Thursday, May 19, 2016
Do you like my shoes?
Last year, Dean Scales of Rutgers-Camden law school specifically asked students not to comment on their professors' attire when filling out their course evaluations. Yesterday, a friend of mine reposted this article and, given the fact that I have just recently received this semester's evaluations, it made me start thinking about the issue of faculty evaluations again.
Students occasionally comment on my clothes but, until Dean Scales's request last year, I never really thought much about these types of comments. I think there are a number of different reasons for this. First, I often compliment people on their clothing. Consequently, it didn't really strike me as odd that a student staring at me for hours every week might notice my clothing and, if they liked it, compliment it. Second and relatedly, I believe I didn't really give these comments much thought because they have always been nice. I love to hear that students like my class and it was also nice to hear they liked my shoes or my dress. However, I am pretty sure I would have felt very differently if these clothing comments were criticisms of my appearance. Negative comments about a professor's appearance, particularly when such comments appear to be primarily directed at female faculty, are problematic.
Therefore, one issue this controversy raises is whether appearance compliments can be ok if appearance criticisms are not. I am not sure. At the same time, there is also a broader question raised by this issue. Specifically, given the prevalence of non-teaching related comments in course evaluations, is there a problem with the current method of evaluating professors and should it be changed?.
Theoretically, course evaluations, particularly the non-numerical portion, are a way for students to tell their professors what they liked and didn't like about the class. Ideally, professors will then use these comments to improve the course in the future. The problem however, is that student comments rarely serve this function.
Most of the complimentary comments I have seen, both for myself and my colleagues are short and unilluminating. They are phrases like "great class," or "awesome prof" or, in one memorable instance, "luminous." It is lovely to receive such comments, but they are not extremely helpful. Most students do not elaborate on the specific aspects of the course they liked and what teaching methods they found particularly useful. Negative comments are sometimes longer, but they are often perfunctory as well. Common ones include "boring," or "didn't like the textbook." Most concerning however, is the fact that comments provide a place for students to be mean. I once had a student criticize the way I held a paperclip and I have heard about many much crueler comments received by friends and colleagues throughout the academy.
As professors, it is our job to teach our students as effectively as we can and to be responsive to their needs and concerns. Course evaluations are intended to help us do that. However, if they are not serving this purpose but are instead primarily providing a venue for ad hominem attacks then, as is increasingly done in the blogging world, perhaps it's time to turn off the comments.
Wednesday, May 18, 2016
Forum Shopping in Patent Cases
For more than a decade now, patent reform has been on Congress's agenda. Congress passed the America Invents Act (AIA) in 2011, the most comprehensive patent legislation in fifty years. Still, many believe the AIA didn't go far enough, particularly with respect to patent litigation, and have continued to push for further reform. The Venue Equity and Non-Uniformity Elimination Act--co-sponsored by Senators Flake (R-AZ), Lee (R-UT), and Gardner (R-CO)--is the latest development in this patent reform effort.
Currently, patent owners can file infringement suits against corporate defendants in just about any federal court. The patent venue statute, 28 U.S.C. section 1400(b), provides that "[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." (emphasis added) Because section 1400 doesn't define "resides," the definition set out in the general venue provision--i.e., that defendants "reside" where they are subject to personal jurisdiction--applies. 28 U.S.C. section 1391(c). This means that corporate defendants can be sued for patent infringement wherever they are subject to personal jurisdiction, which is virtually every judicial district in the country as long as the allegedly infringing product is sold nationwide. As a result of these liberal venue provisions, patent owners forum shop and file a disproportionate number of patent suits in certain judicial districts, such as the Eastern District of Texas where almost 44% of patent suits were filed in 2015.
The VENUE Act, which is supported by many technology companies and public interest groups, would significantly curtail where patent infringement suits may be filed. At the same time, the Act would expand venue in patent declaratory judgment actions, a topic I've addressed in my scholarship and a recent amicus brief. While a thorough discussion of the costs and benefits of the VENUE Act is beyond the scope of this post, I would like to raise two questions. First, is forum shopping (or forum selection) really that bad or is it just part of litigation strategy? Second, why should defendants in patent cases be treated differently than in other civil suits? In other words, why should we have special venue rules for patent cases?
JOTWELL: Steinman on Pidot on tie votes
The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Justin Pidot, Tie Votes in the Supreme Court (forthcoming in Minn.L. Rev.), a timely study of the history and effects of evenly divided Courts.
Tuesday, May 17, 2016
Elsevier purchases SSRN
Elsevier's press release is here. Matt Bodie is curious, Paul Gowder is outraged and looking to start-up a not-for-profit rival that will continue to be open-access for law and political science scholarship (similar not-for-profit services exist for hard sciences), and others are commenting.
Loving and Marriage Restrictions
Today, The New York Times ran an article about the new movie Loving which recently premiered at the Cannes Film Festival. Loving tells the story of Richard and Mildred Loving, the Virginia couple who challenged the state's interracial marriage ban and won. I did not know about this movie until I read the article however, it's release also doesn't come as a complete surprise. Loving v. Virginia is the case that made Obergefell v. Hodges possible. As the fight for same-sex marriage intensified, Loving was transformed from a case largely about racial injustice into the seminal case on marital equality.
The parallels between interracial and same-sex marriage bans are numerous and in the recent fight for marriage equality, supporters of same-sex marriage repeatedly emphasized these connections. Consequently, it is fitting, that nearly one year after the Supreme Court held that same-sex marriage bans are unconstitutional, there is now a movie memorializing the case that started the fight. Still, I wonder if a movie like Loving, which celebrates the first marriage equality victory, while alluding to the most recent, doesn't also cement the perception that the challenge to marriage restrictions is over and won.
Obergefell struck down state same-sex marriage bans. However, there are still significant restrictions on who may marry. Leaving these restrictions in place was intentional. In fact, it was probably essential. One of the major obstacles facing same-sex marriage proponents was the widespread concern that the legalization of same sex marriage would lead to the elimination of other marriage restrictions. At the time, I considered this slippery slope concern a red herring. The law is always an exercise in line drawing. Nevertheless, this was a real concern for many same-sex marriage opponents, and even after Obergefell, it is likely that this slippery slope fear remains. Consequently, although the movie Loving clearly celebrates the movement of this line between permissible and impossible marriages, it is possible that it may also serve as a means of shoring it up.
Charm City's Odd Charging Theory Against One of Six Defendants in Freddie Gray Killing
I was in Baltimore this weekend, so I was prompted to write about the truly odd legal theory being tried as we speak in a bench trial for Edward Nero, one of the six officers charged in the killing of Freddie Gray last year. A little background on the charges because this case has already brought up some unusual issues that, depending on the appellate courts, may affect Maryland defendants in all cases going forward.
Six officers were charged in the killing. The charges were announced very publicly by State's Attorney Marilyn Mosby last year, less than a month after Gray was killed. The charges ranging from misdemeanors to second-degree murder for the driver of the van. All six officers managed to get individual trials, which does not often happen in cases where defendants are charged with similar crimes arising from one event. The jury trial of William Porter, who was a passenger in the van with Gray, charged with involuntary manslaughter, assault, reckless endangerment, and misconduct in office, ended in a mistrial; he will be retried. Meanwhile, in a pretty surprising decision, Maryland's highest court ruled that the prosecution could force Porter to testify at the trials of his fellow officers (would be co-defendants). Here, the prosecutor has said that nothing Porter reveals will be used against him at his future retrial, but he could be opened up to new charges, particularly perjury charges if anything he says differs from what he has said before. And that's not to mention the media coverage and potential tainting of his future jury. The Court has not handed down the promised reasoning for that order but if it does not hold very narrowly, this decision could be a major sea change for defendants who usually either strike a deal before they testify against a co defendant or invoke their right to silence. Maryland prosecutors could now force testimony without a plea bargain, shifting power even further to prosecutors.
