Friday, October 14, 2016
Former guest Prawfs Shima Baughman and her co-authors have a piece on TNR (originally published in The Conversation) calling for making police reports race-blind as a way to reduce implicit bias in prosecutors. Interesting read.
Number of Schools at FRC Over Time - 2016
In 2012, there were 142 AALS member or approved schools at the FRC.
In 2013, 94 schools.
In 2014, 81 schools.
In 2015, 89 schools.
In 2016, 86 U.S. law schools (the list provided by AALS was categorized differently this year but this is roughly equivalent to AALS member or approved schools).
(Say +/- 2 for each year due to vagaries of counting.)
More locking her up
To the extent there was any sense that Trump's explicit theme of prosecution/jailing Clinton was a one-off for the debate (or a quip, as campaign official Kellyanne Conway tried to argue on Monday), the last week has proven otherwise. Trump has referenced this in multiple rallies the past several days, including the specific detail about asking for a special prosecutor.
Charles Krauthammer (with whom I likely have not agreed about anything) argues that such rhetoric is dangerous and inconsistent with a mature, functioning democracy. A relevant excerpt:
Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation only works if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest.
The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.
One doesn’t even talk like this. It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.
Thursday, October 13, 2016
NYT to Trump: Go ahead and sue (Updated)
When I went to law school, one of my dream jobs was to be general counsel to The New York Times. So I have great respect for this letter responding to Trump's lawyer's retraction demand. The final paragraph is the meat, subtly arguing both the accuracy of the statements, their public import (and thus reminding that Trump is a public figure), and the absence of malice. The second paragraph is a bit more gratuitous, in essentially suggesting that Trump has made himself such a sleaze with his own public statements and actions that he is libel-proof. All-in-all, nice work (and the kind of ballsy, "let-me-tell-you-how-things-are, son" stand that I do not believe I have it in me to take with another lawyer--a conversation I was having with several people during break-fast yesterday).
It is interesting that one of the (many) political norms Trump has obliterated this election is that high-level government officials do not bring defamation actions, not only because Sullivan sets such a high hurdle, but also because it looks weak politically. But because Trump has made both the press and the First Amendment some of his punching bags, that weakness is gone.
The full letter:
Update: From the National Constitution Center Blog comes this essay on Barry Goldwater's successful suit against Ralph Ginzburg over something he published during the 1964 election about Goldwater's fitness. Goldwater managed to show actual malice and win a $ 1 million+, upheld on appeal. A few points: 1) It is telling that Goldwater waited until after the election, when he was (temporarily) out of office; 2) This was in the early days of the Sullivan regime and I wonder whether it would come out the same way today; and 3) Everyone hated Ralph Ginzburg, so he lost cases other people would win.
The Hurricane Canon for Election Law
I have written this post for the American Constitution Society blog, republished with permission:
When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.
That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.
Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)
The federal court’s ruling in Florida, then, follows similar decisions to favor voters who face an unexpected disaster that makes it harder for them to participate in the election. Call it the “Hurricane Canon”: election officials and courts should favor voter access when disaster strikes. Voting, as the most fundamental right to our democracy, must be as open as possible to all.
JOTWELL: Coleman on Rosenbaum on RICO and class action attorneys
The new Courts Law Essay comes from Brooke Coleman (Seattle), reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare (Iowa L. Rev.) (forthcoming), exploring the use of RICO actions against class-action plaintiffs' lawyers.
Wednesday, October 12, 2016
Your Honor, and May It Please Mitch McConnell
The race is tight for control of the Senate. According to the statisticians at 538, six states are experiencing (to use the technical term) “super close” elections, and those same races very well may determine which party exercises the exceedingly important powers wielded by this body of government. If the vote totals on Election Day are tight enough to invite disputes over the true winner of a Senate race, the question becomes: who should adjudicate those contests? If you thought to yourself “Mitch McConnell, Bernie Sanders, Elizabeth Warren, Ted Cruz, and their colleagues in the Senate; they should do it,” then you are in good company: the Founders agree with you.
As Article I, Section 5 of the United States Constitution reads, “[e]ach House shall be the judge of the elections, returns and qualifications of its own members.” What this means is that the Senators are charged with judging election contests over disputed Senate seats, while the Representatives are charged with judging election contests over disputed House seats. And judge they do: in this context, each House examines witnesses, manages discovery, and inspects ballots, among other tasks, all pursuant to a set of procedures (informal in the case of the Senate, and set by statute for the House). At the conclusion of the proceedings, each House publishes, through a committee, something that looks much like a judicial opinion. This report recommends a particular resolution of the claims, and if the full House agrees with that recommendation, it passes a resolution so ordering. As I explain in Judging Congressional Elections, the Houses of Congress already have resolved hundreds of contested elections in this fashion.
The arrangement may seem strange, but it has a long historical pedigree, and nearly every state has adopted a similar approach (that is, nearly every state also has vested power to judge state legislative elections in the legislative body itself). Still, a host of difficult questions remains. Among them is whether—and how—courts may also adjudicate these same disputes. Let’s take Pennsylvania, where the race between challenger Katie McGinty and incumbent Pat Toomey appears exceedingly close. Can the Supreme Court of Pennsylvania weigh in if either candidate disputes the results on Election Day? Or what about in Nevada, where the candidates are locked in a tight race over Harry Reid’s seat—can the state courts offer guidance if November 8 produces no clear winner? The answers largely depend on constitutional questions surrounding Article I, Section 5, and the resolution of those questions is, to put it lightly, unsettled.
Here is a compromise position on early voting that might bridge the gap between Michael and Lisa's well-written posts: Election Week. I wrote this piece for Reuters in 2012, but it is just as relevant today. A uniform, nationally-mandated Election Week would help everyone. It would reduce litigation regarding the manipulation of early voting rules. It would focus the country's attention on a particular, clearly-defined period. It would provide enough time for everyone to participate. Although it might cost states a little extra money to run more precincts throughout the week, the expenditure would be well worth it to remove this aspect of the "voting wars" while still providing enough opportunities to vote.
Here is an excerpt from the column:
On Election Week, polls would be open for seven days, all day for all voters. Beyond taking away one avenue for court involvement in vote-casting disputes, this could offer other significant advantages.
First, it would lead to greater access for more voters, making it easier for Americans to find a time to vote while reducing long lines throughout the week. It is absurd that some citizens have to wait hours in line to vote.
A full week would also avoid problems for religious voters, who might not want to vote on a particular day, while still allowing churches to have “souls to the polls” programs on a Sunday after church.
Second, it would reduce the number of absentee ballots, since more voters will likely be able to find a time to go to the polls.
Third, it could reduce the number of provisional ballots cast – a key area of potential post-election litigation. If voters show up at their precinct without a voter ID, for example, they could return by day seven with the correct documentation.
Fourth, Election Week would lighten the extreme burden on election administrators to run their precincts, tally the results, and announce a winner on a single night.
Fifth, Election Week would ease the hardship on voters dealing with an emergency or disaster, such as New Yorkers or New Jersey voters displaced by Hurricane Sandy.
Read the whole thing here.
Tuesday, October 11, 2016
The Gig Economy and the Future of Employment and Labor Law
This past April I had the honor of delivering the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. The lecture The Gig Economy and the Future of Employment and Labor Law is now up on SSRN- hope you download the article while it is hot. It is soon to be published in the USF Law Review.
In the article I ask what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? I propose four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work. I welcome your comments, reactions and thoughts.
In Defense of Early Voting
Coming from a state like Washington, where almost all voting is done by absentee ballot (and everyone has the option of voting in person, if desired, starting in late October), I may be favorably predisposed toward early voting. But I confess that I don’t entirely understand the concerns over the practice—and given the critical function that early voting serves, I think it warrants a robust defense.
The objections to early voting often center on the possibility that events happening in a narrow window (post-vote, pre-Election Day) will cause early voters to regret their decisions. There are two reasons why I have trouble understanding these objections. First, November 8 is the date we have set for the end of voting because a date needs to be set—not because events freeze in time at that point. Imagine terrible news emerging about a winning candidate on the day after Election Day. That news very well might cause voters to change their minds about the candidate they had selected and wish they had voted otherwise. But no one would suggest that we therefore re-open voting. Why is this concern over buyer’s remorse so much greater if the news emerges prior to Election Day? To me, it’s the same problem, with just a slightly increased chance that it will affect any given voter.
That said, the calculus is, indeed, different if the nominee withdraws (through death or otherwise) prior to Election Day. In that case, early voters could effectively be disenfranchised in a way that does not have a precise post-Election Day analogue. But this gets to the second point. Most of the concerns over early voting seem to stem from a desire to protect early voters. But no one is required to vote early. It is simply an option given to those who are (in my mind) fortunate enough to have the option. While some have questioned whether voters are able to understand the risks when they make the decision to vote before Election Day, this strikes me as a debater’s point: while surely this sometimes is true (that is, surely it is true that people sometimes vote early without considering the possibility that they would want to change their minds before Election Day), it’s hard for me to imagine that an information deficit of this sort really has much an effect on how or when people vote.
Most Important Election Law Question of the Decade: Local Rules on Voting Rights
Ned asks a really interesting and significant question: what will be the most important election law issue of the decade?
Regarding election law doctrine, I think that the potential of the Supreme Court adopting a standard for partisan gerrymandering is the most significant, as it will open the courthouse doors to a whole new round of litigation every redistricting cycle. Two cases are winding their way through the lower courts -- one from Wisconsin and the other from Maryland -- that could provide substantive scope to a new Court majority that wants to cabin the worst abuses in partisan gerrymandering.
