Sunday, February 22, 2015

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

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

Back to the law school rankings—

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

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

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

 

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

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

 

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

 

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

Monday, February 09, 2015

Comments working again

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

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

Wednesday, February 04, 2015

PrawfsBlawg on Twitter

PrawfsBlawg is now on twitter!

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

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

Sunday, February 01, 2015

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

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

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

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

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

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

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

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

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



 

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

Rotations

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

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

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

Wednesday, January 28, 2015

Primed for Change

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

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

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

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

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

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

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

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

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

Thursday, January 22, 2015

Sutter Health vs. Blue Shield: War of the Gargantuas

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

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

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

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

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

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

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

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

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

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

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

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

Watch out where Gargantua steps.

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

Monday, January 19, 2015

Bedside Collections Visits in the Emergency Room

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

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

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

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

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

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

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

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

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

Don't forget your wallet.

 

 

 

 

 

 

 

 

 

 

 

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

Sunday, January 18, 2015

Sponsored posts, explained

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

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

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

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

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

Tuesday, January 13, 2015

New permaprawfs

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

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

Monday, January 12, 2015

The Art of Saving a Life

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

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

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

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

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

 

 

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

Friday, January 02, 2015

It's Been Real!

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

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

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

Thursday, January 01, 2015

Maybe The Knick Needs a Few Midwives

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

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

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

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

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

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

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

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

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

 

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


 

 

 

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

Happy New Year and Rotations

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

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

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

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

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

Wednesday, December 31, 2014

Signing Off

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

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

Saturday, November 01, 2014

Greetings

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

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

Rotations

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

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

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

Thursday, October 16, 2014

Does Teaching Torts Warp Your Brain?

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

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

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

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

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

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

 

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

Monday, October 13, 2014

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

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

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

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

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

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

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

2. 10 Explanations for Everyday Things Your Body Does

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

3.10 Things You Didn't Know about the Lion King

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

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

Seriously, Buffalo has an NFL team?  Huh.

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

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

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

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

7. 10 Thoughts While Running Long Distances

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

8. 10 Things You Need to Stop Tweeting About

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

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

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

10. 10 Things You Didn't Know about Wrestlemania

Guessing Joe Slater knew most of them.

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

Thursday, October 02, 2014

Is Ex parte Young Doomed?

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

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

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

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

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

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

Wednesday, October 01, 2014

Life is short

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

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

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

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

Monday, September 29, 2014

Rotations

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

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

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

Friday, September 12, 2014

Kopald on health problems from WiFi

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

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

Tuesday, September 09, 2014

Remembering Danny

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

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

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

Tuesday, September 02, 2014

Introduction: Richard Chen

The following is by September GuestPrawf Richard Chen.

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

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

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

Rotations

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

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

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

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

Friday, August 15, 2014

Introduction: Irina Manta

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

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

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

Wednesday, August 13, 2014

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

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

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

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

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

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

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

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

Tuesday, August 05, 2014

Guest prawfs, unite

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

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

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

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

Return to blogging

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

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

Ethan Leib

Paul Horwitz

Rick Garnett

Matt Bodie

Steve Vladeck

Orly Lovel

Rick Hills

Howard Wasserman

Jonathan Simon

Lyrissa Lidsky

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

Monday, July 28, 2014

First MarkelFest! at SEALS

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

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

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

FSU Memoral at SEALS

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

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

Sunday, July 13, 2014

Refresh Rates and Traffic Rankings in the Law Prof Blog Network

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

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

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

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

Tuesday, July 08, 2014

Thoughts on Work-Life ImBalance from Those Left Behind

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

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

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

...

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

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

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

Wednesday, July 02, 2014

Some good news

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

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

Congrats Paul and Rachel!

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

Tuesday, July 01, 2014

Rotations...and Happy Canada Day

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

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

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

 

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

Thursday, June 26, 2014

"Experiential" Scholarship?

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

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

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

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

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

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

Sunday, June 22, 2014

When Is an Anti-Homelessness Ordinance Vague?

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

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

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

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

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

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

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

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

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

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

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

 

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

Monday, June 02, 2014

Rotations and Sundry

Greetings and Happy June!

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

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

That's all for now.

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

 

 

 

 

 

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

Saturday, May 31, 2014

Until September

 

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

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

I look forward to visiting again in September.

With best wishes,

Jennifer

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

Friday, May 23, 2014

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

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

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

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

 

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

 

 

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

Monday, May 19, 2014

Introduction: Re's Judicata

Thanks to Dan and the other Prawfs for inviting me to guest blog!  For the next few weeks, I'll be cross-posting some material from my new blog, "Re's Judicata," which provides offbeat commentary on the Supreme Court.  My first few posts have been on topics like "Schuette and Quidditch," "Heien and the Other Rule of Lenity," and "Custom in Town of Greece and Vonnegut's 'Spruce Falls.'"  This coming year, I'll start teaching criminal procedure and federal courts at UCLA; if you're curious, my papers are here.  I'll look forward to your comments as we wrap up an exciting end of term!

