Tuesday, April 21, 2015
In the marketplace of ideas, Twitter has decided that online trolls are bad for business. Back in February, it was reported that Twitter's CEO Dick Costolo told staff "We lose core user after core user by not addressing simple trolling issues that they face every day." This statement suggested that keeping Twitter safer from abusers had become a corporate goal.
Recently, Twitter began to roll out changes that puts meaning behind Costolo's statement. Rather than asking the victim to track down an abuser, Twitter has flipped the script to test a new a feature to lock the abuser's account for a period of time. The account can be reactivated if the user provides a phone number verification, and then deletes all of the tweets that are in violation of terms of service. A screen shot of the procedure is below (and a text explanation is here on Ars Technica).
Additionally, Twitter's guidelines have been amended to broaden the definition of prohibited conduct to include "threats of violence against others or promot[ing] violence against others" (expanded from the “direct, specific threats of violence against others” in the former policy). In addition, the company is implementing measures to limit distribution of certain tweets that exhibit "a wide range of signals and context that frequently correlates with abuse including the age of the account itself, and the similarity of a Tweet to other content that our safety team has in the past independently determined to be abusive."
The sheer size and volume of Twitter's platform, and the types of distinctions that will have be made, make implementation of these standards a challenge. Of course, the platform is in the private sector, and these guidelines are a form a type of private governance. I wonder where this direction will take the company, what the impact will be on public discourse, and whether it will affect the behavior of other online platforms.
All is Vanity.
I’ve enjoyed the set of recent reflections on Prawfs’ astonishing ten-year run. Orin's great insights about blogging’s lack of internal credit & Paul’s characteristically wise post about the aging medium both hit points I would’ve written if I were faster on the draw, and smarter. Or perhaps not. Like Paul, I’m increasingly averse to writing about the medium, or about legal education itself. So these recap posts scratch an itch that perhaps ought to be left alone. Indeed, it feels far too often that most law blogging by professors is a less rigorous version of the Journal of Legal Education, or worse (?) an unending and unedifying list of law professor dean searches.
Why, I wondered, has the energy left the building?
- Because there are fewer fans. This is most of it. Prawfs started in the seven years of hiring plenty, and we’re now deep in the middle of the seven years of drought. There are many fewer young law professors than there were in 2005, and those few that remain are well-advised to keep their heads down and do what’s necessary to survive increasingly difficult internal climbs to tenure. Prawfs' and like blogs' rise had many parents, but a hiring glut has to take place of pride.
- Because of status and everything that comes with it. When Prawfs began it looked possible that academics from elite institutions would join the fray. That’s – by and large – not what happened. True, there are some faculty blogs at Chicago and elsewhere, and some subject-matter-specific blogs where elite academics occasionally deign to write. But very few academics from top ten schools blog regularly. That means: (1) blogs are still largely written by those who’ve not yet “arrived”; (2) bloggers generally work at schools with worse employment numbers, which makes them embarrassed to noodle in public; (3) it’s harder to move the needle on public conversations (excepting, as always, the VC, which is sui generis); (4) institutional support for blogging is resource-constrained. (See #5.)
- Because the party is elsewhere. You may have noticed that Concurring Opinions, my home, has been relatively quiet of late. But have you read Frank Pasquale’s twitter feed (7000+ followers). Or, better yet, followed Dan Solove’s LinkedIn privacy forum (~900,000 followers!!)? LinkedIn, Facebook and Twitter, etc. are where the action is. People read law professor blogs, by-and-large, to learn who has died, who is moving to what schools, and to guesstimate if their article will be accepted. Also, there are recipes.
- Because of preemption. Everything has been written before, including this sentence. Law professors care more than most about preemption. The weight of past posts is starting to press on our heads, no?
