Tuesday, August 18, 2015

Settlement in Hood County, TX

A couple initially denied a marriage license by the County Clerk of Hood County, TX, has settled the lawsuit, recovering more than $ 44,000 in attorney's fees.

On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.

Posted by Howard Wasserman on August 18, 2015 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Sorry I'm late....

I'm delighted to be invited back to Prawfs and sorry to be arriving halfway through the month. I am planning to somehow cram lots of excellent posts into the precious little time that remains, which is basically also a metaphor for how my entire summer has gone. Anyone else feeling, to quote this absolutely spot-on essay from last weekend's NYT, "regret roll[ing] in like a pea soup fog" at this point in the summer?

Posted by Jessie Hill on August 18, 2015 at 07:46 AM | Permalink | Comments (0)

Monday, August 17, 2015

Baby Mama Esq.

By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children. 

Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm).  One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.

Continue reading "Baby Mama Esq."

Posted by Andrea Boyack on August 17, 2015 at 10:19 PM in Culture, Gender, Life of Law Schools, Workplace Law | Permalink | Comments (9)

Snowden Revelations: Another Major Disclosure, This Time Against AT&T

The Edward Snowden revelations have shaken the United States and the world, having an impact domestically such as with the passage of the 2015 USA Freedom Act, in foreign affairs, and influencing other nation's laws both through their reaction to U.S. surveillance (such as Germany) and their own surveillance efforts (read about France here and here). The first revelation in The Guardian socked it to Verizon. Yesterday's revelation in the New York Times socked it to AT&T and provides further important information about how the surveillance operated and the degree of private cooperation with governmental surveillance efforts.

It is not widely understood that Snowden leaked his trove to select journalists, entrusting them with judgments about the scope of disclosures and their timing. So stay tuned. There is every reason to believe that more and similarly important disclosures will occur.

Posted by Fabio Arcila on August 17, 2015 at 03:59 PM | Permalink | Comments (0)

NLRB declines jurisdiction in Northwestern football case

The  National Labor Relations Board finally ruled on the efforts of Northwestern football players to unionize, declining to exercise jurisdiction without deciding whether college athletes are statutory employees. The Board determined that "it would not promote stability in labor relations" for it to get involved. It emphasized the unique circumstances of the case and the problem of ruling on union efforts by players in one sport at one school. Professional athlete-unions were sport- or league-wide, not team-wide. FBS schools, including all other Big Ten schools, are public and thus not subject to Board jurisdiction, meaning Northwestern (and 16 other FBS schools) might be able to unionize but not any of its competitors. This also would undermine the NCAA and the Big Ten Conference, which member schools formed to create the uniformity and level playing field that a Northwestern-only union would undermine.

At Workplace Prof, Jeff Hirsch briefly discusses the opinion, arguing that the NLRB's conclusion about instability is understandable, but ignores the way that unionization might have pressured the NCAA to make needed changes. I would make that point even more specifically--unionization is the only way to ensure student-athletes have real power in creating new policies for the NCAA, as opposed to being given a voice that can be easily overridden or ignored by other interests. For example, under the proposed revised governance structure for Division I athletics, student-athletes would hold one vote on a 21-person Board of Directors and two votes on a 38-person Council (the legislative body), a body on which 60 % of the Council must be athletics directors. The NLRB identified some changes that have been made since the filing of the petition, perhaps suggesting its  view that things are improving for student-athletes and even a small number of unions is unnecessary to further NLRA policies.

Matt and I have been waiting for this decision for a year-and-a-half and had planned on writing a short essay on the decision and the underlying normative issues. Given this resolution, I doubt there is much to say.

Posted by Howard Wasserman on August 17, 2015 at 03:13 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Call for Papers: CSLSA Annual Conference Oct 9 & 10

Posting for friends and colleagues in the Central States Law Schools Association. Personal Plug: I've participated in this scholarship conference and it is excellent. It includes small group discussions and fantastic feedback on works in progress. I encourage all who can to participate (and I hope to see you there!)
The Central States Law Schools Association 2015 Scholarship Conference will be held on Friday, October 9 and Saturday, October 10 at The University of Toledo College of Law in Toledo, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress.

Conference registration is open now at http://www.cslsa.us/register/. 

Continue reading "Call for Papers: CSLSA Annual Conference Oct 9 & 10"

Posted by Andrea Boyack on August 17, 2015 at 01:33 PM in Life of Law Schools, Teaching Law | Permalink | Comments (0)

Show Me a Hero

If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.

Based on the first two hours, this is definitely worth the viewing time.

Posted by Howard Wasserman on August 17, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sunday, August 16, 2015

On a lonely island with my two spaces

My perception, based on anecdotal but wide-ranging instances over the last few years, is that most folks use one space after a sentence.  Moreover, those who speak on the subject dismiss the two-space crowd as fuddy-duddies with little or no aesthetic sense.  I must confess--or, I guess it's obvious from this post--that I am a two-spacer, and I really do not want to change.  I *like* the two spaces -- it signals a break, a pause in the action appropriate to the end of the sentence.  Do sentences not matter?  Why should they just get one space like every other word?

Anyway, my questions are these: are there any other two-spacers out there?  If so, why are you still a two-spacer?  And if you are a one-spacer, do you view us two-spacers as relics of some ancient world?  More pragmatically, do law review editors hold two-spacing in poor regard?  Or is it just something they sigh about when they have to do a "find and replace?"

Posted by Matt Bodie on August 16, 2015 at 11:36 AM in Law Review Review | Permalink | Comments (20)

Submission angsting: Fall 2015

Here is the Fall 2015 "Submission angsting" post (and comments).

Posted by Rick Garnett on August 16, 2015 at 10:57 AM in Rick Garnett | Permalink | Comments (0)

Friday, August 14, 2015

Lien Priority Rules!

