PrawfsBlawg

The New Green Bag is Out

Our friends at Green Bag have a new issue.

Table of contents with links appears after the jump.

Summer 2012 (vol. 15, no. 4)

Ex Ante

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

To the Bag

Peter Owen • Nicholas Frankovich

Articles

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

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

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

Who Shot Charles Summers?, by Kyle Graham

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

From the Bag

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

Review

Multivariate Analysis Through Narrative History, by Alfred L. Brophy

Ex Post

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

Front & Back Matter

Frontispiece & Masthead

Acknowledgments, Credits & Featured Books

 

Three Parents and a Baby

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

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

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

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

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

Flouting Atkins, Again?

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

Wow.

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

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

 

Scholarship for the Courts: A Different Kind of Cert Pool

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

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

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

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

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

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

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

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

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

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

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

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

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

Green Bag

Volume 15, Number 3 (Spring 2012)

EX ANTE

Mistakes • Bobble Berring

TO THE BAG

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

ARTICLES

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

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

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

David Roe, Little Labs Lost: An Invisible Success Story

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

FROM THE BAG

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

Unknown, Smashing the Taxicab Racket

REVIEW

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

EX POST

John L. Kane, Jr., The Inmate

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

 

 

The Collection Gap

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

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

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

Just the FACs: Fan Action Committees and Fan Support

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

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

In Praise of Praising Legal Aid Lawyers

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

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

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

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

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.

 

 

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.

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.

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.

 

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. 

 

 

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.

Solum on the ACA and our constitutional gestalt

Over here at the indispensable LTB.

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.

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). 

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. 

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. 

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?

 

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!

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.

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.

A Jurisdictional Perspective on New York Times v. Sullivan

I just posted a new paper on SSRN, entitled, A Jurisdictional Perspective on New York Times v. Sullivan: An Essay in Honor of Martin H. Redish. Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its 50th anniversary in 2014. Often-overlooked in discussions of the case's impact on the freedom of speech is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before The Times and its civil-rights-advocate co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular substantive First Amendment rules it established are a product of this jurisdictional and procedural background.

This article is a contribution to Northwestern Law Review's Festschrift in Honor of Martin H. Redish, a scholar who has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. He also has been a sharp and unforgiving critic of many of the jurisdictional rules that kept this case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by considering a landmark case at the intersection of his three scholarly pursuits that demonstrates why many of his arguments and criticisms are precisely correct.

I use Sullivan as the wrap-up/review for the subject matter jurisdiction portion in Civ Pro. Although doctrinally the absence of jurisdiction is clear, the discussion really helps pull subject matter jurisdiciton together and make students articulate the arguments (even if they fail). I have wanted to turn this into a paper for a couple of years. The combination of the upcoming 50th anniversary of Sullivan and this symposium honoring Redish's work made this the right to time to get this out, since I could tie the discussion directly into Redish's jurisdiction scholarship.

As always, comments welcome.

A few reading pointers for Tuesday morning

First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy. 

Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!

First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki. 

Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny.

“This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”

 

I agree with Hayden. The prospect  reality of an internal memo serving as a secret law--it's a real problem for rule of law values that both parties should vigorously support. Put simply, I'm bummed that the Administration hasn't saw fit to distribute the memo notwithstanding (or because of?) Charlie Savage's reportage on the substance of the memo. But, fwiw, if Republicans end up winning the White House (ack!), then I hope they follow Hayden's counsel, rather than rely on the "precedent" of Obama's secret laws...

Next,  Erica Goode has an awesome piece discussing the promise and perils of a relatively new and somewhat unknown " gunshot detection system called ShotSpotter [that pinpoints] the location of gunfire seconds after it occurs." Some critics of the system are worried about how the acoustic surveillance intrudes upon privacy interests, but the sensitivity of the system, which can pick up some conversations,  is meant to be triggered only after there's a gunshot. No doubt, this kind of sound amplification can be abused absent adequate controls. Still, the idea that this might reduce further the problems of Type II errors in relation to gun violence in cities is very seductive. Indeed, I wonder to what extent it might be used as a substitute (rather than just a supplement) for NYC's aggressive stop and frisk policies. Obviously, Shotspotter is an ex post measure whereas the stop and frisk policies are ex ante, but it might be the case that the use of Shotspotter would have a more effective ex ante preventive effect than the aggressive stop and frisk policies cops are using in NYC. My guess is that both will continue to be used -- to the extent the law allows. Relatedly, it'll be interesting to see if the lawsuit unfolding in Judge Sheindlin's court has much practical effect in curtailing the NYPD's off-the-record stop and frisk practices. Here's a link to J. Sheindlin's decision to certify the class at issue. 