- Because we didn’t innovate. Again, generalizing, blogs have remained stagnant in form. That wasn’t inevitable. But even blogs about cutting edge topics are conventionally organized. Economy plays a large role here – as do law schools’ IT support, which has other fish to fry. Just a for-instance: compare Stanford Law’s fantastic landing page to a blog they’ve nested inside. Get the sense that the money for the renovation started to run out at some point? Being stuck in a reverse-chron, wordpress, format has meant that symposia can “disorienting” and unwelcoming to outsiders. At Temple, I’ve been pushing hard against the trend, and we’ve started a business law newspaper using Hive, a nice wordpress-based platform that at least looks fresh. But if law professors wanted to be unconventional, technologically-savvy, innovators, they wouldn’t have become law professors.
All of this makes me feel wistful, because I remember when Prawfs (and Co-Op) started and the medium felt both transformative and exciting. Blogging has been amazing for me professionally. A post – and Dan Kahan’s generosity in response to it - got me involved with the cultural cognition project. Many other articles started as half-baked pieces of dreck at various blog homes. It’s also been great personally, as I met many of my better friends in the academy through Prawfs or CoOp or the Conglomerate, making conferences less overwhelming, and knocking down disciplinary and subject-matter barriers.
But all things change. I am optimistic about the future of law, the legal academy, and public conversations about both – I just don’t think the future will be blogged.
Dan Markel could be an exhausting friend, and I didn’t always have the energy to talk with him. In the weeks before his death, I’d put off a conversation long overdue. On July 17, 2014, I texted him to prompt that phone call, asking “what’s new with you.” Later that day, he texted back, writing, “Lots. Will call shortly.” I’m sorry we didn’t get to have that call. I’m sorry that he’s not around to celebrate this anniversary. He would’ve found my pessimism about professor blogging silly, and would have, I think, expressed enthusiasm and optimism I don’t currently feel about the future of Prawfs and law blogging more generally. Even if I'm right - and the glory of blogging is behind us - it's still worth recognizing that Prawfs has chugged along for a decade, adding tremendous value in the academy, largely because of his initiative and spirit.
Monday, April 20, 2015
Anniversary Topic # 3: How law teaching and law schools have changed
Topics might include:
• Changes in the profession.• Trends in scholarship or teaching• The law school "crisis"• More specifically, how were things different between the period before 2008, the economic period of crisis (including law school crisis) around 2008-2012, and the post-2012 era, in which there is still crisis but many or most students entering law school are well aware of it. I find a great difference between students who entered or graduated between 2009 and 2012 or so, who came to law school with one set of expectations and left them with very different expectations and often no job, and were embittered by it, and the newest students, who have a more pragmatic and much more chastened set of expectations and goals around law school.• How different these changes are from changes in the rest of the academy, or whether the law school exceptionalism about this is not actually so great. In this I'd be especially interested to hear from guests or permanent bloggers with PH.D.'s or connections to other disciplines and faculties, who can talk about their experience in both law and some other faculty or sector of the academy.• Changes in civility and in your dealings with students, commenters, and others.• The rise of the VAP and other fellows.
Sunday, April 19, 2015
When blogging (and bloggers) get old
I explained in my first symposium entry how I have used blogging in my time here. Although I have not gone back to review seven years of posts, I do not believe my writing here has changed all that much either in quantity or in content (law v. life, serious legal issues v. pop-culture asides).* This may be because I have not taken on as many administrative responsibilities as Rick and Paul have (I have never served as an associate dean, for example), so I have not lost the time to devote to writing here. And since I wrote less about legal education and law schools than Paul did, I probably became less disillusioned than he by the tenor of the discussion.
* Although to be frank, I have written so many posts here that I do not remember a lot of what I have written. I have on occasion reviewed old posts and thought, "Did I write this? And did I really mean that at the time?"
I am happy that blogging has developed into a "serious" forum and form of writing, both in terms of content and perception. That seriousness can be traced to the early waves of bloggers who started ten years ago as junior faculty. By doing a lot of good writing on a range of subjects on a lot of blogs that people were reading, it seems inevitable that some of it would come to be seen as somewhat serious and worth paying attention to. It also makes sense that law students and rising future and junior prawfs, raised on these fora, would view them as serious and also (hopefully) want to join in (exemplified by Richard's initial solo blogging and then his work here, as well as some of the junior and about-to-enter guests we have welcomed the past few years). And finally, in something of a feedback loop, as we have moved to the more senior ranks on our respective faculties, we are in position to both encourage and reward junior colleagues who take on blogging.
