Tuesday, January 03, 2017
A response to Heather Gerken: Why the politics of tolerant pluralism need the legal institutions of federalism
Heather Gerken has a characteristically thoughtful response to my post on the “federalism insurance premium.” Heather agrees with me that willingness of the party in power decentralize controversial issues is weakened by each side’s intolerance toward ideological disagreement. She also agrees that more tolerance would be a good thing: When Democrats hold the Presidency, they should allow Red states more latitude to adopt conservative policies, and vice versa.
Heather disagrees with me, however, about whether constitutional conventions and institutions of federalism are relevant solutions to this problem. In her words,
“… the give-and-take has more to do with politics than institutions. Put differently, it’s not federalism that matters here, but pluralism. And a pluralist system only flourishes when both sides are willing to live and let live…”
The core of our disagreement is, in short, about whether and how legal institutions promote pluralist politics. After the jump, I will explain why I think that Heather is mistaken to contrast institutions and politics as if they are distinct mechanisms for promoting pluralism. As I have argued in yet another post, politics depends on – indeed, are defined by – legal institutions. Saying that achieving pluralism is rooted in politics, not institutions is like saying that scoring touchdowns is rooted in athletic ability, not the rules of football. Of course, the sort of athletic ability needed to score a touchdown depends on the rules of football. Likewise, the particular sort of politics needed to entrench a convention of decentralization depends on legal institutions. Even tolerant voters and politicians need some assurance that their tolerance will be reciprocated by their rivals before surrendering their cherished policy priorities for the sake of allowing the rivals to impose dissenting subnational policies. Without some credible commitment of reciprocity, such tolerance brands the politician who practices it as a chump, not a pluralist.
Legal institutions allow such politicians to make such credible commitments such that they can be assured that their forbearing to centralize power when they control the presidency will later be rewarded by their rival's similar forbearance. To see this relationship between legal institutions and political pluralism, however, it helps to focus on a specific example.
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
How Gilbert & Sullivan’s Mikado can survive and thrive in our era of ethnic grievances
Is Gilbert & Sullivan’s Mikado a racist “yellow face” caricature of Japanese culture? A spate of recent criticisms of Mikado productions have denounced the operetta in these terms, resulting the cancellation of a NYC production in 2015.
There is, however, a delicious irony to these attacks on Mikado: In criticizing the comedy as an illicit British appropriation of Japanese culture, the criticism overlooks the fact that William Gilbert was actually making fun of Victorian England’s appropriation of Japanese culture. After the jump, my defense of Gilbert’s masterpiece (and, in particular, an especially outstanding current NYC production thereof). More generally, I offer a few thoughts on how Gilbert’s jibe at Victorian England’s “Japonism” illustrates a certain similarity between conservative criticisms of “political correctness” and Left attacks on “cultural appropriation.”
Goodyear v. Haeger argument preview
At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.
The AALS Annual Meeting: A Partial Defense and Some Mild Reform Proposals--Part I: "Why Law Matters?!?"
The AALS annual meeting starts today in San Francisco. You can find a full program here. That makes it an ideal time to propose some changes or reforms to that meeting. I have several suggestions and will make them in several posts. The second suggestion, which will follow in a subsequent post today or tomorrow, is my personal favorite. But I start with both a general defense of the AALS annual meeting and a general critique of the tendency of the AALS to defend law schools, which I think moves it too close to a trade association or lobby (more on lobbies, of a different sort, in my next post) and too far away from what ought to be its role: that of a learned society.
I expand on this point at my usual painstaking and/or tedious length below. But I will summarize it here, both for tl;dr purposes and in case you're hurrying into a program meeting. The long and short of it is this: The AALS, as a learned society, should discuss and examine, but not defend or (possibly) take a position on the status quo in legal education. That job is outside its proper role. And it should certainly have avoided or rephrased its conference theme this year, "Why Law Matters." That is not really a question at all, and at best is not the right question. And it goes too far toward assuming the answer.
At the outset, to place this and the following posts in context, let me say that I am not generally hostile to the AALS and that I am generally inclined to defend it. I know that a large number of non-law-prof Internet commenters are ill-disposed to the AALS and its annual meeting. Those commenters may be unaware that a fair number of law professors are themselves hostile to the AALS, the annual meeting, or both. Other law profs are not opposed to the organization or its annual meeting but, for various reasons, make a point of skipping it every year. I am not attending this year, but it has to do with my own schedule, not with any judgment of the event itself, this year or in general. My credentials for criticizing without scorning the AALS, and my general views on the organization and its annual meeting, are something like the following. I have attended the annual conference almost every year since I began law teaching. I have been the section head or co-head of at least two sections and served on section executives almost every year, and hope to continue doing so. I serve on an AALS Standing Committee, though I must confess, with sincere apologies and the usual pathetic nod to my various surgeries and so on, that I was a poor committee member this year. As with my involvement in individual sections, I hope to remain involved in the central organization itself. I come neither to praise the AALS nor to bury it.
Learned societies are common features of the academy and its individual disciplines, and should be. As I've written here before, I have doubts about the direction those societies are taking. Specifically, I am concerned about their increasing tendency to take explicitly political stands, justified by dubious arguments about the relationship between some academic discipline and political duty or change, or about the supposed insight that membership in some academic discipline gives one on various issues. I tend to believe that academics who share my doubts should not boycott their respective learned societies, but remain actively involved in them while opposing those tendencies. Similarly, those who question the value of a particular learned society ought to remain inside it and strive to make it better, rather than dismissing it altogether. As for the AALS annual meeting itself, I understand the arguments that the meeting is too varied and its section programs too weak, and that one is better off attending a subject-specific conference than a general gathering like this one. But I still find sufficient value in various section meetings, workshops, and so on, as well as the general value of participating in the overall affairs of legal education and its learned society, to justify attending. And I think the criticisms of the quality of the section programs, while not ungrounded, are exaggerated. In any event, if you think the programs are not good enough, you should stay involved and work to improve them. It's true that, in general, I'm not a joiner. But in this case, any criticisms or suggestions I offer here are of the "inside-the-tent" variety. I will also note respectfully that one of our perma-Prawfs, Dan Rodriguez, is a past president of the AALS. He did an excellent job of discharging his duties, and has been an effective defender of the AALS. He, better than I, can speak both to its virtues and to the challenges and tensions it faces and, perhaps, the difficulty of making some of the changes I suggest in this and subsequent posts.