Posted by Richard M. Re on May 19, 2014 at 08:07 AM in Blogging | Permalink | Comments (0)

Tuesday, May 06, 2014

Outcomes Based Assessment is Coming

Thanks for all the comments about evaluation of faculty teaching—and thank you to Professor Bainbridge for the transition to the next topic—Outcomes Assessment.   The days when we in legal education could say that the bar exam did outcomes assessment for us are rapidly coming to an end.   Outcomes assessment (or “output assessment as it is sometimes known) is something we in legal academe will  soon likely be required to do in every class, for every student.  Why?  Because our regional accrediting agencies already demand it and the ABA has already put forward for comments changes to Section 301 here reflecting this report by a 2008 subcommittee.

 If I’ve lost anyone here about regional accrediting agencies, now is a good time to lift the veil.   So long as we depend on our students using federal student loan programs to pay their tuition, we must meet the Department of Education’s standard that we provide a “quality” education.  And while the DOE does not tell us, or anyone else, what “quality” is, it can require that we submit ourselves to an entity it recognizes as being qualified to do so.  We all know that the ABA sets standards of quality for legal education, but unless you have a role in developing new programs, you may not be aware of your regional accreditor, but rest assured your Dean and Provost think about them all the time.  For example, Texas A & M University would not have been able to acquire Texas Wesleyan Law School without the approval of the Southern Association of Schools ad Colleges.  Here’s the TAMU Press Release and here’s the actual SACSCOC announcement.

 So back to Outcomes Assessment— it makes sense to evaluate law schools and faculties on their results rather than their efforts (we don’t raise the grades of students because they “tried hard”)  but like all assessment it can’t happen without first identifying what outcomes to measure and how to do it.    Is it mastery of material in individual courses?  Bar Passage? Employment in a J.D. required job?   Competency in practice?  Client satisfaction?  Personal satisfaction?  All of these are desirable outcomes for our law students, but the question legal education shares now with all higher education is which of them can be directly linked to what happens in law schools.

 Luckily for us as we make the transition to outcomes assessment, there is a wealth of reference material.  This piece from Prof. Gregory Munro reviews the topic of outcomes assessment at the level of the individual law school class.  Since we are relatively late to the outcomes assessment party there are a lot of models out there.  Here is a very interesting article by Profs. Deborah Maranville, Kate O’Neill, and Carolyn Plumb drawing lessons for legal education from Engineering’s experiences in assessing not just content outcomes but also ethical ones.  Here is an article by Carolyn Grose about her experiences integrating outcome measures into her Trusts and Estate class.

At a practical level, our friends at UCHastings have put together a very helpful compilation of resources, including sample syllabi, for law professors who want to create and then assess learning objectives in their classes.  The Institute for Law Teaching and Learning is a rich and frequently updated source of helpful material on all aspects of law teaching, very much including issues of outcomes assessment. 

This will be a big change for us both on the level of setting individual output/outcome goals for each of our classes and then on a larger scale for our schools as a whole.  But it’s a change that’s coming and for which we need to prepare ourselves.   I know that these links only scratch the surface of the work being done within legal academe to address the need for outcomes measures and I invite everyone to include material they either created or know about that will be helpful to the community at large.

 

 

 

 

Posted by Jennifer Bard on May 6, 2014 at 11:55 PM in Blogging, Current Affairs, Life of Law Schools, Teaching Law | Permalink | Comments (2)

Another Canadian usurps power, fame and riches

My dear friend and fellow Canadian passport holder Sujit Choudhry was named dean of Berkeley Law earlier today (well, yesterday technically). That's the latest in musical chairs among Suj, who moves from NYU to Berkeley, Gillian Lester (another Canadian) who will move from Berkley to helm Columbia Law, and Trevor Morrison (yet another Canadian and former Prawfs contributor), who began this wild rumpus, when he moved downtown from CLS to NYU. These three deans hailing from Canada join others with some Great Northern lineage: Austen Parrish is now at Indiana Maurer, Doug Sylvester is at ASU (though I think he's really a Yank who merely studied in Canada), and Camille Nelson (Suffolk)--Austen tells me she was Jamaican born but  grown up in Toront0.  As I understand it, no school has as yet endured a coup by Paul Horwitz, Rob Howse, or myself (or Kevin Davis or Katrina Wyman ). But in Paul's case, it's merely a matter of seconds, surely. And the broader point holds: the conspiracy's insidious tentacles are far-reaching and getting stronger, and just when you least expect it, you might end up working for a Canadian, even though s/he will surely insist you're merely working with him or her. 

Caute.

P.S. Thanks to Steve Lubet at Northwestern (a fellow Canadian), I came across this video of how Canada sucks the life-force from the unsuspecting, rendering them giddy and unfailingly polite.

Posted by Dan Markel on May 6, 2014 at 12:42 AM in Blogging, Life of Law Schools | Permalink | Comments (3)

Sunday, May 04, 2014

CrimFest 2014 (aka the Sixth Annual CrimProf Conference)

Folks, I'm delighted to share some information regarding the upcoming CrimProf Conference at Rutgers-Newark that the indomitable Carissa Hessick and I have cobbled together with the help of many others.  

