Monday, October 09, 2017

"Thanks, Iowa Supreme Court!"

Today in my Election Law class we covered state regulation of false or misleading campaign advertisements. (The doctrine is generally that even blatantly false ads enjoy First Amendment protection.) It is one of my favorite class periods of the semester because I show some pretty incredible political ads. The one below is perhaps the most outlandish. It aired during the Iowa judicial retention election in 2010, just after the Iowa Supreme Court had issued a ruling that effectively legalized same-sex marriage. The ad is worth two minutes of your time. (All three justices up for retention lost.)

(Although I find the ad amusing, I also think it's offensive and harmful.)

The debate during this class is always spirited, with some students arguing that the government should be allowed to regulate patently false campaign speech -- especially if it is about the election itself (such as "Republicans should vote on Tuesday; Democrats should vote on Wednesday") -- while other students take a more absolutist First Amendment approach. The debate has perhaps become even more interesting these days given the current tenor of our political discourse.

Posted by Josh Douglas on October 9, 2017 at 02:17 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

On Not Thinking Much About History

The Department of Justice’s January 2017 report on the Chicago police department prompted me to reflect on how policy makers often ignore the historical context that shapes the issues that they wish to engage. In this post, I want to talk a bit about how that sort of inattention was manifested in that particular report. In a latter post, I hope to explore the larger question.

I should begin by admitting that there is much to admire about the report, especially now that events and decisions in D.C. and Chicago have made it less likely it will have any actual impact.  Prepared in a little more than a year, the report rests on an extensive investigation that spanned 300 days of interviews in Chicago. DOJ researchers visited each of the city’s 22 police districts, interviewed officers and commanders, and went on ride-alongs with police officers. The researchers talked with officials of Chicago’s various police unions, met representatives of 90 community organizations, and held several community forums. They also reviewed training documents, reports on policing in the city, and Chicago’s police misconduct complaint database. Finally, the researchers met with local lawyers and activists working on police misconduct in Chicago, and consulted current and former law enforcement officers from around the country (Report, p. 2).

And all that evidence is arrayed to substantiate the report’s damning conclusion that a significant number of Chicago’s police officers engaged in unconstitutional or illegal use of lethal and nonlethal force, as part of a pattern of discriminatory or harassing interactions with people of color and members of Chicago’s LGBTQ communities. The report also provides ample support for the charge that Chicago’s police have a code of silence and culture of lying designed to undermine investigations into misconduct.

It is also the case that the analysis offered in the report is complex. It traces the use of lethal and nonlethal force from actual police practices, through the failures to train and mentor that helped establish those practices, to the lack of discipline that institutionalized the practices. Its treatment is evenhanded, exploring the impact police misconduct has on its most frequent victims, Chicago’s communities of color and LGBTQ population, while also considering the effect poor training and lack of discipline has on members of the police department. Indeed, the report’s discussion of the Independent Police Review Authority (IPRA)’s failures to investigate and discipline officers, makes it clear that just how related these problems are. Bad investigations by IPRA have destroyed citizen trust in the department, especially in the communities hardest hit by the police abuse. At the same time, the erratic discipline IPRA has meted out discouraged officers who tried to follow the rules, encouraged the creation of a department culture that favors silence, lies, and concealment (p. 8, 51-52), and sabotaged efforts to create standards of acceptable practice.

But ultimately the report fails. And it does so because it does not consider the larger context in which these problems have arisen. Its discussion of discipline ignores the work of scholars like Barry Friedman, whose recent work Unwarranted: Policing Without Permission, documented how decades of court decisions have made it harder for aggrieved individuals to bring police misconduct claims. Friedman’s study pointed out a trap created by the late Justice Scalia's jurisprudence on the Fourth Amendment. On one hand, the justice often voted against application of the exclusionary rule, on the theory that wrongful searches could be redressed by claims for money damages. On the other, Justice Scalia often voted against civil rights claimants who sought damages for wrongful searches and seizures (Friedman, 137). Victims of police misconduct in Chicago have found themselves caught in a similar bind. The legal retrenchment Friedman described have made it harder for them to press successful claims in court, while the failures of the review boards documented in the DOJ Report have meant they have little hope of obtaining administrative redress.

That failure, in turn, is exacerbated by another situation well-documented in another study by the Chicago Reporter. The Reporter’s investigation revealed that Chicago’s law department typically has settled police misconduct charges.  The consequence, as the Chicago Reporter put it, is that those “cases conclude as they occurred—outside the public glare.” Because settlement awards were typically confidential, Chicago residents are kept unaware of the scope and cost of police abuse. The secrecy also make it difficult to for individuals to establish persistent wrongdoing by individual officers. Again, none of that appears in the DOJ report.

These are not the only places where examining the recent problems tbe report described from a broader, historical perspective would have improved the report’s analysis. The discussion of abusive arrests in the report (p. 51), would have benefitted from consideration of Rights in Conflict, the report on the violence at the 1968 Democratic National Convention. Engagement with the Kerner Report on racial unrest in 1967 would have given depth to the DOJ discussion of tensions between Chicago’s police department and the city’s communities of color (p. 15). The discussion of the culture of silence and lies (p. 8) would have been strengthened by considered of Nicole Gonzales Van Cleve’s recent study of criminal justice in Cook County. And ultimately, the entire report would have been stronger if the DOJ had actively engaged the historic problem of racial and economic segregation in Chicago, since that enabled the police to treat residents of Chicago’s various communities in the very different ways the report describes.

The report’s narrow focus seems to have been deliberate. Prompted by the outrage that followed the city’s efforts to prevent investigation into the police shooting of Laquan McDonald, the Department of Justice chose to focus on lethal and nonlethal force, and the ways in which the Chicago police department dealt with that problem (p. 1). The narrow scope meant the report largely ignored the department’s long, tragic history of police torture and failed to explore whether the two problems were related. Yet as the Wickersham Commission pointed out in the 1930s (p. 127), and the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Punishment has recognized more recently (Art. 1.1), torture can involve either physical or mental abuse used to obtain confessions or violence used to coerce or intimidate a person during an arrest. So too, the report’s discussion of community mistrust of police (pp. 4, 15) should have considered whether Chicago’s campaign to deny police torture contributed to the problem.

Posted by Elizabeth Dale on October 9, 2017 at 11:10 AM | Permalink | Comments (0)

Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Gill and Congressional Authority (A Response to Prof. Morley)

It's October, so that means two great things: baseball playoffs (go Nationals!) and continued commentary on election law.

Michael Morley starts us off with some interesting commentary on Gill v. Whitford, the partisan gerrymandering case that the Supreme Court just heard last week. His conclusion is basically that if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting, particularly allowing Congress "to attempt to influence and reshape the partisan outcomes of state and local races."

My response? Not bloody likely!

Continue reading "Gill and Congressional Authority (A Response to Prof. Morley)"

Posted by Josh Douglas on October 8, 2017 at 10:26 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (10)

The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case

This week, the Supreme Court heard oral arguments in Gill v. Whitford, the political gerrymandering case from Wisconsin.  The Court will decide whether "judicially manageable standards" exist for determining when a legislative map constitutes an unconstitutional political gerrymander and, if so, whether the lower court crafted the correct constitutional test.  In my next post, I will discuss some of the substantive considerations raised by the plaintiffs' claims and the lower court's ruling.  Here, however, I will bring attention to one of the most important issues in the case that has been almost entirely overlooked throughout the course of the litigation -- a Court ruling recognizing a broad right against political gerrymandering will expand the scope of Congress' power under Section 5 of the Fourteenth Amendment to regulate and attempt to influence the outcomes of state and local elections along partisan lines.  (Full disclosure:  I authored an amicus brief in support of the State of Wisconsin in Gill, but am writing here solely in my personal capacity).

Continue reading "The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case"

Posted by Michael T. Morley on October 8, 2017 at 12:51 PM | Permalink | Comments (10)

Saturday, October 07, 2017

University of Wisconsin bans counter-speech

An intentionally provocative headline, but not too far off. The Board of Regents adopted a policy that "students found to have twice engaged in violence or other disorderly conduct that disrupts others' free speech would be suspended. Students found to have disrupted others' free expression three times would be expelled." (H/T: Steven Lubet). The  linked article contains quotations capturing both sides of this: The regent who says the policy promotes listening and that "drowning out another speaker" does not qualify as freedom of speech, compared with the student who argues that the First Amendment is supposed to be messy and contentious.

The policy is glaringly vague (what is "disorderly conduct," what is "disruption"), etc.).  I expect the university to try to clear that up in its implementing regulations. Meanwhile, I wonder if a constitutional challenge now would be deemed unripe, since the policy is not yet at the point of implementation. In any event, I do not see how the university could write regulations that are clear enough to pass constitutional muster. If the counter-demonstrating, where the counter-demonstrators outnumber and outshout the original speakers, does that necessarily become disruption? Even if listening is a worthy goal to promote, can the state give people a choice between listening (which sounds compelled) or staying away, with talking back no longer an option?

Posted by Howard Wasserman on October 7, 2017 at 02:59 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Barnette and flag-related speech

Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.

But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.

We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.

Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 06, 2017

A brief hello

Hi everyone, it's nice to be back at PrawfsBlawg. I even have a first post, somewhere. So as soon as I figure out which folder I put it in, I will put it up and really get started.

Until then, I thought we could catch up briefly. Since I was last here, I've finished a very enjoyable stint as editor of Law and History Review. The last issue I edited (35.4) will be coming out later this semester, and Gautham Rao of American University will be starting his term as editor with issue 36.1 early in 2018.

I also published a book on the long history (1871-1971) of police torture claims in Chicago. It looks at claims of torture (and legal/popular responses to those claims) in the years before Jon Burge joined the CPD.

And now, I'm on sabbatical and trying to finish a book on criminal justice and the 1919 Chicago Race Riot. It's a fascinating story, though doing justice to it is more complicated than I initially anticipated. Books are like that.

My hope, assuming I find that first post!, is to spend some of my time here this month writing about using historical context to unpack the issues of the present. I might also spend a bit of time writing about police misconduct law and history. We'll see. 

Elizabeth Dale

 

 

Posted by Elizabeth Dale on October 6, 2017 at 11:51 AM | Permalink | Comments (0)

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions.  In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.