Property law luminaries R. Wilson Freyermuth and Dale A. Whitman have published a concise and powerful article in the July/August edition of the ABA’s Probate & Property magazine that is both clarifying and compelling with respect to the continuingly contentious issue of residential real estate lien priority.

The priority contest between first mortgage lenders and homeowner’s associations was a dormant (or even non-existent) issue until the Foreclosure Crisis of 2008. But the Foreclosure Crisis changed the context of residential real estate lien priority questions in two ways:

Continue reading "Lien Priority Rules!"

Posted by Andrea Boyack on August 14, 2015 at 12:17 PM in Article Spotlight, Property | Permalink | Comments (0)

Why marriage licenses?

A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:

What is so special about issuing marriage licenses?

Continue reading "Why marriage licenses?"

Posted by Howard Wasserman on August 14, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, August 13, 2015

But the Poor ARE Politically Powerful ...

For this blog post, I am going to take Supreme Court doctrine seriously.  I know, I know ... naive, laughable, but bear with me.  In the prior post, I described the four criteria for determining which classes are suspect and thus entitled to special judicial protection through the heightened scrutiny of state actions that classify on the basis of the group's status.  The four are: (1) whether members of the class "exhibit obvious, immutable, or distinguishable characteristics that define them as a discrete group;" (the Court adopted this standard in the 1986 case of Lyng v. Castillo) (2) whether members of the class has suffered a history of discrimination; (3) whether the defining characteristic is relevant to an individual's ability to contribute to society; and (4) whether the class has sufficient political power to command the attention of lawmakers.  A quick aside - lower courts and litigants have relied on this standard in determining and litigating whether gays and lesbians are a suspect class.  So the standard does seem to be relevant in actual judicial controversies.     

I am going to take for granted that the poor meet the second and third criteria.  And while some might dispute whether being poor is an obvious or distinguishable characteristic, I'm also going to assume that to be true.  The key criteria that has emerged in judicial suspect class determinations is whether members of the class have political power.  In prior comments, some noted that it has been a long time since the Court has declared a class suspect.  In fact, the Court has never declared a class suspect under the above standard.  Non-citizens were the last class to be declared suspect back in 1971 with the Court merely reasoning that "[a]liens as a class are a prime example of a 'discrete and insular' minority ... for whom such heightened judicial solicitude is appropriate."  In other words, non-citizens were declared a suspect class by judicial fiat.  Two years later in Frontiero v. Richardson, a plurality of the Court determined that women were a suspect class on the basis of the four criteria described above, but the plurality could not secure a fifth vote.  In a later case, a majority ultimately settled on gender being a quasi-suspect classification instead of women being a suspect class.  

So why hasn't a single class been declared suspect under the standard?  Why haven't the poor been declared a suspect class?  The answer can be found in one of the measures of political power that the Court uses.  According to that measure, nearly every group I can think of would be considered sufficiently politically powerful to attract the attention of lawmakers.  Yes, even the poor!

Continue reading "But the Poor ARE Politically Powerful ... "

Posted by Bertrall Ross on August 13, 2015 at 12:43 PM | Permalink | Comments (0)

A first take on recalcitrant county clerks

Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.

Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).

Thoughts after the jump.

Continue reading "A first take on recalcitrant county clerks"

Posted by Howard Wasserman on August 13, 2015 at 09:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, August 12, 2015

Benforado on cameras and perspective

Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.

Posted by Howard Wasserman on August 12, 2015 at 03:15 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Process of Marriage Equality

The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.

The abstract is after the jump.

Continue reading "The Process of Marriage Equality"

Posted by Howard Wasserman on August 12, 2015 at 01:49 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Introduction and Dedication

Hello Prawfs! It is already August 12, and I am posting my first post to Prawfs this month. For that, I apologize. But I will make up for it in the coming weeks.

First, some introductions. My name is Ari Ezra Waldman. I'm on the faculty at New York Law School, where, in addition to teaching intellectual property, internet law, privacy, and torts, I run our academic center focused on law, technology, and society. My research and writing focus on privacy, the bridge between privacy and intellectual property, and cyberharassment. You can find some of my publications on SSRN, although I have a handful in the works or under submission at the moment. More on that later. My partner and I are the human parents to a wonderful dog named Scholar. She's a dachshund-beagle mix.

Second, I would like to dedicate all my posts this month to Dan. I didn't know Dan as well as some others, but in the short time I knew him, he was a friend and mentor.

Now on to substance. In my short time at Prawfs, I would like to use several posts to talk about teaching and some other posts to tell one story, hoping to flesh out ideas about an ongoing project about information diffusion, privacy, and intellectual property. I start with identifying a theoretical problem.

Continue reading "Introduction and Dedication"

Posted by Ari Ezra Waldman on August 12, 2015 at 01:07 PM in Dan Markel, Information and Technology, Intellectual Property, Legal Theory | Permalink | Comments (1)

Tuesday, August 11, 2015

Following Obergefell in the lower courts

Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.

* Which is not located in the Eighth Circuit.

Some comments after the jump.

Continue reading "Following Obergefell in the lower courts"

Posted by Howard Wasserman on August 11, 2015 at 05:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

A contribution from my students at Scofflaw

So the University of Utah (where I teach) has a group called Scofflaw and they take humor very seriously.  They distribute newsletters that roast the faculty and administration and do Onion-style articles that they distribute to lighten the mood around the law school.  I asked them to draft something just for you all at Prawfsblawg and here it is.  Hope you enjoy it (as a new textbook coauthor...I'm trying to not take it personally .  . . and hope none of you do either).

Continue reading "A contribution from my students at Scofflaw"

Posted by Shima Baradaran on August 11, 2015 at 03:49 PM | Permalink | Comments (1)

JOTWELL: Malveaux on Porter on Rules interpretation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism  Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.