First, the conference schedule is here. We have 18 panels and over 60 people slated to present and/or comment. If you're not on the list of presenters/commenters but would like to attend, you are welcome to do so if you're a crimprof or vap/fellow. Information about registration is below. The very modest fee of 50$ gets you breakfast and lunch for two days along with snacks/coffee. Big thanks to our hosts at Rutgers-Newark. Please note the registration fee is NON-REFUNDABLE, and the deadline for registration is June 1, 2014. 

In order to register, you have to use Paypal (kudos to Carissa for figuring this out). Here's the button that should get you on your way to the registration fee:

Posted by Dan Markel on May 4, 2014 at 12:14 AM in Blogging, Criminal Law | Permalink | Comments (2)

Thursday, May 01, 2014

A Quick Hello

I am happy that Dan and PrawfsBlawg are letting me guest here this month.  Thanks!

I'm Kristen Osenga from the University of Richmond School of Law.  My teaching and research interests are intellectual property, interpretation, and language and the law, with a particular interest in patent law.

This month I plan on sharing some of my research and thoughts on my latest obsession -- patent trolls.  Who isn't fascinated by these terrible creatures?  I also want to talk about some cognitive biases I see at play in intellectual property law.  Finally, this term has also been a banner year for patent cases at the Supreme Court...of course I'll be weighing in on these as the opinions come down.  

And so as not to bore you all with patent law, patent law, and more patent law, I have been thinking about (and experimenting just a bit) with "flipping the classroom."  Although I think this is an intriguing way to teach and allow for more problem-based learning or experiential exercises in the classroom, I am surprised at some of the skepticism and pushback I have heard.  I look forward to sharing my (not so great) experiences, my plans for doing it better the second time around, and some of the debate about whether it is good for students and/or worth the excess work.

Posted by Kristen Osenga on May 1, 2014 at 05:03 PM in Blogging, Intellectual Property, Teaching Law | Permalink | Comments (0)

Rotations

Greetings and Happy May Day!

The first of the month is upon us and with it a time to introduce our guest bloggers: Jennifer Bard from Texas Tech, Kristen Osenga from Richmond, and Adam Steinman from SHU en route to Alabama. Our cast of characters from April may stick around for a bit, but I want to thank them for their contributions thus far and note that they might just linger as they get some remaining posts out.

Hope the onset of May brings champagne, strawberries, and Maypole dances your way.

Posted by Dan Markel on May 1, 2014 at 04:28 PM in Blogging | Permalink | Comments (0)

Introduction

Hello—and thank you to Dan and PrawfsBlawg for inviting me to guest this month!

My name is Jennifer Bard and I am a Professor at Texas Tech University School of Law where, among other things, I direct our Health Law Program.  I’ve been blogging in the “Profs” family at HealthLawProfs and more recently also at the Harvard Bill of Health.  My research interests include legal & ethical issues in conducting research, the effect of increasing knowledge about the brain on the legal response to criminal conduct, and the intersection between Constitutional Law and the regulation of health care delivery and finance.  Here’s where you can find some things I’ve published.

Over the next month, I look forward to blogging about issues I’ve been thinking about a lot including the future of legal education—both in terms of curricular reform and addressing the substantial challenges facing us about the cost of law school and the rapidly changing job market, current issues in higher education, and of course on-going developments in health law. 

My thinking has been shaped a lot by two degrees I got after law school.  The first was a master’s of public health which gave me the “prevention” model of solving.  The big idea in public health is that it’s always easier to prevent a problem than to solve one—but first you need to understand its causes.  The second is a Ph.D. in Higher Education that introduced me to the much larger theoretical and regulatory context in which legal education occurs. 

This is a time of significant change in higher education as it faces close scrutiny from consumers and the state and federal governments representing them.   For example, on Monday President Obama issued a report calling for substantial changes to the way universities both prevent and respond to sexual harassment and sexual assault.  Here is the first PSA to come from the White House on this topic.  Although law schools often see themselves as autonomous islands within the larger university, we are all going to see the effects of this and other related campaigns.

Posted by Jennifer Bard on May 1, 2014 at 12:25 PM in Blogging, Constitutional thoughts, Current Affairs, Life of Law Schools, Science, Teaching Law | Permalink | Comments (1)

Wednesday, April 30, 2014

Of (Courtney) Love and Malice

Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones.  Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well. 

Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of  "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages.  However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.

These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed. 

The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.

The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so. 

And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling  a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.

Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)

Wednesday, April 23, 2014

We're back?

If you are seeing this, then we're back from that DDoS that Typepad blogs have been subject to for the last few days.  We're relieved but still looking over our shoulders, frankly.  Has absence made the heart grow fonder?  Or is out of sight out of mind?  We only hope that you don't know what you got 'til it's gone.  (Oh here, enjoy some Joni Mitchell instead.)

Posted by Matt Bodie on April 23, 2014 at 07:29 AM in Blogging | Permalink | Comments (1)