But if "important" means "will most effect voters in how they participate within the political process," then perhaps we need to look more granularly to what is happening on the ground in states and even cities with respect to election law.
Indeed, this November voters around the country will decide whether to adopt various election-related reforms. In Maine, the voters will decide whether to adopt ranked choice voting, in which voters list the candidates in order of preference. Supporters say that this election system will produce a result that better reflects the sense of the electorate and will help third parties. Missouri voters will decide whether to amend their state constitution to allow voter ID laws in light of a 2006 Missouri Supreme Court case that invalidated the prior voter ID provision based on the state constitution. Wisconsin is trying to implement a voter ID law this year amidst various problems. Many states have adopted online voter registration, with others sure to follow.
At the local level, Seattle is now using "democracy vouchers," a unique form of public financing in which voters are provided four vouchers worth $25 each to donate to any candidate for office in the city. San Francisco voters may expand the voter rolls to allow sixteen-year-olds to vote in city elections and to allow noncitizens to vote in school board elections. Howard County, Maryland will vote on a public financing system for its own elections.
(If you know of other referenda on election laws on the ballot this year, can you let me know?)
We do not have one election system but thousands of election systems that all operate on the same day. How voters interact with their own local system has the biggest effects on their own political participation. These various election law changes, to me, represent the most important (and under-discussed) issues in the world of election law.
Greenberg, Koufax, and Yom Kippur
I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.
Biggest election law question of the decade (2010-2020)???
Since this month of guest-blogging is supposed to be a kind of round-robin, I'm very curious as to other participants thoughts on this question, and I suppose there are many possible candidates, including:
- Will new Supreme Court overrule Citizens United (and perhaps even reject the D.C. Circuit position in SpeechNow) in an effort to reign in superPACs?
- Will the Supreme Court resolve the indecision in Vieth and adopt an enforceable constitutional constraint on partisan gerrymandering?
- Will the new Supreme Court overrule Shelby County, or will Congress adopt new legislation, that will resurrect section 5 of the Voting Rights Act and its nonretrogression principle, or alternative will the Court use the Fourteenth Amendment and VRA's second 2 to moot the necessity of a resurrected section 5?
But, after watching the political events of the last 24 hours, I offer this morning one more plausible candidate for the most important election law question of the decade: will the GOP be able to change its internal party rules to avoid the kind of internecine split that we are witnessing this year? (Relatedly, does election law--which presumably is designed to serve the public's overall general interest in a competitive, healthy democracy--have a role to play if and when one of the two major parties in the existing political system seems incapable of managing its own internal deliberations about what it wants to offer to the electorate?)
Comparing Florida and Ohio federal court emergency decrees
In follow-up to a helpful clarifying comment to my previous post, my reference to the Ohio case was not to suggest that the federal district judge there was correct. On the contrary, as noted, the Sixth Circuit definitely rebuked the district judge for issuing the TRO in that situation. My point in mentioning the Ohio case was to note that, even if the federal court in Florida is correct in issuing the TRO there, it is necessary to recognize the limits to that federal judicial power. In my mind, the Ohio case reflects a failure to recognize those limits at the district court level. Obviously, emergency cases by their very nature are incredibly fast-moving in intense and difficult situations. The instinct on the part of the federal judge, in my view, should not be "what can I do?" or even "how are voters hurt?" but "what has the state government done unconstitutionally wrong that requires my intervention, since other institutions of government have shown themselves to be inadequate to handling the emergency in a constitutionally appropriate manner?" The Florida case is an important one because arguably federal court intervention was indeed warranted, as the district court itself determined, even under this fairly stringent test.
Early Voting and Voting Updates
I concur with many of Steve Huefner's sentiments concerning the pros and cons of early voting. Early voting offers a way of increasing voter turnout by making voting more convenient. It also may facilitate efficient election administration by reducing the number of voters on Election Day itself. On the other hand, lengthy early voting periods can place those who choose to vote at the very beginning of the period at something of a disadvantage. Subsequent events may cause such voters to change their minds and wish to cast their votes for someone else, instead. Most dramatically, the withdrawal or death of a candidate can effectively nullify the votes of those who cast their ballots early.
A period of one week to ten days seems like an early voting period of reasonable length that balances these competing concerns. For states that adopt longer periods, one possibility to consider is the notion of "vote updating." Vote updating is easiest to understand and implement in the related area of absentee ballots. If a person casts an absentee ballot a few weeks before Election Day, and something happens that causes them to shift their support to a different candidate, it should be possible to allow them to cast a replacement ballot, which would be counted instead of their earlier one. Absentee ballots are typically enclosed within outer envelopes containing a voter's identifying information and are not opened for counting until Election Day itself or a few days before (depending on the jurisdiction). Thus, if election records show that a voter submitted two absentee ballots, election officials would be able to identify the original ballot that should not be counted and set it aside. Only the later-received ballot would count.
Monday, October 10, 2016
Hurricanes and Voting Rights
In response to Howard's request, I hopefully will weigh in more deeply on the constitutional analysis when I get a chance. Meanwhile bottom line: it's complicated. There is deep conceptual uncertainty about the nature of the Anderson-Burdick balancing test, on which much of the Supreme Court's analysis of election regulations relies. Anderson-Burdick grew out of Equal Protection law, but also First Amendment. I've been writing recently that, if Equal Protection is at issue, then there needs to be differential treatment among citizens by the government with respect to the opportunity to vote--not just disparate impact of laws that treat all voters equally. If this is correct, then one would need to look for disparate treatment by Florida among voters with respect to the circumstances arising from the hurricane. The plaintiffs make such a claim, but I haven't had a chance to look at it closely.
But others see Anderson-Burdick as not requiring any differential treatment. More like substantive due process claims, and specifically the "undue burden" analysis for abortion regulation, these scholars and judges think there is no comparative inquiry necessary; as long as some voters are burdened with respect to voting, then there is a triggering of the sliding-scale balancing under Anderson-Burdick. I would say that many lower courts see it this way, but not necessarily the Supreme Court.
In a new article, forthcoming in the University of Chicago Law Review, I set forth an alternative "due process" analysis to the traditional Anderson-Burdick approach under equal protection. Although this article doesn't address the kind of emergency situation involved in the Hurricane Matthew case, the basic concept of the article could be applied. The article argues that Due Process employs a principle of fair play that constrains partisan overreaching on the part of state governments. Based on available evidence I've seen, one could easily argue--as the plaintiffs have (although not relying on Due Process)--that Governor Scott's refusal to extend the voter registration deadline was pure partisanship. He practically admitted as much, saying "this is politics" when explaining the reason for his refusal.
There's been a lot of important recent scholarship on what the Supreme Court should do to clarify the deep uncertainty associated with the Anderson-Burdick balancing test. Sam Issacharoff, Pam Karlan, and my Moritz colleague Dan Tokaji --as well as some of the other guest bloggers this month -- all have written major new articles addressing the issue, all of which (I think) are available on SSRN or elsewhere on the web. And there maybe be others (if so, I welcome hearing about them!).
Finally, I note that there was also a Voting Rights Act claim in the case, and there is parallel uncertainty about how the Court should develop the "results" test under section 2 of the Voting Rights Act, especially as applied to regulation of the ability to cast a ballot (rather than redistricting cases) in the wake of the Court's nullification of section 5 in Shelby County. Again, Pam and Dan (among others) have made important contributions to the scholarship in the area, but the Court has yet to settle the issue.
As I observed in a quick tweet after the TRO was announced today, hurricanes themselves are not unconstitutional--the weather itself is never state action--and thus the relevant question is the appropriateness of the government's laws and conduct to handle such emergencies. As one thinks about this Florida case, one should also compare the federal court order issued at the end of the day during Ohio's primary election this year, when there was a major car accident on a bridge. The court issued a TRO without there even being a plaintiff or a case.
Florida Democrats win TRO extending voter registration
A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."
I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.
"You'd be in jail"
So how much will Trump's promise/threat to prosecute and jail Clinton be the takeaway from the debate? And will the popular public reaction be the cheering we heard from the audience? Or will it be horror that a major-party candidate announced it as a plan for his presidency, to the opponent's face and to the world? Not to mention announcing its outcome. This is not supposed to happen in a mature political system. But will enough people recognize the seriousness of that line?
The easy distinction is that the prosecution would not be for the "crime" of opposing Trump for office, but for her crimes while serving as Secretary of State. But that does not work. First, no one ever is prosecuted just for running for office, but for some other, hyped-up charge. Second, in the U.S., no matter the wrongdoing, no one has ever sought to punish the ancien regime, if for no other reason than appearances. It is why the Obama administration did not pursue investigations of those who enacted a system of what might have amounted to torture. It is impossible to separate law from politics in this situation (if it ever is), so we avoid a situation that would blur the line too much.
Not this time and not this candidate--Trump has a tweet quoting the exchange and highlighting the "you'd be in jail" line.
Sunday, October 09, 2016
Trump Sunlight Campaign
Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.
During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.
Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.
How Republicans Could Replace Trump Even if He Stays In
In a new piece for Politico, I've expanded upon (and attempted to organize more systematically) Electoral College analysis that I began in a couple of earlier posts here.
