Monday, March 23, 2015

Biased Police Dogs

One surprising revelation of the Justice Department's report on Ferguson's police department was that:

 "[C]anine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American."

The obvious takeaway from this startling information is the one drawn by the Justice Department, that "race may play an impermissible role in officers’ decisions to deploy canines." But a short and interesting article  in the New Yorker suggests another, equally upsetting, reason that these dogs may have attacked only African American suspects: they are affected by "the hidden racial prejudices of the police officers who deploy them."  It is hard to draw this conclusion from the Ferguson case alone but the article's author cites several other examples of how a trainer's biases can impact their canine charges.

 The author also questions the received wisdom that dogs are particularly useful aids to law enforcement more generally.  This is not an area I have looked into but am now curious about the police's use of dogs, when it is appropriate, and whether the resources spent on their training and care is the best way to spend limited police budgets.  

Posted by Kate Levine on March 23, 2015 at 09:29 AM in Blogging, Criminal Law | Permalink | Comments (4)

Monday, March 16, 2015

The Chief Justice Reads Law Reviews

Several years ago, Chief Justice Roberts offered some thoughtful remarks on the substance of law review articles. Some have pointed to the Chief's comments as evidence that law reviews are generally worthless. In the past, I’ve questioned that conclusion by noting that the justices regularly cite scholarly work. In this post, I approach this issue in a somewhat different way by showing that the Chief Justice himself regularly cites law review articles in his judicial opinions.

Here are the key remarks from the Chief Justice:

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.

If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.

Commentators have responded to these remarks in a number of ways. Some have agreed with the Chief Justice’s suggestion that scholars do and perhaps should pursue valuable goals other than being useful to judges. (The Chief seems to have had something like this in mind when he said: “that’s great.”) Others have pointed out that abstract research today can indirectly lead to practical doctrinal applications tomorrow, somewhat like the way that basic scientific research contributes to future innovations in applied science. And still others have suggested that "90% of everything is crap" (or carp), and we shouldn’t expect anything else of law reviews.

Instead of comprehensively addressing the law review debate, I just want to make a simple point: When considering the Chief Justice’s critique, it’s worth keeping in mind that the Chief Justice himself is in fact a consumer of law review articles and regularly cites them in his judicial opinions. (Orin Kerr collected several of these examples back in 2012.)

Here is a non-exhaustive list of examples taken from opinions that the Chief has authored during his tenure at the Supreme Court.

1. Sanchez-Llamas v. Oregon (2006)

  • Bradley, Mapp Goes Abroad, 52 Case W. Res. L.Rev. 375, 399–400 (2001)

2. Jones v. Bock (2007)

  • Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 533 (1947)

3. Baze v. Rees (2008)

  • Denno, Getting to Death: Are Executions Constitutional? 82 Iowa S 42L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution)
  • Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study)

4. Beard v. Kindler (2009)

  • See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L.Rev. 1128, 1140 (1986) (‘‘[R]efusals to exercise discretion do not form an important independent category under the inadequate state ground doctrine’’)

5. Herring v. United States (2009)

  • Judge Friendly wrote that ‘‘[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice outlawing evidence obtained by flagrant or deliberate violation of rights.’’ The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L.Rev. 929, 953 (1965) (footnotes omitted)

6. District Attorney’s Office v. Osborne (2009)

  • Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719 (2008) (surveying state statutes)
  • Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 159, n. 87 (1970). 

7. Northwest Austin Municipal District v. Holder (2009)

  • See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004)
  • Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 208 (2007) ("The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would ... disrupt settled expectations")

8. Miller v. Alabama (2012) (dissent)

  • Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003)

9. Filarsky v. Delia (2012)

  • Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 598–599, n. 121, 619
  • Sklansky, The Private Police, 46 UCLA L.Rev. 1165, 1210 (1999) (footnotes and internal quotation marks omitted)

10. Hosanna Tabor v. EEOC (2012)

  • McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L.Rev. 1409, 1422 (1990)

11. Kiobel v. Royal Dutch Petroleum (2013)

  • See Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986).
  • See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002)

12. Marek v. Lane (2013) (statement respecting denial of cert)

  • See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L.Rev. 617, 653–656 (2010)

13. City of Arlington, TX v. FCC (2013) (dissenting opinion)

  • Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1, 27-28 (1983) (“the court is not abdicating its constitutional duty to `say what the law is' by deferring to agency interpretations of law: it is simply applying the law as `made' by the authorized law-making entity”)
  • Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency
  • Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L.Rev. 1497, 1564 (2009) ("if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency's views on whether a delegation has taken place").
  • See Merrill & Hickman, Chevron's Domain, 89 Geo. L.Rev. 833, 910 (2001)

 14. Riley v. CA (2013)

  • See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404-405 (2013)

15. McCullen v. Coakley (2014)

  • See Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L.Rev. 413, 451-452 (1996).

Many of these cites go to points of fact about the current or historical state of the law, while others make more analytical or argumentative points about how best to understand abstract legal issues. To be sure, some of the cites are to classic works that might transcend any critique of current law reviews. (Justice Frankfurter's and Judge Friendly's writings most clearly fit this bill.) But most of the listed examples are to works of a relatively recent vintage.

The listed cites likely understate the Chief’s interest in law reviews, since he presumably considers many materials that, for one reason or another, don’t actually end up appearing in his published opinions. And, to repeat, the above list is not exhaustive. Indeed, I may have overlooked some cites in the very opinions listed above. (Please feel free to add other examples in the comments.)

The fact that law review citations regularly appear in the Chief Justice’s judicial opinions casts the Chief’s famous critique of law reviews in a different light. Instead of taking the position that law reviews are generally irrelevant to the Court’s business, perhaps the Chief meant to convey that law reviews could or should be relevant to courts even more often than they currently are.

It’s also worth noting that the Chief often cites other scholarly sources, such as historical treatises written by scholars of previous generations. Those obviously aren’t what the Chief was talking about in his critical remarks, but it’s worth considering the possibility that a lot—not all—of today’s scholarship will be useful to later historians who want to know how those strange people of 2015 thought about things.

Also omitted from the above list are a number of cites to books written by legal scholars, such as the Chief Justice’s cite in Baze v. Rees to my colleague Stuart Banner’s book The Death Penalty: An American History. And the list of course also omits cites to scholars’ amicus briefs, wherein academics apply their scholarly work to particular cases. Those briefs often build on prior scholarly work while eliminating the need to cite the underlying work directly.

None of this resolves the debate about law reviews or proves that we live in the best of all law review worlds. (We don't.) But it does seem notable that perhaps the most salient recent critique of law reviews came from a regular consumer of those very materials.

[UPDATE: I've added the Sales & Adler cite pointed out by a commenter. UPDATE2: I have now noticed and added the Merrill & Hickman cite.]

Posted by Richard M. Re on March 16, 2015 at 08:25 AM in Blogging | Permalink | Comments (6)

Wednesday, March 11, 2015

President's Policing Task Force Report -- Digging Deeper

Last week, I posted a high level summary of the President's Task Force on Policing's recommendations for reform.  As I mentioned, the report contains  a lot of innovative and progressive suggestions for reform.  Today, I dig a bit deeper into the report to flag a few particularly salient recommendations and a couple of places where I wish the task force had made different suggestions or gone further in their recommendations.

First, the good.  In the wake of the unindicted police killings of  Eric Garner and Michael Brown, many commentators, have highlighted the problematic relationship between local district attorneys and police defendants (full disclosure, I wrote about this issue in Slate and have an article on the same subject coming out in The Iowa Law Review).  Both Howard and John have posted about the problem and its potential solutions, so I won't rehash the arguments for and against removing such cases from local district attorneys.  But  I was very happy to see that the task force recommended not only independent investigations into police killings (Action Item 2.2.2) but also independent prosecutors to bring charges where necessary (Action Item 2.2.3).  Unfortunately, police killings are a problem that we will continue to face as evidenced by three shootings in the past few weeks (see herehere, and here), so addressing how best to proceed against these officers is a worthy goal. 

Another exciting piece of the report is the entire "Pillar" devoted to technology.  It discusses both the need for modernization of technology used by police, including Body Worn Cameras (BCWs), and the ways social media outlets such as Twitter can increase communication between police and the public.  It also deals with the privacy issues that arise with new technologies.  One potentially important piece that I believe is missing from the report, however, is a discussion of  Copwatching groups (see this article by Jocelyn Simonson) -- citizens who organize to watch and record the police on their streets.  This outsider perspective may be an important corollary to BWCs, which record an interaction from the perspective of an officer (not to mention that the BWC will be controlled by the officer).

Another excellent recommendation is about ticket quotas:

"Law enforcement agencies and municipalities should refrain from practices requiring officers to issue a predetermined number of tickets, citations, arrests, or summonses, or to initiate investigative contacts with citizens for reasons not directly related to improving public safety, such as generating revenue." (Recommendation 2.9). 

In my opinion, however, the second clause of this recommendation needs to be stronger.  The report mentions, in a footnote, our  "debtors prisons," where people are jailed because they cannot pay the fees and fines that are heaped upon them as soon as they enter the criminal justice system.  But it does not say that police should stop arresting those who have outstanding warrants solely for nonpayment of this often exorbitant debt.   Police, who have huge discretion in this area, should forgo making these arrests, which serve no punitive purpose and are unlikely to ever result in these fines actually being repaid.  

