Friday, November 25, 2016
JOTWELL: Walsh on Bray on national injunctions
The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.
And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.
What the what? Ben Carson to head HUD!
(And the real story of segregation, Detroit, AFFH, and busing)
Far be it for me to try to make rhyme or reason of Trump's cabinet picks(!), but while I wondered and worried last week about who he'd tag for HUD, Ben Carson's name didn't even come to mind. I hoped for someone like Pamela Patenaude or even former Senator Scott Brown, who instead now seems headed to be secretary of Veterans Affairs. And I worried that Trump would, instead, name someone like Robert Astorino, Westchester County Executive who has been long been fighting HUD on fair housing issues in suburban NY. Instead, we have Dr. Ben Carson, whose only experience with fair/affordable housing issues seems to be that he grew up in center-city Detroit. Carson is not a housing expert, but he has made a few discouraging (and fairly incomprehensible) statements on housing policy, for example in his 2015 op-ed in the Washington Times.
In his Washington Times op-ed, Carson calls HUD's AFFH rule "another failed socialist experiment" and draws parallels with mandated busing to de-segregate schools. In his op-ed, Carson says that busing was a failure because (1) it did not improve school integration (the percentage of blacks attending majority black schools stayed essentially the same), and (2) was "unpopular among both blacks and whites." Carson then states that mandated busing led to white flight because anyone with the means to do so moved to the suburbs "to escape mandated busing" which "contributed to a blighted inner cities in which poverty and school segregation became even more concentrated."
What the what?
Thursday, November 24, 2016
And still more restrictions on student-athlete speech
So the Harvard soccer and Columbia wrestling teams were suspended over the speech--private schools all, dealing with arguably "official team" speech. Then four ULL football players were suspended over a "fuck Trump" video--justified by some as occurring in the locker room and thus in the team context.
Now we have four Kansas cheerleaders suspended over a snapchat photo in which three male cheerleaders were photographed standing side-by-side in what appear to be intentionally-ugly Christmas sweaters with the Kansas "K," over the message "Kkk go Trump." (Photo after the jump). The female cheerleader/photographer insists someone took her phone and posted the picture; the mother of one of the men insists they were old sweaters.
The photo apparently was taken at a dorm party. It was not in the locker room, not part of an official team or university function, and not made in any team-wide forum or context. Moreover, the photo cannot be squeezed into any category of unprotected expression and reflects, albeit in a snarky way, a political message. So we now have a clear case of treating student-athletes differently than their non-athlete classmates for First Amendment purposes even when they are speaking as students and not as athletes.
The only justification is if student-athletes are employees who speak for and represent the university--a tough sell, given the rest of the NCAA's agenda (as a commenter on a prior post noted). And even employees (including university employees) do not speak in their employment positions at all times and enjoy something closer to ordinary First Amendment protection when speaking as citizens on matters of public concern. We long ago rejected the Holmesian idea that "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman," at least as the First Amendment limit. We would similarly reject the idea that "There may be a constitutional right to speak, but there is no constitutional right to be a Kansas Jayhawk cheerleader." Somewhere there must be a point at which a student-athlete speaks for herself and not as the university, and thus cannot be stripped of her university position because of her private speech.
Housing Bubble (Toil & Trouble)
The 2008 Foreclosure Crisis seems like only yesterday. Surely we must still remember the lessons learned from the crash and will not again allow real estate prices to inflate above a sustainable level... right? But here's a little chart that sort of scares me - note that we're at the top of the second peak in this roller coaster ride called the housing market:
Yesterday the FHFA announced an increase to the loan limit for prime loans, with the new maximum home mortgage loan for one-unit properties set at $424,100 for 2017 (more in higher-priced markets). This is the first maximum loan dollar increase since 2006. Unless you follow real estate or are in the market for a large mortgage loan, you may not have recognized the significance of this increase. The Housing and Economic Recovery Act of 2008 prohibited any increase in the loan limit above $417,000 unless and until the average U.S. home price returned to its pre-decline level. That hasn't happened until this year. The FHFA just announced that "that average home prices are now above their level in the third quarter of 2007." I guess we're back, baby.
Wednesday, November 23, 2016
Another random predictor: Ending sports droughts
Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:
1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.
1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.
2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.
2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.
2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.
This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.
Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?
(Last) Fact or Fiction: Is It Really Over?
Almost exactly two years ago, I posted to this blog a tearjerker shampoo commercial in China that ended with the statistic that approximately 100,000 couples reconciled in the previous year out of 3 million divorces, or 3.33%.
Indeed, there are a lot of songs about this. For example, the Sugar Ray lyrics go something like, “When it’s over / That’s the time I fall in love again.”
So, is it really true? What chance does Brangelina have? These questions burned in my mind, and so I looked into my data from 109 divorce cases involving children that were filed in Marion County in 2008.
Is there hope for reconciliation?
Don’t hold your breath. Only 4 couples in my sample of 109 divorcing couples reconciled at some point, or, 3.67%. This is very similar to that Chinese statistic. Coincidence, or the universality of human nature?
Tuesday, November 22, 2016
And good luck dealing at dinner with your sober liberal nieces and nephews who voted for Clinton (or, more likely, Jill Stein, which is partly why we're in this mess).
Shop 'Til You Drop
This week, millions of Americans will wake up early to overindulge, squabble with those in close proximity, stare at television sets, and test the elasticity of waistbands. I’m talking, of course, about Black Friday. If you plan to be amongst the hordes descending upon your local mall or big box retailer, I urge you to take precautions because, as I have argued here and here, neither statutory law nor the civil justice system will protect you from a surprisingly common source of injury in this country: crowd crush.
There is not a single law in any jurisdiction within the United States that requires anyone planning a large-scale event to prepare a comprehensive crowd control plan. Currently, event organizers and venue owners need only comply with local fire code and sanitation regulations which are, at best, very weak stand-ins for proper – and well-proven – crowd management techniques. Beyond that, these entities may choose to employ additional crowd control tactics (which can range from the fairly ad hoc to the extremely sophisticated) or do virtually nothing at all. My research suggests that, overwhelmingly, entities choose to do the latter, trusting that the presence of law enforcement alone will be enough to prevent stampedes and crushes. It’s not. (For an excellent, but devastating, look at the consequences of leaving the responsibility of crowd control to law enforcement, I highly recommend the “Hillsborough” episode of ESPN’s 30 for 30 series, currently available on Netflix).
Experts estimate that somewhere between 5,000 and 10,000 people are injured in the United States each year by the forces of the crowd around them. People are suffocated, stepped on, crushed against barriers, and violently bumped and jostled at nightclubs, concerts, sporting events, and, yes, Black Friday sales. Most often, these injuries occur in small numbers, but, occasionally, mass injuries and fatalities occur. (Check out this video to see the start of a 2010 crowd crush in Los Angeles that injured over 200 people). These incidents date back almost a hundred years, and yet we have done almost nothing to get a handle on the problem.
As I argued in my first article about this issue, courts have overwhelmingly mishandled crowd crush cases, making it extremely difficult for plaintiffs to recover. Rather than relying on the fairly robust body of crowd science that is available (and that amply shows both (a) that crowd crush injuries are foreseeable in many situations and (b) that even very inexpensive and simple precautions on the part of venues and organizers can virtually eliminate the risk of such injuries), courts have fallen back on conventional wisdom about crowds, over-relied on compliance with posted capacity numbers to assess the adequacy of crowd control measures, and blamed victims themselves for poor behavior or for assuming the risk of injury. State legislators, in turn, have succumbed to pressure from the entertainment industry to keep events jam-packed and have thus failed to pass laws that would mandate even very basic crowd control measures.
So what is a deal-seeker to do? I recommend staying at home and waiting for Cyber Monday. If you can’t resist the lure of low prices and choose to brave the wild and wooly world of your local big box store, avoid the initial surge of the crowd into the venue. Crowd crush injuries are most likely to occur while entering a venue. You may miss out on that deeply discounted PlayStation (there were only 5 of them available, anyway), but you will greatly reduce the risk of dropping before you shop.
Monday, November 21, 2016
They're Coming for Your Cars...
A little over a year ago, as I became fully immersed in my research about driverless cars, I had a conversation with a colleague in which I managed to convince him (I think) that mass adoption of fully driverless vehicles will be an overwhelming net positive for society. I talked about how these vehicles will dramatically improve highway safety, reduce traffic, increase productivity, and enhance the independence of disabled and elderly individuals. As the conversation wound down, however, he noted that, despite everything I had said, he would always love driving. He asked whether, once fully driverless cars are widely available, he would still be able to drive his own car. I quickly reassured him he would always be able to do so, but as we parted ways, I questioned what I had just told him. If autonomous vehicle advocates are correct about the dramatic safety gains fully driverless cars stand to offer, might the government eventually outlaw human-driven cars on public roads?
