Monday, February 04, 2013
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.
Monday, January 28, 2013
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.
Monday, January 21, 2013
JOTWELL: Lahav on Klerman on Personal JurisdictionThe 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.
Tuesday, January 08, 2013
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.
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.!
Monday, January 07, 2013
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.
Thursday, December 27, 2012
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.
Tuesday, December 04, 2012
Empathy for the DevilI 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.
Friday, November 30, 2012
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)
To the Bag
Edward L. Carter and Edward E. Adams, Misjoinder and the Mysterious Opinion
John L. Peschel, Enjoyed but not Enjoined
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
Unknown, The Case of the Racket Witness
Orin S. Kerr, A Theory of Law
Tuesday, November 20, 2012
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.
Monday, November 19, 2012
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.
Thursday, November 15, 2012
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)
Tuesday, November 13, 2012
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.
Sunday, November 11, 2012
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.
Friday, October 26, 2012
JOTWELL: Vladeck on Collins & Nash on federal crime in state courtThe 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.
Friday, October 19, 2012
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.
Monday, October 15, 2012
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).
Friday, October 12, 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)
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.
Thursday, October 11, 2012
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.
Tuesday, October 02, 2012
FSU Law Review Announces its Exclusive Fall Submission Window for Volume 40Adam 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 firstname.lastname@example.org 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.
Friday, September 28, 2012
JOTWELL: Epstein on Greenhouse on the Supreme CourtThe new essay for JOTWELL's Courts Law is by Lee Epstein, reviewing Linda Greenhouse's The U.S. Supreme Court: A Very Short Introduction.
Thursday, September 27, 2012
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.
Friday, August 31, 2012
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.
Thursday, August 30, 2012
Feel free to discuss in the comments.
Tuesday, August 21, 2012
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.
Monday, August 20, 2012
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.
Tuesday, August 07, 2012
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)
To the Bag
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
Multivariate Analysis Through Narrative History, by Alfred L. Brophy
The Supreme Court of Canada, Brick by Brick, by Andrew Frape & Cattleya Concepcion
Front & Back Matter
Friday, August 03, 2012
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.
Wednesday, August 01, 2012
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.
Monday, July 30, 2012
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.
Volume 15, Number 3 (Spring 2012)
TO THE BAG
Curtis E.A. Karnow, Similarity in Legal Analysis & the Post-Literate Blitz
David Roe, Little Labs Lost: An Invisible Success Story
Laurence H. Silberman, The Development of “Final Offer Selection”
FROM THE BAG
Unknown, Smashing the Taxicab Racket
Cedric Merlin Powell, Identity, Liberal Individualism, and the Neutral Allure of Post-Blackness
John L. Kane, Jr., The Inmate
Alice B. Richards, Studying for an Evidence Final on a Cold Winter’s Night
Thursday, July 26, 2012
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.
Monday, July 23, 2012
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.
Thursday, July 19, 2012
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.
Wednesday, July 18, 2012
Quintessentially American: Suing the Lethal Presidency
I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.
In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view. At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:
"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in the most basic sense of the word. The government has killed three of its citizens and we think the government has to account for its actions, first to acknowledge, then to explain. We believe that if you accept that the government has the authority to kill its own citizens without acknowledging its actions, you have set up an authority that will one day be abused. Once you create this power, this power will sit around available to every single future president.
That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.
Tuesday, July 17, 2012
Is the Availability of the Insanity Defense Constitutionally Required?
Yes, or at least that's what an amicus brief I signed argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)
The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.
First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...
So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.
Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.
Sunday, July 15, 2012
Follow up on Pretrial Release Conditions
I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.
Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me. I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.
I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.
To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm. The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)
Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions. As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety.
By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.
Friday, July 06, 2012
Is the (Printed) Law Review a Flower that Should Bloom?
Over at the Atlantic, Walter Olson reprises the claim that law reviews are worthless. Among his reasons, he notes the ready availability of other outlets for law professors to share their views about matters of significance (and in this vein, he has in mind websites like TNR or the Atlantic or law blogs like Volokh or Balkinization or perhaps ahem...). My initial response: let a thousand flowers bloom. If, in addition to writing for law reviews or university presses, prawfs want to write on blogs and do opeds, they should do so. But if Olson's saying, we should get out of the long form scholarship game, I say a pox on his house. I don't think he's actually saying that, although he suggests it by tired references to Chief Roberts' views about Bulgaria and Kant.