This longstanding issue has only recently gained scholarly attention, so it is perhaps too much to ask that the task force fully recognize the deleterious impact that the consequences of unpaid fees and fines are having on those who are trying to reenter society after a conviction.  For those interested in this issue, Alexandra Natapoff addresses increased reliance on fines in her incredibly interesting article about the negative consequences of  the "decriminalization" movement.   I think it is fair to say that low-level criminal sanctions are the new elephant in the policing and punishment room, and are something worth focussing on now rather than later. 

That's all I have for now.  Please let me know if there are other recommendations that should be mentioned.

 

 

Posted by Kate Levine on March 11, 2015 at 01:43 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, March 09, 2015

25 year-old adolescents

Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?

Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later.  They’re living with parents longer.

As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).

There isn’t space in a blog post to debate the length of adolescence (another prominent psychologist Jeffrey Jensen Arnett alternatively talks about “Emerging Adulthood”, by which he means ages 18-25). In any event, it’s almost universally accepted that full development/maturity doesn't come until the early to mid-twenties. I’m interested in thinking about the implications of the law recognizing a long adolescence, which is decidedly not widely embraced.

First off, it would not mean that all the rights and responsibilities of adulthood are withheld until a person reached 25 or 21 or 18. Whether adolescents requires distinct rules depends on how they are different. And they are different from children and adults in different ways at different ages. For example, by 16, most youth are close to adults in their ability to reason and process information, but they’re bad at deploying those skills when in groups of other teens or stressful situations, in part because they’re more interested in risk and less concerned with long-term consequences. That means that someone who can capably recognize right from wrong may nevertheless be less culpable for their actions than adults.

Indeed, some of the rules governing adolescents would overlap with those for children, and others would overlap with those for adults, depending on what was being regulated. This is, in many ways, the world we have. Young people can’t drive until 16, vote until 18, or drink until 21. But we also seem to allocate rights and responsibilities poorly. A 16 year-old can dangerously drive a car on our highways, and can be tried in adult court for his actions, but is not considered mature enough to handle R-rated movies unless watching with a parent. Paying more attention to how adolescents are different from children and adults would allow us to do a better job of assigning rights and responsibilities to adolescents.

I’ve thought most about the change that a long adolescence would bring to the law with regard to juveniles and criminal law. A long legal adolescence could mean an expanded juvenile court jurisdiction. In most states, jurisdiction ends at 18, though North Carolina and New York send everyone 16 and over to adult criminal court. In a world where adolescence lasts until 25, and where what distinguishes adolescents from adults involves decision-making capacities and attributes that make them less culpable for their acts, we might need to significantly expand juvenile court jurisdiction (or, as Barry Feld argues, provide for a youth discount at sentencing for those processed in criminal court). Similarly, 4th and 5th amendment jurisprudence, and the ability to consent to waiving those rights, probably needs to better account for the age of the person protected by and purportedly waiving those rights. 

There are undoubtedly implications of a long legal adolescence in fields like torts, contracts, autonomy rights (including health, speech), family law and the strength and duration of parental rights, and more, but I don’t know them well enough to lay them out. If anyone is willing to indulge me and teach me, how might a long adolescence change the landscape in your field of expertise?

Posted by Kevin Lapp on March 9, 2015 at 03:04 AM in Blogging, Criminal Law | Permalink | Comments (4)

Wednesday, March 04, 2015

Defining Childhood

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries. 

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults.

But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

The obvious middle ground category is adolescence. There has been a tremendous amount of research about adolescence in the last two decades that has transformed our understanding of the period between the onset of puberty and adulthood. It is clear that adolescents are neither children nor adults, and it stands to reason that lawmakers may soon have to reconsider the binary approach and confront this more complicated reality.

In a series of recent juvenile justice cases (outlawing the death penalty and life without parole for juveniles, and requiring police to account for age in determining custody for Miranda purposes), the Supreme Court did not outwardly engage with this definitional problem. In 3 sentencing cases (Roper, Graham, and Miller), the Court predominantly used a binary approach. The holdings applied equally to all those under 18 (based on developmental findings distinguishing them from adults in relevant ways), at which point the categorical protections of childhood vanish.

But word choice matters, and it’s worth noting that even though the holdings in the punishment cases reflect a binary approach, the Court seemed to recognize that it was dealing with folks in that middle ground between childhood and adulthood. The court’s decisions address the “juvenile death penalty” and “juvenile life without parole” and “juvenile offenders.” A crude ctrl+F search, for example, found 97 mentions of “juvenile” in Kennedy’s opinion in Roper an­­­d only 9 uses of “child.” Similar results come from searches of Graham and Miller – much heavier use of “juvenile” instead of “child.”

Things get more complicated when we consider J.D.B., a 2011 case holding that the police must account for age in determining custody for Miranda purposes. Sotomayor’s majority opinion proclaims that “a 7–year–old is not a 13–year–old and neither is an adult.” Embedded in that observation is something more than a binary child-adult view. By recognizing that a 7 year old is not a 13 year old, the Court may be recognizing that the adolescent brain and psychosocial research so important to its decisions does distinguish adolescents from children in ways that matter to the law. It may be that the rules for 7 year olds should be different than the rules for 13 year olds, which themselves should be different than the rules for adults.

Yet, the J.D.B. majority opinion used “child” 55 times and “juvenile” only 17 times, with zero mentions of adolescence/adolescents. I’m curious about this. Was it a rhetorical strategy, to emphasize that the core issue is the different between children (everyone under 18) and adults, and the main concern the interaction between trained adult law enforcement officers and non-adult suspects? If so, why here and not in the punishment cases? Was it a rejection of the idea that the transitional stage of adolescence should have its own rules? If so, why recognize that 7 year olds are different from 13 year olds?

I intend to look closer at those questions, and the challenges in identifying what ­­­­­­a separate legal category of adolescents might look like, in a future post. 

Posted by Kevin Lapp on March 4, 2015 at 03:54 AM in Blogging, Criminal Law | Permalink | Comments (3)

Sunday, March 01, 2015

Thanks, and Happy March!

Happy March, everyone. It’s one of only two months that are also verbs, plus we get March Madness, spring break, and maybe even spring itself. I’ll believe that last part when I see it—we had snow here in Alabama a few days ago, and there’s more in the forecast this week.

With this first post, I mostly wanted to thank Howard, Paul, and everyone else in the PrawfsBlawg family for the invitation to guest blog. But I also had a quick question for my hosts about the Prawfs slogan/tagline: “Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit In A Kind Of Boring Way Until Recently -- Since 2005.” It’s one of the better ones out there (though for pure poetry it may run a close second to “The Internet’s largest image depository of crappy and awesome taxidermy”). I’m a big Prawfs fan, so I’ve never found it boring. I’ve often wondered, though: was there some particular event or creative decision during the blog’s illustrious first decade that allowed it to escape the bonds of its “Kind Of Boring” early history? A new font, maybe? Or more cat GIFs? The end of the writers’ strike?

Anyway, I’m looking forward to spending some time in this delightful, purple-tinted corner of the internet. And I’ll try my best not to drag the blog back to whatever “Kind Of Boring” past existed before “Recently.” Thanks again! 

[Updated to reflect that May is also a verb.]

Posted by Adam Steinman on March 1, 2015 at 02:33 PM in Blogging, Weblogs | Permalink | Comments (6)

Rotations

Welcome to March and to our March visitors, some of whom have already begun posting. It is very exciting to welcome several first-time guests: Kevin Lapp (Loyola-LA), Kate Levine (NYU's Institute of Judicial Administration), Cassandra Burke Robertson (Case Western), Adam Steinman (Alabama), and my FIU colleague Eric Carpenter. We also welcome the return of David Hoffman (Temple), one of the original Prawfs.

Thanks to our February visitors, some of whom will be sticking around for another month.

Posted by Howard Wasserman on March 1, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, February 27, 2015

Teeth Whitening for Lawyers

Thanks to prawfsblawg for having me and to Dan Markel for having been such a welcoming presence when I first entered academia a few years ago.  Most of my posts will focus on areas of criminal law/procedure, but today I want to look at Unauthorized Practice of Law (UPL) rules (proscribing who can practice law, usually defined incredibly broadly, and enforced mainly by bar associations) in the context of a recent Supreme Court decision. 

In North Carolina State Board of Dental Examiners v. FTC, decided on this past Wednesday, the Supreme Court ruled that North Carolina's dental board could not restrict non-licensed teeth-whiteners from beautifying North Carolinians' smiles.  This case may have more impact on lawyers, and particularly bar associations, than you might think.  The Court relied heavily on an earlier ruling holding that bar associations, who used their UPL rules to prevent nonlawyers from providing "legal" services, came under the ambit of the Sherman Act.  