The more I research and write about this topic, the more I’m convinced that (eventually) the government both will and should. After over a hundred years of human-driven motor vehicles on U.S. roads, the data is clear and abundant: taken as a whole, human beings are pretty terrible drivers. According to the National Highway Transportation Safety Administration (NHTSA), 94% of all driving accidents are caused by human driver error. We drive drunk, fall asleep at the wheel, make bad decisions, fail to react quickly enough, steal right-of-ways, miss the cars in our blind spots, and panic when it rains or snows. One recent study, moreover, found that 7.8% of drivers on the road at any moment are texting or using a hand-held phone. The impacts of these driving deficiencies are staggering. Each year, motor vehicle accidents kill approximately 33,000 Americans, the equivalent of a major plane crash happening five days a week. There are several million more non-fatal accidents.
Although the technology is improving and advancing at a fairly blistering pace, there is still a lot of work to be done on fully driverless vehicles before we can say with any level of confidence that they are definitively safer than human-driven cars. That time, however, is coming, and when it does, experts predict that the safety benefits and reduction in injuries and fatalities will be profound. Indeed, researchers believe that if even just 10% of the motor vehicles used in the U.S. were fully autonomous, 1,100 fewer people would die on roadways each year. At 50%, 9,600 lives would be saved and 2 million fewer traffic accidents would occur annually. At 90%, 21,700 lives would be saved and there would be over 4 million fewer crashes each year. At that point, one of the most significant public policy questions will be whether we are willing to continue tolerating the risks created by human drivers. I don’t know how anyone can look at the long history of motor vehicle accident statistics and say, in good faith, that we should.
One of the great questions posed in torts is when a given precaution should be adopted as the standard of care such that those who fail to adopt it can be found to have breached a duty. In everyone’s favorite tugboat case, The T.J. Hooper, Judge Learned Hand says, essentially, that it doesn’t matter that everyone in an industry has been doing something one way for a very long time, adherence to custom shouldn’t be the final word on whether someone has been negligent. As technology improves, individuals and companies are obligated to make changes when doing so would greatly reduce the chances of injury, particularly when the burden of making those changes is low.
Switching from human-driven to fully driverless cars is certainly more burdensome than installing weather radios on boats, the issue in The T.J. Hooper, but with significant numbers of car manufacturers actively developing autonomous versions of their vehicles, fifteen or twenty years from now, it may be the case that driverless cars are just as accessible and affordable, and significantly safer than human-driven ones. When that’s the situation, might the choice to drive your own vehicle be a negligent one? Should the government take that choice away from consumers altogether?
As I noted above, as the technology improves (and human driving presumably doesn’t), I think the answers to those decisions will become fairly clear. The question is whether public acceptance of these new technologies will keep pace with their development. Will members of the public embrace their new motor vehicle robot overlords and the safety benefits they offer or, forty years from now, will there be a protester standing on the steps of the Capitol, holding up a steering wheel and proclaiming, “From my cold dead hands”? And, with driving-related fatalities being what they’ve been, might members of the opposing movement respond, “Exactly”?
Fact or Fiction: Women More Likely to File for Divorce
The holiday season brings about a lot of divorces in the New Year. Often, it’s because either people delay divorce in order not to ruin the holidays, or they spend so much time together that they realize it’s over.
There has been much said about the fact that it is women asking for divorce. The speculation is that women become unhappier and benefit less from marriage than men, often due to the traditional gender roles that set in after marriage. Interestingly, men and women are said to end non-marital relationships at an equal rate.
So, is it true that most divorce initiators were women?
You bet. In 79 of the 109 divorce cases in my data set consisting of several months of divorce cases from 2008 in Marion County involving children, the wife filed for divorce.
Only 7 of the 109 divorcing couples had adultery in the marriage and only 7 of 109 couples had drug or alcohol issues.
Saturday, November 19, 2016
2016 Election and random predictors
Apparently it was not only the polls that were fooled in this election. So were the random predictors/correlations, sports-related and otherwise.
Another View of Hamilton's "Politics"
Dan Filler has an interesting take on the Pence-Hamilton pseudo-event (in Boorstin's terms). He notes a debate among "progressives," a term that still begs for definition and certainly does not necessarily mean leftists, about whether the actors' action was strategically wise or not. And he argues that we should treat "Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father." I note that there need be no conflict or contradiction between the two, and I doubt there actually is in the case of the Hamilton musical.
Perhaps I am too mired these days in my interest in social class, in the frequent cluelessness of my own class (I mean that generally, not about Dan, and I mean it at least as much about myself), and in what I will, with some deliberate provocation, call the "actual" left as opposed to liberals and progressives. But I had a somewhat different take on the politics of Hamilton and of this episode. (As a purely practical political matter, I think Jack Shafer is probably wiser than both of us in this case.) I shared it on Facebook, not here, because one can be slightly freer on Facebook and because law professors, for bad reasons and with bad consequences, are always fascinated with other law professors' politics and eager to make shallow assumptions about them, of the "supports X so must be liberal, supports Y so must be conservative; therefore a wonderful/terrible person" variety. (We are not always subtle thinkers, especially about politics.) Clearly it was wiser to post it there than here. But what I wrote fits so nicely as a counterpoint to Dan's post that I cannot resist posting it here as well, with a few of the expletives deleted:
Now that I've read the actual statement [made by the actors], it doesn't seem like a big deal. Of course the "we" is contestable, but almost every invocation of "we" in the American context is a rhetorical and political statement that involves contestable definitions, identifications, and usually inclusions and exclusions. People may agree or disagree with particular such assertions but should always understand them as political and not statements of fact. There is a broader question whether we should care what paid performers have to say, any more than I'm especially interested in my barista's view on agricultural policy. But except for the possibility [I would say here, the certainty] that caring too much about what celebrity performers have to say is a sign of a weak democracy and politics, I don't object to actors and singers and baristas having opinions. Even if I did, there's not much I can do about it.
Then there's the broad question whether we should be concerned about the politicization of the consumer marketplace, of which theatrical enterprises are one sector, just as Wal-Marts are another. But expressive businesses, like theaters and wedding photography businesses, are often involved in politically significant expression and should be able to use or not use their voices accordingly. Plus, this was a seemingly unusual and good opportunity.
What I find slightly more interesting and, given what I know about the political self-satisfaction of the class of people that can afford tickets to Hamilton, less likely to be noted outside of actual left or right circles, is what the decision to speak once necessarily implies about all the decisions not to speak. Every day, especially given both ticket prices and the nature of its audience and cultural appeal, Hamilton plays to an audience of neoliberals, militarists, wielders of economic power, beneficiaries of massive corporate corruption and economic and political inequality, people who exploit connections in a relatively closed circle of the rich and powerful, etc. And those are just the nights when Hillary Clinton catches the show! A substantial part of its consumer base and business model is brokers, corporate lawyers, legacy admits to the Ivy League, executives, managers, investors, media elites, and so on. Its audience base is people who can afford to complain about the help, or praise their nannies (who they may or may not pay well or legally), not the nannies themselves. No doubt the regular audience could do with a pointed extra-script lecture or two as well! But that would be bad for business, and disturb the audience-validating, as opposed to audience-challenging, function that is the essence of musical theater. None of this yet reaches Hamilton Inc.'s cozy relationship to President Obama, and the mutual benefits and ego-stroking that were involved in it. Maybe the PBS documentary cut this part out, but I don't recall the actors at the White House performance of Hamilton breaking script to say, "Mr. President, we, sir--we--can't help but notice that you have raided and deported the hell out of undocumented immigrants in record numbers. Also, what the [deleted] is up with the drones, or Syria, or...." I suppose that actually would have been seen as rude in people's eyes. But once you start picking and choosing your exceptions and special occasions, of course you are making a political statement, conscious or not, about all the morally complicit and dubious audiences you are happy to flatter, the number of questionable actions--deportations, assassinations, killings, etc.--you are willing to "normalize," and so on.
Again, I think the actual remarks to Pence were far from harassing or rude, and he belongs to what I expect to be an unusually awful and dangerous administration, and so it's not a big deal for me. It runs mildly against the usual protocol of respecting the office and generally being nice to guests, but the remarks were mild and polite. But Hamilton itself should be understood as being closer to a fundamentally conservative bourgeois enterprise and not to some actual left or even especially vigorous progressive endeavor, except by those who are bemused and bedazzled by identity politics. If it were otherwise, it wouldn't be such a big hit in the first place.
Friday, November 18, 2016
Fact or Fiction: Firstborn Daughter = First Signpost on the Road to Divorce?