Posted by Howard Wasserman on August 11, 2015 at 02:31 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Kids Today (or "I don't know about you, but I'm feeling 22")

Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself.  In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month.  For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.

  • World/National Events Context:
    • Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV.  RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”).  RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7.  RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time.  Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
    • Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16.  Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.

Continue reading "Kids Today (or "I don't know about you, but I'm feeling 22")"

Posted by Andrea Boyack on August 11, 2015 at 01:36 PM in Culture, Current Affairs, Life of Law Schools, Teaching Law, Television, Things You Oughta Know if You Teach X | Permalink | Comments (7)

State Court Search & Seizure Protections & Police Constraints, Especially During Traffic Stops

As briefly mentioned in my last post, state courts have sometimes held that search and seizure law should impose meaningful constraints on police during traffic stops, in a manner analogous to U.S. Supreme Court invocations of Terry v. Ohio in traffic stop contexts. An exemplary instance recently occurred when the Oregon Supreme Court ruled in State v. Jimenez (2015) that the Oregon Constitution prohibits police from asking about weapons during a traffic stop absent “reasonable, circumstance-specific concerns for the officer’s safety or the safety of other persons who are present.”

Continue reading "State Court Search & Seizure Protections & Police Constraints, Especially During Traffic Stops"

Posted by Fabio Arcila on August 11, 2015 at 01:04 PM | Permalink | Comments (0)

Middle ground on departmentalism

Michael Dorf discusses Mike Huckabee's (unwitting? incomplete?) endorsement of departmentalism during last week's GOP presidential debate. Huckabee explained that he considers fetuses "persons" for Fifth and Fourteenth Amendment purposes and, as Dorf understands him, would act on that constitutional understanding. And Huckabee spoke not just of pushing a personhood constitutional amendment, but of a "bolder" approach." But, Dorf argues, Huckabee did not seem to realize that "his 'bolder' option--acting to protect the rights of the unborn (rights the Supreme Court has never recognized), even when that abridges the rights of women (rights that the Court has recognized repeatedly)--was, in effect, advocacy of "uncivil disobedience by a president," bringing him into direct conflict with the Supreme Court.

But is it necessarily a conflict? And is any conflict problematic? And how might the conflict arise and play out?

Continue reading "Middle ground on departmentalism"

Posted by Howard Wasserman on August 11, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (27)

Monday, August 10, 2015

The Curious Case of the Suspect De-Classification of Wealth

The last episode left off with a cliff hanger of sorts: a foreign LLM student in my Con Law class asked me why we never discussed economic class and the poor?  I followed up with a question in the last blog asking why we as legal scholars do not engage class and the poor more than we do now.  One response is that legal scholarship tends to follow what the Supreme Court does.  Since the Supreme Court rarely engages economic class and the poor, neither do most legal scholars.  But why doesn't the Supreme Court address controversies involving economic class and the poor? Focusing more narrowly on equal protection doctrine, I explained to my student that we do not engage economic class and the poor because wealth is not a suspect classification and the poor are not a suspect class.  The Court only applies a very deferential rational basis review to laws that classify on the basis of wealth and there just isn't much interesting to say about rational basis review unless, of course, the review has some bite to it. This is where I show my students the famous Val Kilmer bite in Top Gun, if you don't know the scene involving Maverick and Iceman you need to check it out ... that, my friends, is the bite of rational basis review with bite.  So my answer to the student was a very simple, unsophisticated hornbook one, but one that I thought was right.  

But then the student asked: why aren't the poor treated as a suspect class?  She went through the criteria for determining a suspect class established in case law and argued that they all would be satisfied.  (1) The poor arguably share obvious or distinguishable characteristics based on where they live and what they possess (I teach that immutability has faded as a relevant criteria in light of the alienage cases and subsequent judicial broadening of the criteria to include the obvious or distinguishable nature of the trait); (2) the poor have suffered a history of discrimination; (3) being poor is not relevant to a person's ability to contribute to society (a criteria the Court used to reject claims that the disabled and the aged made for suspect class status); and (4) the poor are politically powerless.  I pushed back on each of these points, but I ultimately agreed with the student.  I then explained that the Court in San Antonio Independent School Districts v. Rodriguez declared that wealth was not a suspect classification and I encouraged her to read the case for herself as the reasoning for this determination would be provided there.  I then decided read the case for myself and discovered something quite curious.   

Continue reading "The Curious Case of the Suspect De-Classification of Wealth"

Posted by Bertrall Ross on August 10, 2015 at 01:15 PM in Constitutional thoughts | Permalink | Comments (18)

History of satire

I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).

I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).

Posted by Howard Wasserman on August 10, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

U.S. Supreme Court’s Early Direction on Police Conduct During Traffic Stops

In my initial post on this topic I raised the issue of how the Fourth Amendment applies to police use of force, particularly deadly force in the traffic stop context. Maybe the Fourth Amendment should provide protection in a way that some of the recent tragedies in the news—particularly instances in which police have shot and killed someone as a result of an initial traffic stop—could have been avoided?

The U.S. Supreme Court has repeatedly implied that the Fourth Amendment restricts police conduct during traffic stops. It did so by analogizing traffic stops to Terry stops, as it did in Pennsylvania v. Mimms (1977) and in Berkemer v. McCarty (1984), in which it wrote that “the usual traffic stop is more analogous to a so-called ‘Terry stop,’ than to a formal arrest.” The Court later reaffirmed this Terry analogy in Knowles v. Iowa (1998) and Illinois v. Caballes (2005).