Despite that ruling, bar associations continue to apply UPL rules to inhibit competition not only from nonlawyers who wish to appear in court (traditional lawyer activity) but to those who wish to fill out simple contract forms (to purchase a home for instance), or advise a friend on her will.  I, and other more prominent scholars, have argued that these rules are not only anticompetitive but also do a great disservice to the 3/5 of American plaintiffs who appear pro se because they cannot afford an attorney, not to mention the millions more who forgo advice on transactional arrangements for the very same reason. The mantra from bar associations is that these rules protect the public interest, but, as in the N.C. dentist case, it is often hard to see whose interest is protected other than the professional degree-holders.  

I am curious to see whether this recent case will revive challenges to UPL rules.  I am also curious to hear arguments from those who believe UPL rules actually do serve the American public.

Posted by Kate Levine on February 27, 2015 at 01:30 PM in Blogging | Permalink | Comments (2)

It's Been a While

Hi folks.  It's a bittersweet pleasure to come back to Prawfs, which was my first blogging home as an academic.  I joined the academy in 2004 and blogged here for my first year.  I last was on the site as an author in 2005 - October  31 to be precise - the day I left for CoOp. 2005!  Remember? When applications were up, SSRN was new, and blogging wasn't stagnant?

Actually, I'm not sure that last bit is true.  Yes, law professor blogging has come to taken on an increasingly navel-gazing tone - more posts about socks, rankings, rankings of socks, and sometimes lateral moves.  But at the same time, contrary to my predictions, blogs haven't by-and-large consolidated; most of the blogs around in 2005 are still chugging along, and one blog - Volokh - has clearly made a serious, sustained, and substantial contribution to the world in its role in motivating ACA litigation. 

Dan Markel believed in this medium.  Among other things, he was the first to see that junior law professors would want a place to anonymously gripe about submissions and hiring. I argued often -online and off-that Prawfs fora are almost entirely bad for the profession. I still think I'm correct, but Danny was right to see an unmet demand for community across our various, isolated, schools and subject matter specialities. Danny was a connector. Like so many of you, I feel his loss still in missed connections, phone calls, sometimes presumptuous stories, and scholarship.  And like so many of you, I remain astonished by the lack of action in his case. Danny's scholarship was, in some way, about the social costs of crime. It's ironic that his death provides such a clear example of theory in action. Law professors spend so much time on  innocents in jail that they sometimes forget to account for the human costs of crime unsolved. 

In any event, this month I'll try to engage with these topics, as well as those more evergreen: JD/PhDs (good, bad, scam?); skills education (and its relationship with employment); the problem with p-values; and, of course, promoting an article I've out for submission.

Posted by Dave Hoffman on February 27, 2015 at 10:10 AM in Blogging | Permalink | Comments (0)

Sunday, February 22, 2015

The 2016 U.S.News Rankings Are Still Not Out Yet--Getting Ahead on the Methodology of the Law (and Business) rankings

We are fast approaching the date that U.S. News issues it’s graduate school rankings.  According to Robert Morse, chief data strategist for U.S. News & World Report, the official date is March 10th but they usually leak faster.  Paul Caron at Taxprof blog is, of course, already on this and will probably be first out of the box with the analysis when the time comes, so  I thought it might be helpful for those who want to prepare to interpret and explain them to read ahead on the methodology the magazine will use. (this could also be a good time to learn how to set  a Google Alert or some other  automatic notification method )  There have been some substantial changes in the law methodology over the past several years—so if you haven’t checked this out recently you might be surprised.    I also had a look at the methodology for ranking business schools because those seem to have much greater fluctuations than law schools—and indeed found some interesting information I don't know how to evaluate.  Out of the 435 programs U.S.News contacted for information, 285 responded but only “127 provided enough data needed to calculate the full-time MBA rankings.”  I leave the interpretation to others, but if my math checks out, they’re only ranking about 30% of the accredited programs.

Back to the law school rankings—

There a few things of note—a change I didn’t hear much about last year is that “for the first time” the “the lawyer and judge survey” which is weighted by .15 comes from names that “were provided to U.S. News by the law schools themselves. This change resulted in a much higher lawyer and judge survey response rate than in previous years.”  This should be of considerable benefit to schools whose reputations don’t extend far beyond their regions.

Another thing of note is that placement success, weighted by .20, was adapted to reflect “enhanced American Bar Association reporting rules on new J.D. graduates' jobs data” so that , “Full weight was given for graduates who had a full-time job lasting at least a year where bar passage was required or a J.D. degree was an advantage. Many experts in legal education consider these the real law jobs.”

However, “less weight went to full-time, long-term jobs that were professional or nonprofessional and did not require bar passage; to pursuit of an additional advanced degree; and to positions whose start dates were deferred. The lowest weight applied to jobs categorized as both part-time and short-term and those jobs that a law school was unable to determine length of employment or if they were full time or part time.”

 

It’s also interesting to hear about how the specialty rankings are put together:

I knew that thespecialty rankings are based solely on votes by legal educators, who nominated up to 15 schools in each field. Legal educators chosen were a selection of those listed in the Association of American Law Schools' Directory of Law Teachers 2010-2011 as currently teaching in that field. In the case of clinical and legal writing, the nominations were made by directors or members of the clinical and legal writing programs at each law school.”

 

But I didn’t know that there was a “floor” so that no school is ranked unless it receives at least 7 nominations.   “Those programs that received the most top 15 nominations appear and are numerically ranked in descending order based on the number of nominations they received as long as the school/program received seven or more nominations in that specialty area. This means that schools ranked at the bottom of each law specialty ranking have received seven nominations.”

 

Posted by Jennifer Bard on February 22, 2015 at 06:16 PM in Blogging, Life of Law Schools | Permalink | Comments (0)

Monday, February 09, 2015

Comments working again

We have found a temporary fix for the problem with Comments, so readers should be able to resume commenting. Thanks for your patience.

Posted by Howard Wasserman on February 9, 2015 at 11:45 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 04, 2015

PrawfsBlawg on Twitter

PrawfsBlawg is now on twitter!

Follow @PrawfsBlawg to get headlines and links to all the posts of our PermaPrawfs and GuestPrawfs.

Posted by Richard M. Re on February 4, 2015 at 06:32 PM in Blogging | Permalink | Comments (0)

Sunday, February 01, 2015

Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores

It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page.

If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good. The incidence of new reported cases is reduced and, unlike the low reported incidence from this past summer, public health officials seem to have more confidence in these reported numbers.

What is even more interesting is that is hard to say exactly what combination of domestic, international, and community efforts is bringing the number of new cases down but it has been observed that, in some places, habits and customs changed faster than in others.  Those able to improve health and sanitation as well as health and sanitation literacy faster were able to reduce incidence faster.

What can we, in the developed world, learn from all this? That hand washing matters in disease incidence and transfer? That communal pressure to improve things like hand hygiene can actually make a difference, even among the less aware and less motivated?  That Ebola needed to be brought out of the shadows before incidence and transfer could be fully addressed?

I have been thinking about what our brush with Ebola at our shores tells us about our health care system and our own capacity to learn these lessons from the developing world. 

Ebola’s presence, however limited, in American acute care facilities has brought to light the limitations of current infection control  procedures in American hospitals. Yet little has been done to extend lessons learned from Ebola transmission to non-Ebola infectious disease control. In this, we have more in common with west Africa than we may think, where focus on a single disease often disrupts health systems. Here, a focus on one disease allows us to focus on specialty care for that disease alone, without placing that disease’s spread in the larger context of infection control failures in America’s acute care facilities.

Persuaded, on some level, that the proliferation of hand sanitizer dispensers will immunize us, we alternately confront our own worst fears of a “super bug"  while managing to continue to participate in our communal lives, including the highly communal and congregate experiences of acute care hospitalization and nursing home residence much as we always have since the rise of these two peculiarly modern forms of health care institutions in the 20th century. And, yet, everything is changed.

More on this and many other topics at  my own blog.



 

Posted by Ann Marie Marciarille on February 1, 2015 at 12:18 PM in Blogging, Culture, Current Affairs | Permalink | Comments (0)

Rotations

Welcome to February. And welcome to our February guest bloggers--Jennifer Bard (Texas Tech), Michael Coenen (LSU), Andrea Freeman (Hawaii), Seema Mohapatra (Barry), and John Pfaff (Fordham).

And thanks to our January guests for some great stuff--Dan Filler, Paul Gowder, Ann Marciarille, and Eugene Mazos. Some of them will be sticking around through the weekend and the early part of the month.

Posted by Howard Wasserman on February 1, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 28, 2015

Primed for Change

It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can  happen in twelve months, especially when you are on  an acquisition binge. 

Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.

I write today about Prime's proposed acquisition of six  hospitals in the Bay Area, a subject that has produced both considerable heat and light.  If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.

The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq.  continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here. 

I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and  closings.

The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital -- apparently their view on the likely outcome if the sale to Prime is derailed -- costs lives. The interesting thing about this approach is more isn't necessarily better.  The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.

It is important to remember that California is not a certificate of need state. No CON is required to enter the acute care hospital market nor to exit it. This can produce some utterly remarkable outcomes -- my personal favorite has always been the acute care bed arms race that raged in and  around Redwood City a decade or so ago where the largest acute care bed players raced each other to launch their projects to build hundreds and hundreds of new acute care beds in close proximity to each other. Those familiar with the particular torture of a Redwood City to San Francisco automobile commute will appreciate that I used to observe that whoever lost the acute care bed arms raise could convert their million dollar plus per bed facilities to emergency housing for trapped commuters.