To celebrate my forthcoming series of empirical family law articles, my next few blog posts will use my data to prove or disprove salacious news headlines about family law. My data is based on 109 divorce cases filed by couples with children in Marion County, Indiana (which includes Indianapolis) for 3 months in 2008.
Let’s start with the headline story that couples are more likely to divorce if they have a firstborn daughter instead of son. At first, this caused speculation that daughters were less valued and less likely to keep people in a marriage. Then, a study suggested that, in fact, female embryos were hardier than male ones, being able to withstand a stressed mother due to a tumultuous marriage. Thus, girls were more likely to be born to a bad relationship already on the road to divorce.
So, is it true? Was I able to replicate that more divorces occur when the firstborn is female?
Yes, indeed. 62 of the 109 divorcing couples in my data had a firstborn daughter and 36 had a firstborn son (although I am missing gender data in 11 cases). Among these 36 divorcing couples who had a firstborn son, 14 had a daughter as the 2nd or 3rd child.
So, having your firstborn be a daughter sure seems to indicate a higher chance of divorce.
Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention
I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention. After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."
The big-picture idea (such as it is) was this: In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise. What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is. RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."
The two "reasons for cautious optimism": First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions. Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning. The Becket Fund, etc., and the Department of Justice, do a lot of good work.
Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election: (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.
Then followed a lively discussion!
What Next?--Part II: Avenues of and (Mostly) Revivals in Legal Scholarship
This post on "what to do" in response to the election of Donald Trump is long but shorter than my last. It involves more easily attainable and less disruptive action, but also has little if anything to do with real-world impact. I ask here what I would like to see in the next few years by way of responsive legal scholarship that is more or less in my field.* I'll dispense with the easy stuff first and relatively quickly, then add a few suggestions about what I would like to see, and one more suggestion about what one might see. Either direction would be interesting in its own way.
It is obvious and therefore uninteresting that one may expect an uptick of interest in separation of powers and federalism. A couple of conservative legal scholars have idly wondered, on blogs and listservs, whether their calls during the last eight (or eight-plus) years for limits on presidential power, and their interest in a vigorous separation of powers and federalism, will get more respect now that the shoe is on the other foot in a rather dramatic way. My prediction on that point is somewhat depressing and perhaps too cynical. I certainly think there will be an increased interest in these positions. But I doubt somewhat that mainstream liberal law professors will draw heavily on the work of conservative legal scholars who have made even relevant and helpful arguments along these lines. I think they are more likely to draw on the existing conservative literature a little, but much less than one might expect. Instead, they will adopt a mix of the following: invoke work from past eras when progressives favored such measures; write pieces advocating separation of powers, a more restrained or constrained executive, and federalism on the basis of their own existing work and methodology, drawing on the strands that would advance the Trump-resisting project, even if and when the bulk of their conclusions in that past work runs in the other direction; give more attention and more favorable and extensive treatment to federalism- or separation-of-power-favoring liberal scholars, like Heather Gerken, than they may have up until now; and, per the usual methods of many legal scholars, treat whatever they are writing in this new political direction as "novel" or the "first" to advocate this or that, sometimes because it really is novel but more often out of genuine and/or phony amnesia. As I say, all this may be too cynical. But I do expect existing arguments from legal conservatives along lines that might restrain Trump to get less attention than one might expect. Citation and prestige networks will remain more or less as much (or as little) of a closed loop as they always are.
I wrote here a while back, before the election, wondering whether a Trump election might presage a revolt within the civil service. I also touched on it yesterday in my post, in which I suggested that one possible response of law professors in light of the election would be to go to work as government lawyers and civil servants in the Trump administration. I do think the ground-level mechanics and sociology of the civil service, and modes of bureaucratic entrenchment and resistance to the chief executive, overt and covert, will become a growing topic of interest, which is a good thing. (One hopes people will also write about the potential long-term consequences of such a model.) In addition to the couple of things I linked to in my earlier post, check out this online piece, rather confirmatory of my general prediction, by Jennifer Nou in the Yale Journal of Regulation blog, on "Bureaucratic Resistance From Below."
A pivot between the more and less obvious things I would like to see in legal scholarship over the next few years is the possibility of a more widespread interest in things like legal pluralism, mediating institutions, and subsidiarity. That is good news for those whose excellent books on First Amendment Institutions would make a superb Thanksgiving or Christmas present. I cannot say I would have predicted this on my own. But when The New Yorker--the New Yorker! home of generalized cosmopolitanism and attachment to centralized government!--suddenly expresses a post-election interest in Charles Taylor and specifically in subsidiarity, muses that subsidiarity could help us "get a grip on our political selves, and be less inclined toward nihilism on the national scale," and titles the piece "How to Restore Your Faith in Democracy," one gets the hint that something is up. I don't want to overstate this prediction. Based on what I have seen of about half of the current political commentary, it is just as likely that scholars of a political hue will simply argue more forcefully--and more successfully this time, or so they will swear--for more of the same. But I do think there will be some increased interest in things like legal pluralism and subsidiarity, in quarters that have in recent times been somewhere between uninterested in and forcefully opposed to these ideas.
Let me suggest three other topics or approaches I would like to see more of in the next couple of years. They're all offered sincerely enough, but since I'm interested in and working on all three things and have been for some time, my vision may be distorted by my own preferences. I deal with them after the jump, so here's a list: 1) Critical Legal Studies; 2) Robert Cover's "Justice Accused" book; and 3) social class. I'll wrap up with the possibility that, instead of any of that, mainstream legal scholars will either stick with the same-old same-old or, more strikingly, return to the conventional views of earlier and seemingly superseded generations of scholarship.
What if the press is only a bulwark of its own liberty?
One reason many people (including me, I admit) believed Donald Trump would not win the presidency was that political institutions designed to protect against untruthful authoritarians and demagogues would expose him and his lies and his threats to American liberty, and the public would take heed. Chief among these was the institutional media. That did not happen, for a variety of reasons that people will be writing about for many years, especially if the Trump administration goes as badly as many fear.
But one idea floating around is that the election exposed a fatal flaw in the narrative of the press as bulwark of liberty: It cares about its own institutional liberty and stands up only against threats to that liberty. But where the threat is directed elsewhere (e.g., Muslims or Mexican immigrants or his political opponents or African-Americans or the rest of the world), the dogged and outraged coverage wanes (or is outweighed by other shiny objects, such as emails). There might be something to this. If we think about the conduct and statements that triggered media coverage and outrage during (and after) the election, most involved direct actions or threats against the institutional media: stripping publications of access to rallies (and the similar threat to deny White House credentials); successfully ginning up anger at rallies directed toward the media generally and news organizations such as CNN in particular; direct attacks on particular journalists (Megyn Kelly, Katy Tur, etc.); the promise to "open up" libel laws; the refusal to disclose his tax returns (which would be reported through the press to the public). The latest is Trump ditching the press pool to go to a restaurant, after informing reporters he was done for the evening, a breach of the "transparency" the media demands.
These are not unimportant acts, they do threaten the ability of the press to perform its "Fourth Estate" function of checking government abuse and informing the public, and they warrant discussion and publicity. But they arguably receive outsize coverage, more coverage than many of Trump's other, arguably more serious, sins.
Thursday, November 17, 2016
Designated Survivor trailers
As promised, I have not gone back to Designated Survivor, despite it being a hit and haled by many critics. Last night, I caught the trailer for the upcoming episode, which confirmed that decision. Based on the snippets I saw, it appears the plot has turned to Kirkman seeking to nominate a Vice President (who, naturally, seems creepy and possibly linked to terrorists).
But this is constitutionally and legally wrong. An acting president under § 19 cannot appoint a Vice President under the 25th Amendment. For one thing, § 1 says "the President" shall nominate a Vice President. But an Acting President is not a President for this Amendment, which expressly distinguishes the two titles and the two offices. Textually, therefore, an Acting President cannot perform this function. For another, any appointed Vice President arguably would have a greater statutory claim to the presidency. A cabinet official acts as President until "a qualified and prior-entitled individual is able to act." That would seem to include a newly constitutionally nominated and confirmed Vice President. So by nominating and having a restored Congress confirm the creepy guy, Kirkman puts himself out of a job.
If I misunderstand the plot, please let me know. Or maybe Keifer Sutherland isn't supposed to be the star of this show after all.
Update: I just realized that acting-president-selects-VP is a common mistake when television depicts presidential succession--Veep did the same thing in its storyline of a plot to have a deadlocked House making the VP (selected by the Senate) Tom James acting president, then having James select Selina Meyer, the Presidential candidate, as his VP. The problem there was that the vice presidency was not vacant; James had been elected VP and become acting president when the president failed to qualify, but he never would have resigned the vice presidency (which is the source of his power to act as president until the disability is removed). But my reading of the 25th Amendment adds an additional layer to this show's mistake.