Although I am happy to defend the AALS and its annual meeting in general, there are some changes I would love to see. In this first post, after the jump, I make a general point about the role of learned societies, which I apply specifically and critically to this year's questionable conference theme, "Why Law Matters."
Monday, January 02, 2017
Why We Need to Talk about Trump & Press Freedom
On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.
RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration.
First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated Saturday Night Live, the New York Times, and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him. Shortly after the election, he called television news anchors and executives to Trump Tower to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December. Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one.
Sunday, January 01, 2017
Ode to a District Judge
The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.
[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.
A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.
Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.
Rotations and 2017
Happy New Year and welcome to 2017 and a new slate of Prawfs visitors. This month, we welcome (back) Eric Chiappinelli (Texas Tech), Ann Marie Marciarille (UMKC), and Seema Mohapatra (Barry). And thanks to our December visitors.
We were pleased that Prawfs made the most recent ABA Blawg 100. For 2017, we are going to try some new things on the blog, including some month-long symposia on scholarship, real-world events, and whatever else strikes us. And we will continue with our slate of regular and guest bloggers. As always, we are looking for new and returning voices, so please email me if you would like to spend a month (or months) in the conversation here during the coming year.
Finally, reminder about the continuation of a Prawfs tradition with a MarkelFest! Happy Hour at AALS at 9 p.m. this Wednesday, January 4, at Romper Room; they were nice enough to give us the private Leopard Lounge (I report, I don't name), so please help us make it a good showing.
Political Decentralization versus Libertarianism: Should libertarian federalists try to preempt Seattle's collective bargaining law?
Last week, the City of Seattle released its rules implementing a controversial local law enacted last June by City Council protecting the right of drivers working with ride-sharing apps like Uber and Lyft to unionize. The Seattle measure protects the right of for-hire drivers who enter into contracts with ride-sharing mobile apps to organize collective bargaining units and negotiate collective bargaining agreements with the apps. Seattle’s law, however, by its terms covers only those drivers who are exempt from the NLRB’s jurisdiction because they are “independent contractors” (“ICs”) under federal labor law. The local law, in short, applies only where the federal law does not apply: It is precisely this absence of federal oversight that has inspired local labor activists to press for passage of the local laws.
It did not take long for the U.S. Chamber of Commerce to file a lawsuit seeking to enjoin the new law on the ground that Seattle’s law was preempted by either federal labor law or antitrust law. That lawsuit presents a tough dilemma for law profs like myself who are fond of both libertarian policies and regulatory decentralization. If we stand up for city power, then we also potentially undermine the new ride-sharing platforms that have beneficially deregulated the for-hire market. So which are we, really? Political decentralizers? Or libertarians?
After the jump, I will explain why I opt for federalism over deregulation in this case. As with the conflict between local home rule and market freedom, the conflict between federalism and free-markets is best resolved by preferring policy-making options for subnational governments, because those governments provide the best opportunity for each faction, Left and Right, to have a fair opportunity to lobby for their preferred outcome. Only a decision by an elected body open to all comers can achieve that buy-in. Rather than launch a semi-coup using preemption and federal courts, we libertarians need to slow-cook a consensus, using the tools of local democracy and accepting halfway measures, compromises, and (hopefully temporary) defeats that those tools require.
Saturday, December 31, 2016
Will SCOTUS Finally Pick Up the PACER?
"At a time when almost every other federal court has a readily accessible electronic database, why can’t the Supreme Court?"
That was how I ended a post from August 2014. By then, it was already long past time for the Supreme Court to develop something like the PACER electronic docket system that has operated for many years in the lower federal courts.
Friday, December 30, 2016
Two Cheers for old Hickory: How Trump’s revival of Andrew Jackson’s patriarchal politics protects us from white nationalism
Numerous commentators have noted the psychological parallels between the individual personalities and collective followers of Donald Trump and Andrew Jackson. As individuals, both Trump and Jackson shared grandiose narcissism, unhinged anger at personal slights, and love of violence. Trump’s supporters likewise strongly resemble Jackson’s base in their geography and apparent motivation. Both groups hailed from more rural areas of the West and South and seemed motivated by resentment toward bankers and cultural elites perceived to dominate in the nation’s Eastern seaboard centers of education (Boston) and finance (New York City and Philadelphia). The authoritarian beliefs of Trump’s supporters matches the authoritarian personality of their standard bearer. As Herrington and Weiler show, Trumpistas favor “Daddy style” politics – “spanking” rather than “time out” in their memorable phrase – in which a macho leader protects the nation from treasonous insiders (“Crooked Hilary”) and dangerous outsiders. Likewise, Rebecca Edwards has shown how nineteenth century Democrats favored a politics of patriarchy, scorning Whigs and Republicans as effeminate meddlers bent on interfering with the father’s prerogatives to run his household as he pleased.
Should Trump’s opponents be sanguine or scared about the parallels between Old Hickory and Trump? Guided only by the Whigs’ predictions about Jackson’s likely behavior in office, the Jacksonian precedent should give Trump’s opponents plenty to worry about: The Whigs’ alarm sounds almost identical to today’s anxiety about the impending Trump Presidency. Like Trump, Jackson was branded by his enemies as an illiterate, impulsive, thin-skinned would-be tyrant. Jackson did not merely issue authoritarian tweets but actually acted on his authoritarian impulses, arresting a federal judge in New Orleans during his self-proclaimed regime of martial law and hanging British nationals during the Seminole War against the recommendations of his own officers. Henry Clay named his party the "Whigs" precisely to highlight "King Andrew's" allegedly despotic tendencies.
If one looks at the track record of Jacksonian democracy, however, there is reason for Trump’s opponents to take just a little heart. While embracing the same sort of macho rhetoric shared by Trump’s supporters, Jacksonian Democrats actually practiced a libertarian politics extremely friendly to Irish Catholics, the most despised of immigrant groups in the 1840s. Indeed, Jackson’s followers made rejection of Whig and American Party nativism a central plank of the Democratic Party. Moreover, nineteenth century Democrats made protection of personal liberty their Party’s slogan, fighting off efforts to abolish Catholic schools, prohibit the consumption of alcohol, or ban the teaching of the German language.
After the jump, I will suggest that the libertarian and immigrant-friendly tendencies of the Jacksonians were not mere coincidences but had a paradoxical connection to their patriarchal and authoritarian ideology. To summarize, macho patriarchy in America tends to be self-defeating, at least as a path to authoritarian domination. That self-defeating tendency was a boon to nineteenth century democracy, and it might also save us today from any European-style fascism rooted in white identity.