Even more interesting, in my opinion, is the theory under which the prosecution is trying Nero for assault. Nero is one of the officers who is alleged to have arrested Gray, put him in handcuffs, and put him into the van unsecured by any seatbelt. He is charged with second-degree assault, misconduct in office and reckless endangerment. The assault charge stems from the theory that the police did not have probable cause to arrest Gray, and therefore, handcuffing him was an assault. This is a pretty radical theory -- an officer who illegally arrests someone could be guilty of assault -- given the thousands upon thousands of illegal arrests that go on in this country. If the prosecution is successful on this issue, it could dramatically increase potential criminal liability for police officers.
On one level, this theory addresses and publicizes a big problem in law enforcement -- police officers make illegal arrests way too often and with almost no accountability mechanisms built in (suppression hearings, even if won, do not discipline the officer, it's near impossible to win a lawsuit against a police department for unlawful arrest, etc...). Worse, prosecutors continually pursue cases where officers have made illegal arrests and, at best, turn a blind eye to such misconduct/"assault." I wish Mosby would apply the same time and critical eye to the improper arrests of the many civilians prosecuted by her office as she has coming up with a theory for assault in the Nero case. On another level, this opens up a world of potential criminal liability for officers that should be handled through better training/incentives on the front end. And, it seems hypocritical to prosecute cases against ordinary citizens where police misconduct occurs but is unacknowledged or ignored on the one hand, and then to bring felony charges against another officer for making an illegal arrest on the other.
The prosecution rested its case yesterday, so we won't wait too long to see what the judge thinks about the assault theory. For those interested in daily reports on the trials, follow reporter Justin Fenton (@justin_fenton) and law prof David Jaros (@profdavidjaros) on Twitter.
Justice Sotomayor on Signaling in the Contraception Cases
One of the most interesting aspects of the ongoing litigation over the Affordable Care Act's contraception mandate concerns “signals.” As I've defined that term, signals occur when the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but while nonetheless indicating some aspect of how lower courts should decide cases. In general, signals should guide lower courts when conventional precedent is ambiguous (see this post and this article). In her Zubik concurrence yesterday, Justice Sotomayor addressed signals’ increasingly salient role. But there is both more and less to Sotomayor’s opinion than meets the eye.
Another data point on computers in the classroom
The new study comes from West Point; it created three sections--one that could use any technology (laptops or tablets) to take notes, one that could use tablets to read course materials, and one that could use no technology. The study offers two new insights. First, using a laptop hurt better students (measured by ACT scores) than weaker students--students with high ACT scores who used computers performed worse than comparable students who did not use computers, while students with low ACT scores performed similarly whether they used computers or not. Second, there was no performance difference between those who used technology for notes and those who used it only for reading--both sections performed worse than the non-technology sections.
This last point is notable to me. In Civil Rights, where I assign raw cases, I allow students to use a tablet for their cases (and thus to get the supplemental treatise by ebook). I may have to rethink this.
Monday, May 16, 2016
Zubik, shadow dockets, and dispute resolution
It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.
And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.
First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.
Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.
Jurisdiction day at the Court
The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.
In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.
[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.
Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**
[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.
Two Ways of Linking “Positive Law” and the Fourth Amendment
In recent years, the Supreme Court has shown increased interest in the connection between the law of property and the Fourth Amendment. In a terrific new article, Will Baude and James Stern have explored that connection to defend “the positive law model of the Fourth Amendment.”
Will and James’s article is very illuminating, but I disagree with their use of the positive law to set a ceiling on what the Fourth Amendment can do. I explain my disagreements in a response piece that proposes an alternative approach, which I call “the positive law floor.”
The Nevada recount is moved somewhat to the background this week, with the main story being about Selina's mother suffering a stroke and Selina removing her from life support. Reports of events in Nevada are interspersed with her grieving (she did not get along with her mother), so that she breaks down while giving the eulogy because she just learned that she had lost both the Nevada recount and the national popular vote (the ballots found last week gave O'Brien a bigger win in Nevada and also flipped the national vote).
Beginning next week, things move to Congress, which is the constitutional piece I have been looking forward to. Three interesting points. First, no one has mentioned the important event before going to Congress--the actual casting of votes in the Electoral College, in December. Will the show play around with a faithless elector either changing votes and giving either Selina or O'Brien a majority (and obviating a House election) or, as some commenters here have suggested, casting a vote for Tom James (Selina's running mate), which would put him into a three-person House election? Second, I am curious to see if, and how, the show paints a House election as anything other than a straight partisan battle--everyone in O'Brien's party votes for him, everyone in Meyer's party votes for her (assuming James is not in the mix), and we see where things land. Are there going to be enough evenly divided state caucuses that straight-party voting continues to produce a tie? Third, I continue to hope the show does not make the constitutional mistake of having the Senate select James, the House unable to decide, and James becoming President and appointing Selina as his VP. Stay tuned.
Sunday, May 15, 2016
Webinar: Ferguson's Fault Lines
I will be participating in an ABA Webinar on Monday, May 16 from 1-2:35 p.m. (EDT), titled Ferguson's Fault Lines: The Race Quake That Rocked the Nation; I will be talking about body cameras. This is a follow-up to the book of the same name and part of the ABA's Free CLE Series.
Saturday, May 14, 2016
Class, Politics, and the Academy
I thought Nicholas Kristof's column about the value of ideological diversity in the academy the other day was not worth mention, because it was so unremarkable in its assertions. I do, however, find the letters in response to it quite interesting. One in particular struck me: a response from a law professor at an Ivy League law school (one of my alma maters, as it turns out) who writes:
It is not the job of the university to represent all the views held in the surrounding society. The commitment to critical inquiry requires it to disfavor some views based on religious dogma, social convention or superstition. The goal of a community of mutual respect requires it to disfavor others, including those that are explicitly racist, misogynist or homophobic. Such views can be expressed in the university, but it is not a cause for concern that academics do not espouse them in their teaching and research. Much of the disparity between views in the academy and in the Republican Party is attributable to their varying social bases. Academics tend to be educated and middle class. The current Republican Party is constituted disproportionately of the undereducated and the wealthy.
That education leads people to different views is neither surprising nor, on its face, disturbing. And if it is a problem that the views of rich people are underrepresented in the academy, they have had little trouble making up for this disadvantage in the media and the political system.
There are a number of interesting things about this response. Although my main interest is in the last few sentences, the opening raises some questions too. Does the professor, who believes (rightly, in my view) that the university is not obliged to represent all views held in the surrounding society, think the university is obliged to represent all groups or individuals in the surrounding society? Or does he think that the commitment to critical inquiry is the university's primary goal and the only proper basis for hiring (or admissions?) decisions? In what circumstances does the professor think that the university should disfavor views based on religious dogma, social convention, or superstition? Very few, surely; in my experience, dogma and social convention are entirely common bases for views held and statements made by academics, critical inquiry is often championed but less often required or exercised, and in any event these things are rarely directly relevant to an academic's discipline and focus. It is possible to teach economics while believing that God was incarnated as a human being, or to teach contracts while believing that genetically modified foods are unsafe or that there is a link between vaccination and autism. One question about ideological diversity in hiring is whether hiring committees, while asserting an interest in critical inquiry, nevertheless pay attention to and disfavor one set of cues about a candidate's disciplinarily irrelevant obedience to certain dogmas and conventions while ignoring or welcoming others--whether, for instance, they are likely to look askance on an English literature candidate who notes in passing her membership in a charismatic church, while ignoring a passing reference by another candidate to Reiki or therapeutic touch. And if or when conservative candidates are disfavored, how often is it because of explicitly racist, misogynist, or homophobic statements, and how often is it because of other cues or views that are not explicitly any of those things, or because of what ought to be irrelevant factors (getting one's litigation experience at a conservative public-interest firm, rather than a liberal public-interest firm or large corporate law firm, for instance)?