Extending Florida’s Voter Registration Deadline After Hurricane Matthew
The internet has been focused on the fallout from the Donald Trump tape, but I want to remind everyone that Governor Scott of Florida still has not extended the voter registration deadline, which is Tuesday. Nearly 500,000 Florida residents do not have power because of Hurricane Matthew, and I am sure that, for those who remain unregistered, there are more pressing things that they have to deal with at the moment. One issue that has come up, however, is whether the Governor has the power to extend the voter registration deadline. I believe that he does.
Under Section 101.733 of the Florida Statutes, “the Governor may, upon issuance of an executive order declaring a state of emergency or impending emergency, suspend or delay any election.” Michael Morley has argued, in a recent op-ed, that this language gives the Governor the power to move the election, but not to move the voter registration deadline. I think that this is an unduly narrow reading of the statute, and that the Governor’s authority to “suspend or delay any election” cannot be interpreted in a vacuum.
The statute gives the Governor the authority to move or delay the election “[b]ecause of the existing and continuing possibility of an emergency or common disaster occurring before or during a regularly scheduled or special election, and in order to ensure maximum citizen participation in the electoral process.” This language arguably allows the Governor to take actions beyond delaying or canceling the election in order to further the statute’s underlying goal, which is “ensuring maximum citizen participation.” The statute also speaks in terms of disasters occurring before the election, suggesting that the Governor's authority extends beyond Election Day, and could include broad power to change/alter electoral rules in order to accommodate a natural disaster.
A court would likely view the Governor's power to move the election under the statute as broad enough to include the power to move the registration deadline because voter registration is integral to the election. In my view, this is very similar to the White Primary Cases, a series of cases in which the Supreme Court held that Texas’ all-white primary violated the Fourteenth Amendment, but it was able to reach that conclusion only by viewing the primary as an integral part of the general election since, at the time, primaries were viewed as private affairs. In the Court’s view, voters were essentially disenfranchised if they could not participate in the primary, even if they could still vote in the general election because the primary determined which candidate would go on to win the election. One could argue that voter registration and voting on Election Day are connected in much the same way; if voters are unable to register, then they cannot vote on Election Day.
It is pretty clear why Governor Scott, a Republican governor in a swing state and chair of a SuperPac supporting Donald Trump, would resist extending the voter registration deadline. But partisanship aside, I think that it is important to highlight that the authority is there if he wants to use it. He is just refusing to make the accommodation for those individuals who want to register but were affected by the hurricane and likely won’t make the deadline.
Saturday, October 08, 2016
It's Too Late for Write-In Votes
Many Republicans have rescinded their endorsement of Donald Trump and said that they will write in a candidate they deem appropriate for the presidency (with most people focusing on Mike Pence, who incidentally did not receive a single vote from anyone besides delegates at the RNC).
But here's the problem: these votes will not count. Among all of the other legal problems for the Republican Party with Donald Trump at the top of the ticket, another one is that it is too late in most states for a candidate to register as a write-in candidate, and the state will not count any votes for a person not registered as a write-in candidate.
Rob Portman of Ohio, for example, said that he will be voting for Mike Pence for President. But Ohio law says, "Write-in votes shall not be counted for any candidate who has not filed a declaration of intent to be a write-in candidate pursuant to this section." Further, Ohio law forbids a person from declaring as a write-in candidate if that person is the nominee for any other office -- thereby precluding Pence from becoming a write-in candidate. It is also too late under Ohio law for anyone to declare as a write-in candidate; that needed to happen seventy-seven days before the election (Aug. 23).
John McCain similarly said that he "will write in the name of some good conservative Republican who is qualified to be President.” But Arizona law requires a person to declare as a write-in candidate by Sept. 29.
Here is a handy map of the write-in requirements in all 50 states. Notably, only 7 states have no advance filing requirements for write-in candidates. Nine states forbid write-in candidates for president, and the other 34 have a filing deadline that has likely passed.
In sum, these Republican politicians are attempting to distance themselves from Trump and pretend that they will vote for someone else. But that's not legally possible.
When Should Early Voting Begin?
My Moritz colleague Steve Huefner has some thoughts to contribute to this issue.
So, it's early voting's fault?
As (some, though not all) Republican leaders call on Donald Trump to withdraw as nominee, Rick Hasen lays out the possibilities. Rick suggests it is too late to replace Trump on the ballot, since ballots have been printed, absentee ballots mailed, and perhaps a half-million people have voted.
The lesson some are drawing from this is that early voting is a bad idea and we should get rid of it. Rick argues that "most early voters are committed partisans, and few who voted for Trump already would likely have second thoughts now." And even if not committed partisans, early voters presumably had sufficiently made up their minds about this election to cast their votes now. Moreover, while this is playing out as a mind-changer, it is not clear why it should be. What we heard from Trump on this recording does not seem to me different in kind, and not much different in degree, from everything else we knew and heard from and about Trump over the past year. So why should we protect some group of voters from themselves, given what they already knew (Perhaps the difference is that what Trump talks about here sounds like sexual assault--although most GOP leaders running for the hills seem more offended by the dirty words and underlying misogyny--both of which we have seen from Trump as recently as last week--than the suggestion of sexual violence).
Using this extraordinary situation to indict all of early voting as a concept also seems like throwing out the baby with the bathwater. Early voting exists, in part, because the existing, antiquated voting procedures cannot handle on a single day the 100 million+ people who want to vote in a presidential election. It exists, in other part, to make life easier for large numbers of people for whom waiting in the required Election Day lines who function as a poll tax, or worse. Neither of those benefits should give way because some number of voters might have buyers' remorse over a ridiculous candidate who, late in the game, highlighted his true colors that were clear all along.
More on possible "dump Trump" plan & Electoral College
In response to an email question about my previous post on this topic, I wrote this earlier this morning, and I thought it might be useful to share here as a supplement to the first post:
Friday, October 07, 2016
GOP repudiation of Trump before 11/8? If so, then what?
As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump. True, Trump will still be on the ballot that we citizens cast. But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence. Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.
Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump. Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate.
Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump. Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn't send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.
What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump? Under the Twelfth Amendment and 3 U.S.C. 15, the new Congress meets on January 6, 2017, to open these Electoral College votes. If the Republicans control both the Senate and the House and stay organized on behalf this plan, they could vote to accept all the Electoral College votes for Pence and reject all the Electoral College votes for Trump, and Pence would be constitutionally elected President. If, however, the Democrats control the Senate (perhaps unlikely as a practical matter if the GOP electors reached 270+, but still worth considering), while the Republicans retain the House, the situation gets even more complicated. If for some states the Senate votes to count the Electoral College votes for Trump (would they in an effort to deprive Pence of the White House?), and the House votes to count the conflicting Electoral College votes for Pence, then under 3 U.S.C. 15, the conflict is supposed to be resolved by the governor of each state that sent to Biden two or more sets of conflicting Electoral College votes. But some scholars think that 3 U.S.C. 15 is unconstitutional, and it is unclear what happens if both conflicting sets bear the governor's signature.
Anyway, let's suppose for simplicity that the governor-as-tiebreaker in each state is accepted, and the consequence is that Pence is pulled below 270--perhaps because Pennsylvania's Democratic governor follows the Senate's lead and picks the Trump set of electors. If Pence falls below 270, then the House of Representatives must choose the President with the choice confined to Pence, Clinton, and Trump. But under the Twelfth Amendment, each state has one vote, and it takes 26 states to achieve a choice (not just a majority of states that vote in the House). If 26 states vote for Pence, then he's the constitutionally elected President (by the different route than above). But if no one gets 26 states (because some state delegations are evenly divided between Democrats and Republicans, and Pence can't quite reach 26), then under the Twentieth Amendment whomever the Senate has picked as Vice-President becomes the Acting President.
So if the Democrats control the Senate, they would have picked Kaine as Vice-President. But if the Republicans control the Senate, who would they pick? It depends on whom the GOP electors voted for on 12/19 when they picked Pence for president. As I read the Twelfth Amendment, they are not supposed to pick Pence for both President and Vice-President. So they would need to come up with another name for Vice-President, who might end up as Acting President.
All of this is highly speculative, of course, and even if the process starts down this road, there might be some wild and unexpected twists-and-turns. But this year's presidential election already has been wild and unexpected, so who knows? It pays to speculate a bit, just to try to be prepared for strange scenarios that might actually unfold.
Thursday, October 06, 2016
Hurricane Matthew and the Election
All of our thoughts are on the safety of those in the path of Hurricane Matthew, which looks like it could wreak havoc on anyone and anything in its path. Ensuring the safety of everyone involved is, of course, the most pressing matter today.
But as Rick Hasen noted on Twitter, for good or bad, in the aftermath thoughts will also inevitably turn toward the implications of the storm on the presidential election. Rick has a nice thread exploring some of the issues here.
