Thursday, November 13, 2014
Religion's Private Law Turn II: No Sunday Arbitration
Yesterday I posted about what I've called religion's "private law turn," where questions at the intersection of law and religion increasingly hinge on applications of private law as opposed to public law. I also promised examples so here's my first--one that I take up more fully in a forthcoming piece, Arbitration's Counter Narrative: The Religious Arbitration Paradigm, 124 Yale L. J. (forthcoming 2015).
Section 5 of New York's Judiciary Law reads as follows: "A court shall not be opened, or transact any business on Sunday." Fair enough you say. But in the past year or so, two New York courts (here and here) have applied this law to rabbinical court arbitrations--arbitrations addressing commercial disputes--by employing the following logic: (1) A judicial proceeding cannot take place on Sunday; (2) “Arbitration is a judicial proceeding and arbitrators perform a judicial function"; and (3) therefore, “the arbitration proceedings and award herein are void upon the ground that at least one hearing was held on a Sunday." Based on this logic, both courts vacated arbitration awards where arbitration proceedings were conducted on Sunday. Indeed, there's precedent for these decisions in New York going back nearly 200 years.
Now some have argued these decisions run afoul of the First Amendment. Maybe it does (although I'm skeptical this claim wins given how the Supreme Court has treated Sunday closing laws generally). But more than a constitutional problem, what this case misses is the way in which some forms of arbitration--specifically religious arbitration--are not equivalent to "judicial proceedings." It may be true that much arbitration is functionally equivalent to litigation--albeit faster and cheaper--in that both are mechanisms to resolve disputes between parties (Daniel Markovits has referred to this view as the "displacement thesis" and it has been adopted by and large by courts and scholars).
But not all arbitrations are simply about resolving a dispute. In particular, when religion and commerce meet under the rubric of religious arbitration, the parties have not selected the forum with the sole objective of identifying a more expedient and inexpensive version of litigation. Religious arbitration entails submitting a dispute to religious authorities for resolution in accordance with religious law. And a decision to select such a forum to resolve a dispute has much less to do with expedient dispute resolution and more to do with the shared commitments and values of the parties. In this way, religious arbitration is often part commerce and part religion; and to simply conflate such arbitrations under the rubric of judicial proceedings fails to consider the unique objectives at stake in the context of religious arbitration.
Indeed, in this way, these Sunday arbitration cases represent a classic mistake courts make when encountering religion's private law turn. Instead of unpacking the unique dynamics at stake when religion and commerce overlap, courts reflectively invoke familiar categories--a mistake in this case not of constitutional law, but of a arbitration law.
Wednesday, November 12, 2014
District court invalidates South Carolina SSM ban
And spend a lot of time talking about Fed Courts stuff. Of course, the discussion mostly demonstrates that, quite often, neither parties nor courts fully understand this stuff.
1) The suit named three defendants: A probate judge (authorized under state law to issue licenses); the attorney general; and the governor. The court held that the judge and the AG were proper defendants because both were responsible for enforcing the state ban--the judge by issuing (or refusing to issue) licenses and the AG by initiating state-court litigation and by defending the ban in court. But the court held that the governor was not a proper defendant, because other than a generalized power as the chief executive, she is not responsible for enforcing these laws. The court thus dismissed that claim under the Eleventh Amendment.
The Eleventh Amendment dismissal makes no sense (to the extent any of this makes sense). The state is not a named defendant, nor is the state the "real and substantial party in interest" in an action nominally against the individual officer that would require payment from the state treasury. This was a purely equitable action against a named officer; that she is not the correct officer does not convert it back into an action against the state.
Most courts facing the "wrong Ex Parte Young defendant" rely on standing as the basis for dismissal, on the theory that the plaintiff's injury is not "fairly traceable" to that defendant's conduct. I am still not a fan of that, as I think this is all about substantive merits. But it makes at least a bit more sense than saying that suing the wrong individual creates an action against a state.
VAPs and Fellowships: Open Thread, 2014-2015
On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow). Here is last year's thread.
(If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.)
Originally published 11/12/14.
Supreme Court Signals
An interesting theme unites three apparently unrelated cases that I’ve previously blogged about: an obstruction of justice prosecution (Yates), a removal case that poses a riddle of statutory jurisdiction (Dart), and the Sixth Circuit’s recent decision upholding same-sex marriage laws (DeBoer). In short, all three cases implicate the Supreme Court’s ability to send non-precedential signals to lower courts.
Religion's Private Law Turn
With the continued discussion of Hobby Lobby (for the latest, check out Elizabeth Sepper's response to Paul's Hobby Lobby Momement), it is hard not to notice an increasing focus on the importance of commerce--and in turn commercial law--when it comes to conflicts between law and religion. Maybe one way to think about this is that for every Town of Greece v. Galloway, we have a Hosanna-Tabor v. EEOC, a Hobby Lobby v. Burwell, and now an EEOC v. Abercombie & Fitch. The religion clauses continue, of course, to play a fundamental and central role in debates over religious accommodation and the like; but clashes between the aspirations of religion and the demands of law seem to increasingly spill into the commercial sphere. And, as this trend continues, I see more and more of these clashes hinging on how various private law doctrines apply when religion and commerce collide.