I am, however, more interested in the closing arguments in the letter. It is interesting the way the letter pivots sharply and silently from the original column's concern, with liberal versus conservative ideology, to a focus on rich vs. poor. It is equally striking that the writer then describes academics as composed of the "educated and middle class," and Republicans as constituting the "undereducated and the wealthy," and pivots again to the largely irrelevant peroration about "the views of rich people [being] underrepresented in the academy." It's not clear to me whether the writer has a problem with the certainty that the poor, as opposed to the rich, are underrepresented in the academy--a point that takes on added resonance given the many barriers to successful entry into the credentials arms race posed for the poor, and perhaps takes on added weight if, as the writer would have it, giving more entree to the poor and currently undereducated might also give more entree to those holding conservative views. In any event, it should be clear to any academic that the views of, if not the rich, then certainly the more-than-"middle class," are the predominant views of the academy. The average salary for full professors in the United States was around $100,000 in 2007. I cannot begin to estimate the average salary of an Ivy League law professor, although I would take one if offered. At a minimum, I'm guessing that they are in the top ten percent, if this chart is any indication.
Although I'm sure it is unintentional, I think the letter trades heavily on an elision of the difference between being rich and being conservative, and of the difference between views held about the poor in the academy (no shortage, albeit largely of a de-haut-en-bas nature) and views, of whatever political stripe, held by the poor in the academy (heavily under-represented). Of greatest concern to me, however, is that his focus on the "rich" being under-represented in the academy elides the plain fact that the affluent are extraordinarily well-represented in the academy. If having more poor, working-class, and conservative views in the academy meant I would have to put up with more rich people in the academy as a side-effect, or if it meant thinning the faculty ranks of the wildly over-represented affluent members and products of the professional-managerial class, I would consider that a fair trade. And those people will, in any event, have little trouble making up for this disadvantage in the media and the political system, in which their views are also heavily over-represented.
Friday, May 13, 2016
Defend Trade Secrets Act of 2016
I teach an intellectual property survey course that covers patents, copyrights, trademarks, and trade secrets. Each year, I explain to my students that one of these things--trade secrets--is different from the others because it is governed primarily by state, rather than federal, law. But that has now changed. This week, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA), which creates a private cause of action for trade secret misappropriation. While the federal government has had the power to enforce trade secret laws through criminal and civil actions, private parties can, for the first time, sue for trade secret misappropriation pursuant to federal law.
Supporters argued that the DTSA was necessary to create uniformity in trade secret law, ensure a federal forum for trade secret cases, and bring the United States into compliance with various international agreements. Supporters further claimed that trade secrets will be better protected with both a robust public and private enforcement regime (a topic I address in a forthcoming article in the patent context). While the Act passed the House and Senate easily, prior versions introduced in 2014 and 2015 met with significant criticism from legal academics, both through letters to Congress (here and here) and through traditional legal scholarship (see, e.g., Peter S. Menell, Tailoring a Public Policy Exception to Trade Secret Protection; Christopher B. Seaman, The Case Against Federalizing Trade Secrecy). Congress listened to concerns about the potential impact on labor mobility and protection for whistleblowers, and addressed them in the final bill.
Professor Dennis Crouch at Patently-O has provided a detailed discussion of the DTSA for those who might be interested in learning more about the new law.
Thursday, May 12, 2016
More on Tushnet on candor, the "culture wars", and taking a "hard line"
Like Paul, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism." Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way. (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts. We agree, though, that Casey was "wrong the day it was decided"!)
That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:
. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .
Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:
Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).
He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.
I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory. His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement. In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):
. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .
As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents. In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .
. . . Which reminds me: I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives. But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .
Brazil's Watergate, Only Way Bigger
Was Watergate an embarrassment for democracy or an historic vindication of checks and balances, freedom of the press, and the rule of generally? Same question in Brazil, where the Senate voted this morning to move forward with the impeachment trial of President Dilma Rousseff. By law she is required to step down for the duration of the trial, which will last many months. Folks are calling this moment in Brazil’s history the biggest anti-corruption story ever, for any country. But unlike “trials of the century,” which occur about once per decade, the commentary on Brazil may not be hyperbole.
To be clear, Dilma is not going down in the Petrobras investigation. Rather, she allegedly committed fraud in her annual accounting to cover the extent of Brazil’s deficit. Presidential accounting in Brazil is reviewed annually by its federal accounting court, the TCU. That body historically kowtowed to the powers that be; its ministers are politically appointed. But here, the non-political (and fairly highly respected) auditors were able to convince the political ministers that action should be taken, and it was. It’s stunning evidence of changing norms in a country that once glorified corruption with the term, “jeitinho Brasileiro.”
And how did it all happen? Connecting the dots tells a fascinating story. There was a smaller corruption scandal back in 2005 called Mensalao. Then a recession. Then the realization that this poorly governed and cash-strapped country would be hosting the FIFA World Cup and Summer Olympics back-to-back. Then, when the government increased public transportation fares, the people took to the streets in much-publicized protests. In response, Brazil’s Congress enacted a number of anti-corruption laws; I’ll discuss them in subsequent posts. And its auditing court said, “enough is enough.” It was that rare historical pivot point. And it will continue to unfold through the Olympics and for years to come.
Wednesday, May 11, 2016
If Trump Wins I'm Marrying A Canadian
Ever since it started looking like Donald Trump would win the Republican nomination, people have began joking about moving to Canada. Increasingly however, it appears that people may not be joking. A few months ago, a radio station in Cape Breton suggested that Americans worried about a Trump presidency should consider moving to Cape Breton. Listeners were intrigued. In fact, the station's website has received more than 1.5 million visitors since it launched its "Cape Breton If Trump Wins" campaign. Moreover, this is not an isolated incident. Interest in Canadian immigration is growing. The day after Trump swept the super Tuesday primaries Americans searching for immigration information crashed the Canadian government's immigration website.
Nevertheless, despite the increasing interest, immigrating to Canada is far from simple. Potential immigrants with job offers already lined up have the easiest time but immigrants who simply want to flee Trump may not have the skills or technical expertise to procure these types of job offers. Immigrants without a job offer must then show that they have at least $10,000 in savings. This money is needed to demonstrate they will be able to support themselves while looking for a job. Still, even this is not enough. Canada has immigration quotas (although they are much less rigid than the United State's) and these limit the number of potential immigrants who may enter the country. Moreover, since Canada has committed itself to accepting thousands of Syrian refugees, the numbers of economic immigrants it will accept has signifciantly decreased. As a result, immigrating to Canada is not nearly as simple as packing one's bags and driving to the border. A new company "Maple Matches," is trying to change that. According to Maple Matches, the solution to this immigration problem is mail-order marriage.
Spring Self-Reported Entry Level Hiring Report 2016
Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2016. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.