Sponsored Post: Experiencing Trusts and Estates
We’re delighted to have the chance to talk about a casebook that we have forthcoming from West Academic in its Experiencing Series. The key idea behind the books in the Experiencing Series is to incorporate more experiential lessons than the typical casebook. While seemingly all casebooks are making that move these days, trusts and estates lends itself to this approach in particular. We are building on the really terrific teaching materials that have been out for decades now in trusts and estates by keeping many of the well-known cases and building out more documents and some of the key issues that students who will be in small firms will likely face on a regular basis.
We start Experiencing Trusts and Estates with planning for the physical act of death -- that is, planning for durable powers for attorney for health care and for financial matters. We introduce right up front those very basic documents, and the statutes that govern them, to give students a sense of what those documents look like, how they can prepare them using statutory precedents, and some of the problems that attend (particularly) durable powers of attorney for financial matters. Then we introduce the basics of the estate and gift tax regime and the basics of the probate process. All this material gives students a 360-degree view of the field and gets them ready for lessons in the drafting and execution of wills and trusts. Our focus is to introduce students to planning documents and to see how those documents (like spendthrift trusts) are written and interpreted. One of our hopes is that this approach prepares students with the vocabulary and the basic understanding of how documents relate to the more esoteric wills and trust doctrines that they’re learning about. And to make things a little more entertaining, we draw a lot of examples from “wills of the stars” -- from George Washington to Elvis, Michael Jackson, Katherine Hepburn, and Whitney Houston. Experiencing Trusts and Estates will be published this spring and available for fall 2017 classes.
Thursday, December 29, 2016
Streamlining Your Twitter Routine
Twitter can be an epic timesuck, but it doesn't need to be. Here are some tips to make the most of it, for both creating content and consuming it.
For creating content and tracking activity, consider these suggestions:
- Use a scheduling tool. This is my single biggest trick for keeping active on Twitter: I use Buffer. Buffer, like Hootsuite and others, is a scheduling tool that lets you schedule tweets to post at a later date and time (and on multiple social media platforms and profiles). You can also use Buffer plugins that work directly in the apps or websites you are using. My routine includes reading relevant stories on Feedly (which aggregates multiple legal news sources and tech blogs), composing tweets with links to interesting content, and using Buffer to schedule tweets throughout the day rather than tweeting them all at once.
- Tweet a lot at once. If you have a lot to say on one topic, it's okay to occasionally do a series of tweets in short succession (called a tweetstorm, because why not). This article helps explain the mechanics of tweetstorming, and has links to apps that help. Using tweetstorms too often may be spammy, but it can be a good way to focus your energy on tweeting more detailed content in one big burst.
- Set up alerts. You should pay attention to retweets and replies to your tweets, but it can be distracting to always have Twitter open. Instead, set up email notifications or push notifications on your phone. That way, you can respond to replies and monitor activity as needed without being lured to your always-open Twitter tab. Conversely, if you get a lot of activity on Twitter and it's a distraction, disable alerts and instead set aside specific time frames to check your account.
- Don't obsess about follower counts. I don't have a ton of followers, but it's the quality not quantity that matters to me. It takes consistent tweeting and interacting with others to create a meaningful base of followers. You'll frequently gain and lose random followers who have nothing to do with your subject areas -- it may just be someone looking to get followed back (because they, unlike me, are focused on quantity). And occasionally a tweet will make your follower count dip a little immediately afterwards (leaving you to wonder if it was something you said?). For sanity's sake, tune out and pay less attention to the real-time ups and downs of your follower count.
- Check Twitter analytics. It can be frustrating to feel like no one reads your stuff, which seems like a common lament for law professors generally. But Twitter gives you analytics to help gauge the impact of your tweets (such as total impressions, mentions, retweets, and changes to your follower count over time). You can get a lot of info from Twitter analytics from the web version and more limited tweet activity stats in the mobile app. Social media management tools like Buffer also give you analytics. Of course, focusing too much on these metrics can be a timesuck of its own, but it's fun and, if you notice some content always falls flat, you can readjust.
- Accept that your activity will ebb and flow. Resolve to tweet more but certainly prioritize other work and scale back as needed. Consistency may be important but going silent for a stretch of time won't necessarily torpedo your efforts. Don't give up just because you took a hiatus.
For consuming content, Twitter moves fast and you will always miss some updates. Accepting this fact is the key to avoiding frustration, but there are ways to tailor what you see and decrease clutter. Twitter "lists" are the main tool, along with using special apps.
Give us your huddled victims of flying scales
In the category of things I should have known but just learned: Justice Cardozo and Emma Lazarus were first cousins. Esther Nathan and Rebecca Nathan were sisters, Esther older by nine years. Esther married Moses Lazarus and begat Emma; Rebecca married Albert Cardozo and begat Benjamin. That piece of the family tree (from a family tree of the earliest Jewish families in America at the National Museum of American Jewish History) is here (forgive it turning sideways).
Wednesday, December 28, 2016
Tips for Tweeting (Including New 2016 Features)
I've put together some tips for tweeting, which may be useful for those who are new to Twitter or who don't tweet much. And for more experienced users, I've included info on some of the 2016 changes to Twitter.
Twitter's most distinctive trait is its 140-character limit for all tweets. This format cuts down on text and allows for a quick view of a lot of content. The 2016 improvements to Twitter largely altered what counts towards the character limit (Twitter toyed with the idea of allowing much longer posts but changed course following backlash).
First, as to content, in 2015 Michael Risch at Faculty Lounge analyzed what law professors tweet, among other data. In general, law professors include a combination of links to new content, retweets of others' content, or statements without links that may be informational (or for purposes of self-promotion). Certainly various content options are possible, and it's best to strive to tweet about a combination of the following:
- Substantive content. Pick a theme, such as your area of scholarly expertise, and focus on tweeting about things you find interesting on that theme.
- Interactions with others. Retweet people, reply (always politely) to things others say on Twitter, and mention people.
- Law school promotion. Retweet official announcements from your law school, your colleagues' tweets, and positive press.
- Self-promotion. Announce new publications, speaking engagements, and accolades. Retweet press about you or tweets that mention you. Live-tweet from events, as long as the event organizers or presenters allow it.
- Other hobbies or interests. Sprinkle in the occasional personal detail or point of interest that goes beyond your academic pursuits. Don't overshare or adopt some fake online persona, but don't be afraid to show a little personality.