Finally, take a look at Adam Liptak's Sidebar column on mandatory minimums in federal sentencing and then Sandy Levinson's oped laying the predicate about our imbecilic constitution for his new book about what we can learn from state constitutions. Classic Sandy: bracing and bright.

 

 

JOTWELL: Malveaux on Sullivan on pleading employment discrimination

The newest piece in the CourtsLaw sectionof JOTWELL comes from Suzette Malveaux (Catholic), reviewing Charles Sullivan's Plausiblty Pleading Employment Discrimination (published in William & Mary Law Review in 2011), which considers whether Twiqbal overruled Swierkiewicz v. Sorema and, if so, how plaintiffs can plead intentional employment discrimination.

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.

 

The New Info re: Trayvon Martin and George Zimmerman

The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.

1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.

2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.

3. Traces of pot were found in Martin's body at the time of his death.

4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.

None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).

A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.

P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.

5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.

6. There is no witness testimony or other evidence regarding who started the altercation.

 

 

Standing, sovereign immunity, and marriage equality litigation

My new essay, Rejecting Sovereign Immunity in Public Law Litigation, has been published at Fordham Law Review's Res Gestae. I am responding to Matthew Hall's Standing of Intervenor-Defendant in Public Law Litigation.

In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.

I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.

The space limitations of a law review supplement forced me to leave out some important pieces to this idea. But I hope to go back and dig a bit deeper into it in the future, so comments and thoughts on Matt's and my exchange are welcome. I will add that I am on a SEALS panel this summer on the future of Ex Parte Young and this essay will provide the starting point for my presentation there--if there is no sovereign immunity, there is no need for Ex Parte Young in its most common application.

Research Assistant Opportunity

I've just finished grading (more or less), and I plan on turning to my summer project, Luck or Law? The Constitutional Case Against Indeterminate Sentencing. I have had the abstract up on SSRN for a long time and in fact, I began this project seven years ago, just as I was transitioning into the academy. I had written about 100 pages of ms, even presented it a few times, but I decided to put it on the backburner. Now it's coming to the front of my work queue, and it may turn into a book or a series of articles, or just one piece.

I mention all this because I am curious if there are any law students (or former law students) who are readers of this blog who may be interested in working with me on this project. My current crackerjack RA is going to be largely unavailable this summer. I'm especially interested in people with good editing and research skills, and if possible, a pronounced interest in the intersection of constitutional and criminal/sentencing law.  If you are interested or know someone who is, please send me an email with your cv and potential availability (ie, evenings and weekends? or just Monday and Wed mornings? etc).  Thanks! 

And while I've got this topic on the brain, I'm curious to hear from readers any suggestions about their favorite "internal perspective" con law articles. That is, which pieces of scholarship do you most admire for trying to advocate in a scholarly (non-tendentious) way for a particular constitutional result, particularly one that required over-ruling a SCOTUS precedent? This is all a genre I'm somewhat familiar with and yet somewhat leery about, and so I would like to find inspiration by climbing on the shoulders of giants, or at least very tall people!

Comparable measures of ideology

An interesting article in the most recent American Journal of Political Science by Joshua Clinton, Anthony Bertelli, Christain Grose, David Lewis and David Nixon, measures the preferences of Bureaucratic Agency actors. Although the article focuses on congress and the presidency, it has relevance for those who study law and courts because there is so much interaction between courts and federal agencies. It is one more useful tool to help determine the influence of courts on agency policy - of course that happens to be an area in which I do a lot of work, so I am particularly interested.

Now back to listening to the late Levon Helm and the Band

Bias in ABA judicial ratings

I would like to highlight a forthcoming article in Political Research Quarterly entitled "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees." In the article Susan Smelcer of Emory, Amy Steigerwalt of Georgia State and Rich Vining of the University of Georgia (a Georgia Trifecta) find systematic liberal bias in the evaluations of judicial nominees by the ABA.  The research was featured in an New York Times article a few years ago and now it has gone through the peer review process. 

Of course it is controversial, and is already the subject of a rebuttal in the January 2012 issue of Judiciature. Take a look and decide.

JOTWELL: Campos on Brown on Mass Tort Settlements

The latest piece on JOTWELL'S CourtsLaw section is by Sergio Campos (Miami), reviewing Todd Brown's (Buffalo) Specious  Claims and Global Settlement, which argues for strategies for limiting weak, specious, and fraudulent claims in mass tort global class settlements.