Perhaps Dave is right that what I just described also made it inevitable that posts on Tallahassee, pop culture, and Notre Dame football might fall by the wayside. After all, if I want a hiring or P&T committee to look on this as at least a somewhat worthwhile endeavor, I may not want to dilute the perception with too many frivolous posts about non-legal/non-serious subjects.
I am not on Facebook, although I probably should be. I think Rick gets the connection between blogs and Facebook about right--they are serving different roles, with Facebook somewhat taking over the light-short-and-fun posts as blog posts have gotten longer and more serious. Facebook is not necessarily the space for long posts or for working through scholarly ideas. Although perhaps the divide is not that sharp--when Dan was incubating the idea for what became Catalyzing Fans and this Atlantic essay, he initially went to Facebook rather than Prawfs.**
** When Dan called to pitch me on joining the project, he explained his idea and told me to read his initial musings. Since I was not on Facebook, my wife friended Dan, which then allowed me to read his initial discussions. Yeah, I probably should join already.
I will close with one question for consideration ten years in: Why haven't faculty blogs caught on or lasted? Dave mentioned the Chicago faculty blog, which I previously read regularly, but there has not been a post there for almost a year. Marquette and Loyola-LA both are thriving and Illinois just finished its first year. But that's basically it. Why hasn't that form of blogging worked as well as sites such as this one?
Saturday, April 18, 2015
An Appreciation of Legal Blogging (and Twitter!)
Last month, I had the pleasure of being a guest blogger here. This month, I have read with interest and surprise the recent lamentations of legal blogging posted by some of the founders and earliest adopters of the medium. I was particularly affected by Paul Horowitz’s post on PrawfsBlawg. His comments on anonymous commenters seem particularly thoughtful and apt. On the other hand, I felt myself defending (in my own head) blogging and Twitter culture while reading his criticisms.
As a junior scholar, I have found the opportunity to read PrawfsBlawg immensely gratifying and educational. I write and think about criminal justice. I am willing (if not happy) to admit that the volume of dense and rigorous scholarship I want to and must consume in order to write my own articles essentially prevents me from reading important, rigorous, and dense scholarship in other areas – first amendment law, education law, and international law, just to name a few.
But, while I can’t find the time to read 25,000 words about, say, the right to privacy versus the first amendment right to expression, I can certainly read and digest Amy Landers’ recent post about a New York Appellate court’s dismissal of a complaint against a photographer for invading the privacy of children when he shoots “from the shadows of [his] home into theirs.” I might even click on the hyperlink she provided and read the decision.
And, I can read Rick Hills’ post about whether it is “legitimate for an academic institution or individual to compromise academic freedom in order to gain access to a population otherwise controlled by an authoritarian regime.” He is writing from China! Where he is teaching as we speak. His reflections may not have the rigour of his law review scholarship, but they have the contemporary feel of a scholar struggling with immediate and increasingly germane legal and pedagogical issues. His blogging also helps me understand not only what it means to be an academic in a country that does not prize freedom of expression, but also what it might mean to be a Chinese student at an American law school. It reminds me to be more tolerant and understanding of my own students’ cultural backgrounds: how what I say may impact them or how the way I interpret their work or classroom behavior may be a result of my own cultural myopia.
Twitter has proven to be even more powerful for me as a reader. I follow dozens of law professors throughout the country. These scholars are constantly thinking about and working on critical and complicated issues, some of which I am also trying to work through in my own head/scholarship. Of course, 140 characters is not enough to begin to understand a complex legal issue, but these tweets are often short bursts of carefully thought out opinions by people whose work in longer-form I respect immensely. And I can ingest hundreds of these thoughts a day. I do maintain a healthy skepticism that these opinions are as clear or pat as they appear on Twitter, but I am confident in my own, and in any legal academic's, ability to read tweets and click on links with a grain (or maybe a shaker) of salt.