Four years ago the country also experienced a hurricane, Hurricane Sandy, just before the election. At the time I wrote some commentary that unfortunately seems relevant once again. Perhaps, especially in this vitriolic political environment, Hillary Clinton and Donald Trump can come together to do some good. Specifically, they should agree that Florida and other states should be allowed to do what it can to ensure people can register and vote, and they should both donate a significant amount of their campaign funds to hurricane relief efforts. Here is what I said four years ago:
States that Hurricane Sandy hit shall be given leeway and flexibility to conduct their elections while also recovering from the storm. This might mean keeping polls open an additional day or providing more access for absentee and provisional balloting. (For example, the Pennsylvania Governor has extended the application deadline for absentee ballots.) The underlying principle shall be greater access for voters to cast their votes, and neither candidate will challenge a state’s decision to expand voting opportunities for those dealing with the storm. Of course, however, states should do all they can to complete their elections on November 6 if at all feasible. States not affected by the storm should not count or report their voting numbers until the last state that the Hurricane hit has completed its Election Day procedures. That is, all states should count their ballots and report the results on the same day. This will ensure that the country is not waiting on a single state (such as Virginia or New Hampshire) that could determine who wins the Electoral College. Although the federal government or the candidates cannot prohibit states from counting their ballots, both candidates should call on all states to wait to tally the results until all states have finished voting, with of course the hope that all states can actually complete their elections by next Tuesday. Neither candidate will contest the result in a post-election challenge on the basis of reasonable actions that the states might take to increase electoral access to their residents because of the storm – so long as those actions are non-discriminatory. That is, the only permissible challenges based on post-Hurricane voting accommodations will be to changes that are clearly unreasonable or that have the purpose or effect of favoring certain classes of people (i.e., race, sex, political affiliation, etc.). The Department of Justice will agree not to object to a voting change in a Voting Rights Act Section 5 “covered” jurisdiction (which includes Virginia and parts of New York and New Hampshire) stemming from the storm. The candidates should agree to suspend all negative advertising through Election Day. In a time when the country is trying to “come together” to help storm victims, negative ads—throughout the country—can adversely affect public discourse The candidates should agree to donate at least half of the amount in their campaign bank accounts to Hurricane relief efforts. The Federal Election Campaign Act allows candidates to donate money to charity, and donating this money to the recovery will provide a bipartisan display of support that can help to improve political discourse—and may facilitate compromise in the other logistical areas regarding the election.
To everyone in the storm's path: you are in our thoughts! Stay safe. To the presidential candidates: it's time to come together for the good of the country.
Cities as "Test Tubes of Democracy" for the Right to Vote
Over eighty years ago, Justice Louis Brandeis famously referred to states as “laboratories of democracy” that can experiment with different laws to see what works best. “A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” As I show in a new article (abstract after the jump), if states are laboratories of democracy, then cities and towns can be "test tubes of democracy" that can and should experiment with election law rules on an even smaller scale. (Side note: my twitter handle is @JoshuaADouglas. Can we figure out a way to make #TestTubesofDemocracy start trending?!)
Local experimentation on the right to vote is already occurring around the country. Cities and towns have expanded voting rights for 16- and 17-year-olds, noncitizens, and nonresident property owners (e.g., in vacation towns). That is, cities have expanded the electorate for their own elections.
This November, San Francisco voters will decide on whether to lower the voting age to 16 for all city elections and allow noncitizens to vote in school board elections. At first I was skeptical when I began looking into these local laws, especially on the merits of lowering the voting age to 16. But the more I researched -- particularly studies on cognitive development -- the more convinced I became that it is a good idea. Later this month I'll spend some more time on the policy merits of lowering the voting age. Here, I want to focus on where this is occurring: at the local level.
Most people think of the right to vote as a federal constitutional right, or perhaps a right derived from state constitutions. But focusing on these two sources leaves out an important level of inquiry: local laws. A complete understanding of the right to vote requires three levels of analysis: federal constitutional law (and statutes), state constitutional law (and statutes), and local laws for local elections.
Wednesday, October 05, 2016
Academic Freedom in NYU-Shanghai versus NYU-NYC
Last week, the GAO issued a report on academic freedom at campuses operated by American universities in China. The report has special interest for me, because I spend my Fall terms teaching undergraduate students at one such university (New York University-Shanghai), and I had been interviewed for the GAO report.
The GAO’s conclusions are consistent with my own experience teaching here at NYU-SH: NYU’s campus here in China fosters freedom of speech and thought just as effectively as the campus in Washington Square. My class on constitutional law provides a typical illustration. The course studies the U.S. Constitution with the goal of assessing whether and to what extent its text, precedents, and basic concepts (freedom of speech, separation of powers and judicial review, federalism) are relevant to China. Toward that end, the class is divided into two teams – the “Left Party” （左派）and the “Western Liberal Party” (西自由派) who are charged with trying to persuade or dissuade the chair of Central Political and Legal Affairs Commission of the Communist Party of China (Zhongyang Zhengfawei, 中央政法委) to adopt an American constitutional practice. The two teams debated last week whether Article 105 of the Chinese Criminal Code prohibiting “subversion of state power” should be construed narrowly to exclude prosecutions of Chinese human rights lawyers. Thanks to NYU-Shanghai’s outstanding VPN, they had the same access to newspaper accounts of these arrests, detentions, and coerced confessions. The ensuing debate was no-holds-barred, with impassioned denunciations of censorship and prosecution vying with Leninist calls for protection of stability against “western outsiders.”
Of course, one could argue that these outward manifestations of freedom merely hide the reality that Chinese students are cowed by the Party, whose spies deter them from saying what they really think. After the jump, I will explain why I think that it is unlikely that NYU-Shanghai students’ speech – and, by extension, students at other American universities in China – is chilled by fear of the Chinese Communist Party. Indeed, I will suggest that, if anything, freedom of speech at NYU-Shanghai might be greater than at NYU-Washington Square or other schools on American soil. My reason for this suspicion is that the major culprit suppressing freedom of speech on campuses is less the government than other students, and the diversity of nationalities at NYU-Shanghai breaks up the usual cartels of opinion that make so many American campuses oppressive hothouses of ideological uniformity. I will also suggest why well-meaning demands from people like Marty Flaherty that American law schools operating in China denounce the Chinese government for their sins against freedom actually undermine the sense of ideological openness that our students enjoy.
Presidential and congressional elections; Amar's "sunrise" idea
In my first post, I discussed the importance of reforming the process for presidential elections, specifically advocating the need for a runoff mechanism (like Instant Runoff Voting, but it could be a separate runoff election like many other democratic countries, including France, use for their presidential elections). I used the full scope of U.S. history to make the point that, ever since the Electoral College failed to function in the way intended even after the Twelfth Amendment fix, the existing process for presidential election fails to handle adequately the existence of third (or more) candidates--and that it is not just a "Ralph Nader" problem limited to just a few aberrations.
In this post, I want to raise a question that was asked on Friday at the Fordham Law Review symposium where I presented my paper on the need for presidential runoffs. The question, an extremely important one, was essentially (and I'm paraphrasing), "What difference does it make to fix presidential elections, if Congress is paralyzed by hyper-polarization and gridlock, especially when one party controls the Senate and another party controls the House?"
I'm strongly of the view that the purpose of elections is for the citizenry to choose a government. But if the government is incapable of actually governing, then elections have failed in their essential purpose. I think the capacity, or incapacity, of Congress to legislate responsibly with respect to the budget and other pressing national issues (tax reform, etc.) suggest that our political system is at an unprecedented level of dysfunction. If reforming presidential elections won't fix the problem, what will? Reforming congressional elections? Something else? I hope to have more to say on this topic. Meanwhile, I note that it is impossible to place the blame solely on gerrymandering, since the Senate is not gerrymandered. Or on Citizens United, given the existence of Buckely (among other reasons). The challenge of reform is a multi-faceted one.
Here, I want to close this post with one idea concerning the process of reform. It's Akhil Amar's idea, which he mentions at the end of his book America's Unwritten Constitution, and which I explore in a subsequent essay, The Posterity Project. The idea, very simply, is to use a "sunrise" mechanism when adopting any significant structural reform. The opposite of a "sunset" mechanism, which terminates a piece of enacted law after a specified period of time, a "sunrise" mechanism would delay the time at which a piece of reform takes effect for a specified period. The reason for a "sunrise" mechanism is to induce present-day politicians to set aside short to self-interest (including the short-term self-interest of their constituents and co-partisans) and adopt reforms in the long-term best interest of the polity. It's the closest we humans can actually come to putting ourselves behind a Rawlsian veil-of-ignorance, as we might not know what our own narrow self-interest will be at some point in time down the road.
Obviously, there is an inherent trade-off in setting the "sunrise" date: the further in the future it is, the more Rawlsian the deliberation, but the longer we have to wait before the reform actually takes effect. The shorter the delay of the "sunrise" mechanism, conversely, the more likely self-interest calculations will taint the deliberations over what reform to adopt. However you think the "sunrise" mechanism should be specified, I urge you to consider the advantage of a nonpartisan structural reform commission co-chaired by ex-presidents Barack Obama (after he leaves office) and George W. Bush. The purpose of the reform commission would be to consider the set of structural reforms--involving presidential and congressional elections, and other topics--that are necessary to rectify the problem of paralyzed and dysfunctional government, which we seem to have right now. Any reforms recommended by this commission would not be adopted until after the specified "sunrise" period of delay was over.
The Two Sections 2s and Some Thoughts on Frank v. Walker
Thanks for having me this month. My scholarship focuses on election law and federalism. In the last few years, I have written about Section 2 of the Fourteenth Amendment and the Elections Clause of Article I, Section 4. Section 2, in particular, rarely gets any attention from the courts or the scholarly literature. In fact, Michael Morley (also blogging this month) and I are among the few scholars who have written about this provision at length. My forthcoming book, A Promise Unfulfilled: Section 2 of the Fourteenth Amendment and the Future of the Right to Vote, will hopefully bring Section 2 out of the obscurity in which it has languished for over 100 years.
