminal justice system better realize the unfulfilled promise of Gideon. For instance, the Washington State Supreme Court recently adopted indigent defense standards, including guidelines on caseload limits and attorney qualifications and a certification requirement. Seattle University law prof Robert Boruchowitz, with whom I served on the WSBA Council on Public Defense, details the Court's order here. Other jurisdictions, such as New York, have pursued similar ideas with some success.

As this patchwork of reform hopefully becomes more widespread, the question will become more pressing of what the promise of Gideon functionally should look like in individual and institutional practice. In the food for thought column, I wanted recommend a recent article, Padilla v. Kentucky: Sound and Fury, or Transformative Impact, by CUNY law prof, and former Legal Aid colleague and fantasy baseball competitor, Steve Zeidman. This article considers what Padilla should mean for the constitutional standards of criminal defense work. The bottom line I took from Steve's article: Padilla should mean getting to know your client and his or her case much better, pleading fewer cases out, especially early in the process, and trying more stinkin' cases. The trend, of course, seems quite the opposite: more guilty pleas, fewer trials.

While reading and enjoying the Forbes.com essay praising Legal Aid lawyers, I thought of the Legal Aid lawyers and offices modeled in Steve's article.