Continue reading "U.S. Supreme Court’s Early Direction on Police Conduct During Traffic Stops"

Posted by Fabio Arcila on August 10, 2015 at 09:00 AM | Permalink | Comments (0)

Saturday, August 08, 2015

Garnett et al. on Tax-Exempt Status and Religious (and Other) Organizations

Should government insist that all private organizations comply with its own sense of the good? Most people, I think, still agree that the answer to this question is no. However strongly they feel that those public values are the right values, and however devoutly they may hope that all people and all groups come to share them and to act accordingly, they still believe for various reasons--not least a sense that the public-private distinction, however imperfect and vulnerable to critique, represents an important value of its own--that government should not and perhaps cannot rigorously or ruthlessly enforce what Nancy Rosenblum has called a "logic of congruence" between public and private organizations. To quote Robert Post, they reject the view, one that is nonetheless attractive to many more stringent liberal egalitarians, that "cultural conflict about essential moral values should be suppressed" by bringing private groups in line with public values. For many pluralists, to quote Post again, it is particularly important that the First Amendment--and in the view of some, not only that amendment but broader constitutional values and limits--"establish antihegemonic domains in ways that liberal egalitarian values never can." 

Currently, this issue is again something of a flashpoint in law and politics. That is not surprising to those who think there is something to the idea that we are living through something of a revival of the disputes of the 1990s. Although I think most people still reject the logic of congruence--many more, if we step outside of the usual elite, privileged province of the professional/managerial class, including academics--I dare say that within that province, the momentum right now is on the other side. And for most if not all of us, there are limits. Some of the most difficult cases involve those in which private organizations receive governmental aid. Still further out on the edge are cases in which private groups do not receive direct subsidies or participate directly in government programs, but simply receive the same tax-exempt status that many groups do. This is one area that has become more contested of late, most obviously but not exclusively in the area of sexual orientation equality. 

Our friend and fellow Prawfs writer Rick Garnett discusses that question in a new editorial co-written with John Inazu and Michael McConnell. The title, which I gather its writers did not choose and might not be completely comfortable with, is "How to Protect Endangered Religious Groups You Admire." They argue, in brief, that we should, at a minimum, be willing to protect religious non-profits that provide significant contributions to the public good despite their now heterodox views.

Read the whole thing. Feel free to disagree. I will add two points. I agree, in sensibility at least, with a point made by Marc DeGirolami in a recent post about the editorial: "We use the language of 'exemption' when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax." Reasonable disagreement is available about whether "power" is an apt word here, but for those who believe that whatever the extent of state power, it ought not lightly be exercised in a way that circumscribes civil society and a vibrant pluralism, the sensibility is right. Second, it ought not be only pluralists, and certainly not only social conservatives, who support these arguments. This is an argument that liberals ought to be taking seriously now, especially as progressive thought continues to drift in a more illiberal direction. 

Posted by Paul Horwitz on August 8, 2015 at 04:07 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 06, 2015

Prof. Robert A. Burt

I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3.  Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):

"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."

Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."

Bo was a gentle, thoughtful, caring, generous, and deeply good man.  He was also my teacher, mentor, and friend.  I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook  , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted.  He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge.  Like many others, I learned so much from him.  He shaped profoundly (but don't blame him!) what I think of as my academic vocation.  He set, and lived, a standard for teacher-scholars that I wish I could meet. 

The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt.  May the memory of this righteous one be a blessing.

Posted by Rick Garnett on August 6, 2015 at 01:13 PM in Rick Garnett | Permalink | Comments (0)

Police shootings, traffic stops, & the Fourth Amendment.

The recent surge in media attention to police of use violence, catalyzed by increasing video footage of shootings and other police uses of force, invites consideration of a host of complex issues. One of those issues is how, if at all, the Fourth Amendment applies to these events.

Perhaps surprisingly, when the shootings are connected to a traffic stop the answer to that question is quite complicated. The United States Supreme Court has not provided a clear answer. Though it has repeatedly analogized traffic stops to the Terry v. Ohio stop-and-frisk model, it has also taken a largely hands-off approach that increases police discretion during traffic stops and minimizes Fourth Amendment constraints, an approach that in itself is in theoretical tension with Terry. State courts, by contrast, have often pursued the Terry analogy to create varying state limits on police discretion during traffic stops. These state limits can sometimes be quite strong, even dictating what words police can and cannot utter during a traffic stop.

I’ll provide an overview as I blog this month.

Posted by Fabio Arcila on August 6, 2015 at 08:58 AM | Permalink | Comments (0)

Narrowing the Third-Party Doctrine From Below

The Fourth Circuit made headlines yesterday in United States v. Graham, which holds in part that “warrantless procurement of [cell site location information] was an unreasonable search” in violation of the Fourth Amendment. There’s a lot going on in the Graham majority and dissent, and I recommend Orin’s ongoing posts on the merits. But it’s also interesting to consider Graham’s treatment of Supreme Court precedent regarding the “third-party doctrine.”

In my view, much of the disagreement between the majority and dissent in Graham is about whether to adopt the best reading of the Supreme Court’s third-party precedents or, instead, to narrowly read those precedents in light of new factual developments, other Supreme Court precedents, and the lower-court judges’ own first-principles views of the law. In this respect, Graham is hardly anomalous. When doctrines become out of date, the Court sometimes encourages lower courts to engage in narrowing from below, thereby facilitating the Court’s own reconsideration of precedent. The third-party doctrine is properly viewed as such an area. 

Continue reading "Narrowing the Third-Party Doctrine From Below"

Posted by Richard M. Re on August 6, 2015 at 08:11 AM | Permalink | Comments (13)

Wednesday, August 05, 2015

Whither class, whither the poor in legal scholarship?

In 2004, the American Political Science Association Task Force on Inequality and American Democracy issued a report on American Democracy in an Age of Rising Inequality.  It started with a damning critique of American Democracy:

"Today ... the voices of American citizens are raised and heard unequally.  The privileged participate more than others and are increasingly well organized to press their demands on government.  Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent.  Citizens with lower or moderate incomes speak with a whisper that is lost to the ears of inattentive government officials, while the advantaged roar with clarity and consistency that policy-makers readily hear and routinely follow." 