In my book, I argue that the scope of Congress’s enforcement authority under Section 5 of the Fourteenth Amendment should be read in light of Congress’s authority to reduce representation pursuant to Section 2. Section 2 allows Congress to reduce the state’s representation in the House if the state abridges or denies the right to vote. It is the only provision of the Fourteenth Amendment that actually mentions voting, and it can provide guidance to courts in determining the nature of substantive voting rights violations and the appropriate remedy. Section 2 has never been enforced, although Congress has threatened to use it at various points, most notably in the wake of the disenfranchisement of African-Americans through various state constitutions in the 1890s. In my view, if the Fourteenth Amendment is interpreted through the lens of Section 2, then Congress’s power to enforce its terms through “appropriate legislation” also includes the authority to impose lesser penalties than reduced representation in effectuating the goal of broad enfranchisement that underlies Section 2.
One of the implications of incorporating Section 2 back into the interpretive framework of the Fourteenth Amendment is that, contrary to current caselaw, Congress does not have to establish that states engaged in a pattern of racially discriminatory behavior in order to enact voting rights legislation. Section 2 does not require that the state act with racially discriminatory intent in abridging the right to vote; the provision does not reference race and is triggered whenever the right to vote is abridged or denied.
In a recent article, I explored the implications of this argument for the constitutionality of Section 2 of the Voting Rights Act. Section 2 of the VRA, like Section 2 of the Fourteenth Amendment, also penalizes abridgments or denials of the right to vote, but unlike the latter, Section 2 of the VRA speaks in terms of race based denials or abridgments. Some commentators have suggested that Section 2 of the VRA, which extends beyond the substantive mandates of the Fifteenth Amendment, might be unconstitutional because the statute’s use of race-conscious remedies and its focus on the racially discriminatory effect of various state laws unduly infringes the states’ sovereignty over elections.
My article dispels any notion that Congress must establish a record of racially discriminatory behavior by states before it can enact a statute like Section 2 of the VRA (which I will discuss in another post). For purposes of the upcoming election, I want to focus on another question: what types of state laws abridge or deny the right to vote? Arguably, Section 2 of the Fourteenth Amendment informs which types of laws count as abridgments and therefore might run afoul of Section 2 of the VRA, which also speaks of abridgment. A good case study is the Wisconsin voter identification law, which has been the subject of challenges in both state and federal court. I want to focus on two of the opinions that emerged over the course this litigation – the Seventh Circuit panel opinion in Frank v. Walker upholding the law and Judge Posner’s dissent from the Court’s refusal to hear the case en banc.
In rejecting the facial challenge to the law, the Seventh Circuit adopted a reading of Section 2 of the VRA that raised the evidentiary burden to one that would essentially require plaintiffs to show that the voter identification law amounts to an absolute barrier to voting. The Frank majority observed that Section 2 of the Voting Rights Act “does not condemn a voting practice just because it has a disparate effect on minorities,” and concluded that the voter identification law did not violate Section 2 because African-Americans had high voter registration rates overall. As Wisconsin’s voter-identification law will only impact about two percent of the electorate and still leave African-American turnout significantly high, the discriminatory effect of the law was too small, in the court’s view, to violate Section 2. Frank raises important questions about the degree of disenfranchisement required to violate federal law. How many people have to be disenfranchised before a law will be found to violate Section 2 of the Voting Rights Act?
Section 2 of the Fourteenth Amendment, and its penalty of reduced representation, provides substantial guidance on this question. During the congressional debates that preceded the enactment of Section 2, Congress rejected language in draft Section 2 that would have excluded “all persons of such race or color . . . from the basis of representation” whenever the right to vote is abridged. Pursuant to this language, discrimination against one African-American could have conceivably removed the entire population of African-Americans from the state’s basis of representation. Instead, Section 2 removes only the number of citizens whose right to vote has actually been abridged, which implies that some abridgment is inevitable but there is no minimum threshold that must be crossed before the penalty of Section 2 is triggered.
This legislative history provides broad support for an approach to Section 2 of the VRA in which the degree of disenfranchisement is part of the court’s overall “totality of the circumstances” assessment of whether the statute has been violated, as opposed to serving as an absolute bar to Section 2 liability if the effect is minimal. For this reason, the Seventh Circuit’s speculation that less than two percent of minority voters will be impacted by Wisconsin’s voter-identification law (and is therefore insufficient to show a discriminatory effect in violation of Section 2 of the VRA) misses the point.
Indeed, if a regulation is enacted with very little empirical or evidentiary support as to its necessity, then an impact of two percent of the electorate not only runs afoul of Section 2 of the Voting Rights Act, but it is exactly the type of regulation that would trigger the penalty of Section 2 of the Fourteenth Amendment. Not only is two percent significant in close elections, but as Judge Posner points out in his dissent from the denial of rehearing en banc: “There is evidence both that voter-impersonation fraud is extremely rare and that photo ID requirements for voting, especially of the strict variety found in Wisconsin, are likely to discourage voting. This implies that the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic” and, as recent events have borne out, tend to disproportionately be people of color. Thinking about voter identification laws within the broader context of Section 2 of Fourteenth Amendment suggests that the facial challenge should have succeeded, but this is of very little comfort to those voters who, thanks to state DMVs, probably won’t have the requisite ID before the upcoming election.
Wright v. City of Miami Gardens: Remedies in Election Law Cases
There is a scene at the beginning of The Empire Strike Back where the Imperial Fleet tracks the rebels to the ice planet Hoth, and rebel ships start to evacuate. As one of the escaping ships approaches a looming Star Destroyer, the Star Destroyer's captain comments, "Our first catch of the day." I'd like to offer our first catch of the symposium in terms of election law rulings by discussing one likely to fly under the national radar: the Florida Supreme Court's ruling in Wright v. City of Miami Gardens. I think the court probably resolved the constitutional issue in the case incorrectly (although I certainly understand its reasoning and am not greatly troubled by it), but I am truly concerned about the court's approach to the question of remedies. It decided to nullify a mayoral election, unseat the declared winner, and order a new election, without any explanation or legal analysis whatsoever of whether that was the correct remedy, or the circumstances under which new elections are the legally/constitutionally required or appropriate response to a statutory or constitutional violation. The court seemed to assume that a new election must presumptively or automatically be held. This is a potentially dangerous precedent heading into what is sure to be an especially contentious and litigious election season.
Tuesday, October 04, 2016
Dean Phil C. Neal, R.I.P.
Former University of Chicago Law School Dean Phil C. Neal, an antitrust expert, litigator, and law firm founder whose ability to cut through complexity earned him a reputation as a deft problem-solver, died Tuesday night. He was 97.
I was particularly interested in this (taken from the same post):
After law school, Neal served for two years as a law clerk to Justice Robert H. Jackson of the US Supreme Court. In spring 1945, Jackson permitted Neal to leave his clerkship a few months early because he had the opportunity, through the intercession of Justice Felix Frankfurter, to assist Department of State official Alger Hiss in his work as secretary general of the United Nations organizing conference.
He joined the faculty at Stanford Law School in 1948 after working at a law firm in San Francisco for several years. While at Stanford, Neal introduced Justice Jackson to the student who would become his final law clerk. This meeting, which took place in Neal’s office in the summer of 1951, ultimately resulted in Jackson offering a clerkship to William H. Rehnquist. As it turned out, Rehnquist was one of two future US Supreme Court justices whom Neal taught at Stanford; the other was Sandra Day O’Connor.
In his first book about the Court, The Supreme Court: How It Was, How It Is, Rehnquist dedicates a lot of the first chapter (which I've always thought was a really endearing read) to his clerkship interview, the trip out to Washington, and the first few weeks on the job:
A large element of luck seemed to have entered into my selection as Justice Jackson's law clerk. . . . [A]s fate would have it, Justice Jackson came to dedicate the new Stanford Law School building in the summer of 1951, when I was attending my second summer session. Phil Neal, my administrative-law professor, had himself clerked for Justice Jackson several years before. Shortly before Justice Jackson was due to arrive for the dedication ceremonies, Professor Neal asked me if I would be interested in clerking for the justice; the suggestion came to me out of the clear blue sky, but I naturally said that I would be. . . .
It cannot be difficult to imagine the fear and trembling with which I approached the interview. . . I first tried to bone up for my meeting with the justice by reading some of his opinions, and by trying to steep myself in constitutional law. After a few hours, however, I decided that it was utterly futile[.] . . . [Justice Jackson's] pleasant and easygoing demeanor at once put me at ease. . . I genuinely enjoyed listening to [his] anecdotes, but somehow I felt I should be doing more to make a favorable impression on him. . . . I walked out of the room sure that in the first few minutes of our visit he had written me off as a total loss.
I know the feeling! In any event, I'm grateful to Prof. Neal. R.I.P.
On "The Troublesome Use of Photographs . . . and Other Images" in Federal Court Opinions
Bear with me.
In 1997, Hampton Dellinger wrote an interesting commentary in the Harvard Law Review titled "Words Are Enough: On the Troublesome Use of Photographs, Maps, and Other Images in Supreme Court Opinions." Dellinger wrote that "visual attachments" to written opinions have potential value, including "offering the possibility of offering an impact more powerful than words." But he warned that "the unique attributes of these attachments pose special dangers." Even in cases where the accuracy of a visual attachment--a map or photograph, for instance--is not in dispute, it could still be problematic, because its "probative value [could] be outweighed by its prejudicial impact." Dellinger recommended that the Court stop using visual attachments altogether, or at least use them with great care. His article was fairly clearly directed at ostensibly useful, relevant, and probative visual attachments; judging by his discussion of Chief Justice Warren's use of photographs in Estes v. Texas that were more in the way of persuasion than directly relevant evidence, I think it's fair to say he would be even more critical of the judicial use of visual attachments that serve a purely or essentially persuasive purpose, relying on emotion rather than evidence.
