Wednesday, October 07, 2015
Should the Umpqua shooter's mother be liable?
Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0
Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?
Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:
[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . . Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation. This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.
Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law. [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases. [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths. [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing. It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer. [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.
Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.
I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!
Sunday, October 04, 2015
Today is the 10th anniversary of my first post on Prawfs. I started the day after the Harriet Miers nomination -- the nomination that launched the blawgosphere. I was only a guest blogger, but then this happened, and Dan invited me to stay on permanently. It has been a wonderful experience. I cannot imagine where I would be right now in my career without Dan and Prawfs. Blogging here enabled me to be a part of the national conversation with other scholars (and future FTC commissioners) on the controversies of the day. It got me to meet (and cyber-meet) a lot of really interesting law profs through book clubs, the Research Canons Project, open-source casebook conversations, everyday blogging, and the Prawfs (& cosponsors) Happy Hours that Dan masterminded. I never made a PrawfsFest!, which I really regret, but as part of the Prawfs community I met a lot more folks than I ever would have met otherwise in the academy.
The last few years have been tough for law students, law schools, and law profs. And the last year has been particularly hard as we continue to mourn Dan's absence. The Prawfs community has stayed strong in Dan's memory, and I know the site will continue to offer a place for "raw profs" young and old to meet, greet, tell us a little about themselves and their work, and make connections with the national community.
It is with sadness, then, that I tell you that I am leaving PrawfsBlawg. I will be joining the Conglomerate to do more blogging on corporate and employment law issues. I haven't done much blogging in the past year, and I haven't done much subject-area blogging in much longer than that. And I've probably done too much blogging about law schools and the issues they face. If you're interested in some of my bigger picture perspectives, you can check out "Funding Legal Scholarship" and "Law Students and Legal Scholarship," both of which started as blog posts here. (And I continue to think that AALS should be a bigger player here, even in the face of Dean Rodriguez's naysaying.)
So this is a goodbye -- at least in my capacity as "perma-prawf." I look forward to Prawfs sticking around for at least a few more decades, serving as a place for folks in the law school universe to share ideas, concerns, and sentiments. And I look forward to participating in that community. Thanks to everyone here for their hard work and generosity of spirit. And one more "thanks" to you, Dan -- you are the root for all that has followed.
Thursday, October 01, 2015
Happy October. A farewell and thanks to our September guests, who may have a few final words.
And welcome to our October guests: Returning to Prawfs are Eugene Mazos (Wake Forest), Deborah Ahrens (Seattle), Andrew Siegel (Seattle), and Fredrick Vars (Alabama). And joining us for the first time are Rhett Larson (Arizona State), Andrew Kim (Concordia), and Kalyani Robbins (my colleague at FIU).
Monday, September 14, 2015
Subconscious Juror Bias
I am a big fan of juries. But it is our job as lawyers to be sure that we structure the process of summoning, seating, and using juries in a way that maximizes their effectiveness. I have argued that we need to do a better job of writing instructions they can understand (because they really try), and that broader jury question formats are more consistent with the political and instruments purposes of the jury. My interest became more than academic when I actually served as a juror in a criminal trial in 2014. That experience reinforced my theoretical expectations: a very diverse group of jurors analyzed the evidence, listened to and learned from each other, deliberated carefully, referred to the court's instructions, and took the process very seriously.
I was so enthusiastic about the experience that, the following semester, I taught a seminar about juries. The students read a lot of empirical information about juries -- from selection through deliberation and on to post-service issues. And they did a bit of research of their own. (The students also blogged, which I recommend as a way to get students to think and write). One issue kept coming up in almost every context: the impact of juror biases, especially racial biases, on the entire jury system. The Batson process would be laughable if the impact weren't so serious. In addition, as in other areas of the law, subconscious bias on the part of people who believe themselves to be racism-free is hard to prove.
That's why I found this recent New Jersey case, State v. Brown & Smith, so fascinating. Brown and Smith were charged with carjacking, and their defense was that they were not the carjackers. During jury deliberations, Juror #4 told two other jurors that she had seen two African-Americans in her neighborhood and this made her “nervous” because this was not typical in the area where she lived. She therefore thought this “may have had some kind of sinister connection to the trial.” The judge questioned all three jurors and assured them that they were not in danger, but the jurors' assumptions about race went largely unexamined.
In considering on appeal whether the jurors should have been removed, the Appellate Division got it:
When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system. (p. 3 of PDF)
The court wrote at length about the trial process, hoping to provide guidance to trial judges that would make clear that the trial judge's attitude -- "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking" -- is unacceptable. A juror's assurance that he or she has no biases, or can set them aside, should not overcome evidence of lurking racial profiling.