Tuesday, May 10, 2016
Consent to General Personal Jurisdiction
The last time I was a guest blogger, I wrote about a pair of patent cases decided by the U.S. District Court for the District of Delaware raising an important question about general personal jurisdiction--namely, whether a corporation can consent to general jurisdiction in Delaware by registering to do business and appointing an agent for service of process there. In Acorda v. Mylan, Judge Stark relied on the U.S. Supreme Court's decision in Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917) and the Delaware Supreme Court's decision in Sternberg v. O'Neil (1988) to hold that registering to do business in Delaware constitutes consent to general jurisdiction. In AstraZeneca v. Mylan, on the other hand, Judge Sleet refused to follow Pennsylvania Fire and Sternberg based on the U.S. Supreme Court's 2014 decision in Daimler AG v. Bauman, which rejected a "doing business" theory of general jurisdiction and held that corporations are only subject to general jurisdiction where they are "essentially at home."
The U.S. Court of Appeals for the Federal Circuit recently issued its decision in Acorda and AstraZeneca. Rather than resolving this split, however, the majority sidestepped the general jurisdiction question and held that Mylan is subject to specific jurisdiction in Delaware instead. (The specific jurisdiction analysis also raises some interesting questions, which I plan to discuss in a later post.) In a concurrence, Judge O'Malley argued that the court should decide the case on general jurisdiction grounds, which she believed was a more straightforward analysis than specific jurisdiction. Much like Judge Stark and an amicus brief in which I participated, Judge O'Malley reasoned that Daimler--which addressed general jurisdiction based on a corporation's contacts--did not overrule Pennsylvania Fire and Sternberg--which addressed the question of general jurisdiction based on consent.
The panel's decision in Acorda and AstraZeneca may not be the last word in these cases. Mylan has indicated that it plans to seek panel and en banc rehearing at the Federal Circuit. Moreover, the fact that the parties are represented by Ted Olson, Paul Clement, and Kannon Shanmugam suggests that this case may end up at the Supreme Court. Whatever happens in Acorda and AstraZeneca, the general jurisdiction question will have to be resolved sometime soon. In an interesting turn of events, just a few weeks after the Federal Circuit issued its opinion, the Delaware Supreme Court decided Genuine Parts Co. v. Cepec, which overruled Sternberg in light of Daimler. In dissent, Justice Vaughn aptly stated that "[i]t may be that the United States Supreme Court will go in the same direction as the Majority. But we won't know until it gets there."
Asylum Fraud and Immigration Loopholes
On Monday, Chicago immigration lawyer Robert DeKelaita was convicted of falsifying paperwork to help his clients win their asylum claims. Over the past ten years DeKelaita has won asylum for hundreds of Iraqi Christians facing deportation. However, in many cases he did so by impermissibly coaching his clients. DeKelaita would teach his clients how to lie in their interviews with the state department in order to improve their chances of gaining asylum. I have mixed feelings about this case. What DeKelaita did was clearly illegal, but it is the type of last resort that results from a draconian immigration system. For immigrants facing deportation the options for relief are dismal. Consequently, I can understand (although not condone) why immigration lawyers would feel the urge to coach or even manipulate the facts of their client's case.
The year I was a law clerk on the Third Circuit Court of Appeals my judge received numerous asylum cases from Chinese petitioners yet they always took one of two forms. If the petitioner was married, he (all these petitioners were male) would seek relief from deportation based on persecution pursuant to China's one child policy. If the petitioner was single, he or she sought relief as a persecuted Christian. The same fact patterns appeared over and over.
Co-Authoring with Students and Collaborative Learning, (Largely) Successful
A Gallup poll of a couple years back found that the two features of an education that most closely correlate with long-term success (broadly defined) are engagement in long-term projects, and opportunities for close mentoring with faculty. The Brazil work that I’ve referenced in prior posts actually grew out of this data. We put together an intensive, year-long course entitled, “Brazil, Corruption, and the 2016 Summer Olympics.” A mandatory component of the course was a weeklong trip to Brazil, where the eight students and I conducted interviews with various lawyers, officials, and advocates in the Olympics space. Each of the students then wrote substantial papers that their devoted professor styled into an integrated report. The report (which we’re publishing serially in the weeks leading up to the August 5 opening ceremonies) just went live this week. If you’re interested, you can find it (and other resources) at law.richmond.edu/olympics/ .
I learned a lot about Brazil and the Olympics, and even more about law school students. There we were, studying together, traveling together, having to work together in a variety of ways. My takeaways were several:
- Students long for, and desperately need, meaningful work during law school. Opportunities to do things they value for their own sake, not just as a means to another end, are so very rare. In the cruelest of ironies we hold out law review as the pinnacle law school experience, and ‘tis fair to say that it usually holds scant personal meaning for our students. If we are to prepare them for effective service to the legal profession, they need to get way beyond box-ticking and resume padding. The Olympics project was not a hypo, and we weren’t there to observe.
- Students need more experience with collaborative learning. The correlation between interpersonal skills and academic achievement in law school is, um, not strong. Teamwork is not intuitive, and rarely incentivized in law school. We stand in stark contrast to the business schools in this way, and may be behind the curve. The lessons the students (and I) learned on the Olympics project in working together, cooperating, addressing problems in constructive ways – these were surprisingly hard. But as anyone who has practiced law knows, they matter far more than Bluebook mastery.
- Students need to learn how to get comfortable navigating in unmapped territory. Our project had no template; it was unlike anything that we had seen before. I could not tell them what they “need to do to get an A,” and there was not podium, literal or figurative, which I could stand behind and authoritatively direct them. We were venturing into the unknown, and for many, it was terrifying. But as we all know, the practice of law is much the same way, and the sooner we learn that, the better.
The best learning is often the hardest learning, and this project was a tremendous success. I’d be happy to answer further questions about it. Shoot me an email.
Monday, May 09, 2016
Media Attribution (or lack there of)
Last month, Chris Walker did an interesting series on what junior law professors should/shouldn't do to raise their profile/advance their scholarly career. One of the posts addressed media interviews among other things. That post and comments focused on how not to get misquoted/speak too much to a reporter. I've been having the opposite problem though; I have done several interviews in the past few months where I spend a good deal of time talking to a reporter who then uses the information/opinion I've given and gives me no attribution.
Chris didn't see much value in media interviews for an individual scholar; I'm not sure I entirely agree. But, even assuming the only value is institutional, some attribution is better than being essentially Westlaw-lite for a reporter. My first thought (imposter syndrome) is that the reporters have found nothing of value in what I said, but then I see them using my opinion (as fact or as another prof's/lawyer's opinion) in their piece. Of course, they are probably interviewing multiple sources who are saying the same thing, but my question is how if at all, I should address the issue of getting some attribution for my time?
Aristotle on Trolling
Lovers of virtue ethics, Internet norms, smart-assery, or all three will very much enjoy this piece in the Journal of the American Philosophical Association: Aristotle, On Trolling. Here is the opening:
That trolling is a shameful thing, and that no one of sense would accept to be
called ‘troll’, all are agreed; but what trolling is, and how many its species are,
and whether there is an excellence of the troll, is unclear. And indeed trolling is
said in many ways; for some call ‘troll’ anyone who is abusive on the internet,
but this is only the disagreeable person, or in newspaper comments the angry old
man. And the one who disagrees loudly on the blog on each occasion is a lover of
controversy, or an attention-seeker. And none of these is the troll, or perhaps some
are of a mixed type; for there is no art in what they do. (Whether it is possible to
troll one’s own blog is unclear; for the one who poses divisive questions seems only
to seek controversy, and to do so openly; and this is not trolling but rather a kind
Well then, the troll in the proper sense is one who speaks to a community
and as being part of the community; only he is not part of it, but opposed. And
the community has some good in common, and this the troll must know, and
what things promote and destroy it: for he seeks to destroy. Hence no one would
troll the remotest Mysian, or even know how, but rather a Republican trolls a
Democratic blog and a Democrat Republicans. And he destroys the thread by
disputing what is known to be true, or abusing what is recognised as admirable;
or he creates fear about a small problem, as if it were large, or treats a necessary
matter as small; or he speaks abuse while claiming to be a friend. And in general
the troll says what is false but sounds like the truth—or rather he does not quite
say it, but rather something very close to it which is true, or partly true, or best
of all merely asks a simple question about the evidence for climate change. Hence
the modes of trolling are many: the concern-troll, the one who ‘sees the other
side’, the polite inquirer into the obvious. For the perfected troll has no need of
rudeness or abuse, or even of fallacy (this belongs rather to sophistic or eristic,
and requires making an argument): he only makes a suggestion or indication
Things continue in Nevada. We see the beginnings of litigation, although I am not exactly sure where or what level--the Meyer campaign is seeking a "Hail Mary Injunction," appears in front of a multi-member court, but everyone is making objections. The show also continues developing Richard as character: He has emerged as the one competent person working for the campaign, but is not liked or taken seriously by others, and one reason might be that he is an overweight African-American.