I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.

First, contributions in prosecutorial campaigns are worthy of significant scrutiny.  We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete.  I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule.  Of the races I’ve looked at so far, lawyers represent the largest class of donors.  This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers.  But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA.  Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?

That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest.  Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office.  But I’m not optimistic.  Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not.  Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing.  Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.

To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual.  Among other things, case-by-case explanations could be quite harmful to the individual in question.  As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions.  And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton).  But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute.  DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention. 

Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions.  The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute.  But I’d be surprised if we ever get all of the stories.  And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.

Because of this, I think that it is worth talking about reform in this area.  Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections.  And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues.  If you have any other ideas, feel free to share them in the comments or to email me directly.  My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.

Posted by Carissa Byrne Hessick on October 6, 2017 at 10:23 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (14)

ACLU, free speech, and discrimination

The New York Times writes about soul-searching at the ACLU in the wake of Charlottesville. Two items of note.

First, Executive Director Anthony Romero discusses the new policy of not representing protesters who plan to march while armed. Romero ties this to early ACLU policies opposing permits for Nazi groups "drilling with arms." He argues that the ACLU has come full circle with respect to Nazi groups. The analogue to Charlottesville is not Skokie, where counter-protesters outnumbered Nazis 70-to-1, the Nazis were unarmed, and the danger was angry spectators attacking them. Charlottesville is more like the 1930s, when fascism was ascendant in Europe and sufficiently popular in the United States to draw large crowds.

Second, the article describes an open letter by around 200 staffers, arguing that the ACLU's "broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance" on hate speech. It is easy to criticize the 200 (as some have) for not understanding what the ACLU is about, given its history, and to tell them to find a different advocacy group. But the signatories are onto something. The modern ACLU has made certain forms of equality part of its core mission. And absolutist protection for free speech does conflict with certain visions of racial justice that would not protect speech advocating for inequality or against equality. It is not the first time this potential conflict has caused the organization problems--in the early '90s, the organization was only lukewarm in its opposition to hate-speech laws and it supported sentence enhancement for racially motivated crimes. And recall the ACLU's 2015 Workplan of major civil-liberties issues, which did not say much about the First Amendment. The signatories have exposed an internal tension of the organization's own making. The usual response to the tension is that speech must be protected for all, lest government turn its censoriousness on equality-promoting groups (consider that the Supreme Court case declaring sentence-enhancement valid involved a prosecution of African-Americans for assaulting white victims). But many racial-justice advocates reject that idea.

The focus on this tension reminds me of the potential tension between "civil liberties" (commonly understood as individual rights as against government, such as free speech) and "civil rights" (commonly understood as equality--both in the face of government discrimination and government efforts to stop private discrimination by legislation). I recall the Harvard Civil Rights-Civil Liberties Law review publishing a symposium on whether its name is an oxymoron. The ACLU may be facing the same problem, as some of its staffers and supporters recognize that they signed up the equality rather than the speech.

Posted by Howard Wasserman on October 6, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, October 05, 2017

Rotations

A belated welcome to our October guests--Deborah Ahrens (Seattle), Elizabeth Dale (Florida), Tessa Davis (South Carolina), Josh Douglas (Kentucky), and Michael Morley (Barry). And thanks to our September guests, who may stick around for a few final posts.

Posted by Howard Wasserman on October 5, 2017 at 02:33 AM in Blogging | Permalink | Comments (0)

Tuesday, October 03, 2017

NIJ Sentinel Event Review Opportunities

For law professors interested in criminal justice systems change, the National Institute of Justice just funded and partnered with the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice to support community-based Sentinel Even Review projects in up to 25 local jurisdictions.  The formal announcement is here, https://nij.gov/topics/justice-system/Pages/sentinel-events-technical-assistance-provider.aspx.

Sentinel Event Reviews involve a multi-stakeholder process to identify the systemic causes for “bad” criminal justice outcomes.  As described in the announcement:

“When bad things happen in criminal justice systems, they are rarely the result of a single actor, action, or decision, and are often indicative of a system       weakness. However, most jurisdictions review errors solely through a lens of blame, looking for individual practitioners to punish. This blame-oriented        approach ignores the multiple system causes that contributed to the bad outcome and remain in place to contribute to another, similar event in the future.

NIJ believes that local jurisdictions should have the opportunity to learn from mistakes and “near miss” events, and prevent the recurrence of errors and bad        outcomes. To that end, NIJ’s Sentinel Events Initiative (SEI) is exploring the value of sentinel event reviews in which all individuals whose actions or        inactions may have contributed to an event are empowered to develop solutions to prevent future bad outcomes. Through these all-stakeholder, non-          blaming, forward-looking reviews, law enforcement officers, prosecutors, judges, forensic scientists, communities, persons harmed, and others come together        to conduct a review of a bad outcome and develop recommendations for improving criminal justice.”  

For law professors or law schools engaged in criminal justice systems change, this new NIJ focus/funding might provide an interesting opportunity to examine local justice problems.

In addition, NIJ launched a bibliography of close to 1,000 journal articles, news stories, and other resources relevant to the Sentinel Events Initiative. For scholars, this could be a very valuable resource.  Most of the citations include abstracts and links to complete publications and can be found here. https://nij.gov/topics/justice-system/pages/sentinel-events-bibliography.aspx.  For more information contact James Doyle @ 1jamesdoyle[at]gmail.com or join the sentinel events listserv at criminal-justice-sentinel-events[at]googlegroups.com.

Posted by Andrew Guthrie Ferguson on October 3, 2017 at 09:31 PM | Permalink | Comments (0)

A reflection on "the life issues" in the current moment, and going forward

My friends at Notre Dame Magazine (which is, notwithstanding what I'm about to say, an excellent magazine) asked me to contribute a reflection on the state of "the life issues" in the current moment.  I realize, of course, that these "issues" are ones about which we deeply and reasonably disagree, and I'll confess to having mixed feelings about imposing it on all of you.  It sprawls and wanders, I'm afraid and I suppose it's downright confused, politically.  In any event, here's a bit:

Continue reading "A reflection on "the life issues" in the current moment, and going forward"

Posted by Rick Garnett on October 3, 2017 at 04:08 PM in Rick Garnett | Permalink | Comments (0)

Hamer Time

I wrote a SCOTUSBlog preview of Hamer v. Neighborhood Housing Services of Chicago, to be argued next Tuesday; the case considers the jurisdictionality of FRAP 4(a)(5)(C), which limits extensions of time to appeal to 30 days beyond the original appeals period.

Although I did not discuss this in the preview, it bears watching how Justice Gorsuch approaches jurisdictionality. He demonstrated some iconoclastic views on procedural issues in his few cases from the April sitting last Term, often running counter to the rest of the Court, to the Court's recent doctrinal trends, and to recent precedent. Might he be inclined to return to drive-by jurisdictional rulings, counter to the Court's trend of the past decade?

Posted by Howard Wasserman on October 3, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

New Book on "The Rise of Big Data Policing"

As previewed on Prawfsblawg in May, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement is now published and available.

The book addresses how predictive analytics, big data, and new surveillance technologies are changing the “who,” “where,” “when,” and “how” police do their jobs.   From predictive policing to social media surveillance to persistent aerial surveillance (among many other fascinating and terrifying technologies), the book exposes the problems of racial bias, transparency, and constitutional distortion that will bedevil law professors for years to come.  Buy, read, share, review, recommend to your librarians… (and thanks).

In addition, keep your eyes open for PreCrime the documentary also previewed in Prawfsblawg in May which has its US premiere October 19th in Chicago.  

Ferguson Twitter graphic

Posted by Andrew Guthrie Ferguson on October 3, 2017 at 09:30 AM | Permalink | Comments (8)

Monday, October 02, 2017

Thurman Arnold and Edward Corwin on the Supreme Court

As the United States Supreme Court gets ready to open another Term, I thought readers would enjoy this quote from Voltaire and the Cowboy: The Letters of Thurman Arnold. No special political or other message is intended here: It's just a terrific quote. It comes from a letter in which Arnold, then a Yale Law professor who had taken a leave of absence from his teaching job to go work for the Solicitor General's office, is describing his first oral argument in the Supreme Court. He is sitting with Edward Corwin, the well-known constitutional law scholar:

Professor Corwin of Princeton who is retained to consult with me on the social security case brief was with me when court opened the other day. He says that they ought to change the invocation from "God save the Government of the United States and this Honorable Court", to "God save the Government of the United States or this Honorable Court." He insists that God can't possibly do both, and he should not be asked even to try. He should be given his choice and let it go at that.

As a side note, Corwin gets the invocation wrong: It is actually "God save the United States and this Honorable Court." But we should not let a good, arguably insightful joke or anecdote get hung up on a technicality.  

Posted by Paul Horwitz on October 2, 2017 at 10:02 AM in Paul Horwitz | Permalink | Comments (0)

Selection Bias: The Character of Policing on the Street

Criminal procedure scholars tend to think of policing in terms of the way the Constitution permits or restricts certain police practices; and more narrowly, in terms of what rights may be asserted by criminal suspects against the police. But most of what counts as policing is low visibility: out of sight of the courts that could enforce these constitutional regulations. Of much more importance to policing are the laws and policy decisions about who gets to be a police officer, and what training they receive. The selection and training issue has become especially pressing with he “rise of the warrior cop,” and the ways in which the discussion of policing selection and police training has been insulated from public and political scrutiny.

The core case on police selection is Washington v. Davis, which is often thought of as a Title VII and civil rights case. Davis was, however, a police selection case seeking to diversify the police force of Washington, D.C. And hidden behind Davis is a story of who gets to control the standards used to train the D.C. Metropolitan Police Department. By 1976, African American police officers were making strides in admittance to the department; by 1978, the Chief of Police was African American, as were the majority of the officers. Nonetheless, just two years earlier, Davis had argued that the police test was having a discriminatory impact; the Court sided with the police in requiring a showing of discriminatory intent.