Regardless of whether Olson denies the net value of long form scholarship, I think he is wrong to assume that "talented law profs" seek out short form options to present their ideas because that's the first best place to be. I can't speak for others, let alone the class of talented law profs, but I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it's more a matter of resignation about where the eyeballs might be and what civilians' attention levels are. If 50,000 or 1 million people read the articles on my SSRN page, I would probably never care to write an oped about a legal issue, let alone a blog post. Indeed, I suspect the reason we care about the placement ladder is largely an assumption that if it places in a top journal, it will get read more (by the right demographic). But writing to get the argument right requires patience and diligence. Opeds don't reward that. At best, they're a preview or a trailer of the real thing.
And fyi, Walter, writing for the Atlantic and whatnot is not always easier too. Compared to blogposts, opeds or essays for general mags are more annoying because of the comparative lack of control or slowness of publication. For example, the Times accepted an oped I co-wrote more than a month ago, and we're still waiting to hear (even vaguely) when it will run! Most opinion journal editors act like tyrants because they know they can get away with it. (Not you of course ___, ___, etc!) And compared to law reviews, which are admittedly slower to publication (and this has changed somewhat with the proliferation of online law review addenda/fora/pennumbra etc), opeds or mainstream essays are neither easy to place nor necessarily reasonable about editing. At bottom, I usually enjoy the experience of writing for law reviews more than writing for popular press. Not always, but enough to want to stay in the law review publication game. To the extent I write for the mainstream media, it's more because I think I have an obligation to those who fund my scholarship to try to get the ideas out into the mainstream rather than simply hope for citations within the law review or philosophy/political theory literature. Anyway, I might be an outlier, and maybe Olson's narrower point, that we'd be better off with only online scholarship venues, is true. But, fwiw, I am happily the kind of person who still enjoys looking through the pages of HLR, the Mich LR books issue, and most of the other journals in our faculty lounge.
In any event, Olson's essay focuses on a sideshow. The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft. I actually think scholars have an ethical duty to make that happen, at least in the law context. But that's another blog post.
Tuesday, July 03, 2012
How Not to Criminalize Cyberbullying
My co-author Andrea Pinzon Garcia and I just posted our essay, How Not to Criminalize Cyberbullying, on ssrn. In our essay, we provide a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which our essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, we contend that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, leading to pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreaching in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. Our essay attempts to give legislators the First Amendment guidance they need to distinguish the types
of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization. To see the abstract or paper, please click here or here.
Posted by Lyrissa Lidsky on July 3, 2012 at 03:44 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack
Monday, July 02, 2012
JOTWELL: Walker on Kalajdzic on lawyers in class actions
The latest review in the Courts Law Section of JOTWELL is from Janet Walker (Osgood Hall, York University), discussing Jaminka Kalajdzic's Self Interest, Public Interest, and the Interests of the Absent Client: Legal Ethics and Class Action Praxis, which considers the ethical dilemmas for lawyers in class actions in Canada.
Sorry to be a day late honoring Canada with this review essay.
Thursday, June 28, 2012
Solum on the ACA and our constitutional gestalt
And yes, even though I predicted the mandate would be upheld yesterday, I consider myself a loser (at least) because AMK didn't join the majority. Shame shame.
Monday, June 25, 2012
The Joy of Free, Redux
I have an op-ed in this week's Forward that largely rips off riffs on a blog post I had here a couple weeks ago. The piece has to do with why "free" is not obviously a terrible model to use (in the context of Jewish continuity and community-building efforts).
Thursday, June 21, 2012
Slaughter on Why Women Can't Have it All
My former civ pro professor, Anne-Marie Slaughter, just published a big article (the July cover story) in the Atlantic that is lighting up the board on Facebook this morning. The piece is called: Why Women Still Can't Have it All. Unsurprisingly, it offers up her reflections on the difficulties of being a high flyer having a career and parenting. It's a long and breezy article; I'm not sure there's much there that hasn't been said in one way or another before, and yet, some things still need to be said again and again, with different nuances and inflections. On the question of what is to be done, I'm quite sympathetic to the suggestions that should allow for more tele-commuting, less face-time, longer school sessions over the summer and better daycare options, etc. That said, I hope that the way in which we make work-life balance better in the future is not one that assumes repronormativity is the only goal to be optimized.