The episode raises an interesting question about the politics of a Twelfth Amendment House election. Meyer starts and escalates an economic war with China, first to cover for a mistaken Tweet, then to avoid looking weak in the face of cyber-security threats from China, which she fears will hurt her electoral chances. But her electoral chances where? Not in Nevada, where the voting is done and what is left is the counting. So it must be the vote in the House. But would we expect the House vote to be anything other than straight partisanship, especially in this political period? Would a member of Meyer's party really vote for O'Brien (or abstain, allowing O'Brien to win that state's delegation vote)? Worse, would this one event cause that member to change his vote (i.e., he planned to vote for Meyer, but now will not because of this China thing), given what a disaster she otherwise has been in office? The show plays the typical "I can't look weak" concerns of an incumbent President running for office, but it may not fit the context.
Saturday, May 07, 2016
Roy Moore suspended, facing removal
The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.
The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.
I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.
I welcome comments from this with a background in Alabama judicial ethics.
Two Cheers for Candor
Although I found it horrifying, I also immensely enjoyed Mark Tushnet's post yesterday recommending that "liberals" abandon "defensive crouch liberal constitutionalism." It begins:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.
My sense as a fond and frequent reader of Mark's work, in both its earlier and later periods, is that, rather than having to choose between reading his work as being in earnest and reading it as puckish, one should read it simultaneously as both. Like all of his work, including his more puckish posts and articles, his post should be applauded for its candor. Unlike some, Mark is willing to put his cards on the table, knowing that openness about these matters from legal academics won't do much to derail such a program and not caring much, I think, even if it does. All legal academics should be so candid and careless about consequences, but, alas, they often aren't.
I do have some critical comments about the post. The first is to urge readers to pay attention to the implicit assumption, or perhaps Freudian slip, in that first paragraph, which effectively treats all those "generations of law students and their teachers" as if they were and are all liberals. Of course they weren't and aren't. I don't worry much about such an apparent assumption appearing in Mark's work, because he is much smarter than the average bear and knows better. If I were a conservative student, I wouldn't hesitate to take one of Mark's classes. I do worry about such an assumption in the hands of a dimmer, less self-aware, or more unconsciously programmatic law professor, however. Mark's post is, among other things, an advertisement for the continuing importance of ideological diversity in the hiring of law professors and the admission of law students.
Second, I question Mark's labeling of the post as addressing the past and future behavior of "liberals." For one thing, some liberal legalists place more emphasis on the "liberal" part of the formula, and others on the "legalist" element. For another, "liberal" obscures too many intramural differences. Although it's a close call and I don't mean to white-wash anything, I think his post is more profitably read as referring to what legal progressives or leftists ought to do than it is as giving marching orders to liberals. Making assumptions about motives is generally a fruitless enterprise. Still, there is a case to be made that the best way to understand this post is as one issued specifically from the (less powerful) left, with the hope that enough impressionable (and more powerful) liberals will be cozened into taking it seriously and doing the left's work for it. Given that the left lost the Democratic primaries, I'm not sure why the liberals should do anything of the sort, and they might consider the possibility that some of Mark's cynicism is aimed at them as well as at the right. But some of them are impressionable, after all.
Third, I think Mark's candor obscures, or even blinds him to, the complex dynamics involved in forming legal-political views. In the area of religious fraud and the law, I have written that it is a mistake to treat the shepherd and the flock as holding identical views. A minister may mouth doctrinal views insincerely and cynically, while her flock holds those views sincerely and tries to apply them in a principled fashion. The same is true in law--for which, on the whole, thank God. Ideas, once loosed on the world, have a life of their own and cannot be controlled by those who offer them up. Someone who offers a view of judicial restraint because it will advance her current political program will generally try to offer up seemingly politically neutral and compelling justifications for those views. And whatever her own motives in advancing that argument and her insincerity in offering the justifications for her position, some people will find the justifications compelling in their own right and hold fast to them. Some will even maintain those views after circumstances have changed and the center of gravity has shifted, although certainly many will eventually come around to the new center of gravity. Even if, say, liberal originalists or believers in judicial minimalism offered their views for purely political and instrumental reasons, employing their brilliance in justifying those views only as political tools, many liberals will believe those brilliant arguments even if their progenitors do not. Indeed, some of the progenitors will end up buying their own arguments; the most powerful form of deception is self-deception. Maybe the people who end up sincerely believing in those arguments are naive; if so, two cheers for naiveté. The best safeguard against sudden volte-faces of the kind Mark argues for here is the work that is put into justifying those instrumentalist arguments in the first place, including framing them as sincere and politically neutral, and the inevitability of many people taking them seriously in their own terms. Conservatives eager to take Mark's post as evidence that liberal legalism is a sham and that every liberal legalist is in on the sham should take these dynamics into account, and vice versa.
As for Mark's recommendations themselves, they are fairly unremarkable. The only thing interesting about them to me is, again, the interesting dynamic of sincerity and cynicism they suggest. Surely many liberals will eventually take some of these recommendations on board. But not all of them will understand themselves to be following Mark's orders, and some would no doubt angrily and sincerely deny it if it were suggested that they were doing just that. A few out there may applaud his suggestions. But if he were, a few years from now, to give a keynote address at the American Constitution Society convention that said the same thing, I'm sure many would regard it as being in terribly bad taste and even insulting. This is, of course, one reason why I like Mark's work so much. A legal academic with political inclinations should always treat upsetting her allies as one of her primary goals, and one way to distinguish interesting legal academics from hack writers of shadow-amicus briefs is to identify those who never do so.
I am also not quite on board with Mark's paragraph about the culture wars. I agree with its "they lost" point in general terms, but not with its specifics; and I think he gives too little awareness to the financial and other motives for the combatants in these wars to continue believing that they are losing or under threat, whatever the truth may be. No one gets donations or galvanizes their base by talking about how well they are doing. Nor is it quite accurate to say, anent the recommendation that liberals take a hard line on culture war issues (aside from any actual substantive and/or normative objections one might have to this recommendation; after all, we continue to have a First Amendment), that doing so "seemed to work reasonably well in Germany and Japan after 1945." Analogies are dangerous in any case, but the premise here seems almost entirely faulty. For one thing, Mark omits to mention that taking a hard line after 1918 did not go so well. For another, the Allies did not take a particularly hard line after 1945--sometimes problematically so, but often for good reason and to good effect. Depending on what Mark thinks constitutes a "hard line," he might remember that the Allies quite rightly concluded that the Morgenthau Plan was punitive and stupid, and that even mention of the idea helped galvanize German resistance to surrender. If one is going to make such an analogy, one should keep in mind the entrenchment risks of a hard line strategy. American soldiers complained that the Morgenthau Plan was worth thirty divisions to the Germans.