The political theater, of course, is outstanding. But do not be distracted from the exponential growth of Prime Health Care, a business model only destined to grow as health care reform's amplification of the movement of health care outside of not for profit acute care facilities continues.

Posted by Ann Marie Marciarille on January 28, 2015 at 03:41 PM in Blogging, Current Affairs | Permalink | Comments (0)

Thursday, January 22, 2015

Sutter Health vs. Blue Shield: War of the Gargantuas

When I think about calls for increased consumer activation in  health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets. 

But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.

In order to have been a savvy purchaser of health insurance  through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the the health insurance and health care services contracting world. Can we reasonably expect consumers to master this, to ferret out what they really need to know?

Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.

Here's what your employer (or exchange) surely didn't tell health insurance shoppers  in Northern California this past fall:

1. Blue Shield of California is a huge insurance company, with about three million covered lives in Califonria. 

2. Sutter Health is a huge health care provider with, for example, over 4300 licensed acute care beds in California. 

3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates. 

4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.  

4. Decisions that are made after the close of your open enrollment period -- such as their contractual terms or, as announced this year, their decision  to maybe not  contract at all, may be  announced once  open enrollment is closed or very near to its closure.

5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California.  California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.

So the chat boards are lighting up.  Can it be that a change in a health plan's coverage options in a highly concentrated market  such as Sacramento or the East Bay is not a a trigger for special enrollment rights ?   You mean you didn't know all this already?

Watch out where Gargantua steps.

Posted by Ann Marie Marciarille on January 22, 2015 at 06:39 PM in Blogging, Constitutional thoughts, Corporate, Culture | Permalink | Comments (0)

Monday, January 19, 2015

Bedside Collections Visits in the Emergency Room

Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?  

There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.

Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees.  We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room.  Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them? 

After all, could it be that New York Presbyterian, whose expertise in resolving aortic  aneurisms such as the one Steven Brill suffered and describes as the  narrative framework for much of his book, does not engage in this practice? If not, is it because their post-Emergency Room discharge collection numbers are stronger than those of Fairview Ridges Hospital in Burnsville, Minnesota?

We'll never know because, like a great many important topics in Steven Brill's book, we only know the anecdotal, the one off event. So, let's pause and do justice to Steven Brill's account of Bruce Folken's several hour visit to Fairview Ridges Hospital in Burnsville, Minnesota for chest pain where, yes, a hospital employee asked him about his plans to pay the remaining $493 left on his annual deductible.

Bruce Folken's experience at Fairview Ridges Hospital was not unusual in several ways. First, chest pain is one of the most common reported symptoms that drives Emergency Room visits in the U.S. and Bruce Folken's outcome (a diagnosis of indigestion) is also not atypical. Second,  it is further not unusual that ruling out a significant cardiac event does not come cheap for reasons that the rest of Steven Brill's book struggles to explain.

So, once Brucke Folken (described as half way through  his visit and resting in bed with an IV) was ruled-out as an emergency cardiac patient, why the rush to obtain payment? Could it have been that the hospital has been monitoring its collection rate and noted that Emergency Room bad debt is a disproportionate share of acute care hospital bad debt? Of course, the fine line here is between bedside debt collection from those using the ER for genuinely emergent care and those using it for urgent or even routine care and Accretive has, more than once, found itself on the wrong side of that line.  Bruce Folken's situation is right on the line -- perhaps genuinely emergent at the beginning but morphing into urgent by the time bedside debt collection was undertaken.  

If this offends, perhaps it is because of the retrospective determination of  the validity of use of emergent care under the prudent layperson standard or some other standard found in Bruce Folken's policy, but surely not in having a substantial co-pay outstanding at the time of an ER visit.

You see, this is a scenario that will only increase in frequency.  More and more of us are enrolled in high deductible plans and the trendline points upward. So, of course there are now and will be many more Bruce Folkens among those of us with unmet high deductibles and Emergency Room needs. 

Don't forget your wallet.

 

 

 

 

 

 

 

 

 

 

 

Posted by Ann Marie Marciarille on January 19, 2015 at 12:09 AM in Blogging, Books, Current Affairs | Permalink | Comments (0)

Sunday, January 18, 2015

Sponsored posts, explained

You may have noticed a recent "sponsored post" on our feed, and there were some questions from our valued readers about it. We're happy to provide some information.

We were pleased to reach a sponsorship agreement with West in spring 2014. Occasional sponsored posts, written by prominent law professors, are part of that new relationship, and have appeared intermittently since last spring.

We welcome West on Prawfsblawg. But we should make clear that West provides the content of those posts. They do not necessarily represent the views of the other writers on Prawfsblawg, although their subject matter is consistent with this blog's conversation about law schools and legal education.

If you have any questions, please feel free to contact any of the permabloggers via email.

Posted by Howard Wasserman on January 18, 2015 at 02:31 PM in Blogging, Howard Wasserman | Permalink

Tuesday, January 13, 2015

New permaprawfs

We are pleased and excited to announce that Daniel Rodriguez (Dean at Northwestern) and Richard M. Re (UCLA) have joined us as PermaPrawfs. Richard has been on an extended guest-blogging stint here since the summer, while Dan has been a past visitor. And both have done some great solo blogging elsewhere. So they both will provide great new voices to the Prawfs community.

Posted by Howard Wasserman on January 13, 2015 at 07:41 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 12, 2015

The Art of Saving a Life

Perhaps you saw the recent New York Times Arts Section review of the vaccination promotion campaign sponsored by the Bill and Melinda Gates Foundation.  The campaign, as part of an international effort to raise funds to inoculate millions, has commissioned artists to interpret the "Vaccines Work"  tag line.

The article was accompanied by the reproduction of three of the remarkable commissioned pieces, but it was Alexia Sinclair's tableau of a 18th century vaccination that caught my eye. A young boy is clearly receiving the innoculation from a bewigged doctor while the mother -- detached and yet attached -- sits apart  and  looking away from the tableau while also reaching out to reinforce the doctor's acts with an almost yearning reach of her hand. All of them sit in a fine 18th century sitting room, yet the carpet of grass and blossoms -- we are told of the artist's vision -- was meant to symbolize the virulence of smallpox.  "It brings a fashion-y aesthetic to a virulent disease" the New York Times notes.

Smallpox is not pretty.  But the asethetic of the Sinclair tableau is not exactly beautiful, more  profoundly eerie. I wonder if it doesn't also tap into our modern anxieties about vaccination.  It is, after all, an act of faith to vaccinate, then as now.

If you visit "The Art of Saving a Life" website you find Alexia Sinclair's tableau titled "Edward Jenner's Smallpox Discovery."   Edward Jenner, sometimes known as the father of immunization, did not discover the smallpox vaccination, however.  He was, rather, the first person to confer scientific status on the procedure and to pursue its scientific validation. Vaccinated against smallpox himself as a young boy, he spent some of his prodigious talents attempting to validate the mikmaids' truism that exposure to cowpox meant immunity to smallpox.

Seen from this perspective, eight year old James Phipps (Edward Jenner's first human subject) and Sarah Nelms (the milkmaid donor of cow pox for transfer to James Phipps) ought be in Alexia Sinclair's interpretation of Edward Jenner's smallpox discovery.

 

 

Posted by Ann Marie Marciarille on January 12, 2015 at 01:19 AM in Blogging, Current Affairs, Science | Permalink | Comments (1)

Friday, January 02, 2015

It's Been Real!

I think they're going to take away the keys soon, so while I still have access I wanted to say thanks for a great month on Prawfs.  I touted my current scholarship, talked about teaching, wrote a post that generated over 35 comments, and even seemed to annoy some of the so-called "scambloggers" in the process!  That sounds like a success!

I plan to head to the Markelfest tomorrow night at AALS, so I hope you'll stop by and say hello.

Posted by Josh Douglas on January 2, 2015 at 04:30 PM in Article Spotlight, Blogging, Civil Procedure, Law and Politics | Permalink | Comments (0)

Thursday, January 01, 2015

Maybe The Knick Needs a Few Midwives

I am, I concede, an odd television fan.  I probably spend more time reading about television than actually viewing it.  I actually enjoy reading reviews of television programs that I have no intention of ever viewing. Occasionally, however, a review or series of reviews makes me want to see something for myself.

And so it was with "The Knick", a bravura Steven Soderbergh creation (now with its second season in production) -- a medical procedural set in a turn of the century New York City hospital. With almost its first scene a heartbreaking and gut wrenching failed cesarean section, whatever else The Knick represents, it is vivid. It is also somewhat clinically detached. Eventually we learn that the failed cesarian had been attempted unsuccessfully twelve times before by the same team. As one reviewer wrote, "The Knick uses historical distance to make sickness into something strange and unfamiliar, giving its doctors the aura of scientific adventurers." Adventurers they were. Later footage depicting brave experiments with unknown forms of anesthesia tip us off that the character of Dr. Thackery may, in fact, be based on extraordinary real-life surgeon Dr. William Halstead.  