As Paul has expressed, much of this seems to arise from a growing sense that the commercial sphere is not just about commerce. In our forthcoming article "The Challenge of Co-Religionist Commerce," 64 Duke L.J. (2015), Barak Richman and I try to outline some of this dynamic under the rubric we term "co-religionist commerce," which we characterize as "commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives" (and for a recent response to our article, check out Nate Oman's piece here). The core, if unstated, intuition of our article is that some of the most significant challenges on the horizon--as religion and commerce continue to intersect--flow not from interpretation of constitutional doctrine, but from application of private law rules to conduct that is simultaneously religious and commercial. This intuition applies in a wide range of contexts, from corporate law to contract law to arbitration law (to name some of my favorites).
In my next couple of posts, I'll try to provide some concrete examples of this dynamic--and some of the complex questions they raise--as I explore what I see as religion's growing turn to private law.
Tuesday, November 11, 2014
Jotwell Anniversary Conference Papers on Legal Scholarship
I have been associated with Jotwell for some time now as one of the editors of the constitutional law section. I continue to find it a good site with a worthwhile mission. Jotwell just had its fifth anniversary, and held a conference--"Legal Scholarship We Like and Why it Matters"--to mark the occasion. Whether and why legal scholarship--indeed, most scholarship in most disciplines--matters continues to provoke animated debate and discussion. I think it does, although I think there is nothing wrong with asking how much it matters, and how much of it, or of what kind, we should subsidize. Good answers to the latter questions might inform my own work, or my institutional decision-making as a faculty member; I doubt, however, that any answer to the first question would much influence my first-order decision to engage in scholarship.
In any event, the conference papers address not only whether or why scholarship matters, but a variety of other questions: how to do it better, how to count it better and whether to count it at all, how to distribute it, and so on. The papers look very interesting and delightfully brief. They can be found here.
The Rule-Standard Distinction vs. The Smooth-Bumpy Distinction
If you've been following my posts on the smooth-bumpy distinction, you may be wondering how this distinction relates to the rule-standard distinction. The rule-standard distinction is iconically illustrated by prohibitions on speeding. A prohibition on “driving over sixty-five miles per hour” is a rule: it draws a bright line and affords little discretion to those who interpret it. We may choose a rule-based prohibition on speeding because it makes clear what conduct is prohibited and is easy to apply. The rule does not fit perfectly, however, with the overarching norm to drive safely, since there are conditions under which people should drive slower than the speed limit and conditions under which it would actually be quite safe to drive faster. By contrast, a law prohibiting “driving at an unsafe speed” is phrased as a standard. It reflects the overarching norm that should govern driver conduct but gives less concrete guidance than does the rule-based version and requires more discretion to apply.
The rule-standard distinction helps us formulate a threshold test to distinguish permitted and prohibited conduct. It says nothing, however, about whether the penalty associated with crossing the threshold kicks in gradually or dramatically. Assume, for example, that in response to dangerous driving, legislators institute a law with a flat $100 fine for violations. Since crossing the threshold costs $100 no matter how fast you were driving, the law has a bumpy relationship between excess speed and punishment. Notice that the law is bumpy no matter whether the threshold is formulated as a rule (a speed limit) or as a standard (a dangerousness prohibition). We look at the variable that matters to us (be it speed or level of safety) and convert it into one of two outputs. You are either subject to a $100 fine or to no penalty at all. The penalty is bumpy because, after the legal threshold is crossed, the law is insensitive to how much a person speeds or how dangerously he drives.
Monday, November 10, 2014
Convictions Overturned for Italian Earthquake Researchers
Over three years ago, I blogged about the manslaughter trial of several prominent earthquake researchers in Italy accused of giving inaccurate information about the risks of an earthquake in central Italy. More than 300 people subsequently died from a 2009 earthquake in L'Aquila. In a move that surprised many onlookers in the United States, the researchers were convicted. Today, however, an appellate court overturned those convictions (but apparently left alone the conviction of a "civil protection agency official" who made official statements related to earthquake risk).
Washington & Lee Law Review: Exclusive Submissions
The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST. The Law Review will extend offers for publication by December 8, 2014. All authors who submit articles to this program agree to accept a publication offer, should one be extended. For more information and submission instructions, visit this description.
No One’s Best Friend
The engagement ring continues to appear on people’s fingers and in family law cases (e.g., who keeps the ring after a broken engagement?). The engagement ring has also appeared in the media not once, but twice in recent weeks.
First, in a way of interest to all professors who like to indulge in the occasional peppermint mocha—Starbucks announced that it will increase its food offerings and ban employees from wearing engagement rings, whose stones create food safety issues under the FDA guidelines. (And, by the way, Starbucks will start to deliver coffee to your desk in certain markets.)
Second, in a way of interest to family law professors: there is a new study by economists at Emory finding that women who received expensive engagement rings experienced higher rates of divorce. Factors previously found to increase divorce include, among others, whether your parents are divorced, whether your friends are divorced (turns out divorce is contagious), and whether you didn't go to college. But, the news on the engagement ring is new. Maybe the diamond engagement ring is no one’s best friend after all?