A Quick Share from the New Yorker on Iran, Sanctions and Voting

In this week's issue of the New Yorker, there's an important piece by Laura Secor that unmasks (at least to those who haven't been willing to forthrightly acknowledge) the scope of tyranny in Iran. The PR folks at the New Yorker have sent along this description of the piece's attack on the "tragic farce of voting in Iran." After the jump, a quick description of this riveting article's highlights and the questions and challenges Secor raises.

In “Election, Monitored” (p. 48), Laura Secor travels to Tehran, where she is taken on a highly orchestrated and controlled press junket to cover Iran’s parliamentary elections, and where, when she strayed from the proscribed agenda, she was taken into custody and interrogated by Iranian officials for three hours. During the visit, Secor is taken to a presentation about Iran’s remote-controlled satellite at the Alborz Space Center, bussed to chosen polling places, and forbidden from leaving her hotel during the day, except to conduct interviews in the company of her government-approved translator. “The regime was no longer even trying to mask its coercive nature,” Secor writes. At the regime-sanctioned electoral events she attends, Secor encounters much support for the nezam—Iran’s unusual political structure, which combines a theocracy, ruled by a Supreme Leader, and a republic, with democratically elected offices and public debates. At one polling place, a mob surrounds Secor and a middle-aged man tells her, in English, that the “United States, Great Britain, Sarkozy are just lying, lying, lying.” In four previous trips to Iran, Secor writes, “the only crowds I’d attracted were of curious and friendly young people. Anti-Americanism was harder to come by here than in Europe. English speakers were exceedingly rare. Given the choreography of our bus tour, I had to wonder.” Secor manages to speak with a former Green Movement activist, Amir, who tells her that “there is a big layer of people in Iran who favor changes more radical than they would have two years ago. But the dictatorship, the censorship¬—they don’t allow us to see each other.” The problem with the Green Movement, he tells Secor “was that the goal was not to change the system. It was to change just a little part of it. And, since your horizon is not toward changing the system, you’re scared to put everything you have into it.” Under the nezam, “with its autocratic and democratic elements in perpetual tension,” Secor writes, “Iranians were neither subjects nor citizens.” 

Though Secor is warned by her translator about discussing the U.S.’s sanctions against Iran, she talks to two young men employed in the energy sector about the effects of the most recent sanctions. “One of them said that, because of financial sanctions, oil and gas projects were too costly and had to be postponed. And conditions in the private sector were about to get much worse,” Secor writes. One man tells her that “it’s going to be terrible.” Secor notices the soaring inflation that has taken place since her last visit to Tehran four years before, and a clothing vender near Vali Asr Square tells her that he knows “people who have unplugged their freezers because they are empty and they don’t have money for electricity.” Far from inciting an uprising, however, Moussa Ghaninejad, a liberal economist and the head of research at the economic newspaperDonyaye Eqtesad tells Secor that the sanctions “facilitate the position of the hard-liners, the extremists in government. I don’t know if the Western powers understand that. The sanctions justify the incompetence—the mismanagement—of this state.” Ghaninejad does not believe that the government will capitulate anything under the sanctions, either: “If pressure and the discontent of people on the street increase, the last resort for the regime will be to provoke a war with foreigners,” he tells Secor. Amir tells Secor that, unless the government changed completely, “the system could still kill you.” Secor briefly becomes ensnared in that system when she and her translator are taken off of the street and to a government building for questioning. She is stripped of her recording device and accused of being a spy. The officials question her sharply about her research on Iran’s economy, and confiscate her receipts. Their questions revealed the truth about the sanctions: “The inflation, the devaluation of currency, the coming privation of when banking and oil sanctions took full hold: this, and not even the election turnout, was what the Islamic Republic wished to hide from foreign eyes.” 

YLJ Online on the Implications of Douglas

As part of it's new "Summary Judgment" feature, the Yale Law Journal Online has a series of three essays up today on the Supreme Court's February 22 decision in Douglas v. Independent Living Center of Southern California, a case about which I, Rick, and others have blogged previously.

All three essays are worth reading, but I particularly enjoyed Rochelle Bobroff's take on the relationship between Douglas and the Court's 2011 decision in Astra USA, Inc. v. Santa Clara County, and Cathy Sharkey's really interesting reflection on the merits of Justice Breyer's majority opinion--and how preemption claims should affect / precipitate / provoke agency action. [My far less interesting piece on the potential implications of the Chief's dissent picks up on some of the posts I've previously written about the case...]