Second, understand some of the nuances of how Twitter works:
Northwestern Law Review exclusive submissions
Northwestern University Law Review has instituted a system of exclusive submissions for the upcoming cycle. Authors can submit exclusively until January 28 and will receive a response by February 17. It is a good way to get a jump on the submissions cycle. Full details on submissions here.
Tuesday, December 27, 2016
New Year's Resolution: Tweet More
I doubt "spend more time on social media" is a top New Year's resolution for many, unless it's to combine Facebook time-sucks with a treadmill. But in 2017, it may be worth striving to use social media more for professional purposes. And for academics, Twitter is the place to be.
Before this past election, Twitter's relevance may not have seemed obvious. Now, with Trump's tweets making news on an almost daily basis, it's a hard platform to ignore. Back in April, Chris Walker posted on PrawfsBlawg about the benefits of Twitter for academics, and I tend to agree that Twitter is a worthwhile endeavor. I was discouraged from maintaining my professional Twitter feed in 2013 when I was a fellow preparing to go on the market, mainly out of the legitimate concern of not being taken seriously as an aspiring professor. Focusing on long-form scholarship and serious academic inquiry is of course the main focus, though in my view not inconsistent with tweeting (the debate rages on, however). I stuck to Twitter because, without it, I was missing out on important law & tech updates. Frankly, the scholars I cite in law review articles use Twitter to discuss their work and share ideas. I've learned through Twitter about calls for papers, articles posted to SSRN, and important tech developments. I may have learned these things on other platforms eventually, but I peruse Twitter during free moments and catch quick updates that otherwise may slip through the cracks in an email or other announcement. And Twitter can be fun -- from following live tweets of major events like the Super Bowl or premiere of Sharknado to nerding out when someone you admire retweets you. Fortunately, my colleagues at Toledo Law have embraced Twitter as well, or at least recognize its benefits for increasing law school visibility for scholars, students, and prospective students.
I don't intend to rehash the debate over Twitter's utility, but instead want to post some concrete tips for first-timers and power users, including how Twitter works, what to tweet, and tools to streamline your Twitter routine. Staying active on Twitter does take some effort (though substantially less than blogging, as I'm learning first-hand this month), but I am making it a goal for next year to keep active on Twitter. Today I'll get into the basics of setting up an account, and future posts will contain more advanced tips and tricks.
Sunday, December 25, 2016
How Federalism Saved Baby Jesus
There are plenty of reasons for a federalism-loving con law prof to like the Christmas stories in Luke and Matthew. Take, for instance, Joseph's returning to Bethlehem to be registered for taxation purposes: According to one strand of (albeit contested) Biblical scholarship, Luke was implicitly acknowledging a peculiarity of imperial fiscal policy whereby a taxpayer could choose to pay their taxes in either their place of current residence or their ancestral home where they owned real estate. In other words, the entire trek back to Bethlehem recorded by Luke 2:2 may have been an instance of taxpayer forum-shopping to reduce tax liability.
The much more important instance of federalism-based foot-voting in the Christmas story, of course, is the Flight to Egypt recorded in Matthew 2:13-23, in which the Holy Family flees from Judea to Egypt after being tipped that Herod the Great was seeking to exterminate potential political rivals -- including infants. Unlike the Roman tax system and the Census of Quirinius, which is a perennial topic of debate among Biblical scholars, the Roman Empire's system of asymmetrical federalism is well-documented. Different jurisdictions within the empire were governed by different legal regimes: Judea, for instance, was a client state in the process of being romanized by Herod the Great, while Egypt was an "Augustal prefect," meaning that the Emperor, not the Senate, appointed its chief executive.
The beauty of asymmetrical federalism from the point of view of imperial administration is that it allows the regime at the center to cut separate deals with different local elites based on their relative strength. But the advantage of such systems from the subject's point of view is that they magnify opportunities for foot-voting, because the administrative differences between the jurisdictions help insure that a single political regime will not control every unit. Herod the Great simply had no ties to the prefect of Egypt, because they were promoted through entirely different routes, so the Holy Family could flee confident that there would be no extradition back to Judea. (This interjurisdictional asymmetry between client states and imperial bureaucrats also featured in the Passion story of Luke 23:2, when Pontius Pilate sent Jesus to Herod the Great's son ostensibly enforcing a domicile-based theory of penal jurisdiction but really a buck-passing gesture akin to Pullman abstention, in my view).
In short, whether you are a believer or a skeptic, you can still enjoy the Christmas story as an example successful foot-voting in a federal regime. There is a lesson here for modern America, I think, as Year I of Trump Imperator looms. So have a merry federalism-loving Christmas!
Friday, December 23, 2016
Spoliation in the Age of Snapchat
According to Douglas Adams, a set of three rules "describe our reactions to technologies: 1. Anything that is in the world when you're born is normal and ordinary and is just a natural part of the way the world works. 2. Anything that's invented between when you're fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. 3. Anything invented after you're thirty-five is against the natural order of things." Rule 1 explains why I collect vinyl. Rule 2 describes my career trajectory. But I started to move into Rule 3 with Snapchat.
Both anecdotal evidence from my students and industry stats show that Snapchat is here to stay. I'll admit that the first time I tried to use Snapchat, my Discover page of news stories included Seventeen Prom and something about the Kardashians. This made me feel old and silly, and I waited another month or so before I actually began using it. And now I get it - Snapchat can be fun. It steers us away from polished highlights and instead is meant to capture little moments throughout the day from the account-holder's perspective (Snap Inc.'s plan to create camera glasses will further this trend). But the biggest thing is the sense of freedom it creates with the promise of disappearing content. Snapchat stands for less permanency and more spontaneity.
As Snapchat stakes its claims as a social media powerhouse, new legal issues arise in the litigation context.
Thursday, December 22, 2016
"The Spiritual Crisis of the Modern Economy"
I don't agree with everything in this piece by Victor Tan Chen, but I think it makes a number of plausible, challenging claims -- echoing, in places, things that Rusty Reno has been saying at First Things, that Murray, Putnam, and Vance have highlighted in their recent books, and that our own Paul Horwitz has blogged about. It is particularly worth a read, maybe -- as we're grading law-school exams, writing recommendation letters, etc. -- by those of us who are privileged/blessed to work in institutions that play such a large role in driving the competitive, exhausting meritocracy and in providing the credentials, merit-badges, and networks that are increasingly required for access to the upward mobility, social status, and the cognitive and other elites. Here's just a bit:
One possible answer . . . is the notion of grace—a stance that puts forward values that go beyond the “negatives” of the narrow secular creed and connect with individuals of diverse political viewpoints, including those hungry for more in the way of meaning than the meritocratic race affords. . . .