Continue reading "Whither class, whither the poor in legal scholarship?"

Posted by Bertrall Ross on August 5, 2015 at 11:39 AM in Constitutional thoughts | Permalink | Comments (4)

Submission angsting: Fall 2015

Well, given that the Christmas and Chanukah decorations and the Winter Starbucks flavors now kick in just after Halloween, I suppose it's no surprise that early August is already a bit late for the traditional Prawfs Fall submissions angsting thread.  

Keep your eyes open for the Great Bird and . . . let the wild rumpus start!  Or, in the more helpful words of our own Howard Wasserman and Danny Markel:

So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Posted by Rick Garnett on August 5, 2015 at 09:19 AM in Rick Garnett | Permalink | Comments (316)

Tuesday, August 04, 2015

Kid Power!

In the marriage equality wars, the rights of children of same-sex parents were rarely invoked despite powerful equal protection law precedent that prohibits the government from penalizing children in order to control adult conduct.  Post-Obergefell, it is time to revisit this under-utilized area of equal protection law to advance the interests of children and expand the meaning of "family."  

Continue reading "Kid Power!"

Posted by Catherine Smith on August 4, 2015 at 06:34 PM | Permalink | Comments (2)

Call for GuestPrawfs, 2015-16

As the new school year looms, so does our annual need for a new slate of GuestPrawfs to keep this site moving. We are looking to fill slots beginning in November and for the rest of the academic year. If you are a past guest, please (please!) come back. If you have never been at Prawfs (or blogged at all) before and would like to give it a try, please join us. We especially encourage pre-tenure faculty--Dan & Co.'s original target--to join us.

If interested, please email me at howard.wasserman@fiu.edu, along with two or three months that work for you. Also, if you have friends/colleagues who might be interested in blogging but might not see this post, please pass it along.

Posted by Howard Wasserman on August 4, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, August 03, 2015

Long time lurker, first time blogger

Thanks Howard for the welcome.  My tenure file closed a little over a month ago, so time to blog!  Just a bit about myself so that we aren't complete strangers here.  Rather than coffee, I start my day with a routine.  I type p (prawfsblawg appears in the browser), then c (concurringopinions pops up), then t (thefacultylounge), then l (leiter law school report, your, now my, sworn enemy... I think), then ls (lsolumtypepad ... please recommend my article, please recommend my article ... not another highly recommended originalism ... I need to write my next article on originalism).  On writing days, this routine is an hourly one of procrastination and during the months of February/March and August/September when angsting is at a high, the routine looks a bit more like this: p ... refresh ... p ... refresh ... p ... refresh.  Now the angsting has evolved into such a sickness that i angst when I haven't even submitted an article.  It's odd and probably not something I should have admitted about myself.  But surely there is a right to have your blog posts forgotten in the U.S.?  

Other things about me.  I'm a recovering cord cutter.  Tried it last year, didn't work.  It was like losing a family member.  Tele was my best babysitter when I was young and my best friend during my teenage years.  Always looking after me, always making me laugh and sometimes making me tear up a little, especially during the last episodes of sitcoms (has there been anything more sad than the last episodes of those special Thursday NBC sitcoms ... Cheers, A Different World, and that show that shall not be named).  

A couple of notes on the family.  My son just starting wearing boxer briefs ... at 7!  He says all the kids are wearing them.  I didn't start wearing boxers until I was 21.  I think that even for my time that might have been a little late, but still.  And finally, we are expecting our second child at the end of this month.  So my prawfsblawg stint might be cut short.  But I look forward to hanging out with you as long as I can.  I really have nothing better to do.  Did I mention that my tenure file closed last month?  

Oh and one other thing.  A quick preview.  I care about Constitutional Law (with the Equal Protection Clause being my hobby horse) and the poor so I will blog about both of them ... together.  What in the world does the Equal Protection Clause have to do with the poor?  Stay tuned.  Maybe a post about alumni magazines.  Certainly a post about First Generation Professionals ... and much much more (or less, depending on when the baby comes!).          

Posted by Bertrall Ross on August 3, 2015 at 12:19 PM | Permalink | Comments (7)

Sunday, August 02, 2015

Sex, Drugs and Other Vices

I had the great pleasure of participating on a SEALS panel this morning discussing prostitution, prison sex, drugs, sin taxes and vice in general.  Perfect material for a Sunday morning, right? Seth Stoughton (South Carolina) organized this great panel and Alex Kreit (Thomas Jefferson), Frank Snyder (Texas A&M), Carissa Hessick (Utah), Doug Berman (OSU), Tessa Davis (South Carolina), Suzan Rochelle (Stetson), Arnold Lowey (Texas Tech), Brenda Smith (American U.), Susan Rozelle (Stetson), Caprice Roberts (Savannah) and Andy Wright (Savannah) and some others I am forgetting participated...sorry guys)

What did I learn about vice? Too much to share but I want to highlight a few things.  First of all, what is vice?  Several people commented that this would be a good thing to start off with but we were all so eager to dive into the substance of various vices that we didn't spend a lot of time discussing this.  Seth Stoughton, I think, said it best when he commented that vices are consensual crimes or things that society deems "icky".  So you think of a drug transaction--that is consensual.  Also, prostitution, is consensual, though illegal in many jurisdictions. Similarly, prison sex (between guards and inmates) while illegal, can be consensual.  And so on.

There are several difficulties about prosecuting and investigating and generally dealing with vice crimes, and my conclusion after the panel discussion was that we don't emphasize vice crimes enough in criminal law or in general in law school curriculum, even though drugs, alcohol and sex crimes are very common in most jurisdictions.  A lot of basic criminal law courses don't cover rape at all or possession (drugs, guns, porn) when these are extremely common criminal issues.