What Next?—Part I: Action—Some Options for (Former?) Law Professors
Orly’s post below asks, “How are you changing your scholarship, teaching, and service in light of the election?” It is a potentially interesting question and something many of us have been musing about for some time. Here are some thoughts about options for law professors in response to and in light of the election. In a separate post I’ll talk about what I would be interested in seeing in legal scholarship itself post-election.
As usual, this post is long. (It’s a big question! It demands either a long answer or a really good short one—and I doubt I’m capable of the latter.) I move back and forth to some degree below between taking as a given the assumption that Trump represents a serious threat to “X,” where X represents the rule of law, the welfare of particular vulnerable constituencies, the survival of the United States, and so on, and remaining agnostic on those questions. It seems obvious that answers to the “what next” question depend in part on one’s view on those questions, and on one’s view of both the degree of harm potentially involved and the probability that these harms will occur. One may remain agnostic about some of those questions but still decide to change one’s approach radically, if one believes that the risk of harm may be low but that the harms that might eventuate are immense and difficult to repair. For the most part, I ask about scholarship and teaching in the long run, and less about immediate pedagogical reactions in class to students in the immediate wake of the election, although that aspect of “what next” figures in some of my analysis.*
Two potential responses on the scholarly front to the question “what will you change” may not be voiced by as many people, even if many people share these answers, although they do come up in the comments to Orly’s post. The first is: “Not much, if anything at all.” Like other academics, legal academics work in particular silos and on particular subject matters. I would not expect astronomers’ scholarship to change in light of the election. Law—all law—is a more political enterprise than astronomy under present conditions, or so I assume. But one might write in a legal field or on a topic within that field that one anticipates will not change. A contract law scholar might well have this answer. I leave open the possibility that one may find, or look for, ways in which this subject might provide tools for resistance, reveal underlying structures that support or reify a class or economic structure that makes the current situation possible, and so on. Even if that is possible, one assumes both that some people have particular scholarly interests in such a field that are distant from such concerns, and that others might agree that these questions are valuable but doubt their own ability to contribute much to such work.
A second response is “I don’t know yet.” Again, surely many people would agree with such an answer, even in fields that are very much likely to be affected by the election, but they are likely to be less vocal than those who believe they already know what needs to be done in their field. But even if one has a timeline shorter than Zhou Enlai’s, one may believe it’s simply too soon to tell.
There is a third, important or consequential answer that is possible. It is relevant both to those whose subject areas are likely to be affected by the election and to those whose subjects are unlikely to be affected by it. The answer, in short, is “I’m going to quit, or take a leave from, law teaching.” And one possible thing to do upon quitting is to join the Trump administration, while another is to not do law at all. I explore the reasons why one might quit, and the kind of work one might take on, after the jump.
Wednesday, November 16, 2016
Two Roads to the Future
As I posted last week, driverless cars are coming to U.S. roads, and they’ll be arriving much sooner than you might think: probably within five years. In the meantime, semi-autonomous cars, which can act a lot like fully driverless cars but require constant human supervision for safe operation, are already on our roads, although not yet in large numbers. Thus far, we haven’t gotten a regulatory handle on either fully or semi-autonomous vehicles, although it’s the latter that I argue we should be most concerned about. Legislators, however, seemingly disagree. Before explaining why, let me provide some context...
Companies are taking one of two approaches to the development of fully driverless cars: a gradualist approach or an “all-in” approach. Traditional automakers are taking the gradualist approach: slowly phasing in greater amounts of autonomy into their models with the goal of producing fully self-driving cars at some point in the future. This approach is a conservative one that allows consumers to grow more comfortable with surrendering more control to their vehicles over time. Public acceptance of driverless cars is indeed a huge issue. A January 2016 poll by AAA, for instance, found that 75% of U.S. drivers would be afraid to ride in an autonomous car. Another poll reported that 75% of respondents believe that they can drive better than a computer. Even political attack ads have begun capitalizing on fears of these vehicles. One local campaign ad in Florida attacked a candidate for voting to legalize driverless cars. The commercial seems to suggest that driverless cars might run down elderly women in the streets. Gradually introducing autonomous technologies to consumers seems likely to mitigate some of concerns.
At the opposite end of the spectrum, tech companies and Ford are taking what I have deemed an “all-in” approach. This strategy involves developing and road-testing fully driverless vehicles immediately rather than phasing in greater amounts of autonomy over time. Google’s current prototype, for example, lacks a steering wheel and pedals. Presumably, these vehicles will not be released until developers are satisfied that they are as safe, if not safer, than human-driven cars.
The voting/protesting fallacy
Building on some comments from an earlier post:
A recurring theme of the past week (and counting) of anti-Trump protests is whether the protesters have voted. This report notes that of 112 protesters arrested in Portland, 39 are registered in Oregon but did not return ballots and another 36 are not registered in Oregon (although they gave Oregon addresses, indicating they did not vote elsewhere). The reporter adds that "[n]ot turning up to vote and then taking to the streets to protest the result of the election is a tough position to defend." Actually, it is not a tough position to defend. But this has become a recurring theme, and we should reject it in strongest terms.
Whether someone voted should never be relevant to whether they can or should engage in protest or otherwise speak out on public issues, including the election result. There are many ways to express one's political views and to try to bring about political change--voting is one, public protest is one, and there are others. None is necessarily preferable to any others. More importantly, none is a condition precedent to any other. The right to petition government for redress of grievances is not conditioned on a person first having tried to affect the content of the government through the vote; voting and petitioning are independent rights.
Tuesday, November 15, 2016
Three Neutral Principles for Civil Political Discourse
As the recent election illustrated, Americans disagree foundationally on many substantive issues. I’d like to think though that while there may be profound divisions on core political values, one thing we may be able to agree on is that it would be helpful to our democracy to improve our public discourse about these matters.
But what does it mean to have a truly democratic, and perhaps even productive, public discourse? This aim may seem like a lost cause after over a year of toxic mudslinging, disingenuous character assassination, and an increasing unwillingness to tolerate opposing viewpoints—all of which were amply in evidence from supporters on both sides of the aisle.
I was given some sense of hope on this issue, though, during an incident shortly before the election in which President Obama was interrupted by a Trump-supporting protester during Obama’s speech at a political rally. The crowd immediately began to boo in order to shout down the protester, but Obama pushed back in his defense, and his reasons for doing so, I’ll argue below, may be taken as three core, nonpartisan principles that we may all be able to agree on as baselines for engaging in civil political discourse.
I enumerate these three principles after the break.
Monday, November 14, 2016
Post-Election Research Agenda and Teaching
This question came up on my Facebook feed to fellow law professors -- how are you changing your scholarship, teaching, and service in light of the election? There were many interesting responses, describing the first day of classroom teaching after the elections and new projects that, for example, shift focus from federal legislative reform to local/international arenas.
I thought I would pose the same question here to Prawfs readers. Did you comment on the results of the elections in class? Are you selecting new research projects or shifting focus of current projects?
Recovering Child Support (and from a weekend of writing)
This weekend has been entirely devoted to finishing an article at the top of my to-do list. This article will join a themed issue on child support in the Journal of the American Academy of Matrimonial Lawyers, which will feature several family law professors working on child support today. My contribution proposes an update to the current child support system that would allow in-kind child support (goods and services by the noncustodial parent instead of cash or check).
Increasing numbers of children in the United States continue to be reliant on the child support system. Over 22 million children lived with only one parent in the spring of 2014, composing 26% of all children in the U.S. Yet, child support continues to be in crisis, and collection of child support often fails and arrears are at high levels, leaving many custodial parents in poverty. I identify 2 major problems prompting this crisis—noncustodial parents’ disengagement with their children and some noncustodial parents’ inability to pay.
I offer ways in which in-kind child support can target these problems. Specifically, regarding the current disengagement of noncustodial parents, allowing noncustodial parents to direct their child support to certain expenses regains a stake in their children to some extent. Meanwhile, regarding the current inability of low-income noncustodial parents to pay child support, in-kind child support could be used as a tool to help them meet their child support obligation by giving them an alternative method of doing so to avoid prison and other sanctions that keep them from earning money toward child support.
Despite the benefits of in-kind child support, I recognize that a rule permitting in-kind child support will not work unlimited—or else it would have existed already. There are some good and concrete reasons to limit it. First among them is the administrative burden of in-kind child support, including valuing and tracking it. Second are any negative impacts or inconveniences to the custodial parents. In this article, I offer some solutions to help address this, such as capping it to a percentage of the child support award and providing schedules for the value of everyday items frequently used as in-kind child support, as well as judicial approval or custodial parental agreement.