Moreover, Twitter is a powerful research tool. I am writing and thinking about policing and prosecuting the police. I would have found my way to Harvard Law Review Forum’s issue on police reform regardless of Twitter. But, thanks to Walter Katz (@walterwkatz), Elizabeth Joh (@Elizabeth_Joh), and Seth Stoughton (@PoliceLawProf), I got there faster, really fast.
I have no idea whether my own blogging is helpful, hurtful, or completely irrelevant to my desired career as legal academic. It’s hard to figure out what received wisdom about writing, self promotion, networking, etc... to follow because it is not (to say the least) uniform. This post is about being a consumer, not a creator of social media content. And, ironically, I wouldn’t have thought to write an appreciation of blogging were it not for the thoughtful critiques of the medium that have appeared on this site in the last few weeks.
Dan Markel ran a colloquium in New York for criminal law theory scholars (that continues thanks to his co-director Mike Cahill). He was immediately welcoming to me and to my colleagues, who were literally months out of practice when we first attended. While those meetings terrified me, they also taught me so much about what it means to be a scholar, to think critically, and to accept criticism gracefully and appreciatively, not to mention exposing me to work by other terrific scholars. His gracious acceptance of those just entering the academy is reflected in this blog, which provides access to the critical thoughts, musings, and serious work of both established legal scholars and those just starting their academic career. I am really grateful that this site and other legal blogs (and Twitter!) exist.
Friday, April 17, 2015
Reflections on Prawfs at 10: taking seriousness seriously
Inspired by Paul’s typically thoughtful and comprehensive response to the question Howard posed for this week—How has law blogging changed in the past ten years?—I’ll offer some much briefer reflections on this issue. One impression I have about how blogging has changed in the legal academy at least is that is has become more serious, both in the sense that people take it seriously and that the medium itself is more serious. The first trend is probably good but I’m less sanguine about the latter, as I explain below the jump.
The word “serious” has unusually positive vibes in law, and in particular the legal academy. Good old Taking Rights Seriously has spawned a cottage industry of knockoff titles and catch phrases, but as near as I can tell, it means something positive: To take rights or anything seriously is to treat it with a kind of reverent gravity, and while that may not be a virtue in a comedy or daily life, it seems like law is nothing if it is not serious (seriously: if people don’t think following the law qua law is a big deal, then goodbye legitimacy, hello anarchy).
So when I say that blogs seem to have become more serious in the past decade, that seems like it may be an unalloyed good. And in one sense, I think it is. Back in the early days, there was a sense that whatever blogs may have been, they were not authoritative and were certainly not authority. But then, that gradually changed. I couldn’t find it but I think Dan posted the first time when a court cited a Prawfs thread for some proposition. This must have happened at some point, and regardless of whether it was commemorated (it was mentioned here, for example, but can't find the Prawfs link) it was clearly a big deal because it signaled that blogs were beginning to be—ahem—taken seriously by not just other bloggers or even academics but judges themselves (and who is more serious than them?).
This trend strikes me as totally legit, and actually a very good reflection on the intellectual egalitarianism of the legal profession. For my money, good arguments are good arguments, whether they’re in the Harvard Law Review or scrawled on a cocktail napkin (and the same goes for bad arguments). The initial dismissal of blogs as categorically not-serious strikes me as condescending status-snobbery, with a fair dollop of Luddite digital skepticism thrown in. If some people are blogging about what kind of cereal they now like for breakfast, that does not mean that a convincing legal argument made on the same blog is not a convincing legal argument. It just means it is a convincing legal argument made in an unorthodox (or formerly unorthodox) place. For what it’s worth, I just checked and my Prawfs posts have been cited a literal handful of (i.e., five) times in secondary sources, per the Westlaw JLR database. That’s not an especially impressive figure, but it is exactly five citations more than I would have ever predicted at the early advent of my participation in this blog.