Continue reading "Selection Bias: The Character of Policing on the Street "

Posted by Eric Miller on October 2, 2017 at 02:55 AM | Permalink | Comments (5)

Sunday, October 01, 2017

More from Bray on universal injunctions

Two weeks ago, the Northern District of Illinois imposed a universal/nationwide injunction against the new funding conditions imposed against "sanctuary cities." The court justified the scope because there was "no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." In a WaPo op-ed, Sam Bray argues that this represents the next step in making the universal/nationwide injunction the new, unjustified, default in constitutional litigation against federal law. An injunction should be nationwide unless the challenged law and legal issues are limited to the plaintiff or to the jurisdiction in which the action is brought--which never will be true of federal law. Sam calls on someone--Congress, the Advisory Committee, or SCOTUS--to stop the "remedial irresponsibility." This injunction is of a piece with another low-profile universal injunction issued in May in the Western District of Washington in a challenge to federal regulations of attorneys in immigration proceedings--the government's stated desire to continue enforcing the regulation was sufficient to justify the expanded scope, a basis that similarly applies to all federal law.

Unfortunately, I am not sure who is going to put the brake on this practice.

Expecting Congress to do anything is beyond wishful thinking.

SCOTUS has, implicitly and probably unthinkingly, approved the practice by affirming the universal injunction in U.S. v. Texas (the DAPA case) and by leaving the injunction in place as to those "similarly situated" to the plaintiff in IRAP (the travel ban case). Both decisions were bound-up with other procedural concerns. Texas was affirmed by an Segall-ian evenly divided Court . In IRAP the Court was trying to figure out how to remold the substantive injunction in the guise of granting cert. and staying the injunction pending appeal; it did not have the time or attention to consider injunctive scope in terms of plaintiffs protected. And with the case likely moot, we start all over again.

The Advisory Committee is an interesting actor that I had not considered. But it would take too long to get anything done, given the committee process. And the Committee may be as surprised as everyone else that this practice has become so pervasive--the current language of Rule 65 combined with the existence of Rule 23(b)(2) injunctive class actions should tell district courts that they cannot issue an injunction protecting everyone in a class without a class.

Posted by Howard Wasserman on October 1, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

An Absurdly Long Twitter Discussion of the Laurie Goodstein/NYT Story on Amy Barrett, and its Defensive Defenses

The New York Times on Thursday published a piece by Laurie Goodstein about religion and the Amy Barrett nomination, with the awfully vague headline (not written by Goodstein, although it is a fair description of the piece) "Some Worry About Judicial Nominee's Ties to a Religious Group." The story is unclear on whether these "some people" suggested the piece to Goodstein, and if so which "some people" did so. It quotes two law professors, and perhaps one of them suggested the story to her, but reporters go to law professors all the time for the necessary ventriloquism once they have gotten the idea for a story. It also links to a report by the Alliance for Justice, which one assumes does try to feed the occasional story to a reporter and is a more likely suspect. Or perhaps it was a bank shot: interest group suggests story to congressional staffer, who then suggests story to reporter. Or maybe it was just an inspired piece of independent reportorial digging. The gist of the story is twofold: 1) Barrett belongs to a lay Christian group called People of Praise, whose ideas and practices are, to use the standard contemporary language of plausibly deniable accusation, "troubling." 2) Barrett didn't disclose her membership in the group to the Judiciary Committee, "though many nominees" have disclosed similar memberships "in the past."

I hesitated before writing critically about this story at first, despite my interest in these issues, because I thought that point number 2, if true, would indeed be "troubling." The rest of the story was, with respect, weak at best. It certainly did not say anything more about how Barrett would perform as a judge. It quoted one professor suggesting that "These groups can become so absorbing that it’s difficult for a person to retain individual judgment," but that is a rather general statement and not grounds enough for serious concern. (And I wonder how it applies to other groups in general.) Moreover, it treated as significant (and, I think, as a foundation for that law professor quote) the apparent fact that "Members of the group swear a lifelong oath of loyalty, called a covenant, to one another." As many students of religion pointed out after the story was published, oaths and vows of this sort are commonplace within all sorts of religious communities; there is nothing terribly unusual or ominous about that. And the story essentially swallowed whole the AFJ line about Barrett's co-authored piece, now some 20 years old, on Catholic judges and recusal in death penalty cases, a line that many law professors have already suggested misreads that article. It added the AFJ's description of Barrett as having "backed away from that position," which misreads both the piece and Barrett's testimony. The piece ended with a classic suspicion-raising question by another law professor: "I’m concerned that this was not sufficiently transparent . . . . We have to disclose everything from the Elks Club to the alumni associations we belong to — why didn’t she disclose this?" 

My hesitation was unwarranted. The story does not say that Barrett was required to disclose her association with the group, but is worded in such a way that the average reader might so conclude, a reading that is enforced by the professorial quote that closes the piece. But as Ed Whelan has pointed out, "[T]he Senate questionnaire, presumably because of concerns about improper inquiry into a nominee’s religious beliefs (or lack thereof), doesn’t ask about membership in religious organizations. . . . So the simple answer to the climactic question...—'why didn’t she disclose this [membership]?'—is that the questionnaire didn’t ask for it." So the one thing in the story that I thought gave grounds for concern turned out to be ungrounded. And the rest of the story, as I have already suggested, was deeply flawed. It makes it hard to read the story as anything other than a successful attempt, perhaps by an interest group, to plant a flawed critical story about a nominee in a widely read and influential newspaper. If there was a story here, it was probably that, and Goodstein could and should have written about who, if anyone, fed her the story, since that information would have given readers more information with which to judge the story and more of an education about the interplay between interest group tactics and the judicial confirmation process. As a general rule, however, reporters prefer not so say much about these mechanics in their pieces, not least because these groups are useful sources for stories and may insist as a condition of feeding the story that their fingerprints are kept off the story. Reporters should strenuously resist such conditions. 

My Prawfs co-blogger Rick has a Mirror of Justice post criticizing the story. But that's not the end of the matter. Lots of people criticized the story, including many law professors who are interested in religion or law and religion, and who have various positions on that subject and come from various places on the political spectrum. On Twitter, Goodstein defended the story, starting with the line, "Seems my piece struck a chord, given defensive reaction by the nominee's allies on Twitter." As I said, however, it wasn't just "the nominee's allies" who criticized the piece. And their reaction was not "defensive:" it was critical, because they thought it was a poor piece. "Striking a chord," of course, can mean a reporter got something right; but it can also mean that the piece provoked reactions because it was flawed--as her piece in fact was. And, rather oddly, a fellow religion reporter, Daniel Burke of CNN, rode to Goodstein's defense, writing, "Looks like a well-coordinated response" to the piece, naming the Federalist Society as the presumed coordinator. This being Twitter, debate ensued.

Both the piece and the defenses of the piece raised various serious concerns for me, both on the substance and on the general issue of how reporters should or shouldn't use their Twitter feeds. For my sins, I have become more active on Twitter lately. And here is a Storified and collection of my slightly lengthy thread of Twitter posts responding to the debate. It would be long even as a blog post; as a Twitter response, it's Proustian. Clearly, the ballyhooed impending move to a 280-character length for tweets wouldn't have done much to help in this case. But I had a number of thoughts on the debate, wanted to get things right, and wanted to do so in the medium in which the debate took place. The gist of my response is roughly this:

1) Given the nature of Twitter and of contemporary politics and public discourse, doubtless there were plenty of hostile and unbalanced responses to the story. But given the number and variety of people who offered serious and well-grounded critical responses to the piece--especially those interested in law, religion, and the complex relationship between nominees' faith and their fitness for the bench--it's not enough to characterize the critical response to Goodstein's piece as "defensive" or as being about support for Barrett. Many of us just thought it was a poor story--and for good reasons, as I have written above. In particular, once the only genuinely troubling charge raised by the story--the non-disclosure angle--is shown to be dubious, all that remains is a repetition of the errors that have already been made in coverage of this nomination, along with questions about the religious group grounded in suppositions--like the idea that there is something unusual or troubling about communal vows of fealty within religious groups--about which a religion reporter, of all people, should know better. I am not suggesting Goodstein had no right to report and publish the story, or even to have stories fed to her by interest groups (if this is what happened). But it could have been reported much better, shown more knowledge about religion itself, done more to describe the genesis of the story and any interest group involvement in it, and avoided the suggestive and ominous framing and language that suffuses the piece. 

2) Burke's defensive attack on criticisms of the piece was both poor in substance and odd as a general matter. It was odd because a religion reporter need not be defensive on behalf of a colleague or competitor, and should have examined the substance of the piece, which I have suggested was flawed, instead of engaging in blanket accusations about the story's critics. And it was doubly odd because, ideally, when writing on Twitter (or anywhere else), a reporter should either stick to his or her area of expertise or do enough serious reporting to justify any accusations outside that expertise. I can't speak for everything that everyone said in response to Goodstein's story--who could?--but it is clear that many of us who raised serious criticisms of the story were not engaging in a "coordinated" response, whether led by the Federalist Society or by anyone else. Burke's defense of his charge of a coordinated response is weak and in some cases erroneous. And despite its general knowing (and cliched) talk about the Federalist Society as "the real power players in DC" (emphasis added: "the?" Aren't there others?), it betrays little knowledge of how that group actually functions. It is true that there are executives within the Federalist Society who are playing a role in suggesting judicial nominees to this administration, just as other interest groups and "power players" do so in every administration, Democratic or Republican. And it is also true--unfortunately so, in my view--that there are some FedSoc executives who enjoy engaging in DC politics, and use their salaried positions at the Federalist Society as a useful and comfortable perch from which to do so. But, as with the American Constitution Society (which also has some executives who enjoy engaging in "power politics," again unfortunately as far as I am concerned), the ground-level experience of members of those groups, including law professors, is far more mundane than that. When I, for one, join either group (I have been a member of both groups at various times, depending on how I felt about paying dues in a given year; although I don't always do so, I prefer to join both groups or neither at any given time), it has more to do with wanting to receive the groups' publications than with their views. I don't get instructions or suggestions from either group, and if I did I would ignore them. Serious critics of the Federalist Society understand the difference between what a few of its executives in DC get up to and how the group as a whole operates, and the minimal influence it has on many or most of its members. There are things one may dislike or worry about with respect to either group--personally, I am not at all crazy about the elite networking aspects of either group, or about judges or hiring committees or anyone else using membership as a proxy or as a qualification or disqualification for clerkships, teaching jobs, judicial nominations, and such--but one ought to have some understanding of those groups rather than lazily treating them as bugaboos. Burke is a religion reporter; there's no reason for Burke to know any of this. But he should have done the work of reporting on it before launching accusations. Failing some serious reporting, he could and should have remained silent, or focused on the substance of Goodstein's story alone.