Interestingly, the current family law system already recognizes the benefits of an in-kind child support allotment in different contexts, and thus has features like the parenting time credit and joint custody, which acknowledge to some extent that parents make some financial contributions directly to their child in terms of goods and services. Recognizing in-kind child support goes one step further, but is not a dramatic shift from current family law principles.
There is also some evidence already that custodial parents accept, appreciate, or even prefer in-kind support. In fact, some mothers receiving public assistance do not aid the government in establishing paternity for fear that a formal child support order will end the only support they are likely to receive, which is in the form of in-kind support. Studies also show that parents with little to no income prefer to give their child tangible items rather than cash to the custodial parent.
Although I didn’t do much else this weekend, I am happy to report that I’m done with the article, and you can find it here.
Sunday, November 13, 2016
Several post-election things I agree with
1) This, from Clare Foran at the Atlantic. Blaming women for not coming around or blaming Clinton for not being sufficiently appealing to women is both empirically inaccurate (she won with women overall and with every category except non-college-educated white women) and reflects the misogyny that marred the election.
2) This, from Frank Pasquale at CoOp. The question is whether it is possible to solve modern problems in such a non-complex way. Or, alternatively, whether it is possible to sell complex solutions in these simpler terms.
3) "Not my President" is an unfortunate slogan, if only for its ambiguity. If it means that Donald Trump is not the President of the polity of which I am a citizen and the head of the executive branch of my federal government, it is: a) wrong, b) smacks too much of the nonsense that many Republicans pulled the last four years, and c) opens protesters to the simplistic insistence that they "get over it" because Trump will, in fact, be President. If it means that I do not support Trump or the things he is likely to do as President, that should be shouted from the rooftops. I reject the idea that Clinton voters must "give Trump a chance," just as Tea Partiers were not obligated to give Obama a chance in 2009. The problem, as I discussed, is that media coverage of Tea Party accepted the idea that Obama was doing something wrong or denying some core of the public its rights by proceeding with his agenda, even in the face of those who were not giving him a chance. I doubt the media coverage of Trump's first 100 days will drop similar suggestions that Trump should try to win over the people protesting in the streets. Trump's first Twitter reaction (from which he, or someone working for him, backtracked) was that the protesters were not real citizens, but professional agitators ginned up by the media and that they all were being unfair to him. Trump's prerogative to govern as he sees fit, helped by legislative majorities, means all his opponents have left is taking to the streets to protest. And that must be non-negotiable. It is why I agree that the best chant from Saturday's New York City protests was "This is what democracy looks like."
4) The idea of a mandate is one of the dumbest political concepts going right now. George W. Bush entered office having lost the national popular vote and won a close electoral vote, but insisted he had a mandate, governed as if he did, and the media fell in line. Donald Trump is setting up the same narrative. by contrast, Barack Obama won, in modern terms, popular and electoral landslides. But Republican officials and activists he did not have a mandate and the media fell in line. All it takes is people shouting loudly enough that someone does or does not have a mandate to make it so.
ULL suspends four players for caring about the election
I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.
But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.
Saturday, November 12, 2016
A post-election thought on athlete speech
This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.
But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.
Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.
The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.
Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.
Friday, November 11, 2016
Hands on the Wheel
In May, the United States suffered its first fatality in a car accident involving a partially self-driving vehicle. Joshua Brown was “driving” his 2015 Tesla Model S in “Autopilot” mode when his vehicle drove under the trailer of an 18-wheeler that had turned left in front of the Tesla moments before. Mr. Brown was pronounced dead at the scene.
The Autopilot feature on Mr. Brown’s Tesla allowed him to sit in the driver’s seat and do essentially nothing with regard to conventional driving duties. In Autopilot mode, the vehicle could keep itself centered within a lane, maintain a set speed, speed up or slow down based on surrounding traffic, scan for parking spaces, and parallel park on its own. The only responsibility left for Mr. Brown was to pay attention. Tesla’s Autopilot system is not yet designed to operate fully independently. It is a semi-autonomous system rather than a fully autonomous one, meaning that human supervision is required for safe operation.
Tesla has been fairly transparent about the limitations of its Autopilot system, repeatedly warning customers that the feature is not yet reliable enough for a driver to stop supervising their vehicle when it is engaged. Many Tesla drivers, however, feel differently. A large number of videos on YouTube show Tesla drivers doing pretty much everything other than paying attention to the road when Autopilot is on: playing board games, sleeping, leaving the driver’s seat and sitting in other parts of the car, and (in at least one case) having a plastic lightsaber battle. Thus, while tragic, it was not particularly surprising when post-accident reports revealed that a DVD player had been found at the scene of Mr. Brown’s accident and that he may have been watching a Harry Potter movie rather than monitoring his vehicle at the time of his death.
While the Tesla Autopilot system can sense if a driver is paying attention and will issue both visual and auditory warnings if the driver removes their hands from the steering wheel, even going so far as to slow the vehicle to a stop if the driver repeatedly ignores those warnings, Tesla drivers point out that those warnings often do not issue for several minutes after a driver removes his or her hands, a long enough period of time for the vehicle to encounter a situation that the driverless technology is inadequate to handle while the human driver is distracted. It is that gap between human attention and the capabilities of semi-autonomous cars that concerns me immensely both as a scholar and as a driver.
States throughout the country have either already passed or are actively considering laws that regulate the use of autonomous cars on public roads. The motivation to legislate in this area is understandable. Industry experts predict that fully autonomous cars will be commercially available by 2020. Nissan, Cadillac, Ford, and Toyota have all publicly commented that they hope to have driverless models of their cars available by then. Tesla’s fully driverless model may come even sooner. Even the most conservative estimates have these cars, at most, 10 to 15 years away. (Here’s an interesting way to think about this: if you have young children in your life, there’s a very good chance they may never need to learn how to drive). So, legislators are scrambling to get laws on the books.
In the meantime, however, companies are rolling out semi-autonomous features on their vehicles with very little regulatory oversight. Thus far, everyone seems far more concerned about regulating the fully autonomous cars that are coming rather than the semi-autonomous cars we have now. I think that is a critical mistake, as I argue in my forthcoming article.
Next week, I hope to convince you both (a) that we should be far more concerned about semi-autonomous cars than fully autonomous ones, and (b) that, eventually (and perhaps counter-intuitively), we should heavily regulate in favor of fully autonomous cars over human-driven ones. Stay tuned.
JOTWELL: Grossi on Klonoff on introducing the study of American law
With a Little Help from My Friends
After Tuesday's election, we must keep waiting for our first Madam President. We have strong female leaders in the pipeline in both political parties, so it should be just a matter of time.
In legal academia, there also continues a gender gap in terms of who’s occupying the top realms in the form of chairs and deanships. There is significant literature that this gap can be reduced through mentoring by filling the pipeline with good candidates.
I have been involved in a fascinating project at my law school, where all the junior untenured folks happen to be women. With the support of the dean and many senior faculty, this cohort applied for and received an internal university grant to specifically support mentoring. With several empiricists involved in this grant, we also ran an empirical study of the effects of mentoring support, the results of which we hope to publish soon.
Although the results are not surprising, they do provide support for establishing a faculty mentoring program at law school (whether aimed at junior folks or everyone), and insight on how to structure it. Our program included very modest programming and travel funding of $1,500 per year for each participant to build and maintain a mentoring network. Participants most often used their travel stipend to attend a conference, extend their time at a conference, take a trip solely for mentoring purposes, or visit another institution. Participants most often sought advice and mentoring on milestones frequently sought by junior scholars, including publishing a first book.
This program was sufficient to increase the junior faculty’s satisfaction across 10 factors. There was at least a 1-point improvement on a 5-point scale in the following factors: 1) Participants now feel substantially better informed of the mentoring resources available to them within the law school and the university campus. 2) Participants express much greater confidence that they know how to effectively cultivate a network of mentors to help them achieve excellence in research, and 3) that they have the necessary resources to do so. 4) Participants report substantially stronger relationships with their mentors after the program. These measures suggest that participants feel significantly more empowered to cultivate their own networks of research mentors—the core goal of the program.
We look forward to continuing our focus on mentoring and publishing the full results early next year.
Wednesday, November 09, 2016
Inner convictions and the Republican agenda
Taking off from Rick's point that Donald Trump may have no core convictions and thus may not govern as he ran: If true, that is precisely why Paul Ryan and Mitch McConnell were exactly right to support Trump. They hoped/expected/prayed that, once in office, he would simply sign the Randian/Norquistian legislative agenda that Ryan and McConnell are going to pass and to appoint the originalist justices that McConnell and the rest of the Senate GOP want him to appoint. Trump, without the authoritarian rhetoric and actions, is Warren Harding--not very bright or dynamic, likely to turn the real work over to those around him and sign-off on what they want.