Sepper on Hobby Lobby
I'm pleased that my paper "The Hobby Lobby Moment" is finally out in print. I hope readers will find it interesting. For those in my field of law and religion, I'm also happy to recommend this fine comment on the Court's recent decision in Town of Greece v. Galloway, which argues that the case "highlights the deep divisions among the Justices on a central question underlying the Establishment Clause: what the government is required to do, or even permitted to do, to accommodate religious pluralism in an increasingly diverse society."
Mostly in this space, I want to commend to readers Elizabeth Sepper's response to my article on Hobby Lobby, titled "Reports of Accommodations' Death Have Been Greatly Exaggerated." I haven't read it fully yet, and I'm sure that we'll see things rather differently, but I have always benefited greatly from her work on health care and conscience. From the introduction:
I agree with Horwitz that the contraceptive controversy destabilized our social and legal consensus. Horwitz, however, mistakes what that consensus was and misidentifies the cause of its collapse. In this Response, I argue that the consensus has long been against granting religious exemptions from generally applicable laws to commercial entities and to for-profit corporations in particular. Instead, our consensus favors equal citizenship of individuals and, as a result, limited rights for powerful commercial actors. The Hobby Lobby moment threatens this consensus.
I further propose that while the marriages of same-sex couples may have added fuel to the fire, it was the union of religious and economic conservatives that threw the marketplace into flux. Their religious-libertarian arguments persuaded the Court to extend accommodations into the commercial sphere in an unprecedented and potentially expansive way.
Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.
Is this something that Republicans are going to expend time and energy on? Is it likely to pass?
Sunday, November 09, 2014
A former student just sent me the Columbia Law Revue video of a civ pro parody of Truly, Madly, Deeply. It's two years old at this point and I had not watched in awhile. One of the lines in it was "I'll play Neff's lawyer, fuck you like Pennoyer." This is a great line, because beyond the double entendre is the fact that Neff's lawyer, Mitchell, did fuck Pennoyer--Mitchell got the property off the default judgment against Neff and sold it to Pennoyer, who of course had to give it back to Neff. Now Pennoyer turned out ok--two-term governor of Oregon and mayor of Portland--but he did get screwed.
So here is the question for a weekend: Who in the entire 1L canon was screwed the worst? My sympathies are with Pennoyer and with Sister Antillico.
Friday, November 07, 2014
Colombo, "The First Amendment and the Business Corporation"
Following up on Paul's post about his (excellent) new paper on Hobby Lobby, I thought many Prawfs readers would be interested in this new book, "The First Amendment and the Business Corporation," by Ron Colombo (Hofstra). From the OUP:
The role of the business corporation in modern society is a controversial one. Some fear and object to corporate power and influence over governments and culture. Others embrace the corporation as a counterweight to the State and as a vehicle to advance important private objectives. A flashpoint in this controversy has been the First Amendment to the U.S. Constitution, which enshrines the fundamental rights of freedom to speech, religion, and association. The extent to which a corporation can avail itself of these rights goes a long way in defining the corporation's role. Those who fear the corporation wish to see these rights restricted, while those who embrace it wish to see these rights recognized.
The First Amendment and the Business Corporation explores the means by which the debate over the First Amendment rights of business corporations can be resolved. By recognizing that corporations possess constitutionally relevant differences, we discover a principled basis by which to afford some corporations the rights and protections of the First Amendment but not others. This is critically important, because a "one-size-fits-all" approach to corporate constitutional rights seriously threatens either democratic government or individual liberty. Recognizing rights where they should not be recognized unnecessarily augments the already considerable power and influence that corporations have in our society. However, denying rights where they are due undermines the liberty of human beings to create, patronize, work for, and invest in companies that share their most cherished values and beliefs.
Weekend Reading: The Hobby Lobby Moment
Here's an abstract of my latest piece on SSRN, "The Hobby Lobby Moment." The final version should be published and posted on the law review's website soon and I will provide links when that happens. Enjoy.
American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change.
This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them.
After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change.
Amendment One, Alas
I'm grateful to Michael for his post on Amendment One, the Alabama anti-foreign/religious law amendment. As he notes, I wrote a couple of editorials that were published in a number of newspapers and other forums in the state, urging voters to reject this amendment. At best, in my view, the foreign/religious law piece of the amendment (there is also a full-faith-and-credit provision, one that appears to be aimed at the recognition of same-sex marriages, but I did not focus on that provision) simply repeats existing law, and so was quite unnecessary. Passing an unnecessary amendment was actually worse than unnecessary, however, because this governor and administration have been adamant about saying that they would focus on the economy, not symbolic or culture-war issues. To the extent that the new law requires even a small expenditure of money to achieve a redundant purpose, it runs contrary to their stated agenda and was the opposite of a conservative measure.