  A couple thoughts about this:

1. Vice crimes involve a lot more discretion by police than other crimes.  When there is a murder, police often have no choice but to intervene and often to apprehend and arrest a suspect due to public outrage.  When drugs are sold consensually, most of the time no one finds out.  Even when police are aware of drug transactions, they often use discretion not to arrest individuals due to a number of factors. Similarly with instances of prostitution.  My research, and other research shows that indeed an area of racial bias is in arrests for drug crimes.  I would imagine that it could be similar for other vice crimes, though I have not seen studies on this topic.  Overall, I would think it makes sense to pay close attention to racial and other bias with policing of vice crimes more than any other type of crime.  Which is another reason that we should teach students about these crimes in law school.

2. Vice crimes are generally dealt with on a sub-national level (ie they are matters left to smaller entities like counties, cities, villages) and this should be considered when dealing with these issues on a broader level. Carissa Hessick brought up this excellent point and it deserves some thought.  Often times in law teaching we focus on federal law over state law--often assuming that it is better or more important, or maybe because we are so much more familiar with it--and sometimes rely on state law but rarely if ever do we look at county differences or local treatment of issues.  This problem is persistent in criminal law as well as other fields and deserves some thought.

Just a few thoughts, I don't think I did this excellent panel justice in a single post, but I thought these insights I gained from the panel were worth sharing.

Posted by Shima Baradaran on August 2, 2015 at 05:02 PM | Permalink | Comments (3)

Saturday, August 01, 2015

What I love about SEALS discussion groups...

I'm happy to be back on Prawfs blogging this month.  I have to admit that I have been on Prawfs a lot less since Danny died, since it reminds me so much of him, but I'm powering through those memories and hopefully I can get through some thoughts this month.  I love that he helped start such a great blog and that is lives on beyond him.

So, I love SEALS.  I know SEALS can get a bad wrap from some (maybe because it is always at an awesome place on the beach) but I have found some of the most informative and interesting panels and discussion groups at SEALS.  I want to talk about the discussion groups for a moment.

This week at SEALS, I was fortunate to be asked to participate in two discussion groups.  The first was discussing innocence from different angles, organized by two greats Lucian Dervan (SIU) and Russ Covey (GSU).  The other (tomorrow) discussing Vices (drugs, porn, gambling, etc.) and was organized by my favorite ex-cop, Seth Stoughton (SCU).  Not sure I have to sell you on the merits of the second panel (because who doesn't want to talk about drugs and sex for three hours? (and it's tomorrow so I can't report on it yet) but the first one was a great learning experience for me.  In the roundtable discussion group on innocence, we were able to hear from former defense attorneys and prosecutors, ABA section chair Bruce Green (thanks Bruce for coming), people with expertise on pretrial and sentencing innocence issues, and people who were for and against innocence (ok, not really on the last part, but there were *some* differing opinions as I recall).

I love discussion groups in general because it is great to keep a discussion moving.  And as much as we all love to talk for 15 minutes, and can certainly fill an hour or two if necessary, it is nice to be forced to keep your comments to 5 minutes.  It takes discipline and it really helps you focus on your key point and arguments supporting it.  I love the exercise and efficiency of it because you can learn about so many more people's work and get to know a lot more people in your field in a lot shorter time.  Again, it is efficient, it is quick moving and I think really informative.  I would love to see this format spread to other conferences over the traditional panel format.

Would love to hear others' thoughts about SEALS or discussion groups or anything else.

Posted by Shima Baradaran on August 1, 2015 at 09:50 PM | Permalink | Comments (6)


August is upon us, which means that classes and submission season both loom and that it is time to say thanks and goodbye to our July visitors--Jeff, Catherine, Robin, Leigh, and Heather.

And it means welcoming our August visitors. Returning to Prawfs are Jessie Hill (Case Western), Ari Waldman (New York Law), and Shima Baradaran (Utah). Joining us for the first time are Fabio Arcila (Touro), Andrea Boyack (Washburn), and Bertrall Ross (Berkeley). Welcome and enjoy the month.

Posted by Howard Wasserman on August 1, 2015 at 05:07 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, July 31, 2015

Silicon Valley, Meet Labor Law

I worked on Google’s Global Ethics & Compliance team from 2007-2010 and at that time the thought of labor law having anything to say about the happenings of the Bay Area tech scene seemed unimaginable to most people – including those practicing law. Employment, sure, but not labor. (I’ve found this to be a bit true in academia as well – labor conjures up visions of coalminers or public school teachers but definitely not anybody working at tech companies.) Well, the other day a friend sent me a Wired article titled, “what happens when you talk about salaries at Google” and it reminded me of why that view can get companies into some real trouble.

The article itself is just a string of tweets from a former Google talking about what happened when she decided to conduct a salary transparency experiment at Google. Long story short, she and some coworkers got talking about salaries on the internal social network (I take it she’s talking about one of Google’s many internal email list, like misc), decided to make a spreadsheet where employees could add their own salary information, and then posted a link to the form on her internal profile.

The thing took off. Other people built the spreadsheet out to include fields on gender and a bunch of other stuff that made it possible to get even more out of the data, as it wont to happen when a bunch of smart people get going on something they find interesting (this quality is also a big part of what makes working at Google great). The next week the Googler who started the project was “invited” (I love that) to talk with her manager. Apparently her manager and the higher ups weren’t happy about the project. And, according to this Googler, her manager said “don’t you know what could happen?” And then something else interesting happened, though it takes a second to explain.

Continue reading "Silicon Valley, Meet Labor Law "

Posted by Heather Whitney on July 31, 2015 at 12:49 PM | Permalink | Comments (1)

The End of Ambition?