The concept of grace comes from the Christian teaching that everyone, not just the deserving, is saved by God’s grace. Grace in the broader sense that I (an agnostic) am using, however, can be both secular and religious. In the simplest terms, it is about refusing to divide the world into camps of deserving and undeserving, as those on both the right and left are wont to do. It rejects an obsession with excusing nothing, with measuring and judging the worth of people based on everything from a spotty résumé to an offensive comment.
. . . At the same time, grace reminds the well-educated and well-off to be less self-righteous and less hostile toward other people’s values. Without a doubt, opposing racism and other forms of bigotry is imperative. There are different ways to go about it, though, and ignorance shouldn’t be considered an irremediable sin. Yet many of the liberal, affluent, and college-educated too often reduce the beliefs of a significant segment of the population to a mash of evil and delusion. . . .
Really, though, the people who could learn from grace are the prosperous and college-educated, who often find it hard to empathize with those . . . who live outside their sunny, well-ordered worlds. When people are not so intent on blaming others for their sins—cultural and economic—they can deal more kindly with one another. Grace is a forgiving god.
Wednesday, December 21, 2016
Ahead and behind in the Merrick Garland debacle
Merrick Garland will not be on the Supreme Court. Garland has resumed participating in cases on the D.C. Circuit (for the past 240 days, he had only been performing his administrative chief-judge tasks) and is scheduled to sit on a panel in mid-January. Some still hold out hope that President Obama will surprise everyone and make a recess appointment on January 3. But as I wrote previously: 1) that is not Obama's style and 2) because the Republican Senate will not affirm the appointment, it would end at the close of the next session of Congress in December 2017, leaving Garland without a job (since he will have given up his D.C. Circuit seat) at only 65 years old, a deal I do not see him taking. We might add as a # 3 that if Obama did this, Congress could enact a law in January declaring the first session of the 115th Congress over immediately, thereby terminating Garland's recess appointment immediately.
For now, I want to consider who within or around the Court comes out ahead and who behind in this debacle.
Obviously, Garland is worst off, as he never will take a seat on the Court despite being as qualified as any recent nominee. The other person who is worse off is Justice Kagan, whose role on the Court has changed, perhaps for the whole of her tenure. She is now the best, most engaging writer on the Court. Given the opportunity to work with a liberal majority with Breyer or Garland as the Court's median, Kagan might have assumed the William Brennan role of the intellectual heart of the liberal majority, crafting doctrine and decisions to hold that majority together and perhaps even appeal to the rest of the Court more broadly. Particularly once Justice Ginsburg left the Court, Kagan might have been the intellectual center of a liberal Court.
The obvious person to come out ahead is whoever Donald Trump puts on the Court, who otherwise would not have gotten there. The other is Chief Justice Roberts. He avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions (the scramble to find an historical example of a Chief in that situation landed on Charles Evans Hughes during the New Deal, although he was not a consistent vote in favor of the validity of New Deal legislation). Or the alternative prospect of regularly moderating his own constitutional views to join the majority in order to retain the assignment power.
Prenups, Millenials, IP & Gender
Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations -- generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not -- to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD: From Status to Contract in IP, I warn that these developments can have negative effects on innovation as well as problematic distributional effects.
A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP -- films, songs, software, brands and apps - to the partner who plans to develop them. Today in the New York Times I write about this rising trend and in particular raise the question about potential gender inequities. Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.
Would love to hear your thoughts - comment here or in the comments section of the NYT.
[WITH UPDATE] Doubling Down AND Walking Back on "Abandoning Defensive Crouch Liberal Constitutionalism"
I figured it would not take long, between the election itself and Randy Barnett's slightly parodic (I think) recent counter-post, for Mark Tushnet to revisit his notorious Balkinization post on "abandoning defensive crouch liberal constitutionalism." My assumption was that he would (a) double down on his original post, (b) walk it back in various ways, or (c) do both. Yesterday he put up a post on the question. It is titled "Doubling Down (on 'The Culture Wars Are Over')." Despite the title, my reading is that he went with (c).
Yes, Mark writes that he will "double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." I think there is a pretty good basis for that claim. The election does not directly refute it, by any means. If the election results are read as a result of economic concerns, or of working-class populism, or of nativism, they can be read as irrelevant to the culture-war questions Mark focuses on and thus not refuting his argument. If they are also read as having do to in part with a combination of those concerns and the arguable failure of the Democratic nominee to run a sufficiently smart and locally responsive campaign, or the fair and/or unfair negative perception of the candidate, or the foolishness and complicity of the party apparatus in doing its best to install a longstanding establishment candidate and her machine rather than spend the last eight years building and encouraging new candidates, or some combination of these and other factors, some within and some beyond her control, then the election results are even weaker as a refutation of Mark's argument.
The best argument against a general and confident claim that "the culture wars are over, and that the liberals won," I think, has more to do with the general nature of culture wars, which counsels against hubris or premature declarations of victory. It may be that culture wars are more or less permanent features of the American landscape, that they subside or change focus but do not simply go away, and so cannot so easily be declared "won" or "lost." I think there is some truth to this point, but also that there are strong grounds for saying that on some issues there are long-standing, seemingly permanent changes in social views on some issues. On some of the issues that Mark picks out in implicitly defining what he means by the "culture wars," there is an excellent case that the "liberals" won on those issues. We should be specific in saying that these are liberal victories, not necessarily leftist or radical victories, and that some of those victories may involve or rely on some domestication of the issues under conflict or of the "victorious" position, as in the strategic shift over a couple of decades by the LGBT movement away from some issues and positions and toward a focus on the bourgeois institution of marriage, understood and depicted as such. Although I think something was lost by steering away from more radically "queer" positions and marginalizing queerer thinkers in favor of more powerful establishment types and their views, as a fairly bourgeois person myself I can't complain too much about this. In any event, there is no doubt that there have been real changes and genuine liberal victories on some important culture-war issues among those selected by Mark. (On others, I think the "victory" is less clear or stable than he suggests, and that some of his language implicitly concedes this possibility.)