One more thing needs to be noted. Slaughter shows appropriate awareness that this is an article whose perspective reflects the lives of the highly educated and affluent. The distributive justice angle is admittedly complicated and largely omitted.
Wednesday, June 20, 2012
Fixing the Constitution In Some Small Ways
Thanks to Howard for the tip-off below about the piece in Slate I did with Ethan on fixing the double jeopardy clause. I also did a similar piece today for the same forum with Eric Miller (SLU) about the bail clause. I continue to be lucky to have such fine co-authors.
Re: double jeopardy, I should add one point that we didn't much discuss in our short suggestion piece. Some might worry that allowing one juror to block a conviction would create too much incentive for corruption or too much likelihood for ideological peculiarity to drive the result. On the first point, we noted that if there is real evidence of corruption, then that would be sufficient to permit re-prosecution. On the second point, this would be my response. In a world where double jeopardy protection meant something, I'd be worried about outliers too, and I'm guessing Ethan and I would have been open to allowing re-prosecution if there was a strong super-majority to convict. However, my sense is that, in light of the dual sovereign doctrine, as well as the very permissive Blockburger test, which most states have in determining whether a defendant can be tried based on crimes occuring in the same event or transaction, most states will be able to find a way to get a second bite at the apple if they really need it. The sad truth is, current federal constitutional double jeopardy protection is, as we said, anemic and will only be somewhat improved by the adoption of the rule we propose.
Monday, June 18, 2012
Rewriting the End of a Sovereignty Story: Santa Clara Pueblo Members Vote to Change Patrilineal Membership Rule
When people ask what I teach, my answer - Indian law - probably rivals admiralty law as a conversation stopper. It’s so unknown to most people that they can’t even think of a follow-up question. They usually assume my work has something to do with casinos (it rarely does). But every once in a while, an Indian law case echoes outside the narrow academic confines of Indian law. One of the most famous is Santa Clara Pueblo v. Martinez, a 1978 case in which the Supreme Court let stand a tribe’s decision to deny membership to children of enrolled mothers and non-member fathers (while granting it to the children of enrolled fathers and non-member mothers). The decision – the first interpreting the Indian Civil Rights Act – rested on two grounds, both of which prevented federal review of the tribe’s action: the Act did not create a right of action or authorize federal jurisdiction for non-habeas review of tribal actions, and it did not waive the tribe’s sovereign immunity.
The tribe’s members recently voted by a margin of 2-1 to change the membership rule. The vote is under review by the Council now, which will determine how to implement it (the Santa Fe New Mexican gives an interesting account of what has and has not been decided). But if the vote results in an official change in the tribe’s membership rules, extending membership to the children of male and female members equally, it will rewrite the ending of one of the most controversial stories in Indian law.
My perspective on the case has changed over time.I can talk about it academically, but I have also seen a different side now that I have two daughters who are enrolled at Santa Clara through their father. Several of their cousins, though, cannot enroll under the Martinez rule because it is their mothers who are Santa Claran, not their fathers. I can see how formal enrollment is important and unimportant at the same time. Non-enrolled members lack certain political rights within the tribe and – if they are not eligible for enrollment in another tribe – may also lack Indian status under federal law, which means losing access to a range of rights and benefits, including health care, employment preferences, and educational assistance. But I can also see the ways in which it is unimportant: unenrolled members live in the community, participate in ceremonies, and live in every way except for formal enrollment as Santa Clarans.
By way of legal background, Indian tribes, as sovereign entities, have the right to govern themselves according to their own values, even if those values are illiberal. When a case arises in which tribal sovereign rights appear to be in tension with individual rights, the public sits up and pays attention to Indians, especially when the tribe wins, as it did in Martinez. The case has generated a great deal of scholarly attention in the last three decades, both within Indian law (it is one of the Supreme Court’s most forceful statements in favor of tribal sovereignty and protection of tribal culture) and outside of it (it appears to pit gender equality against cultural group rights). Its shadow looms today as questions arise about whether and to what extent the federal government should intervene in tribal enrollment disputes (see here and here for opposing views in a California tribe’s recent disenrollment), as well as in debates that pit cultural relativism against women’s rights (Madhavi Sunder invoked the case in her 2003 critique of law’s failure to intervene on behalf of women in religious communities in Africa and the Middle East).