At worst--who knows? Every new law contains ambiguities. This law was not especially carefully drafted and certainly contains more than its share. And, as Michael points out, there is the chance--it has happened in at least one state with a somewhat similar law, and the same idea seems to be reflected in the case he discusses--that courts will take this narrowly worded amendment and interpret it expansively and dangerously. On its face, the amendment suggests that only a particular provision of, say, a contract, will be voided if it violates public policy. But a court might cite Amendment One as a basis to refuse to enforce a perfectly reasonable foreign or religious law provision on the basis of general concerns about the fitness of the foreign or religious legal regime. Since some such provisions--those requiring husbands to grant a get, for instance--are actually protective of the potentially disadvantaged party, this would give us bad results that wouldn't be required under current law.
There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.
Four Advantages of Bumpy Laws
In prior posts, I expressed a general preference for smooth legal relationships. They often (though not always) lead to laws that better fit our underlying moral theories. Also, smooth legal relationships tend to treat similar cases similarly and may lead to better incentive schemes. (I will simply speak of "smooth laws" to mean laws in which smooth legal relationships predominate or are most salient.)
But let me describe four reasons one might prefer bumpy laws. First, sometimes we have "bumpy needs." A legal determination simply must result in a binary outcome. For example, the Constitution mandates that the U.S. president be at least 35 years old. Nothing magical happens at 35, but it's difficult to smooth the relationship between maturity and eligibility for the presidency. You can't be a little bit president. The same principle often applies to laws that govern the operation of others laws. For example, we generally think a law should be either constitutional or unconstitutional, not 40% constitutional. Ditto for many aspects of evidence law, civil procedure, and more. (We're often too quick to assume that we have bumpy needs, even in the presidency example, but the general point remains.)
Second, bumpy laws will often be cheaper and easier to administer. Smooth laws require us to figure out where an input fell along a spectrum. That's hard and requires considerable factfinding. With bumpy laws, we make the easier determination as to whether an input was above or below some threshold. For example, it's easier to determine whether or not a person was negligent (under our bumpy ordinary negligence laws) than to say how negligent he was across the spectrum of negligence.
NBC canceled the show Bad Judge last week, because, by all reports no one was watching and the show was, well, worse than the judge. I never watched it because I could tell from previews that it was going to depict thoroughly illegal, improper, and unethical behavior as "heroic" and it would just drive me nuts.
But the Florida Association for Women Lawyers found the show even more objectionable; the group had sent a letter to NBC last month calling on it to cancel the show. It argued that the show "depicts a female judge as unethical, lazy, crude, hyper-sexualized, and unfit to hold such an esteemed position of power" and thus is "damaging to women in the legal profession." Fair enough, I suppose, although there have been shows and movies showing judges behaving similarly badly (if not necessarily sexually).
Unfortunately, the letter completely loses it near the end, arguing that the show is
dangerous to the extent those who hold preconceived notions about women judges will find their sexist beliefs reaffirmed. A misogynist who believes that women in power cannot control their sexuality, their bodies and their professional or personal conduct would have their views endorsed by this show.
It compared the show to All in the Family* for similarly having a leading character exhibit and express hateful views that confirm the beliefs of viewers holding similar hateful attitudes. Of course, this show is hyperbole (poorly done, but nonetheless) and Archie Bunker was the butt of the joke, not the heroic model to be emulated. So the letter is relying on the old "people are too stupid to get it" argument, a uniquely bad basis for restricting speech.
* Which, needless to say, will be the first, last, and only time anyone ever will compare these two programs.
But don't worry. Better Call Saul is coming soon.
Greetings from Sixth Circuit Country
Greetings from Memphis! I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy. Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby. And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.
But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should). I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace. If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.
Thursday, November 06, 2014
Good News for Whom?
As Howard points out, we just got the circuit split that Justice Ginsburg recently said in a University of Minnesota speech would trigger U.S. Supreme Court intervention in same-sex marriage, which has been blatantly lacking up to now.
This Supreme Court has recently found in favor of federal recognition of same-sex marriage, but dodged making much more law than this because of a standing issue in the other same-sex case. A previous Supreme Court characterized marriage as not a question of federal law, but this has been discounted by other courts and by Justice Ginsburg herself in oral argument in Perry.
So, now that there’s a circuit split, will the U.S. Supreme Court find constitutional support for the proponents or the opponents of same-sex marriage—which side should be popping open the bubbly tonight to celebrate the circuit split?
Here's your circuit split on marriage equality
A 2-1 decision from the Sixth Circuit, authored by Judge Sutton, with Judge Daughtrey in dissent. Media reports indicate the focus is on respecting the will of the voters and the state power to define marriage.
The Sixth Circuit remains majority Republican appointees (all by one of the Bushes), to the extent such crude measures tell us anything. So en banc seems unlikely, unless even Republican-appointed judges do not want to be on the wrong side of this. Still, it appears this is now teed-up for SCOTUS to resolve later this term.
Perhaps more later. Update: Well, the media reports are correct. Sutton's lengthy introduction, before the analysis: "And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"
Seeeking balance in uncontested elections
It seems I am not alone in my confusion and concern about states not placing unopposed candidates on the ballots, as this list of stories suggests (H/T: My colleague Tom Baker). In Oregon two years ago, people were angry about having to pay to print GOP primary ballots with only one name. And there was an interesting controversy in Indiana about three years ago. In 2010, the state passed a law removing unopposed candidates for municipal office from the ballot. In 2011, several local bodies insisted on printing ballots that included unopposed candidates, even though it then required that two additional polling places be opened, at public cost. In early 2012, a bill to repeal the 2010 law unanimously passed the state Senate, although I have not been able to find out what happened after that.