Dellinger's article has been cited a number of times. In Nancy Marder's article "The Court and the Visual: Images and Artifacts in U.S. Supreme Court Opinions," Marder is supportive of the use by Justice Kennedy, in Brown v. Plata, of a stark photograph of a metal cage in which prisoners were kept. The photograph, she writes, is "very powerful, and adds a different kind of support--beyond the statistics and the words of experts--to Justice Kennedy's opinion." Marder disagrees with Dellinger's proposal that such aids not be used at all. But she adds emphatically that "they need to be used with care," that "the image with the greatest potential harm is the photograph, which can be very powerful and can elicit a strong emotional response from viewers," and that "the justices need to exercise restraint in deciding whether to include a photo in a highly contested area of the law. The most serious potential harm with photos is that they could arouse a strong, visceral response in viewers in an area that is controversial or emotionally charged. In such cases, the photos, rather than adding to reason and argument, will undermine them."
Finally, in "Taking Images Seriously," Elizabeth Porter addressed directly the use of visual images for essentially argumentative purposes: "visual icons," or images used "for purposes that are tied more closely to rhetoric than substance." She wrote--I think descriptively not normatively, based on what follows in the article--that "the naturalness" of such images makes [them] less subject to criticism than judicial use of extraneous or rhetorical textual examples." Porter proceeded to argue that "there are significant risks to allowing images to seep into the legal vernacular," including "the risk that image-driven legal argument will vitiate the intellectual rigor and civility of legal discourse." This risk, she wrote, "is more subtle [than the other risks she sets out], but perhaps more pernicious and less susceptible to regulation." It could result in "a language that appeals to emotion over intellect." Like Marder, Porter urged judges to use great care in deciding whether to incorporate images into their opinions, especially images that are "outside the record" and "only tangentially related to the subject matter of the case."
All this suggests a few points that seem to fall within the center of opinion about the use of images in judicial opinions. I think it also represents the general consensus among lawyers. These images should be as relevant and accurate as possible. Because they may have a great visceral and emotional impact, they should be used with great care, if at all. Judges should be especially reluctant to use them when they function essentially as an appeal to emotion, and when that appeal to emotion may overshadow the specific subject of the case. These problems are likely to be especially present and grave when the issue under review is a highly emotionally salient or hot-button one. Where a judge does so anyway, judges and scholars should be ready and willing to engage in public criticism of that judge.
When someone (other than me, since I do it all the time) writes this much in so dry a fashion, it's a fair guess that the tl;dr approach is deliberate, and is perhaps intended to secure gradual agreement through a series of discussions and examples that are not the subject of any recent conduct that is still subject to the passions and distorted judgments of the day, before holding up precisely such an example and asking people to judge it against that standard, regardless of the politics or strong feelings involved. And that is exactly what I'm up to here.
Here is an interview--a softball interview, unfortunately, of Jimmy Fallon-like toughness, although Fallon of course is not a journalist--between Mark Joseph Stern of Slate and Senior Judge Damon Keith of the Sixth Circuit. The interview concerns Judge Keith's dissent in a recent voting rights case, Northeast Ohio Coalition v. Husted. As Stern puts it, "Keith included in his dissent a [photographic] gallery [of] 'martyrs of the struggle of equality,' slain civil rights heroes 'whose murdered lives opened the doors of our democracy and secured our right to vote.'" In the interview, Judge Keith justifies his decision as follows:
I wanted to dramatize the racist attitude of the majority. Look at those pictures. These are men and women who died for the right to vote. I was really so hurt by the decision of the majority of the court. My grandparents lived in Georgia, and they were not allowed to vote because of racism. I thought about them. . . . I said in my dissent precisely what I thought the Ohio law was about, and I wrote about the struggle that we still have in this country for the right to vote. And I said, look at these pictures. All those men and women, white and black, Jew and gentile, gay and not-so-gay—this is what they lived for! This is what they fought for! This is what they died for!"
I cannot comment on the election law issues. I can say that the gallery of photos and captions--ten pages worth, or more than one-quarter of the dissent--is moving and powerful. I can say that built as it is on a history none of us should forget, it has a powerful visual and rhetorical impact. I can, in short, say all the things one is expected to say, not least because I feel them sincerely. That said, I find it very difficult to conclude that the inclusion of these images, from well beyond the record or the specific issues in the case, comes anywhere near the standards proposed by those scholars who have written on the issue of the use of visual images in judicial opinions. Again, I think that standard is no outlier, but fairly represents the center of lawyerly opinion on this question.
If those writers were right that the issue deserves attention, then Judge Keith's decision to include the gallery deserves attention from those who are concerned about or interested in the use of visual images in judicial opinions. It requires either public justification--principled justification consistent with past views on the subject--or public criticism. It is obvious that Stern could and should have pushed back more in the interview than he did. (The interview, the piece notes, was edited and condensed. If he did push on the point, he should have included that in the edited version.) For background purposes, Stern might have started by reading this article by his own Slate colleague, Dahlia Lithwick, in which she argues, citing Dellinger's piece, that the photographic display in Brown v. Plata was questionable given the power of the opinion itself, and questions whether "the court [should] be using visual aids to prompt emotional responses . . . in the first place."
One long last note. I hesitated some time before posting this, for two reasons. (Well, three, but an ambitious person's fear of being viewed negatively for posting something on this topic is not a good reason.) First, Judge Keith is an extraordinary man who has had a remarkable career and contributed significantly to the law on many issues, not least those involving the American original sin of race. Even those who disagree with some or many of his rulings can and should show respect for his exceptional life and long record of public service. The second reason is his age. Judge Keith is 94 years old. Perhaps his age itself, combined with that record of a long and distinguished life, counsels respectful silence even if he erred in including the gallery, at least according to the standard offered above. Age sometimes demands its own tribute, and sometimes the tribute is to let pass what, at least on the view above, would be a lapse in exercising the best judicial judgment and temperament. Perhaps that is compounded where, from the judge's perspective and perhaps that of many others, the arguable lapse is motivated by passion over an enduring injustice, and over what it means for a long history of struggle and sacrifice. It seems to me, however, that this last point may affect the ultimate argument about whether the display was improper or whether, instead, it was justified by extraordinary circumstances; but this should form part of the discussion about the propriety of the "gallery" itself and should not affect the decision whether to publicly raise that issue or not. Really, respect for or concern over his age is the key factor here.
Perhaps, then, a respectful silence would have been the best thing. But my decision to post anyway is itself based on respect. Whatever his age, Judge Keith still sits on the bench. Respect for him, as a judge and as a person, entails taking him seriously, and taking him seriously includes being willing to criticize him or, at a minimum, raise questions about the propriety of the gallery. Silence in these circumstances can be respectful, but it can also be patronizing, condescending, or dismissive. If he is fit to serve, and I certainly do not suggest otherwise, then he is fit to be criticized. Moreover, while I cannot help but feel his advanced age is a good human reason to be sensitive, I also note that most of the time, while we acknowledge that judges are human, we also treat their work product as that of professionals, and subject to professional commentary, questions, and criticism.
Finally, raising these questions here would have been less necessary if Stern had done his job properly. That the gallery was unusual as a matter of judicial practice and arguably involved the use of visual aids not for reasoned argument but "to prompt emotional responses" was obvious on its face. Indeed, it is likely that the unusual nature of the gallery prompted the Slate interview in the first place. Slate and other media sites these days are keen on the idea that it's not enough to just give someone an uncritical platform; the journalist has the duty to push back and ask tough questions. Stern's interview obviously fell short of that standard; it was more of a mash note. If he had done his job, readers would have had some additional and necessary context by which to judge the use of visual aids in Judge Keith's dissent. Whether they then criticized it or approved of it, they would at least have been relevantly informed. Since Stern didn't do his job, someone must.
For all that, I hesitated, both because of the powerful and sensitive issues and history that formed the subject of the gallery and because of the judge's advanced age--and, no doubt, out of a desire for professional self-preservation. But the issue deserves to be aired, so that people can consider what the proper general standard should be for the use of emotionally stirring, extra-record visual displays by judges, and either criticize the display in this case or come up with a sound reasoned justification for it.
Monday, October 03, 2016
Election Law Priorities? Fixing Presidential Elections?
On Friday, I was very fortunate to be able to attend, and present a paper at, Fordham Law Review's symposium on presidential elections. Other presenters included Anthony Gaughan, Michael Morley (who is also participating in this month of election law blogging), and (I'm most proud to say) my superb former student Sean Wright (now at the FEC). I encourage all to you to look at their recommendations for reforming presidential elections, which include eliminating caucuses, adjusting the rules for the party conventions, raising campaign contribution limits, adoption of the National Popular Vote plan, among others.
My paper, on the need for runoffs in presidential elections, addresses what is sometimes called the "Ralph Nader" problem, because of Nader's role in determining the outcome of the 2000 presidential election, but the point of my paper was to show historically that it is a much bigger issue than many of us realize. Depending on how one counts exactly, roughly 15-20% of all presidential election (there have been 56 of them) are ones in which a third candidate likely or possibly determined which of the two leading candidates was the one who ultimately won. That's a much higher percentage than I realized before starting the project, and involved some of our most consequential presidential elections.