By the way: for a wonderful weekly email with news related to both civil and criminal juries, subscribe to the National Center for State Court's Jur-E Bulletin.
Monday, August 31, 2015
Happy, September, everyone.
Thanks to all of our August guests, who may be sticking around for a few final days. And please welcome our September guests--Garrick Pursley (FSU), Mark Drumbl (Washington & Lee), Tamra Rice Lave (Miami), and Beth Thornburg (SMU). And Ari Waldman (New York Law School) will be staying for another month.
Tuesday, August 04, 2015
Call for GuestPrawfs, 2015-16
As the new school year looms, so does our annual need for a new slate of GuestPrawfs to keep this site moving. We are looking to fill slots beginning in November and for the rest of the academic year. If you are a past guest, please (please!) come back. If you have never been at Prawfs (or blogged at all) before and would like to give it a try, please join us. We especially encourage pre-tenure faculty--Dan & Co.'s original target--to join us.
If interested, please email me at firstname.lastname@example.org, along with two or three months that work for you. Also, if you have friends/colleagues who might be interested in blogging but might not see this post, please pass it along.
Saturday, August 01, 2015
August is upon us, which means that classes and submission season both loom and that it is time to say thanks and goodbye to our July visitors--Jeff, Catherine, Robin, Leigh, and Heather.
And it means welcoming our August visitors. Returning to Prawfs are Jessie Hill (Case Western), Ari Waldman (New York Law), and Shima Baradaran (Utah). Joining us for the first time are Fabio Arcila (Touro), Andrea Boyack (Washburn), and Bertrall Ross (Berkeley). Welcome and enjoy the month.
Friday, July 31, 2015
The End of Ambition?
I hear that sixty is the new forty. I hope so. It's the end of the month, and I'm thinking about ends. And if the bromide is true, I'm premature. But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.
By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation). Next year will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still. (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)
Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.
My friend, the philosopher Susan Neiman, has a new and neat little book about becoming and being, entitled Why Grow Up? Subversive Thoughts for an Infantile Age (New York Times Book Review by A.O. Scott here). Susan is a fabulous translator of Enlightenment philosophy (particularly Kant) into practical wisdom. I don't necessarily share her outcomes (she's a lot farther to the left than I, a passionate moderate) but given her fundamental message, there's a lot of room for reasonable differences. That's because adulthood is (to quote Scott's pithy summary) "the endless navigation of the gulf between the world as we encounter it and the way we believe it should be." Or as Susan says, it "requires facing squarely the fact that you will never get the world you want, while refusing to talk yourself out of wanting it."
So adulthood is also a mediation between simply being, on one hand, and continuing to become, on the other. Maybe being closer to the end than the beginning means that you have to be more selective about your becomings. The practical translation of that thought is the expression "life is too short," something that takes on more quantitative meaning the older you get, and particularly during faculty and committee meetings.
Even this blog post is a little becoming, because when I'm done with it, I've made the world a little more like it ought to be than it was (at least for me). Each paragraph, each article, each book, each lecture, each student one influences is a little becoming. But is accepting that as the rest of one's career also the end of ambition?
Wednesday, July 29, 2015
MarkelFest! at SEALS Thursday night
The annual MarkelFest! at SEALS will take place at 9:30 p.m. this Thursday, July 30, at the Palm Court Bar at the Boca Resort. Steve (unfortunately, the only PermaPrawf who will still be there on Thursday) will be your host.
Apologies for the late notice. But spread the word around SEALS and thanks to everyone for helping maintain this SEALS tradition.
Saturday, July 18, 2015
Faculty Lounge Symposium on Go Set a Watchman
Steve Lubet and the Faculty Lounge are hosting an on-line symposium on Go Set a Watchman and they are looking for guest posts offering "takes on Watchman, as well as reassessments of Mockingbird." If you interested, check out the announcement.
Wednesday, July 01, 2015
It is July already, which means we all have to start thinking about how far behind we are on our summer projects.
But it also means we get to welcome a new set of guests. For July, that means returning players Jeffrey Lipshaw (Suffolk) and Robin Effron (Brooklyn) and first-timers Leigh Osofsky (Miami), Catherine Smith (Denver, whose amicus on the constitutional rights of children was cited by the majority in Obergefell), and Heather Whitney (Bigelow Fellow, Chicago).
And we say goodbye and thank you to Corinna, Hadar, Seth, Aaron, and Megan, who helped maked June one of our busiest and most-visited months. They may be sticking around for a few days for a few final words.