Of course, I agree with Mark's last point, and think his advice about Justice Kennedy should apply to everyone, not just the left. Another good way to distinguish the academic brief-writers from the actual scholars is the amount of attention they pay to patching or redoing Justice Kennedy's writing and massaging his ego.
Friday, May 06, 2016
The Most Inappropriate Comment from A Police Union Yet?
I've been writing and thinking a lot over the past year plus about how the criminal justice system reacts to police who are accused (or not) of committing crimes. Since Michael Brown's death in Ferguson in August 2014, police killings have roiled the public, given birth to new social activism, and reinvigorated a debate about what limits we should place on the police -- legally, politically, and administratively -- in their quest to protect the public. Many scholars and politicians have begun to ask, at what cost?
Unless you actively avoid news of police violence, you have seen the videos of Eric Garner's choking death, Walter Scott being shot in the back, and Chicago teenager LaQuan McDonald being shot 16 times, among others. Among the most disturbing of these incidents, and videos, is the shooting of 12-year-old Tamir Rice in Cleveland in November, 2014. Take a minute (or seconds as it may be) to watch this video. Now add in the fact that the person who called 911 specifically told the police he believed the boy was playing with a toy gun -- a fact that the officers who shot Tamir claimed not to have received -- but one which will matter in a paragraph or two. These officers barely exit their vehicle before they shoot the boy, who was indeed playing with a toy gun.
After local prosecutors commissioned several reports exonerating the police's behavior, a grand jury failed to indict, in a routine that many see as the failing of our criminal justice system to hold police accountable. I have somewhat idiosyncratic views on the utility of the criminal justice system in general and its operation when police are the object of its gaze, which I've laid out elsewhere and may return to this month. That's not what this post is about.
This post is about the letter the Cleveland Police Patrolmen's Association (police union) sent to the media, but really to the parents of Tamir Rice, after they received a $6 million settlement to compensate them for the life of their child. I've pasted a screen shot of the letter after the jump because there is something about the full effect of the insignia, formality, and seeming professionalism of the letter that make its contents all the more ludicrous.
Random items for a Friday morning
1) Here is a supercut of movie scenes depicting people dealing with writer's block. The Slate story describes it as stressful to watch--and it is. I also would say "claustrophobic."
2) Yesterday, I held my Civ Pro review session, which also included, for the second time, presentation of the "creative projects" that students can do for extra credit. The students enjoyed it, I got about 80-90 % participation (down slightly from the first time I did it, but still good). And it ran the gamut--board games, music parodies,* children's books, a skit about one of out classes, and even a pencil drawing of me. I think this is beginning to take on a life of its own, which I like. And a forever H/T to Josh Douglas for suggesting the idea; it has proven to be a nice exercise in class collegiality and, in many cases, an review that allows me to see what they understand (and what they don't). [Update: Here is the information sheet I give to students about this assignment]
[*] The one problem with music parodies is that my musical tastes have not kept up. So I can recognize the Spice Girls ("I wanna really, really, really get an A in Civ Pro") and "Let it Be" ("Let 'em plead"--"yeah there will be an answer" sort of fits perfectly). The rest, not so much, although I think they were well done.
3) A federal lawsuit has been filed in the Southern District of Florida alleging that a former administrator in FIU's School of Architecture sexually assaulted a student. I know nothing about any of this. I mention it only to highlight one Civ Pro angle: The complaint was served while the defendant was on campus of another school in another state interviewing for an academic position. That is cold-blooded.
Thursday, May 05, 2016
Rethinking Olympic Legacy
I’m going to spend much of this month trying to re-engineer your thinking about Brazil; the rule of law story is way cooler than most of us appreciate. Among all else going on there, Brazil is hosting the upcoming Summer Olympics, and there will be much talk in the coming months of the Olympic “legacy.” What do we mean by legacy? Generally we define it in economic terms: we calculate the cost of preparing for and hosting the games, then weigh it against the perceived long-term benefit, principally measured in terms of tourism revenue and the economic return infrastructure investment. It has become quite common of late for candidate cities to withdraw their bids, often in response to public referenda, on the grounds that the benefits won’t justify the costs. Oslo, Stockholm, Vienna, Hamburg, even our own Boston, and many other cities have withdrawn based largely on economic concerns. Notably, the only two competitors for the most recent awarding of the 2022 Winter Games were authoritarian regimes – Beijing, China, and Almaty, Kazakhstan. (Finalists for 2024 include Rome, Budapest, Los Angeles, and apparent frontrunner Paris).
But Brazil is showing us something different. It has built for itself what we might call a governance legacy: a series of laws passed in substantial part to prepare for the Olympic Games, that have an application well beyond the sporting event itself, and that will likely remain in place after the Games are gone. And as I will explain in subsequent posts, that governance legacy is overwhelmingly positive. In the areas of criminal enforcement, substantive anti-corruption law, procurement, and freedom of information, Brazil passed laws that tend to promote transparency, accountability, and the rule of law. More remarkable yet, Brazil’s Congress passed these laws largely in response to the much-publicized democratic protests concerning the government’s spending of public money. And as if that weren’t enough, certain of these laws are the very reason that systemic corruption is now being effectively prosecuted and folks are actually going to jail.
So I’m going to try to convince you that a measure of Olympic idealism is still in order, unfashionable though it may be. Cue the Olympic theme song.
Hello -- I'd like to thank Howard and Prawfsblawg for inviting me back as a guest blogger this month. I am an associate professor at Catholic University of America, Columbus School of Law, where I teach and research in the areas of intellectual property, civil procedure, and administrative law. I am looking forward to sharing some ideas about patent litigation and other topics with the PrawfsBlawg community.
Wednesday, May 04, 2016
Ted Cruz's Valediction and Martin Luther King's Famed "Letter from Montgomery Jail"
I listened to Ted Cruz's speech withdrawing from the Republican campaign; not being snarky or ironic at all, it was an impressive and inspiring piece of work. But one passage I found discordant: Senator Cruz stated: "Even from a Montgomery jail our voice for justice and equality rings out for the ages." This struck me as a failed allusion to Dr. King's immortal Letter from Birmingham Jail. Did I misunderstand his meaning or miss his reference? Or did Senator Cruz fumble as he did when he referred to a "basketball ring"?
Two items worth checking with respect to federal judicial vacancies:
First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.
Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.
Hello Again Prawfs
I'm very excited to be back on Prawfs. For my money, blogging on this site before going on the market was an unreservedly positive experience: I got exposure to folks I would never have "met," got to discuss issues that were of interest to me, test out some ideas and, as one of my new colleagues said the other day of blogging, got to exercise my writing muscles. That's what I need right now; my writing muscles have atrophied over the past six months or so. Thus, I'm particularly grateful to be blogging this month.
Before October, when writing took a back seat to job searching, I was writing about the criminal justice system's response to police as suspects and defendants, so some of my posts will be about that including one I hope to post today or tomorrow, with the teaser title "The Most Inappropriate Comment from a Police Union Yet?" I also hope to write a little bit about my experience on the market and some other areas that interest me but aren't in my typical wheelhouse.
A quick group therapy question -- do others fear each time they finish an article that it will surely be the last (g00d) idea they ever have? I've only written a few articles but feel this acutely each time I'm faced with a blank slate. Tips on breaking through this wall?