So, on the one hand, he doubles down. On the other, I think there are also significant signs of walking back his argument. Here, the evidence is less what he does say, and more what he doesn't say and how he characterizes his earlier post. Consider that line again: "I'm going to double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." Given that Mark received deplorable hate mails in response to his post, I am happy to posit both that some readers (or, more likely, some readers of others writing about his post) indeed found that the most annoying point, and that he is arguing this in good faith, and with plentiful personal justification. But my take on both the original post and on much of the (public, polite) reaction to it is that for many, that was not the most annoying point of Mark's original post, nor its central or most important point. For those readers, what mattered most was not, say, the assertion that liberals had "won" on gay marriage, in a culture-war as well as a legal sense. Rather, it was the point that, after all, formed the title of the post: that liberals should "abandon [a] defensive crouch" and take a "hard line" in dealing with "the losers," complete with historical comparisons casting those "losers" in the role of the Axis powers in World War II and the Confederacy in the Civil War. [Note an update below the fold. I don't think it changes the general argument I make here, but it does add a cite to another post by Mark shortly after his initial one.]
Tuesday, December 20, 2016
A student-athlete tries the First Amendment
Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.
It could be worth following the First Amendment piece.
IRB-based Legal Research - the barriers
Thanks to Christine's thoughtful comment to my post about confidential academic informants, I was wondering what the barriers are to more IRB-approved legal research. It seems to me that there are 2 big ones: (1) the lack of methodological training for the vast bulk of legal scholars with regard to human subject research, and (2) the tenure review process. They both are certainly barriers to my own pursuit of such research, maybe especially the second one. As long as the tenure review process gives the same credit for law review articles that involve reading court opinions and other law review articles as it does for empirical legal research involving human subject observations and interviews and coding and interpreting data and everything else that goes along with IRB-approved research, there is a strongly reduced incentive for pre-tenure legal scholars to branch out into empirical legal research (which may be for the best, if no empirical work is better than deeply flawed empirical work).
Any other thoughts on why so few legal scholars pursue IRB-approved research?
Training wise, there are resources: there is an annual Conference on Empirical Legal Studies, and an annual Conducting Empirical Legal Workshop at WashU (which didn't happen last year?). For those who might be looking to make the plunge into empirical legal research, what other resources can you recommend?
How Madison’s Constitution (contrary to Eric Posner) constrains President Trump
With the Trump Administration looming a few weeks away, it is only fair to say a word in praise of Madison and his fellow constitutional designers. The risks of a Trumpian tyranny are, I think, radically reduced by the constitutional ground rules set in place in 1789. Praising Madisonian ground rules as a limit on the Presidency, however, seems naïve to Eric Posner. Eric dismisses separation of powers as “a flimsy constraint” and instead cites “political” and “bureaucratic” safeguards that make a Trump coup unlikely. If Trump is unpopular and nominates tyrannical agency chiefs, then Eric notes that the Senate will dig in its heels. If an unpopular Trump gives tyrannical orders, then Eric notes that bureaucrats will dig in their heels -- and the courts, emboldened by the polls, will back them up. According to Eric, all of this heel-digging is somehow unrelated to the Madisonian ground rules: The limits are all “political” rather than “constitutional.”
I tend to agree with Eric that dire predictions about the Trumpian threat to our constitutional order are overblown. But Eric’s distinction between “constitutional” and “political” constraints (a distinction also touted in Executive Unbound, his 2010 book co-authored with Adrian Vermeule) strikes me as confusing and unhelpful. The constitutional ground rules define the political constraints. Saying that politics rather than “separation of powers” constrains the President is like saying that athletic difficulty, not the rules of football, constrain quarterbacks from scoring touchdowns. In football, the athletic difficulty is defined by the rules of the game. (Quarterbacks, for instance, must run or pass ten yards, not one yard, to get a first down). Likewise, the political capital needed to appoint an agency chief or fire a recalcitrant bureaucrat is likewise a function of those constitutional ground rules that Posner dismisses as “flimsy.”
To belabor the obvious, President Trump needs Senate approval of his nominations only because the Constitution says so. A latter-day Caesar would simply bypass that pesky Article II constraint by directly appointing his lieutenants. Likewise, the bureaucrats can dig in their heels to demand adequate procedures and reasons for Trump’s proposed regulations only because (1) the Civil Service laws bar Trump from summarily firing recalcitrant bureaucrats, (2) Trump lacks any dispensing or legislative powers to set aside the Civil Service laws or decree new ones, and (3) the courts will enforce those civil service laws. Of course, (2) and (3) are purely constitutional constraints designed by Madison & Co.
So enough of this pointless distinction between politics and law as constraints on the Presidency. The latter plainly depends on the former (and vice versa), and, contrary to conventional wisdom, the former are alive and well – thank goodness for that!
The Social Networks Law Students Use
I've taught my Social Media Discovery seminar three times now, and each year I expect to be surprised by some new social media trend (will Kik come up? The now-struggling Yik Yak? GroupMe?). But two social networks consistently dominate among my students: Instagram and, even more so, ephemeral app Snapchat.
This anecdotal evidence lines up with industry trends. Stats show that most Instagram and Snapchat users are 24 and younger. And Snapchat recently surpassed Twitter with more daily users. Facebook, on the other hand, is attracting fewer young folks as its core audience is growing older.
From what I've gathered, many of my students tend to save Facebook for big life events or other safe-for-grandma posts. They may use messenger or check their news feeds regularly, but most of their social media interactions now happen on other platforms. Students also seem savvier about the digital footprint they are creating and how it may impact their career (though some are still shocked when we go over this chart of all the info Facebook compiles on us). Twitter still seems like a source of information for students, but only some tweet at all (whether public or private). Twitter, like Facebook, is not a top choice for communicating with others.
So why Instagram and Snapchat? Both are highly visual and emphasize pictures or video over text. Instagram has a clean and functional layout, with fun built-in tools for editing pictures. It allows comments and likes but its layout de-emphasizes these aspects. Snapchat's hook is its self-destruct model for content (stories disappear after a day; private messages within seconds). And it takes photo filters to a goofy extreme. Snapchat also does not allow visible likes and comments. Thus, while people can share stories broadly, Snapchat ultimately encourages private conversations that leave no trace (well, sorta--Snapchat has faced scrutiny for its privacy claims).
Realizing that Instagram and Snapchat take the lead for my students has motivated me to use more pictures and videos in class. And I am doing my best to accept that Snapchat -- and similar ephemeral apps -- are here to stay. This means my own research now includes some of the unique legal issues these apps pose (more on that later).
Baseline Hell and Sanctuary Cities: Can Trump deputize cities' cops to work for the feds against the cities' will?
There have been both cautionary warnings that Trump might deprive "sanctuary cities" of federal money and reassurance that NFIB v. Sebelius might curb "anti-sanctuary" conditions on "unrelated" federal funds. I have seen less discussion, however, of another question: Can Trump simply deputize law enforcement officers to assist the feds even if the city's leadership opposes their officers' assisting with immigration?