And another reminder that we are always looking for guests, so please email Paul or me if you are interested in guesting in the coming school year.
Wednesday, June 03, 2015
Guest Blogging: Strange Bedfellows
Thanks to the PrawfsBlawg for welcoming me as a guest for June 2015!
Early summer is a good time to think broadly about how we structure the courses we teach, before the daily and weekly deadlines start to constrain our choices. In that spirit, I will devote this month’s guest posts to the theme of Strange Bedfellows in the Constitutional Law Curriculum: cases that are not ordinarily taught together, but could be.
For many courses that rely on the case method, case selection can be a major outlet for a teacher’s creativity. When teaching, say, the intentional tort of battery or the proper operation of Rule 11, one can find good vehicles from literally thousands of cases from dozens of jurisdictions. This is less of an option for US Constitutional Law, which by its nature largely devoted to teaching a single text interpreted through a canon of famous (and infamous) cases. If a Con Law teacher isn’t entirely happy with the facts or reasoning of Brown v. Board of Education as a teaching vehicle, it can’t simply be replaced with another opinion that better matches the teacher’s pedagogical goals.
The major creative choice in this course is to decide which relationships to emphasize among a basically fixed set of cases. The usual approach structures the course into a series of doctrinal silos—e.g., begin with judicial review, then move to powers of Congress explored one at a time, then individual rights explored one at a time—with the cases assigned to the best-fitting silo. Among the problems with this approach is that almost all of the important Constitutional Law cases involve more than one silo. US v. Windsor (the DOMA case) is about Congress’s power over marriage and about fundamental rights and about equality and about the proper role of the judiciary and about methods of constitutional interpretation. If we reduce our reliance on the silos, a case like Windsor (and virtually any other really important canonical case) contains many opportunities for comparison among cases that aren’t ordinarily conceptualized together.
The inspiration for this blogging project came while working on my new casebook, An Integrated Approach to Constitutional Law (out now! don’t delay!). The writing process made me realize that I am by nature a lumper, not a splitter. I hope you will enjoy reading about some differently-structured lumps.
[To see the various posts that make up the series, click on the "Teaching Law" link below, and then scan the posts from June 2015.]
Tuesday, June 02, 2015
June is already two days old, so my apologies for being slow getting started.
For June, we have returning guests Hadar Aviram (Hastings), Andrew Siegel (Seattle), Deb Ahrens (Seattle), and Aaron Caplan (Loyola-LA). And joining us for the first time are Corinna Lain (Richmond), Megan LaBelle (Catholic), and Seth Davis (Irvine). Welcome (or welcome back) to all.
And a final thank you to our May visitors.
Tuesday, May 26, 2015
LSA Panel in Memory of Dan Markel
At 11:30 a.m. this Friday at the Law & Society Association Annual Meeting in Seattle, there will be a Service Panel, entitled Combining Academic Work and Social Media Presence, held in Memory of Dan Markel. Panelists include former GuestPrawf Hadar Aviram. We hope any Prawfs authors and readers who are in Seattle can attend.
Friday, May 01, 2015
Welcome to May. Thanks to all our April visitors, as well as those who chimed in for our Tenth Anniversary Mini-Symposia (I think Dan would have appreciated the ideas that were shared). And I still owe a post from the final week.
Wednesday, April 29, 2015
Anniversary Topic #4: What does the future hold? Prawfs and Other Blogs
I suppose that if I didn't believe that there was a future for Prawfs, I wouldn't be blogging here. I'd be off somewhere not reading this. I think that Twitter, Facebook, and blogs have their strengths. None of them is a replacement for the other.
In the broadest sense, I wonder if our vocabulary needs different words for "blogs,"the way that different Northern languages have hundreds of words for "snow." As a few examples, there are very high profile super-blogs, commercialized blogs, highly personal blogs, and blogs that are adjunct to major newspapers. After all, a blog is a platform. Any blog's authors, commenters and readers define its purpose, and re-define it continually. Perhaps prawfs will always need blogs as a centralized place to present and consider different ideas on their own pace, a place to try to make sense of things as they unfold. Where law schools are geographically distant, blogs are one way to find out what others are thinking about issues that many of us have in common. Mediums that limit discussion to the 140 character format, or in a format that folds in ads and odd timeline re-shifts, are less conducive to those types of discussions.
If blogs are quieter now (are they?), I suspect that being in law schools in a time of crisis is one plausible explanation. People are busier/in meetings/building programs/speaking to press/doing scholarship/at a recruitment event/etc. in ways that have taken precedence perhaps. Regardless, I think it's healthy to re-assess direction from time to time. That's part of building a future.
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.