3) There is a broader question here that troubles me greatly: How, if at all, should non-opinion reporters (or reporters for partisan news outlets, or opinion columnists for that matter) use their Twitter feeds? I was a journalist, very briefly, and happily before the rise of social media and the current desperate straits of major and minor media institutions. I remain interested in the profession and its troubles. It seems clear to me, both from their conduct and from the various newsroom memos floating around and from media reporting on the subject, that reporters these days are positively encouraged to have Twitter feeds, and possibly encouraged to make those feeds exciting or controversial, rather than simply using them to link without commentary to their published work. Much of that pressure comes not just from editors, but from people on the other side of journalism's church-state divide: publishers, marketing departments, and various business-side news industry "consultants." It's clear that even many "straight" news reporters feel free to opine freely on Twitter, both within and beyond their actual expertise and with or without doing the reporting work to support their opinions. I can understand the "why" of the matter, which includes media institutions' desperate desire to survive in a fragmented, social-media-heavy environment, in part by seeking "eyeballs" and attention. But I think these tendencies encourage serious departures from journalistic professionalism and ethics and, for the sake of short-term gains, end up eroding trust in those institutions and imperiling them and their practices in the long run. I appreciate that my brief time in the profession came long before the rise of social media. But when I was doing things, the norms of the profession encouraged reporters to ignore or resist pressures coming from the non-editorial side of the business, to avoid public opining, and to stick to their knitting. If I had been told back then that in addition to reporting and writing for my paper, I would be expected to trawl for eyeballs by starting a Twitter feed and keeping it "interesting," and especially if that pressure came from someone on the non-editorial side of the organization, I would have ignored the instruction and possibly told that person to go to hell. Some of the most successful and prominent journalists on Twitter and other social media, including those whose positions at major media institutions mean they have some power to resist such pressures, have clearly chosen a different path. I think it's the wrong path. As I write in my collection of Twitter posts:

Individual journalists in non-opinion positions (and those with opinion positions as well) urgently need to seriously rethink the nature of their use of Twitter. They need to resist far more strenuously the temptations and seductions of having a social media "platform." They need to push back far more against editors, publishers, "consultants," marketing and business departments, newsroom memos, and peer pressure urging them to do and say more than they should on social media.

Read it all--if you have a couple of hours to spare. (I should note that whatever substantive problems it has, my collection of Tweets has one or two other errors. I refer "John Leo" rather than "Leonard Leo," for example. Mea culpa. I am duly aware that if I had written the screed on the blog rather than Twitter, I would have been able to correct such errors. And I'm aware that the piece's length violates every norm of Twitter, although I'm very happy to violate the norms of Twitter--a medium that I despise, despite my increasing use of it. That I use Twitter at all is, I hope, a matter of weakness, not hypocrisy.)  

 

Posted by Paul Horwitz on October 1, 2017 at 09:01 AM in Paul Horwitz | Permalink | Comments (0)

Friday, September 29, 2017

Health Reform: Sabotage Edition

Health reform efforts currently are diversified into several strategic categories, including:  (1) preserve and repair the ACA, (2) push for single-payer, (3) destroy the ACA by repeal, and (4) destroy the ACA by sabotage.  I want to focus on the destruction strategies (3) and (4) because they are the most immediately relevant.  With the failure of Graham-Cassidy this week, the ACA remains law of the land.  Repeal-and-replace must wait, and collapse-and-replace is ascending.  Beyond the notion that the ACA structure could simply be permitted to “implode” on its own, however, the Executive is ramping up ongoing efforts to sabotage it

 

Continue reading "Health Reform: Sabotage Edition"

Posted by Liz McCuskey on September 29, 2017 at 05:21 PM | Permalink | Comments (0)

Thursday, September 28, 2017

JOTWELL: Walsh on Pfander and Birk on Article III adversity

The new Courts Law essay comes from Kevin Walsh (Richmond) reviewing the pieces of a three-article exchange between James Pfander and Dan Birk against Ann Woolhandler over the requirement of adversity under Article III and the idea of non-contentious adjudication.

Posted by Howard Wasserman on September 28, 2017 at 11:36 AM in Article Spotlight | Permalink | Comments (0)

Quick note on a post from earlier this morning

Earlier this morning I posted an announcement about a post doc opportunity here at the University of North Carolina.  The post doc is university-wide program aimed at helping scholars from underrepresented groups prepare for and secure tenure-track appointments.

After I posted the announcement, a couple of comments were posted about the desirability of diversity in law school hiring and the wisdom of pipeline programs such as these.  I think that those are issues that we should obviously be able to discuss in a calm and substantive manner.  But I didn't think that the comments thread about the announcement for this particular program was the place for that discussion to occur.  And--quite frankly--I just don't have the time today to monitor a comment section on the topic.  So I've reposted the announcement with the comments section closed. And I just wanted to make that decision and my reasons for it clear.

Posted by Carissa Byrne Hessick on September 28, 2017 at 11:05 AM | Permalink | Comments (0)

The Carolina Postdoctoral Program for Faculty Diversity University of North Carolina School of Law

The University of North Carolina School of Law strongly encourages individuals interested in becoming law professors to apply for the University of North Carolina at Chapel Hill Carolina Postdoctoral Program for Faculty Diversity. This is a university-wide program aimed at helping scholars from underrepresented groups prepare for and secure tenure-track appointments. The University places postdoctoral fellows across departments at UNC-Chapel Hill. The School of Law seeks to participate in this program by hosting and mentoring a postdoctoral fellow who is interested in becoming a tenure-track law professor.

Interested applicants must have completed their JD and/or PhD degree no later than July 1, 2018 and no earlier than July 1, 2013. Fellows will be appointed for a period of two years, and they are expected to be in residence for both years. A fellow placed at the School of Law would be engaged full-time in research and would teach one course per year. The course to be taught would be determined based on the fellow’s interests as well as the needs of the school. The School of Law would provide mentorship to prepare the fellow for the tenure-track job market. The fellow would fully participate in faculty scholarship workshops and all other aspects of the school’s intellectual life. During the second year of the program, the fellow would be expected to apply for tenure-track positions through the Association of American Law Schools’ annual faculty recruitment process. Depending on the hiring needs of the law school, the fellow might also be considered as a possible tenure-track candidate at the UNC School of Law.

The stipend for fellows is $47,476 per calendar year. Additional funds are available for research expenses, including travel. Candidates must submit their application to the University’s Office of Postdoctoral Affairs via the website provided below. The Office of Postdoctoral Affairs will ask the School of Law to review materials submitted by applicants who express interest in spending their fellowship at the School of Law. Based on the submitted materials and interviews with candidates, the School of Law will nominate a candidate for further review. (The School of Law may also decline to nominate someone if no suitable applicant is identified). A selection committee, consisting of staff and faculty from different UNC-Chapel Hill units, will then review all materials associated with department nominations and make fellowship offers.

The primary criterion for selection is evidence of scholarship potentially competitive for tenure-track appointments at the University of North Carolina and other research universities. Preference will be given to U.S. citizens and permanent residents. The University strongly encourages applications from African American, Native American and Hispanic/Latinx American scholars. 

Interested applicants should apply online at https://apps.research.unc.edu/postdoc_fd/.

Directions for the electronic submission are provided at the application site.  For additional information, please visit the program website at http://research.unc.edu/carolina-postdocs/index.htm. Questions may be directed to Program Coordinator Jennifer Pruitt in the Office of Postdoctoral Affairs at jennifer_pruitt@unc.edu. Questions about the School of Law may be directed to Holning Lau, Associate Dean for Faculty Development, at hslau@email.unc.edu.

The application deadline is 5:00PM EST Tuesday, November 15, 2017, including three letters of recommendations due by November 15, 2017.

 

The University of North Carolina at Chapel Hill is an equal opportunity and affirmative action employer.  All qualified applicants will receive consideration for employment without regard to age, color, disability, gender, gender expression, gender identity, genetic information, race, national origin, religion, sex, sexual orientation, or status as a protected veteran.

Posted by Carissa Byrne Hessick on September 28, 2017 at 10:58 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Wednesday, September 27, 2017

Some thoughts on Peer Observation in Law Teaching

Prof. Mary Lynch at Albany has posted a great essay at Best Practices in Legal Education raising the issue of why we don't do more peer observation of each-other's teaching the way we share and comment on drafts of articles.    As she notes, it's unfortunate that the only time this happens is in evaluative situations.   As I've said before, it's my honor to be a commentator this month so here's the link, but also some more concise thoughts.    Peer observation is a very helpful thing.

I don't know anyone who was an instant success as a teacher--although certainly some people have smoother starts than others.  Mine was epically rough.   And 16 years later I've gotten a lot better at it, but still have a lot to learn.

But the great thing about teaching in a law school is that every law school has in the building many excellent teachers and even more competent ones.  And most are associated with universities with even more excellent teachers and probably a group of experts available to support teaching.     It would be good to find a way we could use these resources to learn from each-other without fear of negative evaluation.  One thing I suggest in my comment to Prof. Lynch's post is that we develop a format in advance so that rather than observing in general we are able to provide feed-back on things that we all agree are important.  Or on things that we think may not be going well (or that we think are going well--but maybe the view from the back of the room is that they're not).  The technical term for that is a rubric and they can be as elaborate or as simple as you want to make them.

It can be frustrating that there is not as much available on law teaching as there is on teaching in general, but that's changing fast.  Places like the Best Practices Blog are great resources as are a really nice series of books from Carolina called Strategies and Techniques on Teaching Law.   Another book I've recommended and used isn't one I'd put front and center on your desk-the title is Teaching What You Don't Know--but it addresses a problem that's pretty common for anyone starting to teach a survey course in any field--you can't be equally familiar with every topic.     These sources can be a starting point for getting together as a faculty or even a small group of friends to identify things you'd like to be doing in the classroom and that you can help each-other achieve through peer observation.