The question is not only of immediate practical interest but also implicates one of my favorite academic topics -- the problem of baseline hell. The question turns on the constitutional distinction between the feds' "commandeering" local governments' action (forbidden) and prohibiting local governments from interfering with federal law enforcement (allowed). The diabolically difficult baseline problem arises when the feds prohibit a local government from interfering wth that local governments' own officers' efforts to aid the feds. Does such a prohibition count as commandeering? As a "generally applicable law"? Or as mere federal preemption, a permissible order for local governments to stand aside?
After the jump, I will offer some thoughts about navigating this particular infernal neighborhood in baseline hell.
Monday, December 19, 2016
Donald Trump plans to maintain a private security detail as President on top of his secret service team. If recent history is any guide, this group will overstep and violate someone's right. So: Do members of the detail act under color of federal law for constitutional purposes and, relatedly, are they subject to Bivens liability? And, if so, are they entitled to qualified immunity?
As to the first: One possible test is traditional public function, as protecting the President has, since 1901, been the exclusive domain of the Secret Service. A second is close nexus, which may depend on how much connection and collaboration there is between the private detail and the Secret Service or other White House and executive-branch personnel. A third possibility may depend on who is paying this detail--Trump himself or the government. Trump paid for the force during the campaign, much of it from campaign contributions; no word on whether that arrangement will continue. The trickier part may be Minneci v. Pollard, which could be read to reject "extending" Bivens to private actors, especially where state tort remedies (here, e.g., for assault) are available. At some level, this raises a situation of under-color-by-necessity: It would be intolerable for the President to be able to surround himself with a private security/intelligence detail operating above constitutional limitations.
As to the second: Filarsky v. Delia held that a private person hired by the government to perform public functions can claim qualified immunity. From this, it might follow that these private security officers enjoy the same immunity as federal agents (although it again may depend on who is paying and supervising them).
Update: Keith Schiller, a retired NYC cop and Navy veteran who heads Trump's security detail, will be named a personal White House aide. So that should clarify things: Schiller, as a federal employee, acts under color. And his close direction of private security personnel should be sufficient to place them under color.
My USD colleague Mila Sohoni has a new article - Crackdowns - out in the Virginia Law Review. Crackdowns are administrative actions designed to increase enforcement in a particular area - such as taking a few weeks in which OSHA inspectors focus on janitorial services with surprise inspections. As someone who has studied the areas of enforcement and compliance - both top down command and control style, like crackdowns, and more collaborative new governance style private-public partnerships (The Renew Deal; New Governance as Regulatory Governance - and also - specifically on regulatory partnerships in the context of workplace regulation - Interlocking Regulatory and Industrial Relations; Beyond Experimentation), I find Mila's article very insightful in understanding the benefits as well as the risks of executive decisions to intensify traditional enforcement - including the risks of subverting democratic values and violating constitutional principles. The article is the winner of the AALS Section on Criminal Justice's Junior Scholar Award as well as Honorable Mention in the 2017 AALS Scholarly Papers Competition. Here is the abstract, download it while its hot:
The crackdown is the executive decision to intensify the severity of enforcement of existing laws or regulations as to a selected class of offenders or offenses. Each year, federal, state, and local prosecutors and agencies carry out thousands of crackdowns on everything from trespassing to insider trading to minimum-wage violations at nail salons. Despite crackdowns’ ubiquity, legal scholarship has devoted little attention to the crackdown and to the distinctive legal and policy challenges that crackdowns can pose.
This Article offers an examination and a critique of the crackdown as a tool of public law. The crackdown can be a benign and valuable law enforcement technique. But crackdowns can also stretch statutory authority to the breaking point, threaten to infringe on constitutional values, generate unjust or absurd results, and serve the venal interests of the law enforcer at the expense of the interests of the public. Surveying a spectrum of crackdowns from the criminal and administrative contexts, and from local, state, and federal law, this Article explores the many ways that crackdowns may quietly subvert democratic values.
The obvious challenge, then, is to discourage the implementation of pathological crackdowns, while also preserving the needed flexibility to enforce the law, within the context of a legal and political system that imposes sparse restraints on the crackdown choice. This Article locates a foundation for tackling this challenge in the requirement of “faithful” execution in Article II’s Take Care Clause and its cognate clauses in the state constitutions. The crackdown decision should be faithful — to statutory text and context, to the interests of the public, and to constitutional and rule-of-law values. By elaborating the content of this obligation, this Article supplies a novel normative framework for evaluating the crackdown — and a much-needed legal platform for governing it. Cutting sharply against the grain of modern law, this Article calls for a broad rethinking of the principles and constraints that should frame the Executive’s power to selectively and programmatically augment enforcement.
JOTWELL: Tidmarsh on Fitzpatrick and Norris on discovery costs
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Brian T. Fitzpatrick and Cameron T. Norris, One-Way Fee Shifting after Summary Judgment, discussing new and creative ways to reduce discovery costs and delays.
ABF Doctoral Fellowship and Visiting Scholars Program in Legal and Higher Education
Social science Ph.D. students and current faculty members who study legal or higher education may be interested in a new fellowship opportunity offered by the American Bar Foundation (ABF). In partnership with the Access Group Inc., the ABF will be supporting doctoral fellows and visiting scholars studying this important topic. The ABF is accepting applications for one-year doctoral fellowships and short-term visiting scholars who may be on a sabbatical or research leave. The goal of this program is to expand scholarship that contributes to an understanding of issues of access, affordability, or value in the field of legal or higher education by encouraging law and social science scholars to engage with this bourgeoning research field. While in residence at the ABF, visiting scholars will have the opportunity to conduct their research in an empirical and interdisciplinary research environment, and benefit from the academic and administrative resources of the ABF. (Click the hyperlinked text above for information on how to apply.)
Popular Constitutionalism and the Electoral College: How Popular Convention Trumps Text, Precedent, and Original Understanding in Real Constitutional Law
Today's deliberations of presidential electors provides a good excuse to muse about the role of post-enactment popular convention in determining the meaning of constitutional law. The laws of many states purport to pledge presidential electors to vote for the winner of their state's popular vote. So-called "Hamilton electors," purporting to vindicate Federalist #68's description of the electors' role, argue that these state laws are unconstitutional. Although a federal district judge rejected the Hamilton electors' petition for a preliminary injunction, the Tenth Circuit has given them a little hat tip, strongly suggesting that state laws purporting to replace disobedient electors with more compliant ones would be unconstitutional.