When advocating for tribal sovereign rights, it’s always hardest to defend the rights of tribes to make decisions that might seem objectionable from a liberal standpoint. I know there are so many critics (including some on the Supreme Court) looking for evidence that tribal governments and courts are biased, corrupt, backward, or otherwise cannot be trusted to ensure equality. And the pervasiveness of this view has placed tribes on different footing than most sovereigns, always fighting to prove that their sovereignty exists and that it would be inappropriate for the U.S. government to second-guess every decision they make. But the easiest way for me to explain sovereignty is that it includes the right to make mistakes and bad decisions. Nations who do so are certainly not immune from criticism or pressure (internal or external), but a superior governmental power generally cannot come in and reverse or rethink a controversial decision. Instead, the community must reckon with its decisions and, if necessary, change them from within.
This is precisely why the Martinez decision and its aftermath are so important. Justice Marshall’s opinion underscores the importance of exclusive tribal control over internal matters and matters involving determinations of tribal custom, particularly decisions about membership in a tribe. It recognizes that federal courts are not in a position to determine “real” Santa Clara custom (as evidenced by the disagreement between lower courts on whether the law accurately reflected Santa Clara tradition). And it reaffirms a core principle of Indian law that is often overlooked today: Indian tribes are inherently sovereign. In the eyes of federal law, they have lost some aspects of this sovereignty (such as the right to enter into treaties with foreign nations and the right to exercise criminal jurisdiction over non-Indians who commit crimes within their borders), but the default is that they retain all powers inherent in sovereignty unless those powers have been clearly taken away by Congress. The ICRA limited sovereignty by imposing Bill of Rights-like rules on tribal governments. But it did not authorize federal review of tribal court matters (besides habeas corpus) and it did not waive tribes’ sovereign immunity from suit. The Supreme Court didn’t approve the ordinance or decide whether it was or was not sexist. It held that the tribe was the only appropriate body to make those determinations, including interpreting the equal protection guarantees provided by ICRA and by tribal law.
The impending change, after 30-plus years of internal debate and disagreement, provides one of the most important success stories about sovereignty. It is a decades-long story of a community shaping and reshaping its customs, of measured resistance by Santa Clara women (and men), of citizens (formal and informal) expressing concern to their government from within. As with any sovereign, such a sweeping change in law takes a long time (too much time for the 1978 plaintiff, Julia Martinez, who passed away several years ago). But, if the Council ratifies the vote, the change won’t be one that required the heavy hand of the federal courts. And it won’t be one that happens because of the interventions of feminist academics and legal scholars. It will be a change that happens because the members of Santa Clara Pueblo wanted it to happen.
The background of the case is also more layered than many recognize. Santa Clara’s Constitution, adopted in 1935 from a template provided by the BIA, actually provides that all children of mixed marriages will be members of the Pueblo as long as they are “recognized and adopted by the Council.” It also contemplates that Indians from other tribes who marry tribal members may become members via naturalization. In 1939, the Council passed the ordinance challenged in the Martinez case, which provides that children of male members who marry outside the tribe are members, but children of female members who marry out are not. The ordinance also forbids naturalization.
Making a quick assumption that patrilineal membership reflects patriarchal values (whether viewed as imposed or traditional to American Indian cultures) would be taking too simplistic a view. Membership in Santa Clara’s religious moiety system is patrilineal (children typically follow their fathers), and the tribe argued that its rule simply reflected this. There are many tribes whose clan system is matrilineal; the political membership rules of some reflect that, while the membership rules of others are broader. The balance of power between genders in most tribes has long been determined by a complex interplay between religious lineage, religious leadership, land ownership, and different levels of political leadership. On the other hand, the introduction of formal enrollment as the most important matrix of belonging can upset this balance. The Martinez challenge presented a difficult three-tiered question about the relationship between Pueblo cultural tradition and tribal citizenship: did it truly reflect Santa Clara tradition? If so, was that a tradition worth preserving? These first two are questions only the community can decide, which the Supreme Court recognized, and their resolution is no doubt complex and time-consuming.
Yet the academy weighed in on them anyway. Catharine MacKinnon suggested that the membership rule did not really reflect Santa Clara tradition, but that it was intended to guard against potential loss of tribal lands during the allotment era to white men who married Santa Clara women, essentially defending against sexism with more sexism. (MacKinnon’s take on the case is thoughtfully critiqued by Angela Harris.) Joanne Barker pointed out that Santa Clara women who married out were mostly marrying other Indians, not whites. But like MacKinnon, she viewed the rule as reflecting inherited patriarchal values, characterizing the ordinance as a reversal of what she interpreted as “matrilineal and matrilocal” customs.