It would be an understatement to describe Dr. Halstead as an adventurer. I do have to wonder if the series does him justice in one important regard. Noone comforts the crying (very soon to be dying) young cesarian candidate as she is wheeled into the operating theatre in "The Knick." It is apparent she senses she is near death but it is unacknowledged, although it is clear the risk is grave.

Dr. William Halstead, in fact, stood for a new gentler surgical approach, recognizing roughly handled tissues were often lost. No less than H.L. Mencken noted "[h]e showed that manhandled tissues, though they could not yell, could yet suffer and die."

The critics' reviews on "The Knick" are mixed. For each "Steven Soderbergh Made a Gilded-Age 'ER' and It's Riveting" review there is an equal and opposite "Surgical Strikeout."  "The Knick," it seems, suffers by comparison with  PBS's "Call the Midwife" (soon to be showing its fourth season with a fifth in production). "The Knick" is being criticized  for lack of character development when compared with the well-developed characters of both health care providers and patients in "Call the Midwife."

In all fairness, "Call the Midwife" has had far longer to develop the characters involved but these critics may have a point.  Patients in "The Knick" are often unnamed, breathtakingly mute or near-mute. Patients in "Call the Midwife" may even serve as recurring characters, as they did in Jennifer Worth's memoir on which the series, through season three, has been based.

Some of this is a difference in perspective. Jennifer Worth has left us her personal, professional, and spiritual autobiography in her three volume memoir of her time in East London.  Hers is a meditation on her personal transformation through service in a low income, low health literacy community. Over time, Jennifer Worth did not flinch to discuss the desperation of women with too many children and too little money. "Call the Midwife" is not for the faint of heart despite all those wonderful sepia colored images you may have seen of midwife Jenny Lee pedaling to a house call through the clotheslines of the East End tenements. The series itself is far grittier and Jennifer Worth's  memoir grittier still.

We will see where "The Knick" takes us.  Given that Dr. Halsted performed the first successful radical mastectomy for breast cancer in the United States, never mind transfused himself on the spot to save his sister's life post-partum, I can only imagine that more compelling drama is ahead. Oh, and did I mention he was a stickler for complete sterility in the surgical suite? I hope we get to see a more well-rounded presentation of this compelling, complex, and astonishing man.

And the mute young mother-to-be who never lived to grow into her role? She teaches us something as well about how the human touch, whether felt in carefully restrained surgery or attentive midwifery, can comfort and strengthen, even unto the last moments of life. 

 

Thank you to my friends at Prawfsblawg for the opportunity to visit with you this month and  for the opportunity to ponder things health law related.


 

 

 

Posted by Ann Marie Marciarille on January 1, 2015 at 10:43 PM in Blogging, Books, Culture, Current Affairs, Television | Permalink | Comments (0)

Happy New Year and Rotations

Happy New Year. As Paul mentioned, for obvious reasons, 2014 was a difficult year for all of us at PrawfsBlawg. But we appreciate the support we have received from all our readers, commenters, and guest bloggers (past, present, and future). And we are honored that you all continue to come to this blog, engaging in the public conversation and allowing us to continue, in some form, what Dan started here.

This spring marks PrawfsBlawg's tenth anniversary and we hope to do some special programming to mark that point. Please feel free to email any of us with particular ideas about how to mark the anniversary--republishing the first posts or some of our favorite posts, running a series of new posts on popular Prawfs topics, publishing a symposium on Dan's work, or anything else.

Thanks to our December guests--Josh Douglas, Franita Tolson, Steven Morrison, and Kelly Anders; they may be sticking around for a few extra days and posts.

And now to get 2015 started. For January, we are pleased to welcome back Ann Marie Marciarille (UMKC) and Garrick Pursley (Florida State), and to welcome first-time GuestPrawfs Dan Filler (Drexel), Paul Gowder (Iowa), and Eugene Mazo (Wake Forest). And, as always, we are forever looking for monthly guests, so let us know if/when you would like to play.

Posted by Howard Wasserman on January 1, 2015 at 09:43 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Wednesday, December 31, 2014

Signing Off

As I type this farewell post, I find it especially fitting that this film is currently airing in the background on TCM.  It has been a pleasure to visit this month, and I looked forward to reading every comment to my posts (yes, all of them, even the prickly ones).  Currently, I am working on the second edition of my first book, and this has been an enjoyable diversion.  Thank you for a memorable month, and I wish all of you the best in 2015.

Posted by Kelly Anders on December 31, 2014 at 09:55 AM in Blogging | Permalink | Comments (0)

Saturday, November 01, 2014

Greetings

Thanks for having me back.  It's November, so let's pretend these posts count toward my NaNoWriMo goals.  This month, as we wrap up our classes (for me, tax and family law), I will be blogging about education issues. I will also blog about some items related to my research agenda—the property transfers families make—that have appeared in the news and in my forthcoming articles. One of these articles has benefited from the generous attention and edits of Dan Markel, in whose memory I am guest blogging this month. He is missed.

Posted by Margaret Ryznar on November 1, 2014 at 05:27 PM in Blogging | Permalink | Comments (0)

Rotations

Thanks to our October visitors, who may be sticking around a few more days to say good-bye.

For November, we welcome back Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington). And Richard Re (UCLA) continues his semester with us.

Posted by Howard Wasserman on November 1, 2014 at 09:31 AM in Blogging, Housekeeping, Howard Wasserman | Permalink | Comments (0)

Thursday, October 16, 2014

Does Teaching Torts Warp Your Brain?

Maybe something just happens after 10+ years of teaching Torts.  Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.

Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps).  There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?  

Or consider a simple object encountered in daily life - say, a pencil.  The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).

The three D's for a Torts Teacher are certainly not Discipline, Dedication, and Determination.  They are Death, Dismemberment, and (Permanent) Disability.

Maybe this isn't unique to my favorite first-year subject.  Maybe Evidence teachers reject new science stories not adequately supported by peer review.  Maybe labor law professors like Joe Slater Al Snow spend their days pondering whether, were they only in a union, they could file a grievance over some joke lobbed in their direction at the water cooler (bugged or otherwise).

Personally, the biggest effect of teaching Torts on my thinking arose after I became a parent.  Baby walkers?  Absolutely not.  Keeping toddler in a carseat after exceeding its recommended weight? Misuse!  Preschooler riding inside the shopping cart?  Not on my watch. Product recalls?  Reasonably, nay - vigilently!, monitored.  In fact, this laptop just got recalled so I need to sign off right now.

 

Posted by Geoffrey Rapp on October 16, 2014 at 10:04 AM in Blogging, Current Affairs, Life of Law Schools, Torts | Permalink | Comments (2)

Monday, October 13, 2014

10 Lists I Read on the Internet That Made Me Feel Stupid

Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post.  All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.  

But I must not be the only person to notice that the internet seems to have been taken over by lists.  There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike.  Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list.  Still...

It's as if the internets think people can only think in lists.  I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid.  But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.

I'll join the fun, though. Here's a list of recent lists I find silly:

 1. 10 Things You Didn't Know You Could Do With Coffee

 I desire only to smell it, drink it, and dream of it.

2. 10 Explanations for Everyday Things Your Body Does

I prefer to think of myself as a being of only thought and light.

3.10 Things You Didn't Know about the Lion King

Don't care what coast animates what character. Still cry every time Mufasa dies.

4. 10 Reasons Why Sunday Will be an Historic Day in Bills History

Seriously, Buffalo has an NFL team?  Huh.

5. 7 Reasons Why Madison, Wisconsin is the Best Place to Live in America

It's so obviously the best place to live in America we didn't even try for 10 reasons.

6. 10 Quotes that Will Transform Your Life (With Explanations)

Holy Mother Goddess, pagans can go on and on and on...

7. 10 Thoughts While Running Long Distances

Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."

8. 10 Things You Need to Stop Tweeting About

No Tweets about conferences? That's like the most exciting thing we do, dude.

9. Top 10 Songs to Listen to When You're Angry

Back in my day, we used to call this a "mix tape".

10. 10 Things You Didn't Know about Wrestlemania

Guessing Joe Slater knew most of them.

Posted by Geoffrey Rapp on October 13, 2014 at 09:13 AM in Blogging, Information and Technology, Religion, Sports, Web/Tech, Weblogs | Permalink | Comments (4)

Thursday, October 02, 2014

Is Ex parte Young Doomed?

Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.

In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable. 

The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh... 

And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.

[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]

Posted by Steve Vladeck on October 2, 2014 at 12:23 PM in Blogging, Civil Procedure, Constitutional thoughts, Scholarship in the Courts, Steve Vladeck | Permalink | Comments (10)

Wednesday, October 01, 2014

Life is short

Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.

I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:

Living is no joke, 
you must live with great seriousness 
like a squirrel for example, 
I mean expecting nothing except and beyond living, 
I mean living must be your whole occupation. . . . . 

Posted by Marcia L. McCormick on October 1, 2014 at 08:25 AM in Blogging, Culture, Current Affairs, Dan Markel, Life of Law Schools, Teaching Law | Permalink | Comments (0)

Monday, September 29, 2014

Rotations

As September turns to October, our thanks to our September visitors--Seema, Irina, Richard, and Jennifer--for helping kick-off the new school year.