Weighing against those cost considerations include the risk of voter enthusiasm, the dampening of interest (and thus willingness to vote) of supporters of the unopposed candidate, and possible down-ballot effects. On the other hand, the cost-saving concerns disappear when the ballots also contain candidates for national and statewide office and all those polling places are open anyway. For example, Miami-Dade County had to print ballots containing all the statewide offices, plus US House candidates, for the other districts that are within the county (for example, Joe Garcia's district) and the polling places within the district had to be opened. Similarly, the polling places within my district were all open and people within my district had to have ballots with all those statewide offices. Would it have really cost that much more money to include the US House race on those ballots?
None of these is of constitutional magnitude, of course, just of policy wisdom.
I am excited to be headed to Loyola University Chicago’s Fifth Annual Constitutional Law Colloquium tomorrow. They continue to line up fantastic speakers, this year keynoted by Erwin Chemerinsky. See some of you there.
The Injustice of Bumpy Laws
Whether a person has been sexually assaulted can turn on the reasonableness of a defendant's belief that the alleged victim consented. Presumably, the more reasonably one believed consent was given, the less culpable one is for proceeding with sexual intercourse. Similarly, the more reasonably one believed consent was given, the less dangerous one is likely to be. For both these reasons, the amount of punishment a person receives should be at least in part a function of the reasonableness of his belief in consent. In my terminology, reasonableness is an input into a legal decision that likely ought to have a smooth relationship with the pertinent output: amount of punishment. As the input gradually increases, the output gradually decreases. At some point, a person's beliefs are sufficiently reasonable that he no longer warrants any punishment (because he is not sufficiently culpable or because the costs of punishing him exceed the benefits).
In this instance, we seem to prefer smoothness in theory, but the criminal law's treatment is in fact quite bumpy. One person deemed just reasonable enough that consent was given may have no criminal liability while a similarly-situated person who was just a bit less reasonable may be sentenced to at least the statutory minimum. Even though both defendants are virtually alike in terms of culpability and dangerousness, they are treated quite differently under our bumpy treatment of beliefs about consent: gradual changes to the reasonableness input do not affect conviction, except at a critical threshold. At that threshold, a gradual change in reasonableness has enormous effects.
So there appears to be a deviation between our normative theories of criminal law and what the law actually does. Now, criminal law may actually be less bumpy than many other areas of the law. At sentencing, judges can smooth the relationship to some degree by giving more reasonable offenders shorter sentences than less reasonable ones. But judges are often limited by statutory minima. Such minima may have certain advantages, too, by controlling the allocation of sentencing discretion. But the value of such discretion must be weighed against the harms of deviating from our best theories of just punishment. And many retributivists are committed to never knowingly overpunishing an offender, allocations of discretion be damned.
Even in the absence of statutory minima, most of us--judges included--are simply not closely attuned to the smooth-bumpy distinction. So many would look askance at a judge that gave a very light sentence for rape, even though there must be cases that closely straddle the line between guilty and not guilty. And other bumpy features of criminal justice cannot be mended by eliminating statutory minima. For example, for every day defendants spend in pretrial detention, they usually receive one day of credit against any punishment they may subsequently receive. But what if offenders spend pre-trial time in drug rehabilitation facilities that are less confining than jail but more confining than, say, house arrest? Jurisdictions treat such issues in a bumpy manner. They either give full credit or no credit, even though there is a much smoother approach: give partial credit. We're surely used to thinking of criminal law in bumpy, all-or-nothing terms, but when you look for ways to smooth the law, you find many opportunities.
The "Anti-Foreign Law" Craze--Bills, Amendments and Decisions
In the weeks leading up to Election Day, Alabama's "Amendment One" drew a nice chunk of attention. Amendment One was yet another "anti-foreign law" initiative prohibiting state courts from applying foreign law or from enforcing any contractual provision that would require foreign law to govern its interpretation "if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States." Critics of the Alabama amendment include Prawf's own Paul Horwitz as well as Faisal Kutty. At its very best, the law is unnecessary; at worst, the law represents a persistent anti-Muslim agenda that has animated the continued push in state legislatures around the United States to consider similar provisions (I've expressed my strong antipathy for these bills in an op-eds here and here).
Unfortunately, the bill passed on Tuesday. But while I'm amazed that these bills keep on passing, I've become increasingly worried that courts might be drinking the anti-Sharia Kool-Aid as well. As an example consider Sarooie v. Foster Wheeler--a recent decision from the California Superior Court that Eugene Volokh broght to my attention last week (Eugene has blogged about the case here). In a nutshell, the case raised the following question: what law should apply to an action brought in California court over injuries suffered primarily in Iran by a then-resident of Iran at the hands of an oil refinery owned by Iran? California typically uses the government interest analysis for deciding choice-of-law questions; however, instead of employing this standard methodlogy, the court instead concluded that it could not apply Iranian law to the dispute for the following reason:
Yates, the Top Ten Oral Argument Moments
Wednesday, November 05, 2014
Remember, Remember . . .