Posted by Jennifer Bard on September 27, 2017 at 10:12 PM | Permalink | Comments (0)

The Unraveling of College Basketball

I am a consumer of college sports.  I played college sports, and I love watching them.  Even sports I never had any hope of playing, like basketball.  I have always known deep down inside that high level collegiate sports were corrupt, exploitative, dehumanizing, etc … just plain dirty—but I have still watched.  And as a faculty member at a university that loves and exalts its sports teams, I have enjoyed at least some small part of the significant financial benefit those sports can bestow.   As a former high school coach, I have even convinced myself that sports offer a unique and valuable kind of education—lessons about teamwork, character, commitment, etc.   But, as I have watched the underground economy of college basketball unearthed and exposed over the past few days—and this is the proverbial tip of the iceberg—I can’t help but interrogate myself and my complicity in all of it.

If you haven’t been watching, the FBI yesterday announced the indictment of several assistant coaches at major universities, as well as managers, financial advisers, and a top marketing executive at Adidas.  Basically, the feds have assembled a mountain of evidence—wire taps, financial footprints, undercover agent encounters, witness statements—tying these folks to various bribery and kickback schemes related to recruiting, endorsements, and representation.  In one case, Adidas paid a five-star recruit $100,000 to attend a school with which it had an endorsement contract.  In others, assistant coaches was paid to steer student athletes to particular agents or endorsements as they entered the NBA draft.  Famed Louisville coach Rick Pitino seems to have already lost his job, as has his athletic director.  People are going to go to prison.

Continue reading "The Unraveling of College Basketball"

Posted by Ian Bartrum on September 27, 2017 at 05:09 PM | Permalink | Comments (11)

Sports and Speech: From the ridiculous to the sublime

I have not weighed in on the craziness about protests in the NFL, because so much of this (from both sides) is more noise than signal. For now, I want to flag to recent pieces:

1) Jonathan Eig writes that the public hated Muhammad Ali when he was speaking (and acting) out against the war at the time he was the loudest and angriest; it was only after he became harmless (because of his medical condition) and less adversarial in his views that he became beloved. The same is happening with Colin Kaepernick, to a limited extent. As some people praise him for starting a movement, he remains out of a job. And the message he was trying to get across--inequality and systemic mistreatment of African Americans--has been replaced by a league-approved anodyne message of "unity" and objection to "division."* Perhaps Kaepernick will get a job, although I doubt it. More likely, he will be praised 15 years from now, when he no longer can play football (and have a high profile to make an expressive effect), for standing up for his beliefs.

[*] Hint: If the only goal was to be "united" and not "divided," we would not need a First Amendment.

2) This story about a fan ejected from Yankee Stadium for shouting the location of pitches in Spanish. The umpire removed him for "cheating" by tipping the Yankee batters to the location of pitches. This is beyond stupid. First, the idea that he is remotely helping the batter to hit a 95-mph pitch is nonsense--the pitch is in the catcher's glove before the batter would hear anything. Second, there are 40,000 fans shouting the location of pitches--it is what fans do and are expected to do.

To the extent there is a lawsuit, I am curious how the status of current Yankee Stadium is resolved. Old Yankee Stadium (the one used, pre- or post-renovation, from 1923-2008) was owned by New York City and there were some good arguments that, in using the stadium, the Yankees acted under color and became bound by the First Amendment. A district court held that in 1978, in a lawsuit brought by female sportswriters who were barred from the lockerrooms during the 1976 World Series. And some good arguments were pled in a lawsuit filed by a fan who had been removed for failing to stand for "God Bless America," but the case settled. Public funds paid for more than 50 % of construction of the current stadium, although I do not know the details about ownership and control.

Posted by Howard Wasserman on September 27, 2017 at 02:09 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Tuesday, September 26, 2017

The Ills of Expediting

In response to my recent post on the law review submission system, Carissa Hessick quite helpfully asked me to more fully explain what I view as the "ills" of the expedite game.  I had taken that for granted in my post and when I sat down to think about it, I realized that I hadn't made that case very well.  So here goes:

 Expediting is bad because it is chiefly, if not solely, aimed at achieving reputational advantages, not about increasing the quality of ideas.  Because I think the quality of ideas should be paramount in scholarship, and reputation irrelevant, I thus think that expediting is a waste of authors' and editors' time.  

To illustrate this, let's first acknowledge that the gold standard for article selection is blind review.  The editors should not distract themselves, the argument goes, with noisy proxies like an author's home institution or the names in the first footnote.  What matters is only the quality of the article.  Now let's flip the frame: how should authors pick the place they want to publish? Shouldn't they rely only on quality as well--i.e., the quality of the editors, editing process, etc.  But that's not what is going on when we expedite.  We expedite because we want to be published in a T14 journal so that the world will (presumably) know what great scholars we are. We rarely (maybe never) expedite so that we obtain an increase in editing talent.* (I accept that some journals have better editors than others, but it's not clear to me that a school ranked #8 has better editors that one ranked #14, and so on. I think such information is mostly unknowable.) So I guess I'd sum it up this way: why should we expect editors to ignore reputation when selecting articles (blind review) but allow authors to pursue reputation above all else when selecting a journal (expediting). Put differently, if we cut down on expediting, we also cut down on reputation chasing, and thereby encourage everybody to consider everybody's else's work on the merits, not according to journal title.  

* Some might argue that expediting is occasionally appropriate to obtain better publishing terms--whether in terms of copyright or date of publication.  If this is so, I wonder why professors seemingly always expedite up, rather than up and down.  If you submit to journals 1-50, and get an offer from journal #35 that gives you unfavorable publication terms, you should seek alternative offers from journals both higher and lower than #35--at least if you are focused on the publication terms alone and not reputation.      

 

Posted by Jack Preis on September 26, 2017 at 09:42 PM | Permalink | Comments (24)

Sponsored Post: Changes in Administrative Law

The following post is by Todd Rakoff, Byrne Professor of Administrative Law at Harvard, and Gillian Metzger, Stanley H. Fuld Professor of Law at Columbia, and is sponsored by West Academic.

Administrative law has risen from being a domain of the cognoscenti to the subject of daily headlines. Conservative complaints about the Obama administration’s exercise of executive power—and the corresponding liberal complaints about the Trump administration’s exercise—have become the stuff of ordinary debate. For us, involved for the last year in revising Gellhorn and Byse’s Administrative Law for its soon to be published 12th edition (along with our co-authors Peter Strauss, Anne Joseph O’Connell, and David Barron), this ferment has been both problem and opportunity.

Continue reading "Sponsored Post: Changes in Administrative Law"

Posted by Howard Wasserman on September 26, 2017 at 08:31 AM in Sponsored Announcements | Permalink | Comments (0)

Monday, September 25, 2017

Health Reform: The “Flexibility” to Fail

The Senate has until Saturday to vote on a health reform bill that could pass with 51 votes using reconciliation.  The current proposal, known as Graham-Cassidy, has yet another revision out today and was scheduled for a hearing almost simultaneously.  But the core principles remain the same:  repeal the Affordable Care Act’s mandates, subsidies, and Medicaid expansion, then shift Medicaid and insurance subsidies to optional block grants, with spending capped annually.  The block grant program suspends the ACA’s most significant insurance regulations for any state that asks.  Essentially, it shifts the risk and responsibility for replacing the ACA to the states. 

Graham-Cassidy’s proponents sing “state flexibility” as its virtue and decry rigidity in the ACA as the obstacle preventing states from fixing their own health care markets.  There are two problems with this particular pitch:  the ACA already provides significant flexibility, and states largely do not want this new kind of “flexibility.”     

The ACA’s big waiver provision for “State Innovation,” as I wrote earlier, gives HHS the authority to waive the individual mandate, employer mandate, and certain provisions governing the exchanges and subsidies available there.  To waive the rules but still give the state federal funding, HHS must be satisfied, based on data projections, that the state’s experiment will not reduce the number of people covered, dilute the insurance protections too far, raise premiums too much, or cost the federal government any more money.  These standards for paying states to deviate from federal rules have been vividly described as the guardrails of state experimentation. 

Since states became eligible for the Innovation waivers in January, some have applied, but almost none have been ambitious.  Vermont took a shot at a transformative, comprehensive waiver to pursue a single-payer system, but ultimately tabled it.  Thus far, a handful of states have asked for limited waivers to use reinsurance programs to patch parts of the exchange market.  Notably, states have not rushed to claim the full flexibility available to them under the ACA.  

Graham-Cassidy repeals the ACA’s subsidies and Medicaid expansion rules and replaces them with an optional “market-based health care grant.”  These grants tread where the ACA State Innovation waiver did not – giving states the option to suspend even some popular baseline insurance regulations requiring coverage for preexisting conditions, prohibiting lifetime and annual caps, and prohibiting from charging more based on health status (some of the Jimmy Kimmel Test).  Applications only have to “describe” the permissible goals of a state’s proposal and how it will use the grant money to “maintain access to adequate and affordable health insurance coverage for individuals with pre-existing conditions.”  A state with a grant does not, for example, have to abide by the rules on pre-existing conditions or lifetime caps or essential benefits.      

Graham-Cassidy gives states only two years to ramp up for the new world of “flexibility.”  States had decades before the ACA to work on fixing their markets, producing some spectacular failures and only spotty, limited successes.  Under the ACA, states have had more than three years to put together proposals with federal funding, expertise, and a safety net of the federal exchange and default rules.  In this time, none have generated a workable proposal that protects access and affordability and also claims the full flexibility afforded. 

There are many indications that states do not want the Graham-Cassidy version of “flexibility.”  A bipartisan group of governors vocally opposed it, calling out “flexibility” without funding as a “false choice.”  The National Association of State Medicaid Directors opposes it and warns of “largest intergovernmental transfer of financial risk from the federal government to the states in our country’s history.”  By removing the guardrails and the safety net for state experimentation so quickly, Graham-Cassidy’s “flexibility” sets states up for failure and tragic choices.  Plus, ERISA has been hamstringing state flexibility to regulate since 1974.  ERISA preempts most state efforts directed at employer-sponsored insurance (like a state replacement for the employer mandate), yet Graham-Cassidy leaves this major obstacle to state self-determination intact.