For those looking for quick (and hopefully provocative) diversions from exam writing / grading (or too embarrassed to watch game 2 of the Knicks / Heat series)...

Dream a little DREAM for me

My former student is in the news. It's an amazing story of resilience and dignity against inertia. Yes, my wife is involved in the litigation as are some dear colleagues.

Thanks to Ediberto Roman for the link to the story below in the Miami Herald:

US representatives support Fla. immigrant lawyer

ASSOCIATED PRESS

TALLAHASSEE, Fla. -- Eight members of Congress on Monday joined four former American Bar Association presidents in urging the state Supreme Court to grant a law license to an illegal immigrant whose parents brought him to the United States from Mexico on a visitor's visa when he was 9 years old.

Seven U.S. representatives and Puerto Rico's nonvoting resident commissioner sent a letter to the justices supporting Jose Godinez-Samperio's admission to the Florida Bar.

They also expressed support for a "friend of the court" brief being submitted by three ex-ABA presidents. The fourth, former Florida State University President Talbot "Sandy" D'Alemberte, is representing Godinez-Samperio. D'Alemberte, now a professor, was one of his teachers at Florida State's law school.

"Here's a kid who came over not speaking any English, learned to speak English, went to school, became an Eagle Scout, continued helping as an assistant scoutmaster, graduated valedictorian from his high school class," D'Alemberte said.

Godinez-Samperio, 25, graduated from Florida's New College, earned a law degree at Florida State and passed the bar exam.

The Florida Board of Bar Examiners, though, declined to admit him, instead asking the justices for an advisory opinion on whether illegal immigrants can be licensed as lawyers.

D'Alemberte's argument is that requiring proof of immigration is an invalid policy because the board never obtained the Supreme Court's permission to adopt it as a formal rule. Therefore, Godinez-Samperio has complied with all valid requirements and should be admitted to the Florida Bar, he said.

Godinez-Samperio's parents overstayed their visas and never returned to Mexico. He grew up in rural Hillsborough County. His father, a veterinarian in Mexico, milked cows on a dairy farm. His mother, a dentist, worked at a factory that made sliding glass doors.

The congressional representatives, all Democrats, noted the U.S. Supreme Court has found the Constitution requires all states to educate illegal immigrants through the 12th grade so Florida already has made a heavy investment in them.

"To deny these students an opportunity to become doctors or lawyers or practice another profession is to deny the state of Florida and all of our neighbors an educated and talented workforce," they wrote.

Rep. Kathy Castor of Tampa was the only Florida House member who signed. The others are Reps. Charles Gonzalez and Ruben Hinojosa of Texas, Xavier Becerra and Grace Napolitano of California, Luis Gutierrez of Illinois and Raul Grijalva of Arizona as well as Resident Commissioner Pedro Pierluisi of Puerto Rico.

All of the former ABA presidents submitted the friend of the court brief are from Florida: Martha Barnett, Stephen Zack and William Reece Smith Jr.

A call to the Board of Bar Examiners placed shortly after 4 p.m. was answered with a recording saying the switchboard was closed for the day and that no messages could be accepted.

 

 

JOTWELL: Coleman on Marcus on interpreting the Federal Rules

The latest piece in the CourtsLaw section of JOTWELL comes from Brooke Coleman, reviewing David Marcus' When Rules are Rules: The Federal Rules of Civil Procedure in Legal Interpretation, which proposes a theory of statutory interpretation appropriate for the Federal Rules, taking into account the unique nature of their creation and evolution.

Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?

Does the First Amendment protect lies that cause only diffuse and intangible harms? That's the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a "gross misdemeanor" to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. Though Alvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I've long been interested in this topic (see my essay, Where's the Harm?), so it is particularly nice to come across Christina Wells' new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.

Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value--whether they make any positive contribution to public discourse--then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.

First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms--lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause--pollution of the stream of information available to voters about candidates and issues and p0ssible distortion of electoral outcomes--is sufficient to justify government regulation.

Even granting that lies potentially pollute public discourse, one might still question whether a governmental remedy is needed. Mr. Alvarez, who lied about receiving the Congressional Medal of Honor, was detected after he told his lie to a former Marine who uncovered the truth in "just minutes" after "a few text messages and a check of a website with information on the fewer than 100 living Congressional Medal of Honor winners." And lies during election campaigns can be "policed," albeit imperfectly, by news media, websites like Politifact, and ordinary citizens willing to engage each other online and off. Even if these alternative methods for policing falsehoods do not work as well as government action, it is still worth questioning whether government investigation of political truths might cause enough negative effects that the government cure for lies would be worse than the disease.