This is also why I do not buy the suggestions by many pundits that, although the Republican candidate won, the old Republican Party does not exist anymore. I am not convinced. I believe there is a good chance--perhaps because of the pathology Rick mentions--that Trump will not govern much differently than George W. Bush, hand-in-hand with arch conservatives such as Ryan and Pence. As I commented to a friend, Trump's speech sounded much like a W speech, with fewer complete sentences.
The Divided States of America
The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues. This presidential election provided empirical evidence of how divided we remain as a nation. We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female. Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it. In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people." These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division." In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead." Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."
It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X." Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections. But we must do even more than that. Lawyers are fundamentally society's problem solvers. And we have a problem of disunity. We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur. Because I write on Fair Housing, making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society. Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country. Therefore, we have to unite these Divided States.
It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect. Let's take a deep breath, roll up our collective sleeves, and get to work.
"We are all Trumpistas, We are all Clintonians"?
“Hillary has worked very long and very hard over a very long time, and we owe her a debt of gratitude for her service. I mean that sincerely.”
These are odd words coming from a candidate who called for Clinton's imprisonment and led crowds in chanting "Lock her up!" at campaign rallies. That profession of sincerity can, therefore, be taken with a pound of salt
But it might be that Trump's lack of any inner core principles, a trait that is either Machiavellian or just pathologically narcissistic, could be a saving grace of his presidency. If his willingness to say anything to win immediate applause at the moment causes him to forget his campaign rhetoric about mass deportations, imprisoning political opponents, and prosecuting newspapers that criticize him, then more power to his pathology. His campaign rallies are over: Those crowds of the "poorly educated" that Trump said he loved have now dispersed. The praise he seems to crave, therefore, must come from the people who pay attention to governing in between elections -- more politically attentive folks who generally disapprove of putsches and witch hunts.
I realize that taking comfort in Trump's utter lack of any inner convictions sounds like a forlorn hope. But it is my current cold comfort as I sit in Shanghai in dismay.
Tuesday, November 08, 2016
Law School Election Night Blogs
This year at least three law schools are holding Election Night events to watch returns come in and provide election law commentary. I'm currently with 10-12 members of the UK Election Law Society, and students are blogging here (after I approve the posts). William & Mary law students are blogging here. And Ohio State's Election Law @ Moritz students and faculty are providing insights here.
These events are a great way to engage students in election law issues while also providing important commentary to the community. I'm proud that a few years ago some students formed the UK Election Law Society on their own, and the event tonight is largely student-driven. Please hop on over to the website throughout the evening!
Lawsuits on Keeping Polls Open Late
One story of election law tonight will be requests to courts to keep the polls open late because of some mishap today. We already have one lawsuit filed in Durham, NC, and another one is brewing in Colorado. I've written an Op-Ed for CNN suggesting that courts, in general, should grant these requests. Here is the intro:
Yet more support for cameras in the courtroom
Tuesday's hearing in the Trump Campaign's absurd lawsuit in Clark County, NV, was livestreamed. So everyone got to see (or go back to watch), in real time and with their own eyes, an unprepared and ill-informed lawyer and a knowledgeable judge who was, quite properly, having none of it (and likely more than a little aware that the purpose of the suit was not any sort of legal relief, but to set-up the "rigged" narrative for this evening).
New RegBlog Essay: "Expanding the Right to Vote"
Looking for some mid-Election Day reading? RegBlog at the University of Pennsylvania Law School has just published my essay, Expanding the Right to Vote. Here is the intro:
A common storyline on voting rights is that conservative legislatures, like those in North Carolina, Texas, and Wisconsin, are attempting to pass strict laws that make it harder for some people to vote—all in the name of curbing so-called “voter fraud.” Yet in the face of these unfortunate new rules, a positive trend is developing in other places: states are enfranchising more people and making voting easier. As voters head to the polls today, we should take note of and learn from these successes so that we can replicate them nationwide, extending them far beyond Election Day 2016.
From expanding the electorate, to adopting online voter registration or automatic voter registration, to making the voting process itself easier and more convenient, states and localities are actively engaged in democracy-enhancing efforts.
Read the whole thing here.
Where to Riot: A Modest Proposal
As a non-citizen, I will, alas, not vote today. (I am in the process of applying for American citizenship, and the election is one but only one of the reasons why I am finally getting off my duff and applying. Another reason is that I teach con law, and am tired of introducing the Constitution by talking about "You the People.") In this election in particular, I have felt a mix of seriousness about and frustration with both the election and the state of discussion (or "discourse," to maintain my academic credentials) around and about it. I also take the view, which is a personal view and one that I do not insist applies to everyone, that following the moment-to-moment headlines, commentary, and pseudo-news on days like this does not necessarily demonstrate or indicate a commitment to politics as a serious and weighty activity. To the contrary, it may have as much to do with treating politics as a fairly weightless leisure activity or, in Stephen Carter's words, "[politics] as a hobby." (Others, in fairness, will spend the day engaged in more meaningful and direct political activity, such as going door-to-door or driving poorer voters to the polls, although they will be vastly outweighed by the hobbyists.) I will therefore spend much of the day avoiding television and social media. Instead, I will sit quietly and read Virgil--I have been spending the election season, which was coincident with recovering from surgery, reading classical literature--and Duncan Kennedy.
I do want to make one modest proposal, however, before the returns are in and before we know what will happen on the streets in response to the election. There has been much discussion and speculation--some serious and sincere, some frivolous, and probably some that is both--about whether one outcome or the other, or the absence of a definite outcome tonight, will lead to rioting. A while back, for instance, Sandy Levinson mused about possible "(justified) rioting in the streets" if Trump wins by a close vote. And there has been general discussion about the possibility of riots by the "alt-right" or populist supporters of Trump if Clinton wins. I don't welcome the prospect of rioting in either case. (Others are, perhaps, more ambivalent about it.) But I won't discuss the "will they (we)/won't they (we)" or "should they (we)/shouldn't they (we)" questions here. I address a more practical question: Where should one riot?
My modest suggestion is that any group deciding to riot, or encourage and organize rioting, should reject the usual rioting sites: general central gathering places, the downtown or business districts, or--worst of all--the most underprivileged and vulnerable neighborhoods, which are often where rioting occurs. Instead, if people riot--which, again, I hope they don't--they should riot in the residential neighborhoods of what we might broadly call the elites or the upper middle class.
I am perhaps less concerned with rioting in downtown or business districts as such, insofar as they are more likely to lead to property damage to insured businesses than to more "personal" damage. (I am not here making the argument, popular in some circles, that violence directed against property is not "real" violence.) On the other hand, the idea of targeting these areas tends to rely on a stereotyped vision of some idealized place that consists of nothing but the headquarters of banks, brokerage houses, and multinational corporations. Perhaps that's realistic in a few places, thus suggesting among other things the tendency of the popular imagination to view all places as cities, and all cities as large cities--and, at that, all large cities as basically four or five of the largest cities, those most likely to draw a narrow class of individuals. My downtown/business district has some local branches of banks and a couple of Starbucks. But it also contains a lot of small businesses, run by individuals whose lives and resources (and those of their employees) are closely tied to making a living through those businesses. Damage to those businesses is real damage to the well-being of workers and other individuals on the ground. Even the "name-brand" consumer businesses in my downtown are more likely to be franchises owned by fairly "regular" individuals, some of them recent immigrant families. As for the more idealized version of rioting as a kind of Fight Club scenario aimed at gargantuan consumer businesses and safely empty corporate buildings, I see little evidence that it has been effective in the past, and I question whether it is especially well-aimed. In its standard-cultural-tropeness, it also may come closer to the "hobby" model of radical political action than to a serious commitment to politics, radical or otherwise.
As for rioting in the neighborhoods of the poor and disadvantaged, a tendency that may be exacerbated by residential segregation by class and race and a lack of transportation resources, it seems really poorly aimed. And its potential harm is great, striking as it does at the homes and businesses of those who are least likely to be fully protected by insurance, who live and work in these neighborhoods and can least afford damage to them, and who depend on local businesses for food and other staples. Some of these neighborhoods are still recovering from, or will never fully recover from, riots that occurred in those areas decades ago.