As is now widely acknowledged, health reform is complicated.  Graham-Cassidy forces on the states a “flexibility” to do more with less and removes the federal safety net if they fall in this lofty task.  Far beyond waiver, it is deregulation in “flexibility’s” clothing.  Some states may want flexibility, but most are not clamoring for the “flexibility” to fail.

Posted by Liz McCuskey on September 25, 2017 at 07:11 PM | Permalink | Comments (0)

Some Thoughts on "Soft Skills" in Legal Education

In addition to guesting at Prawfs this month, I'm also doing something new-- I've been invited to provide commentary to another terrific blog Best Practices in Legal Education.  Their model is to post essays by regular contributors and comments from guest commentators.

So here's a multi-layered set of links--my comments on John Lande's essay on Randall Kiser's book,Let’s Not Make a Deal: An Empirical Examination of Decision Making in Unsuccessful Negotiations.  

The regular contributors work hard to provide useful links and promote a discussion of best practices.    

 

In terms of soft skills, they're the difference between succeeding and failing as a lawyer.  

Posted by Jennifer Bard on September 25, 2017 at 05:52 PM | Permalink | Comments (0)

Barnette at 75

John Q. Barrett reminds us that next June is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, which makes the short list of most important First Amendment decisions, both for its principles and its rhetoric. Given everything going on in the world of sports since last week, both are being put to the test.

Posted by Howard Wasserman on September 25, 2017 at 04:37 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Reputational Scores: Yet Another Idea for Reforming the Law Review Submission Process

Like a lot of others out there, I find the expedite game quite distasteful.  Also like some others, I've been tossing around some ideas for fixing it.  Some recent ideas from others include having faculty publish only in their home institution's journal, limiting the number of simultaneous submissions, or using exploding offers.    

My very tentative idea is this: the "E Score."  Suppose that Scholastica created and published a score for each author that indicated the number of expedite requests made per article.  If you submit to 50 journals and get an offer from the 50th ranked journal, and then expedite to the other 49, you’d have an E Score of 49.  If you then received an offer from the 49th ranked journal and expedited to the other 48, your E Score would jump to 97.  If you submitted two additional articles the following year and accepted offers on both without any expediting, then your E Score would drop to 32.3 (97 total expedites over 3 articles).

Continue reading "Reputational Scores: Yet Another Idea for Reforming the Law Review Submission Process"

Posted by Jack Preis on September 25, 2017 at 10:20 AM | Permalink | Comments (10)

Corpus Linguistics Re-Redux

Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN.  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation.  In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation.  While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question.  Among other things, he said the following:

Continue reading "Corpus Linguistics Re-Redux"

Posted by Carissa Byrne Hessick on September 25, 2017 at 09:56 AM in Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (4)

Sunday, September 24, 2017

Hecklers and counter-speakers (again)

Mark Tushnet, writing on Vox and Balkinization, argues that the counter-speakers/hecklers/audience members who attempt to shout down other speakers engage in constitutionally protected activities and the First Amendment is violated by many of a state university's efforts to stop hecklers. Mark argues that the speaker and the hecklers are "symmetrically situated with respect to speech" and that the intuitive "first come, first served" rule fails to capture the complexity of situations or to recognize that it is not always clear who is "first" in any situation. (If the speaker is inside the auditorium and the hecklers are outside, the hecklers are first in that outdoor space).

Mark captures well a lot of what I have been thinking and arguing about this, that deriding hecklers/protesters/counter-speakers as exercising the dreaded heckler's veto misses the mark. Labeling this  as "noisy interference" also is too simplistic, as it fails to capture the expressive nature of what many hecklers do. And all of this comes on the heels of a poll showing that a majority of college students believe it is ok to shout-down speakers.

Mark is searching for a rule or balance that does not inevitably take content into account. One answer might be that it depends on the precise forum,. On this, perhaps we distinguish between a limited-space auditorium that must be reserved and open areas on campus; audience members have greater counter-speech rights in the latter than the former. Or we distinguish between the speaker stage and the audience, so a heckler can shout from the audience, but not run on stage and grab the microphone.

But Mark's arguments show that the content problem arguably never goes away (something I had not crystallized previously). Consider audience members in an auditorium, with the speaker on stage. Mark argues that, even if the speaker has priority over the audience, all members of the audience are symmetrically situated. We can imagine a situation in which the crowd of speaker-supporters is loud and raucous, to the point that their cheering and shouts of "USA! USA!" or "you said it" cause the speaker to pause or make it impossible for him to hear. I doubt anyone would want these supporters removed. So what is the difference between audience members whose jeering and shouts of "fascist" (Mark uses  Joe Wilson's "You lie") cause the speaker to pause or make it impossible for him to be heard? Content and viewpoint.

We might get around the problem by distinguishing the nature of the forum and the expression in that forum0--an academic lecture as opposed to a political or partisan rally. But that highlights the complexity of the problem and the absence of easy answers--the precise point Mark is trying to make.

Posted by Howard Wasserman on September 24, 2017 at 06:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Saturday, September 23, 2017

(Final?) Posner-Rakoff dialogue

I am late on this, but here is the most recent (final?) dialogue between Richard Posner and Jed Rakoff, published a few weeks after Posner's resignation frmo the court.. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging), a binary that Posner properly rejects. I like the conversation over the competing roles and competencies of trial as opposed to appellate judges, both in the U.S. and in other systems.

I also like that Rakoff threw in one of my favorite jokes about a trial judge, appellate judge, and Supreme Court Justice (I tell it with a law professor) who go duck hunting.

Posted by Howard Wasserman on September 23, 2017 at 10:42 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 22, 2017

Credible Commitment and Chinese Municipal Debt: How Legal Omnipotence Makes Authoritarian (and Democratic) States Practically Powerless

Okay, "powerless" is a little strong. But this week's news that Standard & Poor's Global Ratings has down-graded China's sovereign debt is a reminder that the vaunted ability of authoritarian regimes briskly and efficiently to get things done is a tad exaggerated. The Chinese Communist Party has been struggling for years to get its ballooning debt under control but to no avail. As Shitong Qiao and I argue in a little essay, it turns out that Chinese local officials' vast legal powers actually weakens their capacity to control their local debt. The problem local officials face in China is just a specific instance of a familiar constitutional difficulty: Legal omnipotence impedes officials' capacity to make credible commitments necessary to secure cooperation necessary to accomplish long-term reforms. In the context of Chinese municipal debt, local officials' powers to undo their predecessors' policies impedes credibility of commitments to follow through on reforms needed to attract home-buyers and lenders (say, by reducing the cost or improving the quality of schools, policing, or pollution). Being unable to commit to such value-enhancing but intangible goods, mayors and party secretaries emphasize physical infrastructure that is relatively durable and can quickly generate GDP and jobs that enhance a local officials' chances for promotion. In theory, the central government could refuse to promote local officials who incur "excessive" debt. In reality, the central government has neither any easy metric for measuring when debt is excessive nor any easy way to gain information about local indebtedness without the cooperation of local officials. Moreover, the CCP's cadre promotion policy rapidly moves local leaders from one local jurisdiction to another after three years or so, giving each local official an incentive to rack up debt for impressive GDP and job results while handing off the debt time bomb to their successors.

Before one gets cocky about constitutional democracy's advantages in using law to make commitments credible, keep in mind that constitutions are mere parchment guarantees of stability. If actual political institutions do not enforce the promises of policy-makers, then merely paper guarantees will not enable a government to make its policies stick. The United States' debt was down-graded back in 2011 precisely because bpnd raters worried about how partisan polarization was impeding the Congress's willingness to honor past Congress's commitment to re-pay its debts on time. Evidence suggests more generally that low collective responsibility and high partisan polarization tend to undermine lenders' perception that the borrower's commitments to re-pay debt are credible.

In short, democracy and autocracy can both be unstable without institutions that practically lock in office-holders' promises across time. As an American teaching constitutional law in Shanghai this year, this basic common problem confronting both China and America has made my classes more exciting but my worries about instability gloomier. With the 19th Party less than a month away, President Xi Jinping may be making a bid for a third term and an extra-compliant Politburo. Meanwhile political conventions in Congress and the Presidency also seem to be unraveling -- perhaps "rotting" in Jack Balkin's term. In either case, one hears an impatience with the old rules that prevent an energetic executive from "getting things done." By undermining the conventional bases for credible commitment, however, both Xi and Trump might find that they have lost their capacity for effective action. As Carles Boix and Milan Svolik argue, authoritarian regimes actually are more resilient when there is a balance of power that makes inter-factional bargains more credible. Trump's supporters may likewise be discovering that those old fusty trans-partisan conventions governing the D.C. "swamp" are necessary for getting anything done. In either case, there could be a deep irony that, in the name of energetic government, stakeholders trashed limits on action that make long-term actions possible.

Posted by Rick Hills on September 22, 2017 at 10:57 PM | Permalink | Comments (0)

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, September 20, 2017

Some misguided defenses of Sen. Feinstein's questioning of judicial nominee

Cross-posted from Mirror of Justice, and (sort of) following up on Paul's post . . .

During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.  A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.

Also surprising, and disappointing, have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal.  In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing.  Read the linked-to pieces for yourself.  Then, consider these thoughts of mine, for what they are worth:

 - (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role.  It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations.  This kind of questioning does not violate the "No Religious Tests"  Clause of the Constitution.

 - (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views.  In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X.  This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.

 - (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken).  The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different.  Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations.   Rather, Sen. Feinstein said this:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.

This is not an appropriate question.  (Nor was Sen. Durbin's "are you an orthodox Catholic?")  This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism.  It's what was done to Al Smith and John F. Kennedy.  Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., "it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases" -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your [Roman Catholic] faith commitments."   Sen. Feinstein's critics are right; her defenders are wrong.  The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they have).  The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly." 