In her new article forthcoming in 59 UCLA L. Rev. Discourse (2012) and titled Lies, Honor, and the Government's Good Name: Seditious Libel and the Stolen Valor Act, Chris Wells uncovers new evidence of negative consequences flowing from governmental suppression of lies. She does so, perhaps paradoxically, by delving into the history of prosecutions for seditious libel and comparing them to the regulation of lies under the Stolen Valor Act. (Get her article on ssrn here ).

Professor Wells points out that the government's asserted justifications for punishing seditious libels are similar to its justifications for punishing false claims to military honors. "Historically, government officials justified seditious libel prosecutions by claiming criticism undermined the government's honor and authority and reduced the public's respect for it, ultimately threatening national security. . . .The government's justifications for the Stolen Valor Act are eerily similar. The government seeks to punish all intentional lies about receiving a military honor because they 'misappropriate the prestige and honor associated with the medal.'" The argument further links lies about the medals to impairment of military readiness, ultimately "punish[ing] lies because they arguably undermine respect for government or government personnel." (Id. at 1-2.)

Professor Wells then traces the English roots of seditious libel and the rise and fall of seditious libel prosecutions within the United States. She recounts, of course, the debate over the Sedition Act of 1798, but she also discusses the punishment of seditious speech under the Espionage Act of 1917, when thousands were arrested simply for criticizing the US war effort. She notes: "Courts, applying a combination of constructive intent and the 'bad tendency' test, convicted hundreds" of critics of the war effort, on the grounds that their criticisms would undermine that effort. Gradually, however, the Supreme Court came to appreciate that punishing speech based on "bad tendency" insufficiently constrained official discretion, and the "Court developed its modern low value speech framework largely in response to [this problem.]" (Id. at 12).

Under this framework, the low value categories of speech all involve "independent harms" apart from their putative effects on government reputation or prestige. As Professor Wells writes, "The harm requirement is integral to creating low value speech categories. It allows the Court to create narrow categories that do not punish speech because of its disfavored content, but because that speech in a particular context makes no contribution to the exchange of ideas as evidenced by external indicia of harm." Under this framework, the government may not begin with the presumption that lies are unprotected because they do not involve "speech that matters." Instead, it must begin with identification of concrete harm caused by the speech it seeks to regulate, for any other approach gives undue discretion to government officials to suppress speech they dislike. Professor Wells' argument in its full form is cogent and persuasive, and I hope I've not done it an injustice in my summary. It is my hope that our Supreme Court will take note of the lessons of the history of seditious libel Chris explains, lest they doom us to repeat it.

[Full Disclosure: Christina Wells is my co-author, together with Ron Krotoszysnki, Jr., and the late Steve Gey, of an Aspen casebook on First Amendment Law. This blog post was inspired by this Adam Liptak article on Ohio's election falsehoods statute.]

JOTWELL: Hoffman on Hubbard on preservation of evidence

The latest piece in the CourtsLaw section of JOTWELL comes from Lonny Hoffman, reviewing William Hubbard's Preservation Under the Rules: Accounting for the Fog, the Pyramid, and the Sombrero, which proposes rules and standards for defining obligations to preserve documentary and electronically stored information. Have a look.

Adventures in article placement and timeliness

At long last, my (hopefully definitive) take on the jurisdictionality of the ministerial exemption has been published in Penn Law Review's PENNumbra. As I said, I hope it will convince doubters that this is a merits doctrine, grounded in First Amendment limits on Congress' legislative power, that has nothing to do with the courts jurisdiction to hear and resolve an individual case. I am especially interested in hearing from members of the law-and-religion community, who have proven much harder to convince than the fed courts folks.

But I want to talk about a strategic dilemma with the piece, that brings up issues of timeliness as it affects article placement. Nothing new there, of course, but the new world of on-line law review supplements changes things, where the turnaround time can be a matter of weeks or just a few months. In other words, while timeliness always has been part of the placement process, it often was comparing nine months to six months for publication; now it's comparing 10 weeks to 4 weeks.

I finished writing the piece and submitted it to on-line journals in October, just after the oral argument in Hosanna-Tabor. My original hope was to get the piece out before the Court decided, as an argument for why the Court should reach out to resolve jurisdictionality, with the longer-shot hope of getting the piece noticed by the justices. I received an offer from one top-20 journal that has a newer on-line supplement. Then I received the offer from PENNumbra, but with the limit that they would not be able to publish until February. This presented a dilemma.