Blogging has become serious in a second sense, though, about which I feel more ambivalent. In January 2006, when I first dipped my toes into the PrawfWaters, there was (and may still be) a real sense that bloggers were considered frivolous (i.e., not serious) scholars, which could be the death knell of a career. (Anyone else recall L’affaire Drezner, much blogged about on this site back then?)
And this suspicion did not seem totally crazy. It was not entirely clear back then what a blog post was or should be, so the variance was very high. It was sort of like my current city of residence, Houston, where the lack of zoning means you see improbable concatenations of architecture on the same block (there’s one strip of Kirby that goes KFC, office high-rise, funeral-home-turned-nightclub). You’d see a post with real heft on something like religious freedom cheek-by-jowl with some random-ass musings about what Dan memorably called “Sweet Sassy Tallahassee” (or, as the case may be and often was, “Funky T-Town”). I noted from this post in 2005 that Dan referred to Prawfs as a place where professors would discuss “law and life,” and that binary reflects the more open-textured content I recall from back then.
Now, to echo Paul’s point, not so much. The content of Prawfs, and I think of most similarly situated blogs, is largely, if not entirely, serious. That is, most of what people take the time to write is legal analysis, law current events, opinions about these things, etc. There may still be some self-referential writing (like this very post), but even that is pretty serious, in content if not in tone. And a lot of major figures in legal academia devote substantial amounts of their professional energy to blogging—consider Solum’s blog, the U of Chicago faculty blog, and Balkinization, just to name three of the top of my head.
I’m less sure what to make of this trend. On one hand, a lot of stuff on the internet is irrelevant, off-topic garbage, and one could say that it makes perfect sense for legal blogs to focus on legal topics, because that is the content people visit them to read. There’s something to this point. But I also think something is lost when blogs become more narrowly focused. They are more serious, but this almost inevitably means they are also less fun. And while I’m not sure Prawfs or any other blog was ever a laff riot (the tag line since forever has referred to Leiter’s “kind of boring” dig from way way back), I sort of miss the more freewheeling, open-range blog style of a decade or so ago.
Then again, maybe difference in content from a decade ago is not so great, as Howard’s amusing post about SCOTUS Ben and Jerry’s flavors may indicate. Am I merely nostalgia-stricken? If so, I should seriously reconsider my capacity to objectively assess this blog’s degree of seriousness.
Tuesday, April 14, 2015
Prawfs and gratitude
The following contribution to the Prawfs Tenth Anniversary is by Will Baude (Chicago).
I have felt Prawfsblawg's tenth anniversary with both fondness and despair. Fondness because of what this blog and Dan gave to both the blogosphere generally and to me; despair because like so many people who knew Dan, I now know that I'll never be able to give him the thanks I owe him.
Dan invited me to guest-blog at Prawfsblawg in its first year of operation, 2005. I was already a blogger at the time, but I was not a "Prawf." I was just a second year law student who had no idea how impertinent I was. On the level plane of the internet, it just seemed natural to engage with and criticize law professors as if we were all part of a shared intellectual enterprise.
Of course this was insane. And not everybody encouraged it. As Howard has noted, many folks advise against blogging even by tenure-track law professors, even today. At the time blogging was much less respectable and I had plenty of concerned friends tell me that it was dangerous and I should quit before I got in trouble.
But not Dan. Even better, Dan also never told me *not* to stop, as if it were even in question. He just argued with me on the merits and invited me aboard, as if it were the most natural thing in the world. By nonchalantly bringing me to Prawfs, Dan subtly encouraged me to stay impertinent, and to think of the legal academy as someplace I belonged.
Of course, now I know that that's how Dan was with so many other people. When he took you and your ideas seriously it made you a little more fearless. You were a little more willing to ask an impertinent question or toss out a new idea. Often, the idea wouldn't pan out, and that was fine. But occasionally that insane idea you had turned out to be so insane that it was brilliant and true.
Monday, April 13, 2015
Anniversary Topic # 2: What are Prawfs and blogging like today?