For the new month, we welcome a slate of returning GuestPrawfs: Mark Kende (Drake), Geoffrey Rapp (Toledo), Marcia McCormick (Saint Louis), Zak Kramer (Arizona State), Orin Kerr (GW), and David Orentlicher (Indiana-Indianapolis). [Update: And Richard Re (UCLA) will continue his extended visit with us]

Posted by Howard Wasserman on September 29, 2014 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, September 12, 2014

Kopald on health problems from WiFi

Deborah Kopald has a post at Public Citizen's Consumer Law and Policy Blog, discussing health problems associated with WiFi, namely showings of Microwave Sickness by people living/working/going to school too close to wireless hotspots. Worth a read, as she has been pushing this issue for some time.

Posted by Howard Wasserman on September 12, 2014 at 04:00 PM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (14)

Tuesday, September 09, 2014

Remembering Danny

Remembering Danny has been set-up by Dan's family and loved ones as a place to collect stories, videos, photos, memories, and more, to share with Ben and Lincoln and let them know who their father was and the many lives he touched. Please click over and share.

Also, a reminder that Florida State College of Law will host a memorial service for Dan at 3 p.m. next Tuesday, September 16, 2014, at the College of Law.

Posted by Howard Wasserman on September 9, 2014 at 01:58 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 02, 2014

Introduction: Richard Chen

The following is by September GuestPrawf Richard Chen.

As a first-time guest blogger, I thought I’d write a short post to introduce myself. I am a visiting assistant professor at Pepperdine University School of Law, where I teach Contracts and International Business Transactions. I am also one of the 492 brave (or foolhardy) people testing the entry-level hiring market, so blogging will provide a much-needed distraction this month while I wait for schools to call.

I want to thank the team running Prawfsblawg for giving me this opportunity to participate. I was originally invited by Dan, whom I did not know but was introduced to by one of my Pepperdine colleagues. He was very gracious in our brief interaction and made me feel welcome. I wish I’d had the opportunity to get to know him, but I do feel privileged now to be joining this community that he created and that he continues to inspire.

Posted by Howard Wasserman on September 2, 2014 at 09:01 AM in Blogging | Permalink | Comments (1)

Rotations

As we indicated, one of our big goals in keeping Prawfs going is to continue Dan's tradition of having a wide range of guests from a wide range of schools and disciplines pass through this forum.

As September rolls in, Irina Manta (Hofstra) will continue with her visit from August. We welcome returning visitor Jennifer Bard (Texas Tech) and first-timers Richard Chen (Pepperdine) and Seema Mohapatra (Barry). In addition, Richard Re (UCLA) continues his extended guest stint.

And, again, we are always looking for visitors, new and old. So email Paul or me if you are interested in joining the conversation.

Posted by Howard Wasserman on September 2, 2014 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, August 15, 2014

Introduction: Irina Manta

The following is by Irina Manta, who will be guest-blogging with us for the rest of August and all of September.

My last exchange with Dan was on the topic of my guest-blogging here, and I hope to honor his memory by contributing to the wonderful community that he started and ran in the form of PrawfsBlawg. I will mainly be talking about my work in the area of intellectual property over the next month and look forward to the exchanges that will follow. My faculty profile is available here.

Posted by Howard Wasserman on August 15, 2014 at 09:00 AM in Blogging | Permalink | Comments (0)

Wednesday, August 13, 2014

Reviving the Research Canons: What Every Law Prof Needs to Have Read

Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law."  In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline.  His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work."  The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field.  Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work.  And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."

The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project.  The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones.  At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas.  We had 220 comments and links from 18 fellow bloggers supporting the endeavor.  You can find a list of the subject areas, with links to the individual posts, here.

At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource.  However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten."  I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten.  So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.

So this post is intended as an announcement for the project and a request for feedback.  What's the best way to proceed?  I'm planning on having individual posts for individual subjects, as before.  But this time, I'm thinking of asking for the following:

  • Classic Canons.  The pieces that form the foundation for the discipline.
  • Forgotten Canons. The pieces that have not gotten the attention they deserve.
  • New Canons.  The pieces from the last decade that deserve canonical status.

Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.

Posted by Matt Bodie on August 13, 2014 at 11:06 AM in Article Spotlight, Blogging, Research Canons | Permalink | Comments (1)

Tuesday, August 05, 2014

Guest prawfs, unite

An email and Kelly's comment on my prior post raised two administrative issues.

First, Dan undoubtedly extended guest invitations to people for the coming months (not sure how far in advance he went, but I imagine he had people lined up for this month and next, at the very least). So if you had already agreed to guest-blog at anytime in the remainder of 2014, please email Paul Horwitz and me; we will happily continue with Dan's schedule.

Second, if you are a past guest-prawf and would like to do so again--or even simply write a single post in Dan's honor-- please email Paul and me.

Posted by Howard Wasserman on August 5, 2014 at 12:18 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Return to blogging

We remain saddened and stunned by Dan’s tragic death, although buoyed by the overwhelming outpouring of love, respect, and appreciation for everything he achieved in his career and life, including establishing PrawfsBlawg. With that in mind, we wanted to let everyone know that we plan to move forward with PrawfsBlawg and to continue the conversation and community that Dan created. Beginning this week, the remaining permanent bloggers, along with new permanent blogger Sarah Lawsky and the July holdover guests, will resume posting. Thanks to all of you for your support.

As we move forward, we also want to think about the future of PrawfsBlawg and how to both carry forward and build on Dan’s legacy. So we welcome your thoughts, comments, and ideas on how best to continue this community and this dialogue, even in the face of our loss. I should add that you can leave remarks in the comments or email any of the perma bloggers.

Ethan Leib

Paul Horwitz

Rick Garnett

Matt Bodie

Steve Vladeck

Orly Lovel

Rick Hills

Howard Wasserman

Jonathan Simon

Lyrissa Lidsky

Posted by Howard Wasserman on August 5, 2014 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (2)

Monday, July 28, 2014

First MarkelFest! at SEALS

The first MarkelFest! will be at SEALS this Saturday, August 2, from 8:30-?, in Seaglass Lounge at the Omni Amelia Island Plantation. Drinks and lounge food are available. Continuing Dan's tradition of blog-sponsored conference get-togethers and now under a new moniker, this is co-sponsored by PrawfsBlawg and Concurring Opinions. Seaglass is located directly off the lobby of the hotel.

Come remember Dan with your best tales and stories and continue his beloved tradition of blog-sponsored gatherings. Hope to see everyone there.

Posted by Howard Wasserman on July 28, 2014 at 04:30 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

FSU Memoral at SEALS

Florida State will sponsor a formal memorial program on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed  interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.

Posted by Howard Wasserman on July 28, 2014 at 04:28 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, July 13, 2014

Refresh Rates and Traffic Rankings in the Law Prof Blog Network

Blog Emperor Paul Caron has the latest law prof blog traffic rankings up over at TaxProf Blog.  If you look over the stats closely, you'll notice that all of the members of his Law Professor Blogs Network are up between 35% and 350% in traffic over the last year, with most of the blogs increasing between 100% and 200%.  At the same time, I have noticed my LPBN pages automatically refreshing when I leave the window open. 

So I guess I'll lay out my views straightforwardly -- I don't see any real reason to have auto-refresh other than to boost traffic.  I suppose that if I wanted to just open up the blog and let the auto-refresh do my work for me, I could be assured of getting the most recent content.  But if I leave the window open to a blog, it's often because I am in the midst of working my way through the past blog posts and want to come back to it -- not to have to figure out where I was. It makes viewing a video over time impossible, as well (as Caron himself notes).  And if I'm on the page of a particular post, I suppose I might like the refresh to show any new comments -- but that's a pretty niche desire.  What's more likely, perhaps, is that a lengthy comment will get "vaporized" by the refresh rates, as this comment thread indicates.  (A great post & comment thread, BTW!)

So is the refresh innovation a real improvement in the blogging experience, or just a way to boost traffic?

Posted by Matt Bodie on July 13, 2014 at 10:02 AM in Blogging | Permalink | Comments (16)

Tuesday, July 08, 2014

Thoughts on Work-Life ImBalance from Those Left Behind

Friends, I suspect many of you recall the world's light dimmed in the aftermath of Andrew "Taz" Taslitz's untimely death earlier this year. Andy made the world brighter through his ebullient spirit, infectious laughter, and tireless work on behalf of improving the criminal justice system and the lawyers thrust into its maw.