I have a hard time remembering what I had for lunch, but I do remember that, when I was in first grade (in Anchorage), my public school celebrated Guy Fawkes Day. I don't remember why, or if any explanation was provided. (This was way, way before "V for Vendetta".) It did not strike me as strange at the time, though it certainly does now. (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.) Should it? Would a public school's celebration of Guy Fawkes Day (in the mid-1970s or now) communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community? Certainly, that was long the celebration's purpose. Which is why, I suppose, General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:
As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.
In any event, I hope our friends across the pond safely enjoy their fireworks . . . without burning Pope Francis in effigy.
I read with great interest Orin’s posts last month regarding the tenure process. If I may add another question for consideration—what about the role of civility? The University of Warwick in England used lack of civility as the reason to recently suspend for nine months an English professor for inappropriate sighing, using irony, giving off negative vibes, and unfriendly body language. Some of the sighing occurred when he was interviewing job candidates. (While I’m sure this would not be pleasant for the job candidates, how does it compare to the meat market?) The professor was barred from contact with students and colleagues.
Of course, perhaps the real reason for the suspension was that the professor had become known for being critical of the use of corporate approaches in higher education. Likely in response to international public outrage, the university backed down and dropped all charges against the professor.
Criticism of the corporate approach to education is a highly problematic ground to suspend a professor. And while civility is an admirable trait too—it happens to be much more subjective. Sigh.
A memo to Senator Cruz: Chillax, dude
You may have seen the latest Ted Cruz quote, from last night's victory rally: "Give me a horse and a gun and an open plain, and we can conquer the world." I guess he was speaking about the "Texas ethos," but still. As someone who went to undergrad and law school with the junior senator from the Lone Star state, I would just recommend that he not get too swept up in his state's mythology. I searched Google images for a picture of Ted on horseback and could not find one. Let me know if I missed it.
Isn't There a Tradeoff Between Liberty And Security?
I've recently come across several prominent quotes about the relationship between liberty and security. All of the quotes deny that there is a straightforward tradeoff between liberty and security--but each does so for a different reason.
Tuesday, November 04, 2014
Election law as contextual: a universal truth? (And, happy election day to U.S. readers!)
I am grateful to Dan Markel for this chance to spend another month in conversation at Prawfsblawg. As with my last go-around, my focus is on U.S. election law. This time, however, I get to talk about election laws on an election day.
When the voting and vote counting unfold, we’re bound to see election laws and administrative practices in the news. Even if the odds-makers are proven correct in their forecast of an election day that is characterized by relatively low voter turn-out and relatively few close contests, there will be questions or controversies about the effects of heightened voter identification requirements, the counting of provisional ballots, the scheduling and ballot design for a gubernatorial run-off, and the like. Those of us who follow politics have come to instinctively associate some of these contested laws and practices with a particular effect (a tendency to expand or narrow the electorate), and with a particular political valence (a tendency to disenfranchise or dilute the votes of one or another party or racial or socioeconomic group).
What the Binary-Scalar Distinction Misses
In a recent iteration of the Legal Theory Lexicon, Larry Solum cogently describes the binary-scalar distinction. Some legal variables take on binary values (e.g., guilty/not guilty; consensual/non-consensual), while others take on scalar values (e.g., amounts of money owed; durations of prison sentences). But the distinction is not always helpful. If you lose your negligence cause of action, you receive no money at all. If you win, you are generally owed full compensation. Though amounts of money seem scalar because they take on a range of values, they seem binary at trial: plaintiffs either receive full compensation or no compensation at all.
What matters more, though, than trying to categorize a legal variable as binary or scalar is trying to understand how legal inputs should affect legal outputs. In a recently-published essay, Smooth and Bumpy Laws, I argue that one must have a theory about which inputs and outputs are pertinent and how they ought to relate to each other. When a gradual change to an input variable causes a gradual change to an output variable, I call that a "smooth" relationship. (Think of a dimmer switch that gradually increases room lighting.) By contrast, when a gradual change to an input sometimes causes no change to an output and sometimes causes a dramatic change, I call that a "bumpy" relationship. (Think of a traditional light switch. As you gradually move the switch, it has no effect on room lighting until you cross a particular threshold. Then, the lighting changes suddenly and dramatically.)
What matters most about the relationship between level of caution and amount of damages is that it's bumpy: reductions in level of caution have no effect on damages owed, until you cross the threshold of negligence. At that point, a small reduction in level of caution dramatically increases compensation owed. (The relationship arguably becomes smooth for a certain range of values when punitive damages kick in. Put that aside for now as punitive damages are not available in run-of-the-mill cases.)
Monday, November 03, 2014
Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.
Feels Like Coming Home
I'm happy to be back here at Prawfsblawg. I've got some new thoughts about copyright and trademark law to try out on you and a few teaching ideas to share. The blawg won't be the same without Danny, but I have faith it will continue to be a home for interesting discussions and helpful feedback. I've certainly participated in the former and received the latter due to my association with Prawfsblawg. I'm sure Danny would want us to soldier on to the best of our collective abilities, making sure that intellectual honesty continues to trump partisanship, for the most part, in new and more interesting ways. I'm looking forward to the conversations.