Wednesday, April 08, 2015
PrawfsBlawg and a scholarly career
I came to Prawfs relatively late. I first met Dan at a PrawfsFest! in Miami in fall 2006 (having been a VAP at FSU a few years prior, I knew many of his new colleagues and that facilitated the introduction). I did an extended guest stint in fall 2007 (the blog was about 2 1/2 years old) that turned into a slot as permaprawf the following spring. And seven years later (ten for the blog), here we are.
In thinking about this topic, my recurring thought is that Dan and this blog enabled my scholarly career. Some significant portion of my academic reputation (draw your own conclusions on what that may be) has been established through this blog and what I have written here. Several past, present, and future scholarly projects have begun as single or multiple posts; I was able to work out ideas in the early stages by writing them here and to obtain feedback from readers. I have written more words about more topics and ideas than ever would have been possible had Dan not given me this opportunity. Some have been about legal education, some have been related to my core scholarly interests, some have been on topics in which I am interested and have thoughts (or questions), even if not the full interest to pursue as larger projects; many of these are ideas that I never would have written, much less presented, but for this medium. Prawfs has offered a scholarly and creative voice and outlet that I never would have exercised or had the opportunity to exercise otherwise.
I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle--the more you use it, the more you are able to use. Rather than distracting from "real" scholarship, being on this site has allow me to fulfill the need to do "other stuff" while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).
I cannot remember what I did with my writing and my writing time before Dan invited me to join Prawfs. And I cannot imagine where my career would be without it.
Monday, April 06, 2015
Anniversary Topic # 1: What has PrawfsBlawg meant to you?
So, here is the first topic: What has PrawfsBlawg meant to you?
Feel free to discuss anything within this broad subject. Some topics might include: What was your initial exposure and experience with PrawfsBlawg and what did you think? What were your first experiences blogging, whether here or elsewhere? How, where, and when did you meet Dan? What do you remember about Dan's early blogging work?
Again, if you would like to contribute, email your post to Paul (email@example.com) or me (firstname.lastname@example.org).
Friday, April 03, 2015
Short, last post to highlight a disturbing Fourth Circuit case that illustrates how much excessive police invasion and violence our system is willing to tolerate (even when it means disturbing a jury verdict). In Kane v. Lewis, the Fourth Circuit overturned an award of $250,000 to the father of a young Maryland man who was shot by a SWAT team. Yes, the man came out of his room with a knife (found sheathed on the body later). One plausible explanation for that? SWAT conducted a middle-of-the-night raid of his apartment, with no "knock and announce." What basis for the subpoena that led six SWAT officers to break down his door? Trace amounts of marijuana found in his trash. The search led to more (but not much more) of the same.
And, with that uplifting conclusion to my PrawfsBlawg stint, I'd like to thank Howard for the opportunity to join the Prawfs community and all those who contribute to the site for their posts.
Wednesday, April 01, 2015
Welcome to April. Thanks to our March visitors, some of whom may be sticking around for the remainder of this week to tie-up loose ends.
And welcome to our April slate of visitors--Carissa Hessick (Utah), Tung Yin (Lewis & Clark), Amy Landers (Drexel), Brian Galle (BC, headed for Georgetown), Michael Waterstone (SouthwesternLoyola-LA, still visiting at Northwestern), and Jan OseiTutu (my FIU colleague).
In addition, April 2015 (the 5th, specifically) marks the ten-year anniversary of PrawfsBlawg, which DanZ"L launched as a forum for junior ("raw") law profs with this simple post. It has changed over the years as we all have grown with the site (only Richard is pre-tenure among the PermaPrawfs), while hopefully continuing to fulfill its goals. To that end, April will include a series of week-long mini-symposia on topics related to blogging, law teaching, and other matters near and dear to Dan and to this community. And, of course, it offers an opportunity to reflect on our continuing loss. We welcome guest commentaries and contributions, particularly from those who were involved, connected to, or engaging with Prawfs and with Dan a decade ago.
Paul will announce topics later this week and our first symposium hopefully will begin next Monday. Anyone wishing to contribute can email their posts to Paul or to me.