60-days-green-white-mdI hear that sixty is the new forty.  I hope so.  It's the end of the month, and I'm thinking about ends.  And if the bromide is true, I'm premature.  But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.

By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation).  Next year  will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still.  (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)

Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.

Continue reading "The End of Ambition?"

Posted by Jeff Lipshaw on July 31, 2015 at 08:46 AM in Blogging, Deliberation and voices, Lipshaw | Permalink | Comments (1)

Thursday, July 30, 2015

Law-of-Baseball Bleg

I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).

Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).

Can anyone think of others? Suggestions welcome in the comments.

Posted by Howard Wasserman on July 30, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (17)

Wednesday, July 29, 2015

SEALS thoughts

For a variety of geographic and other reasons, my SEALS participation this year involved just two days of driving the 50 miles to the Boca Resort. And I will have to miss the MarkelFest! Happy Hour. I did have two random thoughts after the jump.

1) I was struck by what I thought was the rise of the discussion group and an initial sense that discussion groups now outnumber panels. It turns out there still are more panels, although the numbers are almost even (excluding the New Scholars panels), but that still reflects a pretty significant increase in the number of discussion groups. And I see the benefits of having more discussion groups--they allow us to hear from more voices about more things and create more of a conversation than a panel of often-unrelated talks. Even the one panel I did (the SCOTUS Individual Rights Review) was conducted as more of a discussion format and was, I think, a lot of fun for just that reason.

2) Kudos to SEALS on the two-sided name tags, so that the name is showing no matter which side the plastic card is facing. Nothing worse than trying to place someone but their card is flipped over.

Posted by Howard Wasserman on July 29, 2015 at 05:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The Virtues and Vices of Casebook Supplements

My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.

As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.

Continue reading "The Virtues and Vices of Casebook Supplements"

Posted by Steve Vladeck on July 29, 2015 at 11:19 AM in Life of Law Schools, Steve Vladeck, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (28)

MarkelFest! at SEALS Thursday night

The annual MarkelFest! at SEALS will take place at 9:30 p.m. this Thursday, July 30,  at the Palm Court Bar at the Boca Resort. Steve (unfortunately, the only PermaPrawf who will still be there on Thursday) will be your host.

Apologies for the late notice. But spread the word around SEALS and thanks to everyone for helping maintain this SEALS tradition.

Posted by Howard Wasserman on July 29, 2015 at 09:00 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, July 28, 2015

A Failure in the Market for Altruism

Earlier this month it came out that Whole Foods had been systematically overcharging for pre-packaged food, at least in New York. And that wasn’t the first time. Back in 2012, an investigation led by city attorneys in California also uncovered overcharging and Whole Foods ended up paying $800,000 in penalties in addition to starting a new internal compliance program to ensure it didn’t happen again. The company’s recent issues also rekindled criticism (originally raised back in 2014) that some of its fancy cheeses are the product of prison labor, though that fact is not disclosed to consumers.

At least in response to the pricing issue, the CEOs issued a video “apology,” stating that “straight up they made some mistakes” but those mistakes were unintentional, evinced by the fact that, “the mistakes are both in the customers’ favor and sometimes not in the customer’s favor.” And they were going to fix it first and foremost by giving workers more training and hiring a third-party auditor to make sure their practices are improving.

At first I found all this frustrating. The New York Department of Consumer Affairs did not find just pricing mistakes, where about half were under-charged and the other over. No, it found, as best as I can tell, systematic overcharging. So the CEOs reasoning for why customers should believe it wasn’t intentional is, at least without some actual evidence, misleading. And moreover, given that, the chances that the pricing issue was a result of employees lacking proper training strikes me as improbable. The stores seem to have had a policy of not weighing their pre-packaged products. That’s not a training issue at all. So in short, the whole thing smelled bad.

But there’s another question here. Whole Foods isn’t just any company. Its CEO, John Mackey, literally wrote the book “Conscious Capitalism.” (For those with shorter attention spans, he also wrote a HBR article on the same). The whole idea is that Whole Foods and others like it are “galvanized by higher purposes that serve, align and integrate the interests of all their major stakeholders … They endeavor to create financial, intellectual, social, cultural, emotional, spiritual, physical and ecological wealth for all their stakeholders” where the ultimate goal is to “create lasting value as the world evolves to even greater levels of prosperity, helping billions of people flourish and lead lives infused with passion, purpose, love and creativity – a world of freedom, harmony, prosperity, and compassion.”

Given all these moral platitudes (platitudes, to be clear, at least some customers buy into), shouldn’t Whole Foods be held to a higher standard? And if they are not – if between the prison labor and pricing issues not a single customer changed their purchasing habits, what are we to think about the possibility of consumer activism (seen through buying things that are fair trade or union made or sustainably sourced or green or from a “clean” supply chain, etc.) as a means to making the world better in any real sense?

In short: what are people who are trying to buy not just a product but a product made in conformity with other moral commitments doing? Are they paying more money simply so they feel the warm glow of being a do-gooder, irrespective of whether they actually are doing good? Or are they attempting to manifest in their purchasing decisions a commitment to substantive moral ends?

Consumer activism has unquestionably been a part of American history for quite some time. Quaker abolitionists promoted the buying of slavery-free cotton. I’m reading a great book right now about consumer organizing during the Seattle labor movement of 1919. This stuff can be real. But is it today? And if it’s not, how might we correct that market failure? Should we?  

Posted by Heather Whitney on July 28, 2015 at 01:12 PM in Corporate | Permalink | Comments (4)

The Art of Lawyering and Beyond

PkosuriPraveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

Posted by Jeff Lipshaw on July 28, 2015 at 08:02 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (1)

Monday, July 27, 2015

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016


We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 


Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia


Continue reading "Call for Papers: "Doing Justice Without Doing Harm""

Posted by Rick Garnett on July 27, 2015 at 04:08 PM in Rick Garnett | Permalink | Comments (1)

Sunday, July 26, 2015

Did Cosby's Lawyer blow the Attorney-Client Privilege?