Returning to Prawfs and Remembering Dan
I'm excited to be guest-blogging again at Prawfs. Like many have expressed over the past few months, guest blogging this time around is far more personal after the Dan's tragic death over the summer. Since then, I find myself thinking about--and quoting--Dan often; I share his advice with students and colleagues alike. And participating in the community that Dan created is a reminder of the extraordinary world he created--of which many of us are the beneficiaries.
So with that, I look forward to another month here at Prawfs. I plan to spend much of my stint here talking about my favorite topic--the intersection of religion and private law. So here comes a month of religious contracts, religious torts and religious arbitration. Looking forward to comments!
Sunday, November 02, 2014
Executive Power Restrained -- the South African Experience, and Thanks
Given the recent dialogue here about executive power, but on a very different sub-topic, I thought it would be worth mentioning that the South African Constitutional Court has issued several decisions that have used strong judicial review to limit executive power in situations where corruption may be involved. The rulings are extraordinary from an American perspective. In the first case, Glenister II (2011), the Court actually invalidated the existence of a new national anti-corruption prosecutorial entity, as being insufficiently independent to satisfy general constitutional requirements of promoting democracy, fighting corruption, etc. The Court also controversially relied on international anti-corruption conventions. One reason the Court was skeptical of the new entity was that the African National Congress dominated government had effectively disbanded a more aggressive and powerful national anti-corruption entity in troubling circumstances, so the Court was finding the replacement body to be insufficient. In another case, Democratic Alliance v. President of the Republic (2012), the Court invalidated President Jacob Zuma's selection of a national prosecuting authority, a Mr. Simelane, based on allegations that Simelane had demonstrable integrity problems, and based on the President allegedly not paying heed to these problems. I have authored a short article on these cases and a few others that can be found here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476649 In the U.S., there would have been standing and political question problems in both situations so these are bold decisions.
I mention these decisions in part to show how national high courts do not always have to be overly deferential to executive power assertions even in delicate situations. On a final note, thanks to the folks at Prawfs Blawg for letting me participate again. Also, special thanks to Ilya Somin for the interesting Korematsu debate. For those who want another perspective on our debate, take a look at Professor Eric Muller's post on the question (he is certainly a preeminent Korematsu-Hirabayashi expert). http://www.thefacultylounge.org/2014/11/the-kende-somin-debate-on-justice-thomas-and-korematsu-and-hirabayashi.html And God bless Dan Markel, his family, and friends.
A Republican Senate Majority and Partisan Conflict
As the New York Times editorial board observed recently, the prospect of a Republican Senate majority may make for even more gridlock in Washington. Other political observers think that we may see less obstruction, as Republicans assume greater responsibility for governmental decision making.
But whether or not Republicans in Congress should be held accountable, they likely will not be. Voters view the president as being in charge of the government and will reward or punish the president’s party accordingly. As Justice Robert Jackson wrote in Youngstown, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”
At any rate, we won’t solve our gridlock by condemning the radical right. We will suffer from high levels of partisan conflict as long as we have a winner-take-all electoral system. As long as Democrats and Republicans can hope to gain control of the levers of power, they will fight for control.
If we want a bipartisan spirit, we need reforms that encourage cooperation rather than conflict. And the best way to do that is to ensure that political power is shared—and always will be shared—by elected officials across the political spectrum. We’ve recognized the need for power sharing across social divides in Afghanistan and Iraq. We should do the same for our own country. For more discussion along these lines, see here.
As I wrap up my stint on PrawfsBlawg, I’m grateful for having had the opportunity to share my ideas with a very thoughtful readership. And as I continue to read the insightful posts of PrawfsBlawg’s many terrific contributors, I am grateful for the daily reminders of Dan Markel’s exceptional legacy as a legal scholar.
Saturday, November 01, 2014
Thanks for having me back. It's November, so let's pretend these posts count toward my NaNoWriMo goals. This month, as we wrap up our classes (for me, tax and family law), I will be blogging about education issues. I will also blog about some items related to my research agenda—the property transfers families make—that have appeared in the news and in my forthcoming articles. One of these articles has benefited from the generous attention and edits of Dan Markel, in whose memory I am guest blogging this month. He is missed.
With October over, my guest-blogging stint is done. Thanks for reading and commenting. Because I was guest-blogging in Dan Markel's memory, I'll end with a sad reminder. It has been several months since Dan was murdered, and his killer has not yet been brought to justice. May that change soon.
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.
Friday, October 31, 2014
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."
Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.
* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.
Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.
Ebola and Korematsu
Ebola is an unprecedented public health crisis, but quarantine falls squarely within a long tradition of preventive detention: depriving liberty not to punish past wrongdoing but to prevent future harm. In a recent article(here), I argue that the government has resorted to indefinite preventive detention only in response to fear of an undeterrable Other. That conclusion (descriptive, not normative) is based on case studies of the Japanese internment, the Oklahoma City bombing, the War on Terror, both phases of sex offender commitment, and the Virginia Tech shooting.