Posted by Rick Garnett on September 20, 2017 at 08:03 PM in Rick Garnett | Permalink | Comments (0)

Modal Activism

Judicial “activism” is, of course, a bad thing—or at least the phrase is usually used to try to discredit a particular judge or decision.  Over the last 40 years or so—roughly coinciding with the rise of contemporary originalist arguments—it has become the go-to accusation for “conservative” critics to hurl at “liberal” jurists.  As such, I think most folks now understand “activist” as short for “non-originalist”; or perhaps “non-textualist” in some cases.  But, in truth, the term is really more narrative-normative than it is descriptive.  That is, as I’ve often heard said, it’s really just a way of describing a decision you don’t like.

In fact, judges can be “activist” in all sorts of ways—including by relying on historical or textual arguments.  On the way back burner of my cluttered mind, I have the thought that it might be useful at some point to write up a modal account of judicial activism, if for no other reason than to attempt some descriptive clarification.  The elevator conversation version of my thought is that activism most often occurs when a judge elevates one modality of constitutional above others in a way that either (1) disrupts reasonably settled practice, or (2) is outcome driven.  Another way to say it, perhaps, is that judicial activism is not tied to any particular interpretive method(s); though it may look different when exercised in different modes.

With that said, here’s a super rough-and-ready modal catalogue of types of activism.  (Not at all meant to be exclusive).

Continue reading "Modal Activism"

Posted by Ian Bartrum on September 20, 2017 at 06:54 PM | Permalink | Comments (39)

Dean Search, Washburn University School of Law

Washburn University invites applications and nominations for the position of Dean of the Washburn University School of Law. The Law School is recognized for its outstanding teaching and faculty scholarship and its commitment to public service. It has a highly favorable student/faculty ratio, with an excellent student body drawn from a national pool.

Continue reading "Dean Search, Washburn University School of Law"

Posted by Howard Wasserman on September 20, 2017 at 06:32 PM in Teaching Law | Permalink | Comments (0)

The Obvious Irony of Chemerinsky on Barrett and Feinstein

In the circles in which people comment, and then comment on commentary, and so on, and in which some of these writers treat this activity as as an earnest, important, and influential form of politics, as opposed to a conventional practice or habit with no strong justification outside the practice itself, Erwin Chemerinsky's latest op-ed (as of yesterday, anyway) will get some attention. It defends Senator Dianne Feinstein for having questioned Seventh Circuit nominee Amy Barrett about her religious beliefs and/or about an article of which she was effectively the junior co-author some 20 years ago. I wrote about that questioning here.

The problem is not that Chemerinsky is wrong as such, in broad terms. As I said in my post and have written elsewhere, in my view not all questions about a nominee's religion or religious beliefs and how they apply to the performance of an office are wrong or violations of the Religious Test Clause. The problem is that beyond this very general point--one that is shared by some but not all conservatives, and certainly many serious conservative commentators--the op-ed is vague and unhelpful, does not get to the heart of the question, and is possibly disingenuous. The proposition that it can be valid and permissible to question a nominee about his or her religion in a relevant way does not affect the question whether particular questions are fair, legitimate, or helpful. Chemerinsky writes that criticisms of Feinstein have "mischaracterized her questions." Doubtless some have: It's a big and unimpressive Internet. But anyone who has read John Garvey and Barrett's article and Feinstein's questions, as well as the changeable defenses Feinstein later offered for her line of inquiry, should understand perfectly well that the primary problem is that Feinstein's questions mischaracterized the article. Nor do Chemerinsky and some other defenders of Feinstein recognize adequately, if at all, that even if there was some valid basis for asking questions of some sort, it is possible to do so in a way that explores the question productively without discussing religion much at all, let alone making such a hash of it. Feinstein and some of her colleagues did make a hash of it. The "dogma" line will quite rightly be hung around her neck for the remainder of her career. Defending her right to question Barrett on these topics does not demand a defense of the particular questions she asked or the language she used. It certainly does not require one to ignore the mischaracterization of Barrett's article, a mischaracterization which after all served as a primary basis for asking the questions in the first place. 

I think it is pretty clear that the real raison d'être for Chemerinsky's op-ed is its last paragraph, and especially its last sentence: "The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench."

I am not here to defend all the critics of Feinstein, or to deny the possibility that some of these critics were motivated--by politics, by money, or what have you--in their criticisms, or that for some of them the underlying concern was to get Barrett confirmed. Given the nature of politics, that is all but certain, although it is also true that many people were genuinely offended by Feinstein's questions and especially her language. The irony, of course, is that, especially in the absence of a definition for a phrase like "very conservative," it seems more likely to me that almost the precise opposite of this statement is closer to the truth. Barrett is dangerous to her opponents not because she is "very conservative," but because she is highly confirmable. More than that, she is potentially confirmable for an eventual Supreme Court seat. And she is confirmable precisely because she is not easily characterized as "very conservative," and certainly not as an extremist, a thoughtless conservative, a careless and irresponsible ideologically oriented lawyer or legal academic, etc.

If senators allowed themselves to openly and publicly reject nominees on the basis that they don't want smart and responsible people who meet conventional criteria for judicial appointment but are nonetheless clearly (or possibly) "conservative," or "liberal," on the bench at all, we would need fewer smoke screens from either side. It would not be necessary to paint confirmable nominees as "extremists" or "very conservative" or "extremely liberal" or anything of the sort. The results might or might not be better, but the process would be more efficient and more honest. And with that honesty would come greater and more direct political accountability for the senators themselves. (In the case of Merrick Garland, for instance, Republican senators could have said, "We have the right to block this excellent nomination and are going to do so, period," without stretching for dubious justifications and historical precedents and muddying and harming public and political discourse. Their political fortunes would stand or fall on the blunt assertion of a right to block Garland, a clearly qualified liberal nominee, and without the defense of questionable justifications for doing so.) 

As it is, current convention demands that we act as if reasonable and conventionally excellent nominees should be confirmed almost as a matter of right. That in turn incentivizes senators, commentators, and--not least--groups that depend on extreme claims of urgency or emergency to fundraise and justify their continued existence to paint many excellent nominees as "extreme," "outside the mainstream," and so on, or to turn molehills into mountainous disqualifying "scandals, which also involves lengthening the duration of the nomination process as they dig through every jot and tittle for a usable "controversy." It's a lousy system, in my view. But the irony of Chemerinsky's last paragraph remains. The problem with the Barrett nomination, and the reason for Feinstein's questions, some of the criticisms for those questions (which were also fairly subject to honest criticism on the merits), and Chemerinsky's own defense of Feinstein is not that Barrett is a "very conservative" nominee and some kind of symptom of Trumpism. On the contrary, it is that Barrett may be a conservative and would count as a fine and confirmable nominee by any president, for this or a "higher" judicial office. If there is a "smoke screen" involved, it is in pretending otherwise. 

 

Posted by Paul Horwitz on September 20, 2017 at 10:44 AM in Paul Horwitz | Permalink | Comments (14)

Tuesday, September 19, 2017

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018


In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
2018.

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the
conference.

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

Posted by Rick Garnett on September 19, 2017 at 11:26 AM in Rick Garnett | Permalink | Comments (1)

What's Wrong With Recreational Genetic Testing

    I've been tweeting about the NFL's decision first to provide free genetic testing at last Sunday's football game and then their decision to hold off.

Here's a fuller account of why I think this is not a good idea--

It is very unlikely that Ravens Football fans will suffer any serious, let alone lasting, harm from taking advantage of the offer to have limited genetic testing. And certainly there is no reason to doubt the good intentions of the company offering it or the other companies now offering consumers recreational genetic testing.  But I’m glad the NFL changed its mind. And here’s why.

But you don’t have to be a science fiction fan or a dystopian to imagine future scenarios where genetic information could be used to discriminate or result in affirmative harm in ways not immediately apparent to us. And you would be foolish to discount today’s reality that all information, especially if it has value to someone, can and probably will get out. There haven’t been significant instances of harm caused by disclosure of genetic information because so far genetic testing hasn’t been done on a wide scale and the scope of knowledge, although advancing very quickly, is still pretty limited.

But things change. And existing federal laws against genetic discrimination are already insufficient. Employment discrimination based on genetic information is illegal, but discrimination in housing or life insurance is not.   Finding lost relatives could be wonderful, being held responsible for their debts might not be. Contracts between consumers and testing companies provide after the fact remedies but they can’t prevent security breaches or even inadvertent disclosures.

There are scenarios for genetic testing where the risks of disclosure are outweighed by benefits to health, to science, to legal liability, or to family relationships. But using genetic analysis, no matter how limited, as a give-away at a football game does not come with proportionate benefits. Providing a saliva sample for analysis creates a permanent relationship between you and the holder of the sample in the way that receiving a cap, a t-shirt or a bobble-head does not. We may look back on this era of recreational genetic testing, including direct to consumer advertising by commercial companies, as a harmless fad equivalent to phrenology or a mood ring.   But we may also wonder why we were not more careful in using a technology about which we knew so little.

Posted by Jennifer Bard on September 19, 2017 at 08:44 AM | Permalink | Comments (0)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Police Riot in a Failed City: On the Streets of St. Louis

Since Friday, the streets of St. Louis, Missouri, have been filled with competing groups of demonstrators and protestors. For most purposes, the police were nowhere to be found. Instead, uniformed law enforcement professionals consistently forewent their role as police officers and became protestors, and at points rioters, themselves. Rather than upholding their sworn duty to represent the public, the police consistently chose to represent themselves: the acted as defenders of the police department as an institution, rather than representatives of the City and the public. They allegedly shot at and gassed a storefront owner (who was then targeted by the police union, which allegedly released the owner's phone details; trampled people in their way, squirted mace and shot plastic bullets at journalists and peaceful protesters, and by Sunday had, like the other protesters, started chanting their own protest slogans: "Whose streets, our streets."

These failures of policing point to a larger problem with the City of St. Louis. For African Americans, it is what sociologists and political theorists call a failed state. Lisa Miller, the Rutgers political theorist, has written perceptively about the interrelation between crime, punishment, and failed states. Her point is that local governments can fail in the same way as states can: that they can undergo a crisis of authority so severe that the government lacks the authority to make its will felt. Her point is that the appearance of authority through authoritarian interactions on the street or in the courthouse masks a broader inability to establish authority in other, less visible, ways, such as the provision of fundamental social services. In particular, she focuses on the homicide rate as a symbol of the state's inability to provide security for certain of its citizens. Drawing from Loïc Wacquant, we could call these hyper-failures: failed states experienced by racially specific groups or locales within a state or a city: the sort of racially segregated concentrated deprivation Tommie Shelby calls the "Dark Ghetto."