If I took the non-Penn offer, I would achieve what I originally wanted with the piece, although in a less-high-profile placement. If I took Penn and waited, I faced several obvious risks: 1) the Court could decide the case before publication while analyzing jurisdictionality; 2) the Court could decide the case before publication while ignoring jurisdictionality; or 3) the Court could decide the case very soon after publication. The problem with # 1 is that it essentially would preempt the article; the problem with # 3 is that it would give the piece a ridiculously short shelf life while being too close to the decision date to actually affect the decision. Number 2 would have required some (perhaps substantial) reworking of the article on a fairly short time frame to explain why the Court should have resolved jurisdictionality and to tell lower courts what they should do about this aspect of the ministerial exemption going forward.

I took Penn and waited. And, in the end, the Court threw a fourth option: It resolved the jurisdictionality issue, announcing in a footnote that the exemption is an affirmative defense to the merits of the discrmination claim, but with virtually no analysis or explanation for that result. I thus rewrote the piece as "here is why that conclusion is correct, here is the analysis the Court should have done, and here, lower courts, is what these concepts mean." Frankly, I think the reworked version is significantly better and could have longer staying power. And it has the benefit of coming out about six weeks after the Court's decision, so it may be among the first articles on Hosanna. Plus, the chances of getting noticed by the Court in advance were slim to begin with, so I think I made the right choice.

But what would other people have done faced with the same choice?

Is Sheryl Sandberg a Model for (Female) Prawfs?

I have a bit of a friend-crush on Sheryl Sandberg. No, I don't know her. But her sister was my classmate, and through FB, I get to keep track of some of her accomplishments. So from afar, I admire much of what she's done and come to represent. That said, as much as I love her advice to women (and men) about the need for audacity in professional and personal life, I also harbored some concern that audacity comes more cheaply to folks who aren't struggling financially. There was a fun piece about Sheryl's soon-to-come riches in the Times yesterday, and one of the quotations archly noted the same point:

“I’m a huge fan of her accomplishments and think she’s a huge role model in some ways, but I think she’s overly critical of women because she’s almost implying that they don’t have the juice, the chutzpah, to go for it,” said Sylvia Ann Hewlett, president of the Center for Talent Innovation, a research organization on work-life policy, and director of the Gender and Policy Program at Columbia University.

“I think she’s had a golden path herself, and perhaps does not more readily understand that the real struggles are not having children or ambition,” Ms. Hewlett continued. “Women are, in fact, fierce in their ambition, but they find that they’re actually derailed by other things, like they don’t have a sponsor in their life that helps them go for it.”

With much affection, I can think of a few friends in the academy who have internalized Sheryl's powerful message. But if Ms. Hewlett is right, as I think she is, then the message of toujours l'audace is one that must be shared by male mentors as well as female ones. I realize it's controversial to even acknowledge this, but I think male mentorship/sponsorship of women (the sort that happened when Summers took Sandberg under his wing) has been jeopardized by concerns that the menfolk want to avoid the creation of whispering campaigns of inappropriate behavior. There certainly was a lot of icky or abusive stuff that used to happen that our new norms have (thankfully) made less frequent.  But, as a consequence, doors remain always open, and the kind of mentorly candor necessary for professional growth is, accordingly, more rare, and perhaps less desired. Perhaps the best way to overcome this is not by shutting out mentorship altogether, but by mentoring in small groups. For instance, the other day, we had a faculty lunch talking about tactics and strategies relevant to the law review submission process, as well as the craft of a good thesis. Peer mentoring also happens. E.g., our juniors are meeting frequently to workshop ideas, and, much like at Prawfsfests and similar venues, there is space and time for safe feedback, though again, candor, expertise (or insight into the folkways of an institution from a senior member) and individualized attention might be reduced because of the group dynamic.

So some questions: What is to be done? Do we have a mentorship deficit? If so, what's the best way for it to be overcome? Relatedly, can audacity ripen w/o the safety net and sponsorship that Sandberg has had? Or is this entirely misguided, and Sheryl's work/life balance story should be of no greater interest than Zuck's? (Signed, civil, and substantive comments invited.)

4th Annual Junior Faculty Federal Courts Workshop

The 4th Annual Junior Faculty Federal Courts Workshop will (finally) take place at FIU beginning at 9 a.m. tomorrow morning. There is a terrific slate of papers on a wide range of Fed Courts issues, so it should make for some very interesting conversations. And we have a great group of senior mentors--Janet Alexander (Stanford), Susan Bandes (Miami), Ted Eisenberg (Cornell), Lee Epstein (USC), Marty Redish (Northwestern), and Suzanna Sherry (Vanderbilt).  A full schedule for the conference, with links to all the papers. is here.