But the public quickly leapt to the third question: Should the Pueblo’s decision to preserve a facially discriminatory rule be protected from intervention by federal law? After the Supreme Court’s decision, many were left with a bitter sense that tribes frequently make unfair decisions and that those aggrieved by tribal government action are left with no recourse at all.
My purpose in writing this is not to express my opinion about Santa Clara tradition, about the wisdom of patrilineal or matrilineal membership rules, or about whether formal enrollment can or should be a static statement of who belongs. I’m writing this to draw attention to the end of the story, which is about the community of Santa Clara Pueblo wrestling with these questions for decades out of the view of the non-Indian public. The Supreme Court was absolutely correct to stay its hand, but that doesn’t mean that there was “no remedy.” The remedy comes at the tribal level, whether in the form of a court striking down the law or, as here, a vote to change it that is the product of decades of introspection and dialogue among community members.
The final outcome is still unclear. But if it results in a change in Santa Clara’s membership rule, it will stand as a testament to the living and growing nature of sovereignty practiced by tribal governments, a sovereignty that can protect bad decisions, but can also provide the bedrock for positive community-driven change.
In addition to the articles linked above, I recommend Robert Laurence, Judith Resnik, Gloria Valencia Weber (including her contribution to the Indian Law Stories book), Angela Riley, Ann Tweedy (for a recent survey of tribal laws addressing sex discrimination), Rina Swentzell, and the Fall 2004 issue of the Kansas Journal of Law & Public Policy, which reproduces a reargument and decision of the case before the mock American Indian Nations Supreme Court.
A Plea Against Under-Theorization
N.B. This is a kind of cranky blog post, probably with minimal payoff. If you like it, think of it as a contribution to the Dave Hoffman genre of blawging.
If you look in Westlaw's JLR database, you'll notice the term under-theorized or undertheorized is used over 1100 times. Everytime I see that term used in drafts (and I've apparently given comments on at least a half dozen articles with this term), I crankily wonder: what is the optimal level of theorization? Has the author told us when we've reached that point? Can we be sure that the author's contribution achieves the optimal level?
Of course, as a dutiful crank, I wanted to avoid being the worst kind of cranky blogger: a cranky blogging hypocrite. It turns out I did use that term twice. Crap. So much for being a good crank. So, how to play it?? Well, both articles were in 2009. That's a long time ago... Nah, no good. Well, how's this: in my defense, I used the terms to describe the SCT's understanding of punitive damages, and the other in a piece looking at the SCT's views on the death penalty. That might seem defensible, but come on: if you're criticizing courts, then of course it's a fair point to make but it's possibly a bit on the trivial side. After all, courts, CASS SUNSTEIN TELLS US, make incompletely theorized agreements, and often for good reason.
Crankiness and exasperation are obviously not the right responses to claims of under-theorization then. But here's a serious and sincere set of questions. When you see the claim advanced in scholarship that X area of scholarship is undertheorized, I want to know: if this area you're writing about is under-theorized, why do you think that's right? How do you know when we've reached the right level of theorization? Is the tipping point between the right amount and the wrong amount obvious to all (or persons skilled in the art) or is it just an "I know it when I see it" moment? The truth is, I cannot tell when we're optimally theorized. One more law review article, and that's it, we'll be bloated on this topic with theory, unable to accomodate any more of this stuff. So, to the hundreds of you (us!) who use this verbal tic lovely phrase to motivate (y)our scholarship, I want to know, really, is under-theorization the problem, or just under-thinking? IF it's the latter, why can't we just say so?
Thursday, June 14, 2012
Prison Rape and Cost Benefit Analysis
Over at the GULC faculty blog, Lisa Heinzerling has a very sharp post criticizing the Administration for undertaking a 168 page report that performs a cost benefit analysis of prison rape reform efforts. Prof. Heinzerling labels the effort "a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse."
I haven't had a chance to digest the report yet. Early feedback from some of my FB friends show substantial support for Prof. Heinzerling's point of view. I wonder what the defenders of the report might have to say in its favor, though I suspect some will say that the report is meant to offer its own defense!