Monique Pressley, a Public Defender Service alum, among other distinguished credentials, is one of Bill Cosby's new lawyers.  In an appearance on CNN, she explained that, on the one hand, "I'm not going to reveal client confidences. I'm counsel for Mr. Cosby and anything that he says to me is said in confidence."  But in the next breath she explained: "when his attorneys speak we are speaking for him. So when we speak and say that he denies all of the allegations and accusations then that is the statement of Bill Cosby."  I wonder if she might have blown the attorney-client privilege with that sort of statement. 

Many courts hold that "[t]he attorney-client privilege does not apply to communications that are intended to be disclosed to third parties or that in fact are so disclosed. It has been held that the disclosure of any meaningful part of a purportedly privileged communication waives the privilege as to the whole."  United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990).  If a statement "was intended for public relations purposes rather than legal purposes" it "is not privileged." Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 677 (D. Kan. 2001).  I have no doubt that an attorney legal review of client information to be sent to a public relations firm could well be privileged.  But if, as apparently happened here, a client engages attorneys to directly perform public relations rather than legal functions--or in any event to be a media representative--the client's statements to them are not privileged.  So, Ms. Pressley, do tell--what else did Mr. Cosby say?

Continue reading "Did Cosby's Lawyer blow the Attorney-Client Privilege?"

Posted by Jack Chin on July 26, 2015 at 11:09 AM | Permalink | Comments (10)

Friday, July 24, 2015

Liability for Lifesaving Inventions?

I saw that Evenflo has produced a new car seat (which will be sold by Walmart), which is designed to "jingle" when a child is left in the car seat after the ignition turns off.  In light of the seemingly increasing number of horrific deaths of children accidentally left in carseats, this new car seat could be an important, lifesaving device.  And, yet, the lawyer in me found myself immediately wondering about the liability issues, and accompanying normative questions.  Walmart's director of corporate communications has apparently advertised that "this car seat will eliminate the chance of a baby being forgotten in a car."  Of course, that is only true if the car seat is used properly, in a compatible car, with compatible technology, and if the device doesn't malfunction (among other things).  The actual car seat and instructions will no doubt contain such warnings in bold print all over the place.  And yet, despite such warnings, will a product that is designed precisely to ameliorate inattention (which, thereby, may reasonably encourage more of it), and which is advertised publicly as "eliminating the possibility of a baby being forgotten in a car" really be able to escape liability if some slight inattention in the use of the product causes it to malfunction?  In this regard, if this particular product does not work as a result of misuse, it seems that the legal issues may be different than a run-of-the-mill product that fails to function properly because of misuse.  Since the very purpose of the product is to protect against inattention, does it somehow bear a heavier burden to work despite inattention in use?  In assessing such a claim, would a court take into the positive externalities (for the poor, helpless children otherwise trapped in car seats) from the product (in the cases in which it works)? Although I have not thought about torts in a rigorous way in quite some time,  I do not believe there is a formal, doctrinal way to consider such positive externalities in assessing a liability claim regarding the carseat.  And yet, it seems that normatively it should matter that an overly sensitive liability regime may discourage the production of this lifesaving product, and the positive externalities for the otherwise trapped children.  What do others think? 

Posted by Leigh Osofsky on July 24, 2015 at 01:38 PM in Books | Permalink | Comments (2)

Thursday, July 23, 2015

Hiring Notices, University of Alabama School of Law

I'm happy to pass along these hiring notices for my law school. Feel free to email me if you have any questions, and of course first and foremost to contact Dean Brandon or Professor Hill, per the notices below. 

D. Paul Jones & Charlene A. Jones Chair in Law

The University of Alabama School of Law seeks nominations and applications for a University level Chair-holder. The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff. We seek to build on our standing as one of the leading public law schools in the United States through recruitment of a Chairholder with a national or international reputation for scholarship and teaching of the highest caliber. We welcome nominations and applications in all fields of law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarship related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from and nominations of persons who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to the requirements of state and federal law. Interested candidates should apply online at https://facultyjobs.ua.edu/. Nominations should be e-mailed to Dean Mark E. Brandon at chairsearch@law.ua.edu. The position will remain open until filled. Please refer any questions about the hiring process to Dean Brandon at chairsearch@law.ua.edu.

Assistant Professor / Associate Professor / Professor

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: facappts@law.ua.edu).

Posted by Paul Horwitz on July 23, 2015 at 04:58 PM in Paul Horwitz | Permalink | Comments (0)

Clemency Project 2014

Notwithstanding some of Dan Markel's views about clemency in his Against Mercy, I think he'd have been very supportive of this effort from NYU's Rachel Barkow:

President Obama is interested in using his clemency powers to commute the excessive sentences of nonviolent drug offenders, but he can’t do it without your help.  Clemency Project 2014, the organization devoted to helping sort through the more than 30,000 requests for legal assistance with filing clemency petitions, desperately needs more lawyer volunteers.  Volunteers prepare petitions that outline why the individual meets the stated criteria of the Department of Justice. You don't need to have experience in federal criminal law. There's a two-hour training video that gives you all the info you need, not to mention resource counsel to answer any questions that come up. Please consider volunteering for this important pro bono work and encouraging all the lawyers you know to do the same. We all know mass incarceration is a problem, and this is an opportunity to take individual action to do something about it and target some of the most deserving cases for relief.  The link to sign up and volunteer is here.  And more info is here and here.


Posted by Ethan Leib on July 23, 2015 at 01:59 PM | Permalink | Comments (0)