And, if you weren't able to make it this time, know that plans for the 5th Annual Junior Faculty Federal Courts Workshop are already under way: Tara Leigh Grove will host the next workshop at William & Mary next fall.

Some reading suggestions

In the spirit of procrastinating deep thoughts I would prefer to be having instead, I thought I'd share a few interesting reads from TNR that I found quite thoughtful. First, check out Robert Kagan's challenge to the "America is in decline" meme that has spread the last few years. If the article's good enough for POTUS, it's good enough for you. Second, friends of Prawfs, Don Braman and David Fontana, have a very cool piece summarizing their recent findings that Americans are pretty indifferent to institutional allocations of decisionmaking. Penultimately, if you've been wondering about whether you should wade into that 2 volume set of Parfit's latest reflections, "On What Matters," you might want to read Philip Kitcher's review. It's both fair-minded and critical, so even if he's not right, it's still helpful.

Last, the latest issue of TNR has a brief diarist essay by Leon Wieseltier. The essay is notable for its intensely sharp and justly imposed critique of the latest excesses of ultra-religious forces within Israeli society, and the politicians who fail to adequately contain and castigate those forces. Those of us who love Israel, for all its warts, weep when forced to recognize that the theologico-political sources of internal chaos are as maddening as the external ones with Iran, the Palestinians, et al. The political drama of recent months makes that very clear, even if the current challenges do not yet amount to an existential threat to the grand project of a liberal zionism. But put that fear of overwrought hand-wringing aside, for what we have is, at the very least, an excruciating irritant. And Leon is right to call our brethren to task for baseless hatred, foolish nonsense, and spiritual corruption, and to do so sternly and unequivocally.

Tidmarsh on Resnik on Access to Courts

January's essay on the Courts Law section of JOTWELL is by Jay Tidmarsh (Notre Dame), reviewing Judith Resnik's  Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, published in Harvard Law Review. Resnik's article draws an unexpected parallel between two class-action cases (Concepcion and Wal-Mart) and the "civil Gideon" case of Turner, linking both to the issue of court access. Both the article and the review essay are worth a look.

Rubio, Republicans, and immigration

My FIU colleague Ediberto Roman has a piece at The Huffington Post discussing a recent speech by Florida Sen. Marco Rubio on the subject of immigration, in which Rubio, while not endorsing the DREAM Act, called for changes in Republican rhetoric and discussion on the topic. Rubio apparently is on the short list for Vice President (I have not been paying attention), so Ediberto is even more enthusiastic that a top GOP leader would bring a different voice.

Ediberto has often stated his belief that Latino and Hispanic voters may not support President Obama because he has not done enough on immigration. The key, of course, is finding a Republican alternative. Perhaps Rubio, even if only the # 2 on the ticket, would provide that.

Baude on removal under the JVCA

Back in December, I posted comments from Art Hellman (Pittsburgh) on the newly enacted Jurisdiction and Venue Clarification Act, which worked some significant changes to the law of diversity jurisdiction, removal, and venue. Art was involved in the drafting process, particularly the removal provisions.

Now comes Will Baude, a Fellow at Stanford's Constitutional Law Center, in Michigan Law Review's First Impressions, pointing out some remaining holes in the removal provisions, as they relate to removability in diversity cases where there is uncertainty as to the amount in controversy.

Fourth Annual Junior Faculty Federal Courts Workshop

The web site for the Fourth Annual Junior Faculty Federal Courts Workshop, at FIU College of Law February 2-4, is now up. Papers are available for downloading. The conference remains open to non-presenting senior and junior faculty; the cost of attendance is reading the papers and being ready to make comments.

Why I Blog (as a Law Professor)

The following essay on why I blog was solicited by Chris Lund for the recent issue of the AALS Newsletter for the Section for New Law Professors. You can see the other  "Why I Blog" essays by Maher, Albert, Shay, Helfand, Mason--all of whom, oddly, are Prawfs alumni -- over here.

***

Why I Blog (as a Law Professor)

I’m not sure why, but my instinct is usually to dodge the question of why I blog. Perhaps I’m scared of the answers. But for those of you thinking about taking the plunge into the blogging waters, here are some quick thoughts.