Most of us don't remember from high school history the 1844 election, but that was the one in which James Polk beat Henry Clay only because a third candidate, James Birney, drew votes away from Clay. Polk, the candidate of "Manifest Destiny" wanted (and, as winner, did) take America to war against Mexico and supported the entry of Texas into the Union as a slave state. Clay opposed Polk on these crucial issues concerning America's future. Whichever side you think had the better of the argument, there's no doubt it was one of the most important elections in determining America's future.
Likewise, 1912. That's the one where Teddy Roosevelt ran against his protege William Taft, the incumbent president, for the Republican nomination. After losing the nomination to Taft, TR bolted the GOP and formed his own Progressive Party, with his Bull Moose candidacy. Roosevelt ran second to Wilson, and clearly would have won a runoff, since Taft's supporters (to the right of TR) would have supported TR over Wilson. Had TR won back the White House in 1912, it is very likely that America's entry into World War One would have been much sooner, and the terms of peace imposed on Germany much different. (No naive League of Nations idealism from TR, the ultimate realpolitik president in terms of international affairs). Who knows, but all of world history (no rise of Hitler and World War Two???) might have been very different if TR, rather than Wilson, had won in 1912.
Who knows how this most bizarre presidential election of 2016 will end up, but it is still conceivable that Jill Stein or Gary Johnson could determine whether Trump or Clinton wins (making this year similar to 2000). The bottom line is that America lacks a capacity for handling presidential elections in which a third candidate (or more) is a factor in the race. We have lacked this capacity ever since the Electoral College has not functioned as originally intended (which is pretty much right for the beginning).
Fixing this problem is high on my own list of election priorities. In the paper, I explain that each state already under Article Two has the constitutional power to use Instant Runoff Voting for the appointment of its presidential electors. What we need is a concerted movement to get states to use this power in this way.
I'm curious whether others share this view and also what they would list as their top election law priorities.
Thanks much for inviting me to participate in this month of blogging. I'm very much looking forward to the exchange of ideas!
The Nightmare Scenario: Trump v. Clinton at the Supreme Court
It's the first Monday in October, so attention has turned to the new term of the U.S. Supreme Court. Predictably, many stories, such as this excellent N.Y. Times Editorial, point out the unprecedented nature of the Senate Republicans' refusal to consider the nomination of Judge Merrick Garland. That Times Editorial also highlights the downsides of a less-than-full Court on voting rights issues:
Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic.
For example, in July a federal appeals court panel struck down a 2013 North Carolina law that one election-law scholar called "possibly the largest rollback of voting rights" since 1965. That court found the law had been enacted intentionally to reduce black voter turnout.
North Carolina appealed that ruling to the Supreme Court, which split 4-to-4 without issuing any explanation, meaning that the lower court’s decision was upheld. While that was the right result, a full court could have set a legal standard on voter suppression efforts that would have applied nationwide.
Missing from this analysis is the nightmare scenario: a disputed presidential election that goes to the courts. Call it Bush v. Gore, round 2: Trump v. Clinton. The more Donald Trump suggests that he will not accept the results of a Clinton win, the more likely this could occur.
Let's say that there are disputed ballots in Florida, Ohio, Colorado, or another state with a close result. Trump contests the election through whatever procedures the state has created (detailed here). The final step is the Supreme Court. And the Court ties 4-4. That result would simply affirm the lower tribunal's decision, without a precedential opinion. If people think Bush v. Gore was illegitimate -- or at least overly partisan -- then this would be 1000 times worse.
Not many people are discussing this nightmare scenario, probably because the likelihood is fairly small that the Court would take the case. Chief Justice Roberts surely would try to avoid harming the legitimacy of the Court by, in essence, deciding another presidential election, especially one so hard fought and vitriolic. The Court would likely try to stay out of it -- which itself could be problematic depending on what happens in the lower courts.
But this scenario is not entirely implausible. And it keeps me up at night.
Sunday, October 02, 2016
Taking Bartnicki for a drive
The working assumption is that Donald Trump's old tax forms were released unlawfully, but that The Times was not involved in any leak. If so, the publication is protected by Bartnicki v. Vopper and Florida Star v. BJF as publication of truthful, lawfully obtained information on a matter of public significance. Even Justice Breyer, who concurred in Bartnicki but was hesitant to grant a broader constitutional immunity to the press, would agree that a candidate's tax returns are of "unusual public concern," outweighing any privacy interest Trump may have in these forms.
Of course, that assumes the source of the forms is not Marla Maples, Trump's former wife and co-signer on the returns.
Update: Ron Collins writes about the First Amendment protections The Times enjoys here, including comments from leading First Amendment attorneys and scholars, who uniformly agree that Trump has no chance of prevailing in a lawsuit, not only under Bartnicki, but also under The Pentagon Papers (which, while a prior-restraint case, reinforces the right to publish truthful, lawfully obtained information on a matter of public concern).
Newby and the Duty to Defend Indepedent Agencies and Commissions in Court
I am delighted to have the opportunity to participate in the Prawfsblawg election symposium! For my first contribution, I want to discuss an important issue implicated by a recent election-related case that extends far beyond election law.
In League of Women Voters of the United States v. Newby, the D.C. Circuit (in a 2-1 ruling) overturned the decision of the U.S. Election Assistance Commission's ("EAC") Executive Director, Brian Newby, to revise the state-specific instructions accompanying the federal voter registration form. The revisions would have required applicants from Georgia, Kansas, and Alabama to provide documentary proof of citizenship, such as a copy of a birth certificate, passport, or naturalization papers, to use the federal form to register to vote. Those states had requested changes to the instructions because their laws limit the right to vote to U.S. citizens and generally require people to provide such proof of citizenship to register.
I will discuss the merits of the D.C. Circuit's ruling--with which I disagree--in a separate post later this week. Here, I want to discuss a remarkable aspect of the case: the Obama Administration's Justice Department ("DOJ") completely refused to defend Newby's actions in court. Although DOJ purported to represent both the Commission -- which is an independent, bipartisan agency -- and Newby in his official capacity and was filing briefs on behalf of both parties, it expressly disavowed the legality of Newby's actions and joined in the plaintiffs' request for a preliminary injunction to prevent the changes to the instructions he approved on the EAC's behalf from taking effect.
Friday, September 30, 2016
How Does an 8-Member Court Decide Bush v. Gore?
Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.
As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)
As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.
Roy Moore suspended for remainder of term
The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state's probate judges that the court's March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL's earlier orders.
The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore's order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court's analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging--holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance--not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case--Moore's real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.
Oh well. It is tempting to say Moore's judicial career is over. But I have no doubt he could win reelection to the court if he tried.
Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:
This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.
“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.
Just, no. State courts are not "below" lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.
We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.
Donald Trump . . .
is not Hitler; he is Woody Allen's character in Bananas.
Designated Survivor, S1E2
I think I am out.
In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.
Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.
Thanks to our September guests, who may be sticking around for a few extra days.
For October, we are going to try something different with our guest slate. With the election looming, we decided to do a month-long symposium, with expert guests writing about the election, election law, and related issues, such as what might happen after the election and in the new administration. I am happy to introduce Josh Douglas (Kentucky), Ned Foley (Ohio State-Moritz), Lisa Manheim (Washington), Michael Morley (Barry), Bertrall Ross (Berkeley) and Franita Tolson (Florida State). They will be with us for October and perhaps through to the election in early November.
We look forward to a great, and unique, month of posts, from our guests and our regular bloggers.
Law and Religion Moot Court at Touro
The Fourth Annual Law and Religion Moot Court at Touro is coming up in April. More information is available here.
Thursday, September 29, 2016
Thanks for having me!
It's been great to be here at Prawfs this month. Thanks to everyone at here for having me, and to the Prawfs community for sharing your thoughts with me.
You also shared useful thoughts on the job of being a professor. In case you missed those, I posted about letters of recommendation here, assigning videos for class here, and whether to sign onto amicus briefs, comment letters and the like here.
I'm going to continue to write about bankruptcy issues and higher education. I'm always glad to read your work on these issues, so feel free to share drafts. If you want to read my own work, you can find it on SSRN. I also tweet fairly often about bankruptcy, contracts, higher education, and consumer law (and about food and bicycles). You can find me on Twitter @Prof_Bruckner.
Until next time!
Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?
For various reasons--medical, spiritual, and intellectual--I have not followed the election closely and have increasingly tried to stay away from much election commentary. Having made up my mind long, long ago who I think ought not be president in this election, much of the coverage has been fairly irrelevant to me, and therefore fallen into the unnecessary-tsuris category, or into the category of things one reads not because they constitute a form of civic education or engagement, but as a kind of luxury good or type of entertainment. I worry about that seemingly widespread taste on a normative level--and I have not found the content especially entertaining anyway. The average commentary has not interested or pleased me much for similar reasons, especially social media commentary. Friends elsewhere have suggested to me, somewhat persuasively, that for some, engaging in this commentary can serve some kind of therapeutic or emotional or self-expressive need, although the need for those people to speak has little to do with anyone else's obligation to listen. Some of it, being aimed fairly clearly at people who already hold the same view, can fall under the category of solidaristic expression, which is just something that has never interested me; oddly, although I'm a big supporter of pluralism and of institutions, I'm not much of a joiner.