Since it's summer time and many readers of the blog are just beginning their teaching careers, I thought I'd share a post of Taz's widow, Patty Sun. This is reproduced with her permission from Facebook:

I'll post this on Andy's FB page because I'm not sure anyone reads mine anymore, and while this can apply to anyone, it's really addressed to law professors.  In the past 4 months I have kept seeing accolades to Andy's amazing productivity - the 100+ articles, the zillions of case books, etc., and I have always told people that yes, he led a normal life, yes, he got plenty of sleep and yes, he even took plenty of naps. 
But that's not really true. His life was not normal, at least not to me, and it certainly wasn't balanced. Yes, I know he genuinely loved his work and yes, I know he had a brilliant and unusual mind, and yes, I know he was cut down in his prime when he still had so much more to give.
But all of that came with a price. Not the teaching or the mentoring, but all that scholarship. A few years ago the chair of some symposium set an absolute deadline for everyone to get their drafts in, and by then, even I knew that academics never did that, so I told him to relax and finish it at a normal pace. So what did he do instead? He sacrificed an entire weekend and worked 12 hours both Saturday and Sunday, because damn it, HE was going to submit his draft in on time. So of course what happened? NO ONE else was even close to done by the deadline so the chair had to give everyone else a long extension. And did he mind? Not really, because it just freed up more time for him to do another encyclopedia entry or edit another friend's manuscript.
So what was the price in the end? In the entire time we were married we only took a two-week vacation once, and just about every vacation we did take was wrapped around one of his conferences or presentations. The furthest he went on each of his two sabbaticals was his front bedroom, because he spent every single day on his manuscripts. He turned down trips to China, to South Africa, to Japan, and most impressively to me, he twice turned down a chance to be an observer at Guantanamo. Of course he always had different reasons - S. Africa wasn't safe, the timing of the China trip was bad, etc., but I knew the real reason was he didn't want to take time away from work.
It was only the last vacation we took, to Vermont two years ago, that truly had no relation to his work, and then last year when we finally booked a 2 week cruise to Alaska we had to cancel it after they found his tumor a month before we were supposed to go.
So in the end how do I feel about his productivity? Yes, he enjoyed it, but he also killed himself trying not to disappoint people or to break deadlines. 
And as I sit here with the dogs on July 4th, I think was it really that important to add one more book review to his CV or to do one more tenure letter as a favor for someone he never met? I'm glad his peers all loved him for the reliable genius that he was, and I don't know how he feels wherever he is now, but I am very, very bitter. 
Yes, he was a great academic mentor and collaborator, but the price for all that frenzied output was me, and there's a part of me that will never forgive him for it, because he died right after he promised to slow down and enjoy life itself more.
So think about it, members of the "academy." All that talk about US News rankings and SSRN citations. Do you REALLY think stuff like that is life and death to your loved ones? I think most of them would sacrifice one more line on your  resume for one more day of quality time with you. I know I would. But it's a bargain I can't make any more. 

...

I know that pre-tenure and post-tenure are different worlds, but in Andy's case getting tenure didn't relax him a bit. It only spurred him on to work harder to prove, I think mostly to himself, that he really did deserve it. And it never stopped, because he could always find another reason to choose work over play, becoming active in the ABA, signing on to yet another new project where he could work with good friends or meet exciting new people, and of course lately, brainstorming ways to keep his law school competitive. 

I'm not saying Freud was wrong when he said you need both love and work to be happy; in fact, my own work is one of the factors in keeping me sane now, but I believe equally strongly in the Golden Mean. I know that Mean differs for everyone, but Andy always found a reason to keep the needle tilted very far to the work end. I know that kept him happy, but love always involves other people, and anyone who cares about that other part of the equation would do well to remember that if you always decide to choose the work side of the balance you run the risk of having no balance at all.

Posted by Dan Markel on July 8, 2014 at 12:03 PM in Blogging, Culture | Permalink | Comments (13)

Wednesday, July 02, 2014

Some good news

I'm delighted to point our readers to the direction of the NYT oped page today, where they can find Paul Horwitz's excellent essay on the Hobby-Lobby case and its implications.

I'm also thrilled to note that Rachel Harmon's recent contribution here -- about the Riley case and the fragility of policing knowledge demonstrated by the Court therein -- was selected to be included in a Green Bag/Journal of Law series called The Post (here and here); that series showcases exemplary legal writing from the blogosphere. 

Congrats Paul and Rachel!

Posted by Dan Markel on July 2, 2014 at 12:29 PM in Article Spotlight, Blogging | Permalink | Comments (0)

Tuesday, July 01, 2014

Rotations...and Happy Canada Day

Friends, it's the first of July and therefore a great day for all the Canadians now ruling the American legal empire. Congrats to Sujit, Austen, Trevor, Gillian, et al. It's just sort of shocking that Eduardo's not Canadian in light of his overall sensibility, but perhaps being up in Ithaca now will simply accelerate his asking for what must be his birthright.

Anywhoooo, it's time to welcome back Frederick Vars (Alabama), Jeff Lipshaw (Suffolk) and Eric Miller (LLS) to the conversation for the month of July. Big thanks to all our June contributors, some of whom will linger as they get their last kicks in.

Last, keep your ears and eyes open for there will almost certainly be a Prawfs happy hour coming up at the SEALS conference in Amelia Island the beginning of August. Peace out!

 

Posted by Dan Markel on July 1, 2014 at 04:54 PM in Blogging | Permalink | Comments (2)

Thursday, June 26, 2014

"Experiential" Scholarship?

Is there such a thing as "experiential" scholarship?  I asked this question to some of my colleagues during a recent lunch.  I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like.  I was curious if others thought there was any correlation.

After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends."  The discussion boiled down to three observations:

1.  The Target Audience - For legal scholarship to have an impact, legal scholars should keep in mind why they are writing a piece and who should read it (obviously this goes beyond, "I need to publish so I will come up with a sexy title to capture the attention of law review students").  The target audience could be practitioners, judges, policymakers, and/or academics.  If scholarship is, or even can be, correlated to making students practice-ready, then it seems like the first three audiences would be the primary targets since they are actively in practice.

2.  The Platform Problem - While academic audiences might be inclined to browse through law review articles, the others - judges, practitioners, and policymakers - are less and less likely to do so.  If my target audience extends beyond academics, a lot of issues arise.  What platform do I use to reach them?  For example, if I want my scholarship to be read by practitioners, where do I publish?  The ABA sections all have different periodicals that are published throughout the year.  But what about the other audiences - what platform does one use to reach judges?  And, of course, articles for non-law reviews would be much shorter than traditional articles.  Does that mean forego the traditional law review and go straight to these other platforms (if one can be found)?  I don't think so.  Instead, that question leads to the third observation.

3.  Expertise and Marketing - To become an expert in a certain area undoubtedly requires a lot of research and thought.  Such in-depth work is reflected in traditional law review articles.  Once a legal scholar becomes an expert, then the key is to market it to the target audience.  Write a law review article with the target audience in mind.  Once you've mastered the area, actively seek out publication opportunities that will actually reach the audience you want - write a short piece in the area for an ABA publication, turn it into an op ed, try to present at conferences where your target audience attends, become involved in drafting legislation, blog on relevant sites ... bottom line, take your expertise and, for lack of a better word, market it so that it has the practical impact desired.  Perhaps this is what a lot of legal scholars already do, but I must admit I haven't done it well.  Upon reflection, I think my failure to proactively market my scholarship to non-academics (most of my pieces target judges and policymakers) stems from the fact that, until recently, I was on the tenure track and it was unclear to me whether the effort and time it takes to reach out to such audiences would count as scholarship.  Should it?  And, more on point, would marketing scholarship to non-academic audiences help us think of ways to teach experientially or help make our students more practice-ready?

Posted by Naomi Goodno on June 26, 2014 at 06:02 PM in Blogging, Life of Law Schools, Scholarship in the Courts, Teaching Law, Weblogs | Permalink | Comments (2)

Sunday, June 22, 2014

When Is an Anti-Homelessness Ordinance Vague?

"You know those ducks in that lagoon right near Central Park South? That little lake? By any chance, do you happen to know where they go, the ducks, when it gets all frozen over? Do you happen to know, by any chance?"

--Holden Caulfield, in J.D. Salinger, Catcher in the Rye

Screenshot 2014-06-22 06.49.30
When I teach 1L criminal law, my preference is to focus not on the sensational cases of serious crime, but on the everyday workings of the system: drugs, property, and various quality of life offenses. As it turns out, teaching the principle of legality, vagueness, and other important basic tenets of criminal legislation becomes apropos and important when using the example of anti-homelessness legislation of various stripes. Many criminal law casebooks include Chicago's ban on loitering and Chicago v. Morales. I like creating a timeline of legislation, showing how cities have consistently tried (and sometimes failed) to find ways to target the poor and get them off the streets. Sit/Lie ordinances are a classic example, as is the latest bout of litigation about this, which involved ordinances that prohibit one from sleeping or living in his or her vehicle.

In Desertrain v. City of Los Angeles, decided a few days ago, the Ninth Circuit tackled a municipal ordinance prohibiting the use of a vehicle “as living quarters either overnight, day-by-day, or otherwise.” The ordinance itself is not new, but it became a convenient enforcement vehicle (pun intended) after an angry "town hall on homelessness" in 2010. As a result of the aggressive enforcement efforts, several folks down on their luck (read: petitioners) tried to craft their behavior to comply with the ordinance as best they understood it: one of them, thinking the ordinance probably applies only to public streets, slept in his car in a church parking lot. Another, in an effort to comply, slept in the street, but kept some items, such as his sleeping bag. Another petitioner, left without work after a head injury, slept in her RV parked in her church. And another one was cited despite not sleeping in his van, just because he stored many items in it.