This morning I got into a bit of a Facebook fight on the PTO page of my daughter's elementary school. It started with an article I posted about a local elementary school that wound up canceling their Daddy/Daughter dance due to objections based on gender stereotypes. My daughter's school also has a Daddy/Daughter dance, in fact they have a number of gender labeled events including a Mother/Daughter tea and a Father/Son sports night. However, my suggestion that these events be relabeled Parent/Child was not met with overwhelming enthusiasm. A number of parents saw my suggestion as another example of unnecessary political correctness while many more cited the fact that anyone student or parent could attend any of these events regardless of gender. According to these parents, this technical inclusion demonstrated that labels don't matter. However, labels do matter.
My daughter refused to attend the father/son sports night because "it was for boys." The fact that she was technically allowed to attend did not change her perception that this was an event for boys. As a professor of family law I have watched with fascination and delight as one by one states, and then finally the Supreme Court, recognized that labels matter. By the time the Supreme Court decided Obergefell v Hodges the fight over same-sex marriage was no longer about substantive rights such as tax benefits and health care management instead, it was about labels. The question the case raised was whether having two different names, "marriage" and "civil unions," for the same rights was a harm. The Court found that it was.
I don't want my daughter's dance shut down, but I am concerned about the message we send when we label teas and dances "girl" events and label the sports nights as "for boys." To say that labels matter is not being "politically correct," it's just correct.
Trump and Constitutional Law
Like most members of my class, I abhor the possibility, now much stronger, that Donald Trump will become president of the United States. I tend to be an ambivalent technocrat, and so the notion of a blundering, populist, somewhat authoritarian president strikes me as frightening, if also as somewhat in the nature of just desserts for the mandarin class and its frequent distance from, if not borderline contempt for, substantial segments of the American population. I tend to think that he will be somewhat less frightening in reality than in prospect. Campaigning and governing are two separate activities, and even cult-of-personality campaigners must eventually leave many duties to an administration, some of whose senior officers will be more technocratic than Trump himself and much of which will be overseen by an entrenched civil service. Nevertheless, I do not relish the prospect of his presidency. A name like "New Haven" will take on a more literal and ironic meaning, I should think, if Trump is elected.
I am generally uninterested in law professors' politics, and quite uninterested in discussing my own, and so making such a forthright political statement is not my primary goal here. I declare my opposition to his candidacy simply as background for a more academic point, which is that a Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:
1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields.
2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately.
3) All this is fairly predictable. More interesting to me will be how self-conscious or un-self-conscious the reversal will be. Many legal scholars are both doctrinally grounded--not in the sense that they write a lot about doctrine, but in the sense that their work is grounded on law as a doctrinal tool for action, not on a deeper sense of or attachment to theory--and politically oriented in their work. For such scholars--and perhaps for most of us--things like federalism and separation of powers are purely instrumental tools, to be used as the occasion demands. Given that, I expect that a good deal of this new interest in the value of federalism, separation of powers, and gridlock will be un-self-conscious at first: it will neither acknowledge nor discuss the polarity shift involved. Since some of these scholars will not have written much about structural constitutional law before, they will not have a body of their own written work to fight against, so their shift will be less dramatic, although no less real. Others will barely cite what they have written on past occasions, or distinguish it on questionable grounds.
4) But this will change over time. Constitutional and legal theory change by a process of crude reflective equilibrium. Those of us working in law and religion have had a ringside seat to that phenomenon over the past few years: a slow shift away from an earlier equilibrium happens first more or less silently; then cases with a different set of facts or plaintiffs bring strong disagreement at the level of outcome, and inspire doctrinal criticism; and eventually those criticisms beget new theoretical structures of justification and a shift in the overall center of both theoretical and doctrinal thought. Just so, the newfound interest in federalism and separation of powers as positive qualities will eventually beget new theories to justify and consolidate the shift away from the current center of gravity. How much this happens, and how long it lasts, will depend in large measure on whether Trump (if he wins) secures a second term, and on how much Trump-as-president resembles Trump-as-candidate, and whether both his own inclinations and permanent institutional structures make him less of a populist or authoritarian than people currently fear.
5) As a partial aside, some polling evidence suggests that things like campus activism have contributed somewhat to success of Trump's candidacy. So one possible conclusion will be that the current round of campus and off-campus activism will, unlike most activist movements, have a significant and immediate effect on social change--albeit the effect, with delicious irony, will be the opposite of what most of the activists want. One imagines that the result, over time, will be varied: some activists will question or moderate their attachment to such movements, others will double down on their activism, some college presidents and other establishment figures will lose patience with those movements while others will give them freer rein, and there will be an overall upsurge in polarization around these movements. Students of social movements and social change will have plenty of new data to work with.
Tuesday, May 03, 2016
Entry Level Hiring: The 2016 Report - Final (?) Call for Information
This is, I think, the last call for information for the 2016 Entry Level Hiring Report. I currently plan to close reporting on Wednesday, May 11. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Wednesday, May 11.
If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 11, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
(Comments are closed on this post in order to drive comments to the original post.)
"And a question everyone here should ask . . . " "Are you Canadian?"
I'm making this brief return to Prawfs (thanks Howard!) to plug an article by Christopher Schmidt and me on the issue of Senator Ted Cruz's eligibility to be president. The issue got a lot of play earlier in the primary season when Donald Trump said that Cruz's Canadian birth was a problem for the Senator's campaign, and numerous constitutional law profs weighed in on the issue. (See, e.g., Larry Tribe, Akhil Amar, Einer Elhauge, Eric Posner, Michael Ramsey.) The debate centered around originalism: would Cruz be eligible under an originalist understanding of the natural-born citizen clause? Tribe, Elhauge and Posner said no, while Ramsey said yes. Commentators debated the original understandings of the Constitutional language, as well as certain 18th Century English and American statutes -- but they also asked whether originalism was the appropriate constitutional interpretive method. Tribe, for example, argued that Cruz was ineligible under originalism but perfectly eligible under a "living constitutionalist" approach.
In our article "The Natural-Born Citizen Clause, Popular Constitutionalism, and Ted Cruz's Eligibility Question," Chris and I focus on the role of popular constitutionalism in the modern conservative movement and discuss the ramifications of a popular constitutionalist approach to the natural-born citizen clause. Drawing on Chris's terrific earlier work on the Tea Party and popular constitutionalism, the article makes the case that the popular understanding of "natural-born" would likely exclude Cruz from eligibility, as the common understanding has been that a candidate must have been born in the United States. However, Cruz's campaign has emphasized that this question is "settled law," and has looked to elite constitutional opinion to nail down the issue. In particular, an article by Neal Katyal and Paul Clement -- published in the Harvard Law Review Forum, and timed to come out just before Cruz's presidential announcement -- claims that Cruz is eligible, and that any other conclusion is "specious" and "spurious." Cruz has not left the clause's meaning open to voters, and he has not asked them to draw upon their "conservative constitutional principles" to decide whether he is eligible. On other matters, however, Cruz has been very much a popular constitutionalist -- to an underappreciated extent. Cruz's political campaign consistently refers to the people's role in defending the Constitution, and he has been a Tea Party constitutionalist since at least 2012, when he brought Sarah Palin and other Tea Partiers on board for his senate campaign. In fact, Cruz has even advocated for amending the Constitution to allow for retention elections for Supreme Court justices.
Although the national media has largely moved on from the question of Cruz's eligibility, the issue still burbles below the surface. The snappy comeback from a Trump supporter yesterday shows that Cruz's Canadian birth still matters to some. If Cruz fails to get the Republican nomination, there are myriad reasons why voters might have settled on a different candidate. But popular constitutionalism in action might be one reason that voters cast their ballot for someone else.