In various ways, both on the left and the right and--at least in an abstract and perhaps not deeply felt (or, in a bad-faith way, actively denied) way, in the liberal and maybe the conservative center--many people believe that the causes of the current election and its discontents, and the causes of the discontents that led to the current election, can be laid at the feet of those people who have the most actual control over and power in the current political, economic, and cultural system. That doesn't just mean the 1 or 2 percent, the Kochs and Soroses. (In any event, they are most likely to be fully insulated in their homes and neighborhoods by public or private security forces and by geographical isolation.) It means something like the top ten or twenty percent of income-earners in the country. It comprises those individuals most likely to have effective political representation; to be contributors to, workers in, or complicit in big-money politics and the party establishments; to work as professionals in those institutions that reinforce or reify the current system, among which I would include the academy; and to be most effectively insulated from the costs and harms of that system and its unequal allocation of power and representation. Insofar as one might want to "bring the war home" to those who are most responsible for the current state of affairs, to force the relevant individuals and institutions to internalize the full consequences of a system whose benefits they richly enjoy and whose costs they effectively externalize, and to make more urgent the need to restructure a system that draws dissatisfaction and anger on the part of the dispossessed, those on the left and right and at least some in the center ought to consider the value, if there are riots, of literally bringing those costs "home" to the class that bears the most responsibility for an ineffective, gridlocked, more or less oligarchical and/or elite-favoring system.
If that's right, then people planning to riot or organize riots might start their planning work by looking at the many websites that provide a look at individual zip codes by household income and other socio-economic factors. The median household income in the United States in 2014 was $51,939. National averages are problematic because of variance by state and locality, but according to this measure the top 20 percent in the United States has a household income beginning at $111,000; higher up the steep curve at the top end of the distribution, the average household income of the top 10 percent begins at $155,000. I would go with the top 20 percent, but I acknowledge that there is room for debate. Whatever your starting point, if you're going to riot, or organizing a riot, or more or less gently excuse or welcome such rioting, why not start with those neighborhoods? Isn't it better and more politically relevant and responsible to riot in Park Slope, or Hancock Park or the west side of LA, or Mountain Brook in Birmingham, or Walnut Creek in the Berkeley area, or Hyde Park in Austin, or in my downtown historical district or the "north of the river" area in Tuscaloosa, than in some neighborhood whose residents are least likely to either be responsible for the current power structure or able to handle the costs of the rioting?
Social media provide a positive benefit here. They make this kind of organization more possible, and also facilitate a kind of shared civic involvement in this radical direct action. Let's say you consider such rioting "justified." One could use social media generally, or institutions like the hashtag, or sites like change.org and other popular petition-gathering and organizing sites, to start a movement in which you acknowledge your privilege, and your complicity in and the advantages that you receive from an unjust political structure, and invite rioters to start with your high-income zip code. Just imagine the wonderful hashtags that you could use on Twitter in inviting the rioters to visit your neighborhood! "#PleaseRiotInMyNeighborhood," "#I'mWithThem," "#IGaveAtHome," "#ThePurgeStartsHere"; these are just a few suggestions. Users of social media are nothing if not inventive and clever about these sorts of things.
Of course there will be some regrettable inconveniences. But if you are one of the people in an affected neighborhood--and I take it that many readers of this blog, including legal academics generally, will be in that class, both by virtue of the individual income of the legal academic and the likelihood that he or she is in a dual-professional-income household--you should be better able to deal with those inconveniences than others. It is easy enough to keep one's children in a safe place; they probably already enjoy disproportionate educational and other institutional advantages over others, and you probably already read to them and engage in other forms of close parental involvement in education, so they can most easily afford some time off from school; and you are probably well-protected by insurance. (In some cases, you could also retreat to a vacation home or second home.) And surely you can bear any harms more easily than genuine small-business owners whose resources are all tied up in their business--and much more easily than those who live in poor and disadvantaged areas.
It's just a modest proposal, to be sure. And, of course, there may be few or no riots. Certainly I hope that is the case, whether the riots are "justified" or not. Still, it makes a lot of logical, political, and moral sense to me.
And with that, I return to Virgil and Duncan Kennedy and wish everyone well on this election day.
What's your record?
This is the eighth presidential election in which I have voted. I am looking to move two games over .500 at 5-3.
Update: Looks like I'm falling back to .500.
Monday, November 07, 2016
Mickey Mouse for President? The Law of Write-In Voting
Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin). But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog). Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state. It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out). There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).
Weak parties, strong partisanship
This Ezra Klein piece is instinctively appealing--our system has weak parties that are unable to control who is nominated (because of the relatively modern prevalence of primary elections) combined with polarization of the parties combined with strong partisanship such that most supporters and leaders of one party will fall in line with the party nominee, whoever she/he is. Klein argues that this explains how Trump, for all his beyond-the-pale craziness, is as close as he is to the presidency. Klein closes with the following:
But if he loses, it will be because he is a crude, undisciplined demagogue. The world also produces clever, disciplined demagogues. And they are the ones who truly threaten republics.
It helps that parties are not built into the federal constitutional system and may have been a somewhat unexpected development. That the Constitution itself does not speak to, or control, this practical feature of the political system means it is free to develop on its own, perhaps in a way that undermines the constitutional structure.
With everyone stressed about the elections, I will stick to this general theme and discuss my forthcoming article on stress testing, which is a method of bank regulation popularized by the Dodd-Frank Act in which the Federal Reserve sets adverse economic scenarios to examine whether big banks have enough capital to survive an economic crisis that stresses them to the limit. Maybe the next stress scenario should be a crazy election?
There are currently no guiding models for stress testing, and this article fills the void by suggesting and deriving a Bayesian model, which is a kind of model that takes into account prior inputs. In this context, the priors would be the previous Federal Reserve adverse scenarios because of industry belief that the Federal Reserve adapts its scenarios to stress certain portfolios, but remains consistent with its prior scenarios in terms of economic intuition.
The article concludes that, indeed, failure to consider these prior scenarios could underestimate a bank’s loan losses significantly in an adverse economic scenario – by as much as 25%. This could be the difference between a successful stress test and a failed stress test. A failed stress test can be stress-inducing for bank clients, and, unlike elections, stress-testing is an annual event.
You can read the paper here.
Best writing practices
Hi all, it’s good to be back at Prawfs for another guest stint. I’ve written for this site more times than I can count, but this is my first time guesting as a Texan, having just joined the faculty of the University of Houston Law Center, where I’m also serving as research dean.
In that latter capacity, I’ve been thinking a lot about how to encourage productivity both for others and for myself, and this has led to some reflection on best practices for optimal writing. I’ve found that working on scholarship is the easiest part of the job to put off. Teaching and service typically happen on regular, no-exceptions schedules—classes and meetings require your presence and start and end at specific times—while writing can almost always be delayed until some theoretical future time of idealized productivity.
So in this initial post, I’ll share three of the leading suggestions I’ve read about how to maximize writing productivity based on my admittedly casual perusals of the surprisingly vast literature on this topic (the existence of which leads me to believe I’m not alone in often finding it challenging to stay on-task with respect to writing). The question I’m most interested in is whether these general best practices for writing translate into good practices for legal scholars, and/or whether there are other techniques folks have found helpful.
All this follows after the break.
How Would a Disputed Presidential Election Proceed?
It is the scenario virtually no one wants to face: a presidential election that goes into overtime. Yet over the past week I have received a steady stream of questions on how a post-election dispute would proceed. Each of the fifty states has its own, detailed procedure for resolving an election contest over its presidential electors (or any other election).
As I write in a new piece for CNN:
As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.
Sunday, November 06, 2016
Faithless electors: what happens if they matter?
I just wrote on this over at the Election Law @ Moritz website. I very much welcome additional thoughts and ideas on this issue from the other Election Law guest bloggers (and others).
Given the recent news from Washington State, and the previous news from Georgia, and the historically high unpopularity of both presidential candidates, it seems as if this really could be the year of the faithless elector--at least at levels we haven't seen before, and potentially litigation over the issue that pushes the legal and constitutional issues beyond Ray v. Blair.