And a lot of the commentary, perhaps especially on legal blogs (or maybe I just have a biased sample, since I am more likely to read legal blogs than other sources), bothers me because it strikes me as simultaneously being inexpert and attempting to trade on the ostensible authority of the writer. I feel fine about "experts" engaging in speech and action as citizens, and without the use of their "name tag"; I would like to see a lot more of it, in fact. But I'm less comfortable with "experts" who opine publicly on things outside their sphere of expertise, or ostensibly within it but drawing more (or entirely) on their personal civic and political views than on anything having to do with their expertise as such. It's not just that this strikes me as an illegitimate use of one's ostensible authority that has bad long-term consequences for democratic politics. It's that I think it serves as a kind of costless luxury good or form of entertainment for the person doing the opining him- or herself, and thus as a distraction from the kinds of things he or she should or could be doing qua citizen. Your mileage may vary, of course, or you just might not mind getting your entertainment in this particular form.
There is one question I would like to raise, though. I think it would be unfair to say I raise it as an expert. I teach constitutional law and legislation/regulation (although I'm just starting in on the latter subject), but that hardly constitutes expertise across the whole range of questions and sub-topics that this entails. It's more accurate to say I know enough to find the question interesting and to raise it, but would rely on others, hopefully more expert, for interesting answers to the question. The question is, if Donald Trump is elected president, how will the body of government employees I will generally lump as the "civil service" react? Will they faithfully implement the government's policies? Will they resist doing so, but only insofar as those policies violate professional, legal, and/or constitutional norms? Will they resign in larger numbers? Will they engage in somewhat passive resistance or "uncivil obedience," by dragging their feet on implementation in a way they would not do for another administration? Or will they rebel more directly and forcefully--if perhaps not always openly? Administration changes often see a big shift of appointed government officers into regular civil service positions, a practice called "burrowing." If Trump is elected, will this happen on a larger scale than usual, precisely to facilitate this kind of resistance?
I have not seen much on this, although I haven't searched too thoroughly. There are more stories asking what Trump will do to the civil service than asking the reverse question. There is a New York Times piece by Eric Posner--the most interesting, because most dispassionate, legal academic who has written on the election, in my opinion--on "What President Trump Could or Couldn't Do," the last three paragraphs of which address this question. It comes up in this Vox piece (although I should note in all candor, if perhaps in slightly off-topic fashion, that I loathe Vox), which notes early on that "a massive civil service bureaucracy has a will of its own--and the kind of job security that The Apprentice never had to deal with." I would be remiss if I didn't note this Glenn Harlan Reynolds piece, even if I am highly dubious of its bottom line.
If there is more, I haven't seen it, although one assumes there is more out there. In particular, I wonder whether the subject has come up on blogs, listservs, Facebook pages, and other sites for, by, and drawing (likely anonymous) commentary from career civil servants. It strikes me as an interesting and obvious question, and the kind of question for which there are at least a few experts out there who might have something to contribute that actually is expert. It also strikes me as something that has immediate positive aspects, but also obvious potential for serious negative long-term consequences. People who have seen other, useful discussions are welcome to email me with links, of course.
[Two updates: A friend points me to this post on Lawfare. And another friend reminds me that another form of resistance would likely be via complaining and/or leaking to Congress and the press.]
Wednesday, September 28, 2016
In Search of the Great Academic Novel
Over the past couple years, I’ve stumbled upon a small but, for me, enjoyable genre of fiction: the academic novel. My sense of my job, and of academic life generally, is mainly a product of my personal experiences and a fair amount of nonfiction reading on the subject, be it in scattered books or articles in the Chronicle. But these resources don’t allow you to escape the present, to view it from the outside and see what it truly is, or what it might be. The academic novel allows you that, and I’ve found it extraordinarily refreshing.
It turns out that others are fond of this genre as well. Here are a couple posts that collect some books—here and here. For my money, however, one of the best books in this genre is Stoner by John Williams.
Tuesday, September 27, 2016
Is Berkeley Sacrificing Due Process to Appease an Angry Mob? The Sexual Harassment Case Against Sujit Choudhry
How much and what sort of process is due in university sexual harassment administrative proceedings? The question, once for me a relatively academic question, has become painfully personal after Sujit Choudhry, a personal friend and the former Dean of Berkeley, was accused by his former administrative assistant of sexually harassing her.
Five years ago, I criticized my friend Peter Berkowitz for insisting in a Wall Street Journal op-ed that criminal procedures – in particular, the “beyond-a-reasonable-doubt” (BARD) standard -- be imported wholesale into university hearings where accusations of sexual misconduct are being adjudicated. Without taking any position on the right standard of proof, I argued that one could not automatically assume that the BARD standard was appropriate for a university’s administrative hearing where the stakes are not personal liberty but rather suspension or expulsion. The justification for criminal trial procedures favoring the accused is that the social and moral costs of convicting one innocent person vastly outweighs the costs of letting a lot of guilty people go free (the exact ratio of false positives to false negatives being a conundrum in which 1L criminal law professors delight). The appropriate ratio of false negatives to false positives in the university setting is, to my mind, a closer call. Because the procedural norms for these university adjudications are both hotly contested and reasonably disputed, I urged that the U.S. Department of Education not prematurely centralize them with OCR guidance documents but instead allow universities to experiment with different procedures.
Peter has now trained his sights on one of those decentralized experiments – namely, University of California’s attempt to re-try an accusation of sexual harassment against former Berkeley Law Dean Sujit Choudhry for which Choudhry has already been charged, investigated, and punished. This time I have to agree with Peter as well as with Brian Leiter and Slate: This is a Dr. Frankenstein’s experiment gone horribly awry. As Choudhry’s complaint in federal court alleges, there is an egregious assault on procedural due process going on at U.C. Berkeley. After the jump, I will offer my reasons for believing that President Janet Napolitano, the President of the University of California, is abetting mob justice in urging a do-over.
After the jump, I will plunge into the details of the Choudhry case (this is my longest blog post ever, for which I apologize, claiming as an excuse my desire to be especially scrupulous about the facts in an especially sensitive case). I will argue that these facts suggest why due process requires some sort of collateral estoppel in university sexual harassment cases. I emphasize that, as Choudhry’s friend, I am not impartial here. For the purposes of my plea for due process, however, my partiality is not a bug but a feature. It is precisely because all of us, myself as well as Choudhry’s now-numerous detractors, cannot be coolly impartial in cases like this that scrupulous adherence to norms of procedural fairness is essential. Holding a second hearing simply because there was a public outcry against the result obtained in the first is the antithesis of such procedural fairness, which is why I believe that Berkeley should be ashamed of what they are apparently about to do.
Letters of recommendation
I come from a family that overwhelmingly worked in blue-collar jobs. Growing up, my father was a stagehand and my mother was a homemaker. In addition, very few members of my (large) extended family went to college. Having grown up without a lot of professional mentors myself, I've since worked to seek them out. Now that I'm a law professor, one of my favorite aspects of the job is the opportunity to mentor students. Maybe that's why I consider helping students find jobs to be part of my own job description.
One of my colleagues recently asked me if I would write a letter of recommendation for a student that did above average in two of my classes (i.e. A-, B+) but was in the bottom third of the graduating class. He seemed surprised when I responded that I am willing to write a letter of recommendation for any student. I'm curious to know if I am the outlier. Would you write a letter for the student so-described? Some further thoughts on my own approach after the break.
Follow Up on Academic Vitas
Just because of the comments and interest the original post elicited, a few more thoughts.
I’m grateful for the comments, which helped me understand both the problem and also at least one way in which I was unclear.
I’d begin though by expressing my heartfelt sympathy for how frustrating the market is. I spent much of my earlier career on hiring committees, but most of my last decade and a half helping prepare academic candidates for the market. I know just how maddening it can be, and how difficult it has become with the relative scarcity of jobs. As I assist candidates, year after year, I feel the pain.
I will say there is no magic. As opaque as it can appear, committees and faculties want good minds and folks who will be good colleagues and teachers. I get frustrated with many of the purveyors of advice who are looking for a silver bullet, some clever new tactic, when it is primarily about hard work and preparation and putting your best foot forward in logical ways. (I also have many thoughts about the way the market has moved, and its preferences, maybe for another day.)
But on this subject of vitas, I was partly understood and partly misunderstood – my bad of course, I should have been clearer.
I don’t actually think it matters hugely what order the blocks on the vita come in, i.e. whether professional positions come before publications come before education. I agree with our stellar director of academic careers that there is no one right answer. I suppose if I had my preference – but it is just that and little more – it would be education, professional positions, publications, courses, references. Maybe with presentations tossed in toward the end. (For what it is worth that is how my vita still is, though I’ve wondered if I should just toss education down below – does anyone care anymore?)
What I and others have noticed this year – and I agree there has been gradual creep – is the profusion of subcategories (academic positions, professional positions, clerkships; academic writings, professional writing; other). Even this would be fine; but what really gets my goat is how categories that are logically-grouped (all jobs together; all publications together) are on some vitas divided up and scattered throughout the vita. I see why it is happening – folks want to shove any conceivable academic aspects up top – but I still think it is a bad idea.
What anyone reading your vita wants to be able to do is understand the arc of your career. How you were trained, what positions you have held and experience you have had, and what you have been writing. It is important for a reader to get that. To get you. And when the various aspects of a vita are subdivided and scattered in an effort to get anything academic-y up top, it gets difficult to get a grasp on the whole person.
That’s my only point. The rest is preference and reasonable strategy.
With that, good luck.