In my formulation, Otherness is perhaps the most elusive concept. By it I mean being a member of an identifiable and devalued minority group. Affected Others have included Japanese-Americans, Arab non-citizens, sex offenders, and the mentally ill. But the Ebola quarantine teaches that Otherness is not required for short-term, as opposed to indefinite, preventive detention. Fear of an undeterrable virus is enough.
Tenure standards and recruiting
A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?
A "Call for Annotations" from The Green Bag
Call for Annotations: “The Adventure of the Norwood Builder”
Our annual Almanac & Reader always has three main features: (1) exemplary legal writing, (2) chronologies of interesting moments in law and language, and (3) entertaining tidbits relating to some theme that we hope you will enjoy. The theme for the 2015 Almanac is “The Adventure of the Norwood Builder” – a Sherlock Holmes mystery set in 1894 and published in 1903. One of the tidbits will be a freshly annotated edition of the story, based on the 1905 U.S. edition in The Return of Sherlock Holmes. (It is available on our website.)
How to submit an annotation: Email us a Word document with the passage from “Norwood Builder” that you want to annotate, and the annotation included as either (a) a footnote to your document if the annotation is just text or (b) a separate attachment if the annotation is an image (photograph, chart, or whatever). If your annotation involves assertions of fact or law, include citations to – and quotations from – appropriate authorities. Thus, for example, it is not enough to say, “The will drafted by McFarlane was invalid because English law in 1894 required two disinterested witnesses and he had only one.” What law? What did it say? Where are the cases supporting your interpretion? Do any go the other way? Similarly, if “the Anerley Arms was a going concern in 1894,” we will need to see some record or contemporaneous report of its operations in 1894. You get the idea: We are giving “Norwood Builder” the law review treatment.
Each point of annotation should add to the reader’s understanding or enjoyment of the story, including but not limited to its legal aspects.
We will give credit where it is due: Annotations to our edition of “Norwood Builder” will appear as footnotes and illustrations. Each footnote will identify by name the author of that note. Each illustration’s caption will identify by name the contributor of that image.
Length limit: There is no length limit, but please be reasonable.
Deadline: Finished works must be received at firstname.lastname@example.org by December 24, 2014.
Criteria: We will select works for publication based on how useful, interesting, well-researched, well-written, and good-spirited they are.
Thursday, October 30, 2014
An Anatomy of the Death of the Kibbutz: Review of Amos Oz, Between Friends
My grandmother Dora and her sister Batya were the sole survivors (so we thought, years later, a brother would emerge in Ukraine) of their family, having both moved to Palestine before the war. But Dora and Batya could not have had more different paths in their new life in the new state of Israel. Dora married into a prominent family and raised her kids in the vibrant bubbly urban culture of the young white city, my beloved Tel-Aviv. Batya married a devout kibbutznik, Yekush, a true believer as Amos Oz might describe him, and they raised their kids in kibbutz Ein Hahoresh (below is a picture of children of the kibbutz’s infirmary bathing in the sun in the 1940s). Poet Abba Kovner, a longtime member of Ein Hahoresh, wrote a poem about my uncle Yekush, a ballad of wonder of a man who was a thirsty intellectual, an antique collector, a historian, and the lifelong garbage collector of the kibbutz, never wanting another job but the essential one he had. Yekush was unique even for his time in his humility and selflessness. Even at the peak of the idealist era, human nature meant that there would be conflict and tension within the close-knit collectives of the new state. Envy, resentment, ego, discontent, doubts, cynicism, and more simply, human nature, would eventually bring an end to the dream of the kibbutz. Yes, kibbutzim still exist today but mostly by name only. The kibbutz as a utopian vision and an institution, the purist combination of socialism and Zionism, has ceased to exist. The kibbutzim of today no longer have communal infant dorms; parents are allowed to kiss their children good night and tuck them in. The kibbutzim of today can no longer order their young adults on when and where to go to college. The kibbutzim of today are basically privatized rural gated communities with differential wages and private property.
Last week, I finished Oz’s latest, Between Friends. I read it in English, which I usually don’t do with books translated from Hebrew but that was the copy I had. The translation is good but even the title inevitably misses the key point of the book: Friends, haverim in Hebrew is also the word for members. Between Friends is an interwoven collection of short stories of the members of the fictional kibbutz Yekhat. They are all haverim because they are all members of the kibbutz but they are most certainly not all friends. They are occasionally friends, but also enemies, lovers, ex-lovers, bullies and, most frequently, simply strangers. That they call one another Haverim, friends, makes the loneliness, betrayals, and disillusionment of camaraderie sharper. Yekhat’s funny guy, who is also the distraught dad of a bullied child (and a stamp collector like my uncle Yekkush) quotes Levi Eshkol who said that a person is only human, and even that, only rarely.
A Mistake Regarding Korematsu
Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu. Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes. Here is what Ilya wrote:
"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/
Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps. http://korematsuinstitute.org/institute/aboutfred/ Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.
Gun Control Targeting Dangerous Symptoms
Scholarly productivity, generational change, and empirical data
Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.
* Who also chides me for not bringing data to bear in my original post.
** For what it is worth, she did not find them inversely correlated.
But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.
I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.
Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.
On Being Sued, 3
In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.
So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it.
One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.