How Voter Intimidation, in a State with a Strict Voter ID Law (Texas), Happens on the Ground
A Facebook post from a woman in College Station, Texas is going viral regarding her experiences voting under Texas's strict voter ID law. Earlier this year a federal court expanded the law to allow voters who show a "reasonable impediment" to having the required ID fill out an affidavit and then vote. Here is how this person described her experience invoking that rule:
As I’m writing this down, what happened doesn’t sound as bad as it felt at the time; but I felt threatened and I still feel very upset and I want to share my story. This morning, I excitedly took the bus to my university polling center to cast my vote. I was armed with my Utah driver’s license, ready to sign a declaration stating my reasons for not having a Texas ID. I was met by a kind older woman, who asked to see my ID, and then asked to see my supporting document (my utility bill). In comes our guy, let’s call him Jim, “Excuse me, you must have an acceptable photo ID.” I explained that I looked up the rules, and that I brought with me two forms of ID. Jim, “Do you have a passport?” I said I did not. Jim, “Well why not? Are you registered to vote in this county?” Yes, sir, I am. Jim, “Well if you were able to register to vote you should have one of the acceptable forms.” He was being extremely rude and physically in my face. Unfortunately, as a minority female, it’s not the first time an older white man has attempted to patronize or intimidate me. The girl behind me leaned forward and whispered, “He did the same thing to me yesterday, and wouldn’t let me vote.” I decided to just be nice about it and say, “Jim, I’m just here to vote. Please don’t make me cry,” because at this point the adrenaline was flowing a bit and I was on the verge of tears. “Well you’ll need to sign an affidavit.” As he walked me over to the table of forms, he felt the need to say, “You know there’s lot of people are coming in here trying to vote illegally… a federal judge made an exception for this election allowing some people to vote…” And I was so upset at this point, I said, “I’m sorry sir, but I don’t really need to hear your opinions this morning. I just need your help voting.” How many people have been intimidated by this guy, and left without voting? I almost left in tears and if I do say so myself, I’m not easily intimidated. He stood over my shoulder and watched me check the boxes “work schedule” and “family responsibilities” because the man doesn’t know me, he doesn’t know my life, and it’s not up to him to decide who gets to vote. His job is to give me the form and watch me sign it. Then I voted. I got my sticker. Then I turned around and said, “What was your name again?” He said, “Jim.” I said, “No, your full name.” He looked surprised and told me his full name. He knows I’m filing a complaint and so does everyone in that room. The woman behind the desk winked at me.
Those who follow politics may be tempted to think that because I live in Texas, which is not a toss-up state, a few voters turned away by this guy won’t make a big difference. I think it makes a huge difference. Whether it’s because I’m a woman, because I’m brown, because I’ve never needed a passport because I don’t have the money to travel, because I haven’t found the time to get a Texas DL (because, you know, I’m only a wife, mother, and graduate student) or just because I’m from Oregon and not Texas, my vote counts. And like it or not, Texas is getting browner. And one day some people might wake up to find themselves in a new political climate of all kinds of diversity. That’s the America I believe in.
For reference: If you do not possess a form of acceptable photo identification and you cannot obtain one due to a reasonable impediment, you may present one of the supporting forms of identification and execute a Reasonable Impediment Declaration. “Your reason may not be questioned.” www.votetexas.gov
Yes, this stuff actually matters on the ground to individual voters.
Voters in Line When Polls Close Get to Vote
It’s one of the most basic principles of electoral democracy: if you go to the polls when they are open, and you are a registered and qualified voter, then as long as you wait in line, you are entitled to cast your ballot even if the line is so long that you must wait until after the scheduled time for the polls to close.
Nevada, like other states, has a law specifically on this point. It’s Nevada Revised Statutes (N.R.S.) § 293.305, and it says:
If at the hour of closing the polls there are any registered voters waiting to vote, the doors of the polling place must be closed after all such voters have been admitted to the polling place. Voting must continue until those voters have voted.
Thus, when on Friday the lines for early voting in Nevada were so long as to require keeping the polls open until after the scheduled closing hour, voting continued—as required by this law—until all those waiting in line at closing time were able to cast their ballots.
There was no need for a court order. Or a directive from the Secretary of State or other election official. It wasn’t optional or discretionary. It happened automatically, by force of this statutory requirement. If it hadn’t happened, it would have been a violation of the law—as well as the underlying elementary principle that the statutory requirement protects.
That’s why it’s so troubling to hear a major-party presidential candidate assert that “it’s a rigged system” because this statutory requirement was followed as it must be.
To be sure, the candidate prefaced his “rigged system” assertion with the statement: “It’s being reported that certain key Democratic polling locations in Clark County were kept open for hours and hours beyond closing time to bus and bring Democratic voters in.” If it were indeed true that the polls were staying open “to bus” in extra voters who had not been waiting in line at closing time, that would be a violation of the same state law. But I’ve searched for news reports of any such busing in of extra voters, or indeed any casting of ballots by voters other than those already waiting in line, and I haven’t been able to find a single such report.
Moreover, it seems highly unlikely that this kind of busing in of late extra voters could occur. Nevada also has an administrative rule designed to enforce the statutory requirement in a way that prevents the casting of a ballot by any extra voter who wasn’t already standing in line at the closing hour. This administrative rule is Nevada Administrative Code § 293.247, and it provides:
After determining who is the last person waiting to vote at the time that the polls close, a member of the election board shall:
(a) Place a sticker or other distinguishing mark on the last person waiting in line to vote; or
(b) If the last person waiting to vote does not want a sticker or other distinguishing mark placed on him or her, physically stand behind the last person waiting in line to vote, to ensure that no other person enters the polling place to vote.
In other words, absolutely no one gets to vote after “the last person waiting to vote at the time the polls close,” and Nevada law has specific mechanisms to make sure no one gets to sneak by in violation of this prohibition. Either the sticker or a person identifies the last eligible voter waiting in line. In my search for news stories on what happened at the end of early voting in Nevada this year, I came across no account suggesting that this provision of the Nevada Administrative Code was violated or not enforced. On the contrary, one news story quotes the relevant Nevada elections authority saying that the well-established procedures were followed as required: “As we do throughout early voting and have done for many years, if the early voting site is scheduled to close at a certain time and there is still a line, obviously we continue to process those votes.”
There have been many troubling and unprecedented developments in this year’s presidential election. Yet, in my judgment, this episode marks another line being crossed—and a particularly troubling one. A major-party candidate for the highest office in our nation’s democracy should not condemn it when the voting process properly adheres to one of its most basic democratic principles: registered voters who arrive at the polls while they are still open are entitled to cast ballots even if they must wait until after the scheduled time for the polls to close. To suggest that adherence to this principle, and to the legal obligation that protects it, amounts to a “rigged system” is to demonstrate a lack of understanding what the very essence of democracy is all about.
Saturday, November 05, 2016
VAPs and Fellowships: Open Thread, 2016-2017
On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow). Here is last year's thread.
You may also add information to the spreadsheet.
Originally posted November 5, 2016.
Harm Versus Hurt
Recent events prompt the question of whether what we are seeing in the university setting—in terms of swift and strict sanctioning of certain speech and action—is a conflation of hurt and harm. If so, would this be a departure from the university’s previous focus on harm?
Maybe it’s because I have con law on the brain after spending the day at the Loyola Chicago constitutional law colloquium, but I can immediately imagine the justifications for strict and immediate sanctions in response to harm, going back to Mill’s Harm Principle and fast forwarding to the justification of state intervention in an American family based on harm to a child. I wonder what the analog framework is for strict and immediate sanctions in response to hurt, especially in lieu of an old-fashioned apology. Admittedly, Mill preempts me here a bit by his discussion of “offense,” which I would call hurt.
I suppose the threshold question is whether hurt and harm are different. I would say yes: It is possible to hurt someone with a critique of her work, but ultimately to benefit her. I do not see how it is possible to harm someone, but ultimately benefit her. So then, should we sanction each differently?
The problem for me, additionally, is how to draw the line between harm and hurt in the academic context in particular. This question divides us, making strong university sanctions seem jarring to some folks, but not to others. Until we reach more of a consensus, it seems like university responses to disapproved conduct and speech will have to be ad hoc and, thus, controversial.
Friday, November 04, 2016
Upstream, downstream, and dry markets
Paul's post on ballot-selfie laws offers a good framework and illustration of what states are trying to accomplish with these prohibitions. And, as he argues, the justifications are real. But Paul's explanation reveals why First Amendment challenges are succeeding--the laws are based on a "dry-the-market" rationale, prohibiting expressive behavior to eliminate undesirable upstream or downstream behavior leading to or following from the speech. So as Paul explains it: Prohibiting photographs of the completed ballot dries the market for those who might attempt to coerce people to vote a certain way and to demand proof that they did so--if the voter cannot take the photo, then no one can demand photographic proof, while the option to photograph makes it possible to demand that proof.
But courts are generally hostile to dry-the-market laws, at least when regulating categories of protected speech. So, for example, the Court refused to allow punishment of the production and sale of dog-fighting videos in order to dry the downstream market for such videos and thus dry the upstream market for the depicted behavior. Similarly, the Court refused to punish publication of a a recording lawfully obtained by a publisher to deter unlawful interception upstream. So here, the courts will say that government can and should prohibit downstream coercion and demands for proof of votes, but it cannot prohibit the upstream expression of taking the photo.
Locker room talk
One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.
All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).
Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.
[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.
Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.