The officers enforcing the law were not given much instruction. In a memo from 2008 cited in the decision, officers were instructed that  “report must describe in detail observations . . . that establish one of the following — (i) overnight occupancy for more than one night or (ii) day-by-day occupancy of three or more days." In another memo, from 2010, officers were told to “adhere to the ‘Four C’s’ philosophy: Commander’s Intent, Constitutional Policing, Community Perspective, and Compassion,” with no further details.

The Ninth circuit found the ordinance unconstitutionally vague, because its articulation left people in serious doubt as to what behavior constitutes "living" in a vehicle. "Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain?" But, of course, as the court knows, middle-class folks talking on their cellphone in the car would not be targeted; the court explicitly says that the law lends itself to arbitrary enforcement and criminalization of the poor. 

There are some pretty interesting things going on here. First, what is the relationship between vagueness and the potential for arbitrary enforcement? Yes, miscellaneous so-called quality of life offenses tend to be enforced disproportionately (exclusively!) against the poor. But don't we disproportionally target the poor in enforcing drug offenses, prostitution offenses, property offenses, and even some types of violent offenses? It seems that anti-homelessness bills in all their iterations seem unique to the court, and I think it might be because they are all rather clumsy ways to get around the challenges of prohibiting status rather than criminal behavior. Loitering, sitting on a sidewalk, and sleeping in your car are all things you do when you have nowhere else to go. There seems to be some sort of status/behavior continuum, by which being addicted to drugs is a status one can't help, but being drunk in public is a legitimate offense (even if you have nowhere else to go. Homeless? Don't drink.) Living in your car is vague, but sitting or lying on the sidewalk between certain hours is behavior you can presumably control and therefore a legitimate target of law enforcement. While we can dispute some of these distinctions (I know I do), you could at least make a half-decent argument that there's a free will element, flimsy as it is, that needs to be there to distinguish between a legitimate behavior prohibition and illegitimate prohibition of status.

But there's something else that seems to be going on, and that's a balance of NIMBYism and individual rights. The Ninth Circuit's Judge Kozinski, who thought that sit-lie ordinances were fine and peachy, describes the motivation of the City of Seattle right at the beginning of his decision: "Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road," he says, "the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening." Ostensibly, this is about legislative accuracy - hours defined, places clearly defined, all of which makes the behavior presumably easy to avoid. But the undercurrent is also that a city is right to clear its sidewalks for some of its residents by prohibiting others from blocking the way by sitting on them.

Which begs the question, how are people sleeping in their car a problem? True, the Los Angeles city ordinance, as it is, is vague. But what if the ordinance,  in lieu of prohibiting "using a vehicle as living quarters", prohibited "spending the night, between midnight and 5am, inside one's functioning vehicle, no matter where it is parked, for three consecutive days"? That's not all that vague, is it? And yet, we all have a nagging feeling that, despite the clearer articulation of prohibited behavior, some people are going to get arrested and some aren't. 

The real question beneath the surface is, why does it matter to the city whether someone down on his or her luck sleeps in their car? Presumably, if someone sleeps in her car, she doesn't get cold and sick; she's not drunk in the street; and she's not otherwise causing mischief or taxing our already scant welfare dollars. The response has got to be some sort of NIMBYist aesthetic distaste, which Judge Kozinski's decision in Roulette glosses over but never addresses directly. What the architects of this ordinance would really want is for the homeless population to disappear. But because these are real people, they're not going to just vanish like Holden Caulfield's ducks in Central Park. They still have to sleep and eat, and they're going to have to find ways to do it, and going one by one to eliminate these modes of survival, vague or not, arbitrary or not, is cruel and inhumane.

As a brief coda, this case didn't raise any Fourth Amendment issues, but it has always fascinated me how the Fourth Amendment makes both homes and cars into special places with special rules, in opposite ways: homes receive extra protection and cars receive explicitly less protection. Presumably, the consitution protects "people, not places", but what with the return to tresspass theory in Jones, It seems to me that the economic downturn calls for a more sensitive conceptualization of the car and its role in people's lives. What with the scholarly attention to the American cult of homeownership (see here, here, here, and here) we forget that we also have a fairly robust car culture, which impacts urban planning and even globalization. The centrality of the car to one's lifestyle is as American as apple pie. Maybe the downturn has created an important permutation in the cultural role of vehicles, meriting them more constitutional protection than would be justified by a narrow conception of them as vehicles.

 

Posted by Hadar Aviram on June 22, 2014 at 09:50 AM in Blogging | Permalink | Comments (4)

Monday, June 02, 2014

Rotations and Sundry

Greetings and Happy June!

This month I'm delighted to welcome back Dean Dan Rodriguez from NW, Hadar Aviram (Hastings), and Chad Oldfather from Marquette. I'm also excited to introduce Naomi Goodno from Pepperdine, who's with us for the first time. Our May guest Kristen Osenga from Richmond will stay on for another month too. Many thanks to you all from May and earlier  for joining us (again).  Belated thanks also are due to Richard Re, who's joining the UCLA faculty and is going to be one of our designated Court-watchers for a while. Next, although he himself abjures all moral relevance of desert, John Pfaff from Fordham warrants our gratitude for his important (and intermittent) series on the failings of the conventional narrative of prison growth. My hope is that John's continued platform here will shift the national conversation on criminal justice matters more productively.  Finally, as SCOTUS winds down its term, I imagine Jack Chin will chime in with his excellent series on the legal academy and its influence on the Roberts Court.

It's an auspicious time to be part of the conversation. Prawfs celebrated its 9th anniversary in April and now had (according to Sitemeter) the highest traffic in terms of page views that we've ever had: over 279,000 in May. We're slated to have another great book club later this month thanks to Matt Bodie's efforts.  And I'm happy to report that West Academic has invested some confidence in this site with sponsorship efforts that I hope will continue and strengthen over time.  Please check out their coursebook catalog through the button ad and consider getting in touch with them (Pam Siege Chandler) if you're thinking of working on a casebook!

That's all for now.

Oops, one last reminder. Carissa Hessick (a regular contributor to Prawfs) and I are going to be locking down registration for the CrimFest 14 Conference at Rutgers this week, so if you've not already registered please do so today or tomorrow. You can find the relevant information at this link. Carissa recently had a baby, so what better way to celebrate the new addition to the Hessick family than saying: Hey, I'll come hang out with that baby's mama in Newark in July!

 

 

 

 

 

Posted by Dan Markel on June 2, 2014 at 11:40 AM in Blogging | Permalink | Comments (0)

Saturday, May 31, 2014

Until September

 

The month of May has come quickly to an end.  Much thanks to Dan and the PrawfsBlawg team for letting me visit this month.   Thanks also my very supportive colleagues at Texas Tech including reader extrordinaire, Professor Eric Chiappinelli, to everyone who read the pieces, who commented on-line, and who contacted me directly.  For those interested in thoughtful commentary on legal education, the place to be in addition PrawfsBlawg and TaxProf blog this summer is a third member of the family, Law Deans on Legal Education edited by  I. Richard Gershon, Dean and Professor University of Mississippi School of Law, Paul E. McGreal Dean and Professor of Law University of Dayton School of Law, and Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law

You can always reach me at Jennifer.Bard@ttu.edu.  Also, I will be blogging, as usual, every Friday at Health Law Profs and on no particular schedule at the Harvard Bill of Health.

I look forward to visiting again in September.

With best wishes,

Jennifer

Posted by Jennifer Bard on May 31, 2014 at 11:12 PM in Blogging, Current Affairs, Weblogs | Permalink | Comments (0)

Friday, May 23, 2014

Report from ALI Annual Meeting--and What Justice Ginsberg is Reading

I’m just back from the 91st annual meeting of the American Law Institute in Washington, DC.   So much happened in a three day period that it’s hard to do justice—I know that many others have blogged and tweeted.  In keeping with the theme of what I’ve been blogging about, higher education, I will report that the current state of legal education was a palpable presence and a frequent topic of conversation.   Whether it was ALI President Roberta Cooper Ramointroducing Associate Academic Dean Ellen Clayton of my neighbor institution, the University of North Texas, UNT Dallas College of Law, as someone doing a remarkable thing to open a new law school to  Justice Breyer's charming refusal to be drawn into either a criticism of legal education or a comment on the current complaints being made against it.

 It is also my honor to pass on that  Justice Ruth Bader Ginsberg reported that she was reading Wings of Freedom: Addressing Challenges to the University while giving its author, former president of Stanford University Professor Gerhard Casper, the ALI’s  Distinguished Service Medal.    I have ordered but not yet received the book, so here is the blurb:

“From affirmative action and multiculturalism to free speech, politics, public service, and government regulation, Casper addresses the controversial issues currently debated on college campuses and in our highest courts. With insight and candor, each chapter explores the context of these challenges to higher education and provides Casper’s stirring orations delivered in response. In addressing these vital concerns, Casper outlines the freedoms that a university must encourage and defend in the ongoing pursuit of knowledge.”

 

ALI is always inspiring--like everyone I had no idea as a law student that the Restatements were actually the product of so much collective and collaborative work.  It is also a "how to" of running an event at which every attendee is used to being in charge either as a Judge, a Professor, a General Counsel or a Partner.

 

 

Posted by Jennifer Bard on May 23, 2014 at 08:56 PM in Blogging, Culture, Current Affairs, Life of Law Schools | Permalink | Comments (1)