Wednesday, June 13, 2012
Reynolds and Steakley on Due Process and recording police
Glenn Reynolds (Tennessee) and John Steakley have an essay in Wash U. Law Review and Wash U. Law Review's Commentaries arguing for a right, grounded in Due Process, for citizens to record all encounters with police, public and private. I have written about the right to record as a First Amendment matter, particularly the Petition Clause, thus tying it to the increasingly common (and demanded) use of video at trial. But Reynolds' and Steakley's use due process to tie the right to record to eventual use at trial and to litigation issues such as preservation of evidence and the right of a citizen to put on a legal defense. This is especially important because in a he-said/she-said between a citizen and an officer, the latter is more likely to receive the benefit of the doubt.
As I like to say, wish I had thought of this.
Monday, June 11, 2012
How Bad is Free (for Jewish Continuity Purposes)?
N.B., this post is a bit, um, Jewy though it raises some larger issues that might be of interest to Prawfs readers.
Over at the Forward, there's an interesting oped by David Bryfman about the danger of giving various things away for free to facilitate Jewish continuity in an age of assimilation. The Birthright trips for young Jews to go to Israel for ten days are probably the best example. But there are numerous other ones that Jewish communities are experimenting with. Last night, my synagogue decided to make religion school for free to 3/4/5 year olds in the community in order to spur folks to prioritize attendance and participation. We also benefit from an excellent program called PJ Library, which sends a book or music cd to young Jewish children every month. I love this program--to be sure not every selection is a winner with my boys, but I'm thrilled that we have this here in Tallahassee. And I'm generally unopposed to the idea that patrons in a community would want to make participation in Jewish life relatively free for others to do.
But Bryfman sounds a cautionary note: is there a problem when people have no "skin" in the game?Yes, I can see some of the possible downsides. But the problem with the oped is that it assumes (like too many economists?) that money is only one way of putting skin in the game. To my mind, time, enthusiasm, and support are other moral currencies that people may pay in, and not necessarily immediately but backward and forward over the course of their lives. Especially for young families and young adults who are still figuring out how to shape their lives, and what role religious and cultural affiliation will play, I see the subsidization of experience and ritual and education as an important link in the chain. It might not succeed for everyone--of course, what does it mean to succeed? -- but it will for some. Indeed, I continue to think of my year working on religious pluralism and studying philosophy in Israel after college (sponsored by the Dorot Fellowship) as one of the great gifts I have received from Jewish institutional sources. I view that year as having been as critical to shaping my adult life as my college experience or the sum of my childhood parochial education. Would it were so that everyone who wanted to do that kind of extended immersive experience could do so without fear of going into debt or penury.
Bryfman's oped says that "free" might devalue the experience of the books or Israel, etc. There are at least three things worth thinking about in assessing this claim, none of which are really addressed by Bryfman. First, as alluded to above, there is the basic distributive justice aspect to think about: how many poor or middle-income folks are shut out from some aspects of communal life because of these costs that are being borne by donors? "Free" creates access as well as a solidarity benefit, much like social security. I'm not saying we should never question the model, but it might well be that we want to create a common vocabulary of experience and meaning across the income spectrum and some of these free goods are able to do that thanks to donors willing to make that happen for all.
Second, think about who are the primary beneficiaries of the books or the religion school or the Israel programs? It's primarily young people or kids who would not otherwise be paying for these things anyway. So to the primary audience, the connection between the "benefits" of having skin in the game and the resulting value would probably never have been established. For those who would not normally be paying, the value has to be realized independent of the financial sourcing anyway.
Third, let's assume arguendo that Bryfman is right that "free" devalues the experience or value that might otherwise be associated with a non-free model. Even if the value of the Israel experience or the books or religion school is devalued (say its value goes from 100 to 50 for the sake of argument) -- it does not mean it has no value. At least I don't take Bryfman to be claiming that there is zero good resulting from free books and cd's to Jewish kids or Birthright trips. If there is some non-zero value to the community that arises (and let's set aside the difficult questions of what metrics we use to measure that value) from these programs, we still have reason to prefer these mechanisms for generating the value if we don't think there are other ways of doing so that are more effective or more efficient. And I find it hard to believe that the model of Jewish life that dominated over the last forty years (outside of Orthodox circles, which frequently used significant subsidization models) is the paragon of effectiveness.
So, if Bryfman wants us to "pause" before we embrace "free," fine. Everything we do as a community should be mindfully done. But the arguments and evidence for "reset" based on the putative downsides and dangers of "free" seem quite speculative and not particularly persuasive.