Tuesday, March 31, 2015
A Collection of Thoughts on Depression, Perverse Incentives, and Misunderstanding Mental Illness
Listening to this interview on NPR's Weekend Edition Saturday morning, I was not surprised to hear that Andreas Lubitz, the pilot who may have deliberately crashed a Germanwings plane into the Alps last week, also deliberately hid his depression from Lufthansa (Germanwings' parent company). Mental illness continues to be an embarrassment to people, despite the large numbers of those who suffer from some form of depression/anxiety or other condition.
I was more surprised to hear what the result would have been had Lubitz disclosed during his training that he was seeking treatment for depression. According to Matthias Gebauer of Der Spiegel, Germanwings would have "kick[ed] him out of education and pull[ed] away his pilot license." When Scott Simon [the radio host] pushed back noting that many people suffering from depression are able to be highly functioning members of society, Gebauer's response was that "pilots . . . that is a very special job [with] strict responsibility." While not speaking for the airline specifically, this seems like a weak response for an anachronistic policy. And, instead of deterring those with "mental illness" from becoming pilots, the policy, in this case (and I suspect in others), forced Lubitz underground with the treatment he clearly needed.
The perverse incentives created by the Lufthansa/Germanwings policy arise in the bar admission process too. The Justice Department is investigating the Florida Supreme Court over its questions about the mental health of bar applicants. Among the routine questions posed to would-be-attorneys is whether they have ever been diagnosed with a mental illness such as bipolar disorder, psychosis or depression. Not surprisingly, this question (questionable in its purpose) drives applicants to lie on their questionnaire or, worse, away from seeking treatment. Florida is not the first state to come under fire from the Justice Department for these potentially discriminatory questions. In the past few years Vermont and Louisiana have received letters from the agency criticizing their invasive mental health-questions. In Louisiana's case, Justice threatened to sue before an agreement was reached.
Relatedly, to the extent it reflects our general cultural ignorance about mental illness, in recent months police have come under fire for their inability to peaceably handle the mentally ill, including using lethal force against unarmed, clearly ill people. of A particularly sad instance of this took place in Georgia a couple of weeks ago. Anthony Hill, who began to suffer symptoms of bipolar disorder after returning from his service in Afghanistan, was shot and killed as he, naked and unarmed, approached police despite warnings to halt. Meanwhile, it is well known that a large percentage of those in prison suffer from untreated mental illnesses -- this is both an indictment of our choice to warehouse ill people and a waste of limited government resources. We cannot condemn the criminal justice system's inhumane treatment of the mentally ill, however, without noting that it reflects similarly uniformed decisions made in numerous societal contexts.
Lubitz's suicide mission/mass murder has led to knee-jerk responses by US airlines. Currently, "due to a growing public awareness that common mental disorders like depression are treatable," these airlines have more reasonable policies toward employees' mental health. They are now reviewing these policies to determine if they are not doing enough to "detect" pilots with mental illness. This seems like the wrong lesson to learn from the Germanwings tragedy but given the many contexts in which our culture and polity refuse to acknowledge the reality and complexity of a range of mental illnesses, it is sadly not surprising.
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.
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.]
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 here, here, 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.
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?
Wednesday, March 04, 2015
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.
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.]
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.
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.
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.
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 the “specialty 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.”
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.
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.
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.
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.
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.
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:
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.
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.
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.
Tuesday, January 13, 2015
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.
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.
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.
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.
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.
Wednesday, December 31, 2014
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.
Saturday, November 01, 2014
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.
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.
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.
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:
I desire only to smell it, drink it, and dream of it.
I prefer to think of myself as a being of only thought and light.
Don't care what coast animates what character. Still cry every time Mufasa dies.
Seriously, Buffalo has an NFL team? Huh.
It's so obviously the best place to live in America we didn't even try for 10 reasons.
Holy Mother Goddess, pagans can go on and on and on...
Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."
No Tweets about conferences? That's like the most exciting thing we do, dude.
Back in my day, we used to call this a "mix tape".
Guessing Joe Slater knew most of them.
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.]
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. . . . .
Monday, September 29, 2014
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]
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.
Tuesday, September 09, 2014
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.
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.
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.
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.
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.