Just for background, a few friends and I started Prawfs.com (aka PrawfsBlawg) back in April 2005, when I was transitioning from legal practice into the legal academy.  At the time, I was just finding my scholarly voice, and blogging seemed like a shiny new vehicle in which one could converse with other scholars.  Prawfs was one of the few group law-professor blogs back then. The hope was that we would provide an ecumenical but mostly center-left and somewhat edgy space for commentary about legal, political, and academic developments. 

I initially imagined that we’d evolve into a sort of counterweight to the flourishing Volokh Conspiracy.

It wasn’t long before we realized that idea was both too difficult to achieve and in some sense not even an attractive goal. The contributors to the VC, it turns out, were far more committed to daily blogging about current events than we were. Moreover, we ended up growing into an entirely ecumenical space without any intentional gravitational force exerted by the center-left point on the spectrum. As a result, Prawfs morphed into a portal for the community of (primarily) American legal scholars, one where discussion about what one should wear to class was just as likely to appear as a discussion of the defective reasoning in the latest Supreme Court opinion.

 

To my mind, this shift – where we became a more collectively introspective enterprise – was entirely salutary. Indeed, I think I continue to blog because I love the notion that there is a virtual space in which the academic legal community is strengthened and sometimes transformed by the ideas and experiences that we share in the blogosphere.  Prawfs is, at least every now and then, a catalyst for those changes.

 

Blogging does take up time, of course, and one has to be mindful of how to integrate that commitment alongside one’s other obligations to family, community, and work. I keep this time-management issue under control by tending to blog about one of two things: topics oriented toward the community of scholars generally (such as the ethical practice of legal scholarship or the future of SSRN) or topics directly related to the scholarship that I love spending much more of my time on. Neither area requires lots of additional research for me, nor is there a pressing deadline that I have to bear in mind.

 

That said, because I still love long-form scholarship, I sometimes avoid using the blog to elaborate on topics that I care about but that I worry will seem too abstruse. I also sometimes avoid the effort of trying to pack my arguments into digestible blog posts, because I don’t wish to get ensnared into a debate in the comments that might prove exasperating or otherwise, um, icky. That said, once you start blogging a little bit, you realize there are ways of massaging the language of your blog posts so as to avoid inflaming the worst and most abusive online readers; the key is writing in a conversational way, not too dogmatic or harsh, but not too timorously either.

 

Time, imprecision, and frustration are sometimes the costs of trying to make a piece of scholarship accessible to non-specialists. Still, that effort is often worth it, especially at Prawfs, where we have made efforts to ensure a relatively congenial community of commenters. After all, one of the best things about blogging as a medium is that it enables you to find new readers and interlocutors for your work and ideas. And as writers, you win your readers one by one by one. This point about community building seems especially salient in light of the fact that law professors live a largely monastic existence in their offices. Blogging helps as an antidote to that vocational loneliness. Finally, I think we are obligated to make some efforts to get our ideas out there. As scholars, we spend years trying to generate intellectual capital. We are paid to do so by virtue of the generosity of public legislatures and private tuition and donations. Accordingly, I think we owe our benefactors our efforts to disseminate our hard work beyond the typical and sometimes closed channels of distribution that we often rely upon.

In sum, I blog because, first, I sometimes have ideas and care to share them, and second, and more often, I am curious about an issue facing the legal academy, and I’d like to hear what other people do to address that issue. Blogging, then, creates a space for me to teach, but more selfishly, it is a space where I can be taught.

 

On changing one's mind

In a piece appearing in today's NYT, Adam Liptak explains the Eleventh Circuit's recent volte-face on whether the word "boy"  is racialized for purposes of employment discrimination. The piece itself is well worth reading, but one of the lines I liked best was the famous quote from Justice Frankfurter that Liptak used to end the essay: namely, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."

Since reversing course is something every wise person or body of leadership comes around to doing every now and then, our wise readership might also be interested in the various authorities one can invoke for changing course. Consider what Justice Jackson noted in the context of changing his mind:

Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, "The matter does not appear to me now as it appears to have appeared to me then." Andrew v. Styrap, 26 L.T.R. (N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: "My own error, however, can furnish no ground for its being adopted by this Court. . . ." United States v. Gooding, 12 Wheat. 460, 25 U. S. 478. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary -- " Ignorance, sir, ignorance." But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: "I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion." If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

(h/t: Liptak on FB.)

JOTWELL: Walsh on Levy on the mechanics of federal appeals

The latest piece in the CourtsLaw section of JOTWELL comes from Kevin Walsh (Richmond), reviewing Marin Levy's The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, published in the Duke Law Journal.