Continue reading "Police Riot in a Failed City: On the Streets of St. Louis"

Posted by Eric Miller on September 18, 2017 at 03:05 PM | Permalink | Comments (5)

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

Posted by Carissa Byrne Hessick on September 18, 2017 at 09:04 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (4)

Friday, September 15, 2017

A Big Test for “Big Waiver”

This year’s procedural window for passing an Affordable Care Act overhaul via reconciliation closes at the end of the month.  The latest proposals out this week are “Graham-Cassidy” (which sounds like a 1970s fusion band) and “Medicare-for-all” (which sounds like an instant-aging tonic).  Hundreds of billions of dollars hang in the balance, as does access to meaningful health insurance and financial stability for millions of people.  It is kind of a big deal.  But beyond this last gasp in a months-long moment for health reform, these efforts also represent a moment for statutory “big waiver,” which is itself a big deal.  I’m here to highlight big waiver’s big moment and some of the ways that the ACA and its proposed replacements unmake law. 

“Big Waiver,” coined by Professors Barron and Rakoff in their 2013 article, In Defense of Big Waiver, describes statutory waiver provisions permitting administrative agencies to displace the very “heart of the statutory framework – the express provisions of it that seem most central to its effective operation.”  With big waivers, statutes can simultaneously make law and allow its unmaking by administration.  The ACA and several other statutes of the past two decades employ big waivers.  As Barron and Rakoff posed in 2013, rise of big waiver may serve political and pragmatic purposes.  Politically, inclusion of a big waiver may encourage legislators to overcome gridlock and vote for substantial legislation because waiver creates an escape hatch of appeasement.  Pragmatically, as a statute ages, a big waiver provision also may help its framework endure by adapting without further resort to the legislative process. 

The ACA has a “Waiver for State Innovation” that allows states to apply to the Department of Health & Human Services for a waiver of the statute’s big-ticket reforms:  the individual mandate, employer mandate, subsidies, insurance exchange requirements, and some coverage regulations including the “essential health benefits.”  The catch is that states have to enact their own laws to replace the waived provisions.  And the replacement laws must plausibly be equivalent to the ACA in affordability, comprehensive coverage, and number of people insured, as well as being budget-neutral for the federal government.  These standards further the statute’s core intentions, but suspend the preemptive federal provisions designed to achieve them.  The ACA’s big waiver became available just nine months ago and states have already have quietly pursued a number of waivers, large and small. 

The legislative efforts to repeal, replace, or simply renovate the ACA this year have presented a big test for big waiver, playing out on the field of health reform.  The replacement proposals have included mega-waivers with vastly diluted standardscrazy waivers, even.  Big waiver’s popularity as a legislative tool has only increased, at least for health law.  But those mega-waiver proposals thus far have failed fulfill big waiver’s political consensus-building role and attract the 51 votes necessary to break the stalemate.  The failure on this dimension of big waiver likely owes to the fact that the mega-waivers reinforced proponents’ priorities, rather than offering appeasement to the critics.  The recent proposals wield big waiver as a tool to unmake prior law, despite opposition, rather than to soften new law and build consensus.  

On the practical dimension, the ACA’s big waiver had mere months to begin adjusting the statutory framework to account for implementation.  Yet, on a small scale, tailored waivers already have enabled some states to shore up their health insurance markets.  Whether its big waiver will enable the ACA to bend in the political winds without breaking remains to be seen.  The next two weeks will put this test in sharp relief. 

I’m highlighting the ACA’s big waiver because health law is my thing.  But big waiver transcends health law.  Education, immigration, national security, and welfare laws, among others, all have their own big waivers.  If big waiver is facing a big test in your area of law, I would be interested to hear about it.  As a longtime-listener-first-time-caller to Prawfs, I’m happy to be here and among such good company. 

Posted by Liz McCuskey on September 15, 2017 at 12:08 PM | Permalink | Comments (0)

Conference at Marquette Law: The Ethics of Legal Scholarship

I write today from Marquette Law School in Milwaukee. (Milwaukee's airport, incidentally, contains Renaissance Books, easily the best bookstore in any airport I have ever seen. Milwaukee: Come for the airport bookstore, stay for the actual city!) Thanks to the hospitality of the school and to organizers Chad Oldfather and Carissa Hessick (I am a kind of junior co-organizer to them), we are holding a two-day conference called "The Ethics of Legal Scholarship." 

The issues, obviously, are plentiful, from what and how one writes to the substance of the scholarship to the publication process. The framework for the conference is a little unusual. The Marquette Law School is generously going to publish the symposium results. And we hope to lead off the symposium issue with what one might call a Draft Restatement of the Ethics of Legal Scholarship: A general set of principles, norms, and rules that do or should describe what constitutes ethical conduct for and in legal scholarship (and perhaps, although this will be a matter of discussion, what ethical norms ought to apply to "non-scholarly" work, like op-eds or amicus briefs, that might not constitute "scholarship" but are written under the title and ostensible authority of the scholar). That's the plan; whether it will happen or not remains to be seen. And having some kind of Restatement does not preclude the participants from publishing separate concurrences, dissents, or comments on that document. Indeed, the "admission ticket" papers already produced by the conferees are excellent and varied in their views and approaches.

This is a subject of great interest to legal academics and (some) others. I think it's fair to say that in conversation, law professors agree widely that there are ongoing problems and issues with legal scholarship, some or many of which could be characterized as professional "ethical" problems. It's also fair to say, I think, that those private conversations are much more candid, and often much more cynical, than the public discussions. There are understandable and perhaps forgivable reasons for that split between public and private discussions, but the more of a gap there is between the state of the public and private conversations, the more it demands to be addressed publicly and candidly at some point.

I'm excited about this conference, which has been in the making for some two or three years. I'm grateful to Chad and Carissa for organizing it, to Dean Joe Kearney for his generosity in having Marquette host it, to the Marquette Law Review for its interest in supporting and publishing the symposium, to the Marquette staff, and not least to the participants themselves.

I'm leaving the comments open. Obviously, this is the kind of post that lends itself to unserious responses, or responses that are perfectly serious but obvious or unhelpful. "Oxymoron," "contradiction in terms," things of this sort: they could end up being true, but we're all familiar with them already, and we've already resumed the conference room for the next couple of days. For those who thing the conference and its Restatement approach already assume too much or are undertaking an impossible task or the wrong task, let me reassure you that one of the conference participants is Stanley Fish, so I'm sure there will be opportunities for general skeptical questions and the throwing of assorted bombs.

But I, or we, would be grateful for comments offering more specific ideas and proposals. For instance, one might expect comments: 1) identifying ethical problems in legal scholarship that are given too little attention; 2) identifying the most important or urgent ethical problems in legal scholarship, even if they are already given attention; 3) asking questions about the definition of "scholarship" or "legal scholarship," what counts as legal scholarship, and what kinds of norms, if any, should apply to writing by law professors as law professors but outside scholarly forums, such as tweets, blog posts, "law professors' letters," op-eds, and so on; 4) proposing specific ethical norms for legal scholarship, especially those that might, as it were, be part of a Restatement or code of the ethics of legal scholarship; and 5) raising general questions, positive or critical, about what the conference should try to achieve or whether it is possible to achieve anything at all. Your contributions and suggestions and questions are appreciated. As far as I can while the conference is ongoing, I'll keep an eye on them and bring them up at the conference where they are helpful. I may offer a couple of posts along the way, or after the fact, summarizing particular aspects of the conference and the discussion.     

 

Posted by Paul Horwitz on September 15, 2017 at 11:05 AM in Paul Horwitz | Permalink | Comments (25)

Thursday, September 14, 2017

Constitutional Torts, Proximate Cause and the Egg Shell Skull Rule

Last September, I blogged about Manuel v. City of Joliet, a wrongful detention case arising from false evidence manufactured by the police.  Manuel involved the distinction between two types of  Fourth Amendment claims, a false arrest claim and a malicious prosecution claim.  The plaintiff in that case was trying to frame his action as a  malicious prosecution claim--largely because false arrest claims are (because of prior case law) very limited in their potential scope of recovery.  A successful false arrest claim will get you damages for a day or two behind bars, and usually nothing more.  I suggested in my post that the principle of proximate cause should be invoked to extend the potential damages far beyond the two-day limit.  If a cop manufactures evidence against you, and you spend 10 years in jail, wasn't your incarceration proximately caused by the manufactured evidence?

The Court did not wander down the proximate causation road in Manuel, and it's not hard to blame it because there was a narrower way to resolve the issue.  But, in a case heard later the same term, it would be much harder for the Court to avoid the proximate causation issue.  That case was County of Los Angeles v. Mendez.  In Mendez, two police officers entered a shack behind a house without knocking or announcing before entering.  Unbeknownst to the officers, two persons were napping in the shack and, surprised by the officers' entrance, grabbed a BB gun to protect themselves.  The officers responded to this provocation by shooting the two persons several times.  It seemed clear from the facts that a knock and announce violation had occurred, but excessive force was harder to figure.  Shooting somebody that is pointing a gun at you is not excessive force, but what if the only reason that person is pointing a gun at you is because you failed to knock and announce your presence?  The Ninth Circuit held that the officers used excessive force because they "provoked" the response.  Thus, Mendez straightforwardly teed up the proximate causation issue for the Court: can an officer's use of force be the proximate result of a knock and announce violation?  The Court said yes and no.  

Continue reading "Constitutional Torts, Proximate Cause and the Egg Shell Skull Rule"

Posted by Jack Preis on September 14, 2017 at 02:20 PM | Permalink | Comments (3)

Law School Hiring, 2017-2018, Thread One

Those on the market are invited to leave comments on this thread regarding whether they have received:

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Four miscellaneous things:

1. If you don't want your contact information displayed, enter anon@anon.edu or something like that as an email address.

2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)

3. There's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

4. Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

 

Originally posted September 14, 2017.

Posted by Sarah Lawsky on September 14, 2017 at 01:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)