It has been fun being a guest blogger, but also harder than I had anticipated. Perhaps I just chose a bad time. My guest blogging has coincided with the end of the semester and I have had far more students than usual seeking appointments to discuss personal jurisdiction. (I teach Civil Procedure and the question of how to handle the interaction between state long-arm statutes and the Due Process clause is the source of more trouble than virtually any other topic on my syllabus, with the possible exception of 28 USC 1367(b).)
Anyway, I didn't get to all the things I had hoped to blog about, so perhaps I will have a chance to to this again some time in the future. Thanks to all of those who read and/or posted on my blogs.
Why Endemic Corruption Actually Isn't Just Like a Toilet
Hey folks, great to be visiting again. I work on anti-corruption stuff -- fitting, through the end of this Supreme Court term, for a law school located in Virginia. And I've got a couple specific arguments I'm going to try on you this month. By way of context: much of the international anti-corruption project involves jarring loose assumptions about the inevitability of corruption. Now, that's much different than saying that there are places in the world where corruption is "cultural." I have never encountered a culture which teaches that a suitcase full of cash, exchanged under the table for an illegal benefit, is an affirmatively good thing, such that efforts to limit it should be opposed. Nobody -- and I do mean nobody -- holds this belief (except those benefitting from it). The culture-based debates concern specific forms of more marginal corruption -- gift-giving, nepotism, campaign finance (!), etc. But corruption, at its core, is universally regarded as a bad thing. What varies among cultures is the degree of resignation to it -- the degree to which anyone believes that you could actually reduce it.
I think the perfect metaphor for the way many across the developing world view corruption is, um, a bit off-color, so please forgive the following foray into vulgarity. Corruption is perceived much in the way that all of us view what I will politely call using the toilet. Sure, it's dirty and disease-ridden, and societies will take various efforts to contain and mask it. But if an intelligent being from another planet tried to convince us that various changes to our lifestyle could eliminate the production of solid waste, we wouldn't give him or her (or it, I suppose) the time of day. That's not to say that we're fond of it. We just can't imagine life otherwise. It's inherent in being human.
Okay, says the cynic, point to one country where corruption was once endemic but has adopted meaningful anti-corruption reforms. Well, we can do that very thing, and the answer will surprise you: Brazil. What, you say? You thought Brazil was a mess. Nope, that's the media manipulating your brain. I'll explain, over the course of this month.
Monday, May 02, 2016
Love, Marriage and Contracts
Hello. I would like to thank Prawfsblawg for inviting me to blog this month. My book Buying A Bride: An Engaging History of Mail-Order Matches, will be published June 6th and therefore, I thought it would be fun to spend this month blogging about love and marriage and particularly about unconventional relationships. Given this goal, I was excited to read Slate journalist Rebecca Onion's recent marriage article Toward A New Theory of the Bad Dad and Husband. In the article Onion discusses the terrible dads and husbands of literary history, men she refers to as "art monsters." Art monsters are defined as men (and occasionally women) who rail against female restrictions, defined as requests for time, attention, financial support and the expectation of conformation to social norms. As examples of art monster mentality, Onion includes Faulkner's cruel statement to his 12 year-old daughter, "No one remembers Shakespeare's children," Baudelaire's complaint about the "unendurable pestering of the women I live with," and Einstein's contract with his first wife Mileva Maric in which he makes a number of demands including three meals a day served in his room and the right to have Maric immediately stop talking to him upon request. For Onion, all three examples demonstrate how creative men frequently used and abused their wives and families. However, Einstein's contract with his wife strikes me as different than the other examples used in the article.
Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.
The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:
Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.
JOTWELL: Walsh on Blackman and Wasserman on marriage equality
The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.
Sunday, May 01, 2016
Happy May Day.
Thanks to our April visitors, who may linger for an extra day or so. It's been a great month, particularly with Chris FAQ posts, which reflect the spirit of what Dan was trying to start here so many years ago.
And welcome to our May visitors: William Berry (Mississippi), Megan LaBelle (Catholic), Kate Levine (headed for St. John's), Ray Partain (Aberdeen), Andy Spalding (Richmond), and Marcia Yablon-Zug (South Carolina).
I hit a bit of a block at the beginning of the month trying to figure out what to blawg about, which sent me down an unproductive path of trying to figure out the goal or purpose of blawgging. I never figured it out, exactly. But I thank Howard for the opportunity to give it a shot and the community-at-large for engaging with my efforts. Sometimes being a law prawf can be an isolating experience, but it's spots like this that allow us to break out of geographical and subject matter boundaries. I hope to have a chance to do it again sometime.
Friday, April 29, 2016
Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?
The Law of LAWn Signs
A final post of thanks and a quick follow up. First, thank you to Howard and the Prawfsblawg family for the opportunity to share my ideas this month. I look forward to joining you again in 2017.
In an earlier post I mentioned that our LAWn Signs idea had a potential serious legal implication after the Tenth Circuit Court of Appeals decided United States v. Carloss. At issue in Carloss was the impact of an ordinary “No Trespassing” sign on the Fourth Amendment rights of the defendant. In his dissenting opinion, Judge Neil Gorsuch criticized the majority’s position and offered his own version of what an appropriate Fourth Amendment sign might look like. In honor of him, and our larger FourthAmendmentSecurity.com project, Stephen Henderson and I went ahead and made a sign for him. So, if you live within the Tenth Circuit, this sign might actually have constitutional significance.
Complete Junior Law Prawfs FAQs Series
It has been such a pleasure to guestblog at Prawfsblawg this month and to do this Junior Law Prawfs FAQs Series on how to become a voice in one's field. I have learned so much from your comments, your Twitter conversations, and your very thoughtful emails. I appreciate the time the PrawfsBlawg community has taken to crowdsource answers to these frequently asked questions. Based on the emails I've received from other junior (and aspiring) law professors, many others are also grateful.
For ease of reference, here is the complete list of questions (with links) to the frequently asked questions we covered this month:
Thursday, April 28, 2016
Are we more like Argentina or Russia?
A question I have been mulling for a while now is whether the US is likely to make a serious attempt at some point in the future to hold former government officials accountable for sanctioning arguably unlawful interrogation techniques undertaken as part of the “War on Terror.”
The jury trial is dying. Plea bargains resolve approximately 97% of criminal cases in federal courts and 94% of cases in state courts. In civil cases, the percentage of jury trials is even lower. In federal courts, less than 1% of civil cases are resolved before a jury. In state courts, the percentage of jury trials is only slightly higher. Perhaps not coincidentally, citizens have stopped showing up for jury duty. Juror no show rates in some jurisdictions have reached 85%, leading to the postponement of serious criminal cases (including murder trials). Law students can graduate from law school, excel in practice, and become judges without ever having the opportunity to try a case before a jury. As an institution, a civic responsibility, and as part of our legal system, juries remain unloved.
I have expended some scholarly effort to change this reality. I love juries, and it is not just because I have been trying to promote the best book ever written on jury duty – Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (okay, so it is the only book written for jurors on jury duty). But, for several years now I have been trying to make juries relevant. I have written about the George Zimmerman/Trayvon Martin case, I wrote when Charlie Sheen and Donald Trump got jury duty, I have tweeted, facebooked, blogged and littered the comments section of various discussions. I even wrote a national CNN op-ed on the Fourth of July with the audacious title, “What is the Most American Thing You Can Do?” (answer jury duty). But, the reaction of every one of those attempts to recognize this fundamentally democratic and constitutional institution was pretty much nothing. My love was unrequited. I couldn’t even generate outrage. Worse than being hated, I was just ignored.