This arcane conflict suggests the degree to which the meaning of our real constitution is based not on conventional legal materials like text and original understanding but instead popular convention. Based on text, precedent, and original understanding, the Hamiltonians' argument seems strong. Article II, section 1, after all, gives state legislatures only the power to determine only the "manner" by which electors are selected, not how those electors should cast their own votes. U.S. Term Limits v. Thornton held that state legislatures' power to determine the "time, place, and manner" of congressional elections does not give those legislatures the power to dictate whether voters can vote for long-term incumbents. How can the same power over the "manner" of electors' selection enable state legislatures to dictate how such electors vote? This is not to say that state law does not try practically to bind the votes of electors. The so-called "Oregon system" of selecting Senators used in numerous states between 1908 and the ratification of the Seventeenth Amendment, for instance, attempted to use state legislators' pledge to pressure them into voting for the Senator who received the most votes in a popular primary. Even the proponents of the system, however, generally recognized that state law could not formally bind legislators. Instead, the Oregon System's proponents relied on the wrath of voters to punish at the polls faithless legislators who violated their pledge.
And yet, despite their good arguments based on text, precedent, and original understanding, I am inclined to think that the Hamilton electors ought to lose. The reason is that popular convention has changed the meaning of the electoral college. It is not merely that these state laws have been on the books for many decades. It is also that the mechanisms used by states to select electors have deprived these anomalous state officials of any popular mandate to deliberate about who should succeed to the presidency. Presidential electors are anonymous ciphers. Their names appear nowhere on any ballot: they are Party functionaries with no popular mandate beyond the support that their Party won at the polls. I suspect that, in the eyes of the electorate, electors' presuming to choose the President would be morally tantamount to a coup d'etat. Such an exercise of power would seem illegitimate, despite the tidy constitutional arguments that can be marshaled on behalf of independent deliberations by the "college."
What is one to make of good "legal" arguments sounding in text and legal precedent being trumped by popular convention? After the jump, I will suggest an analogy between the Hamilton electors' bid for independent deliberation and FDR's court-packing plan. In both cases, the formal law seemed to justify power exercised by one institution (Congress, the electoral college) over another (the composition of the Court, the selection of the President). In both cases, however, the formally legal power had been rendered obsolete by a new popular understanding of the institution's role.
Confidential Academic Informants
While prepping my new CrimPro class next semester, I was reviewing the materials on the use of informants to satisfy probable cause. It got me thinking about the academic use of informants. We all talk to folks who work directly and indirectly with the industries or agencies or whatever it is we write about, who we sometimes quote as sources of information. Some (few?) legal academics obtain IRB permission to interview and study human subjects. What I have in mind here is something a little different. I write about criminal justice, and have family members who are retired or current police officers. We occasionally talk at family gatherings about policing, and the things they say give me important information and insights relevant to the things I teach and write about (they know I write about law enforcement databases and interrogation and DNA collection, often in a manner that is critical of current practices, and they do not share my ultimate conclusions). None of those conversations, however, is "on the record", I can't drop a footnote that says "backyard conversation with my family member on Thanksgiving," and while we've never discussed this, I wouldn't betray the relationship and their trust by directly using anything they say in a blog post or a publication.
Are there ethical guidelines or rules that guide or govern these sorts of conversations with our family, friends, former classmates and colleagues?
Sunday, December 18, 2016
Message to Trump-anxious decentralizers: Is your federalism insurance premium paid up?
In a politico-legal ritual as timeless as the Gridiron Dinner, supporters of the Party that lost the Presidency are now discovering the virtues of federalism. Noah Feldman assures that "sanctuary cities" are safe from having their federal money yanked, because the Medicaid portion of NFIB v. Sebelius prohibits "coercive" conditions on federal grants. Jeff Rosen reminds us to take heart in Heather Gerken's "Progressive Federalism," in which national minorities can press ahead with state and local initiatives that would perish in a pigeonhole if suggested in the halls of Congress. The basic idea is that our constitution, with a small "c," contains norms about preserving decentralized political power that can serve as a firewall against Trump's excesses and foibles.
Far be it for me, a certified fan of federalism and decentralization, to look a gift horse in the mouth. If Trump's victory spurs my colleagues to endorse an institutional arrangement the benefits of which are timeless, that is a silver lining to a calamity, even if one suspects that the endorsing of federalism is a little bit opportunistic.
For the rhetoric of federalism to sound convincing, however, one needs to have paid up one's "federalism insurance premium." Otherwise, one's op-ed in favor of those labs o' democracy, those deciding dissenters, will sound (to quote Kurt Vonnegut) about as inspiring as the 1812 Overture played on a kazoo. What do I mean by "federalism insurance premium"? Think of a federal regime as an insurance policy, protecting the risk averse against loss of national power. When one's Party loses the commanding heights of the federal government, federalism insurance allows that Party to retreat into the provinces as a semi-loyal opposition, a shadow government waiting in the wings, advertising its virtues with Massachusetts Miracles and the Texas Way with Deregulated Housing and so forth.Like all insurance, however, the protection comes at a price: One must pay the "premium" of protecting subnational power when one controls the national government, tolerating subnational experiments that one regards as more Frankenstein than Brandeis.
So here is my question to all those new friends of federalism: Is your federalism insurance premium paid up? For instance, when the Obama Administration was forcing colleges and universities to adhere to federal procedural standards for sexual assault hearings contained in its "Dear Colleague" letter, did you stand up for those subnational institutions' right to resist coercive Title IX conditions on federal money? No? Then do not be surprised if your pro-federalism rhetoric about the immunity of sanctuary cities to "coercive" conditions falls a little flat.
We pay for constitutional insurance through self-control when we have power, not through rhetoric when we lose it. Through the exercise of self-control across different political regimes, each Party can slowly confer on institutional arrangements a permanence (sentimentalists would even say "sanctity") that survives change of regimes, sending a signal to their opponents that their self-control will be reciprocated when the tables are turned. The filibuster in the Senate is such a semi-permanent convention; Honored by both parties when the other was a minority who could use it to the incumbent Party's disadvantage, it has become entrenched by convention. Federalism, however, has never been favored by the Party in power long enough to make their pro-federalism protests convincing to their opponents (or even bystanders like myself) when they lose power. No one has paid their premium, so the insurance fund -- the emotional force of pro-federalism rhetoric -- is empty.
Saturday, December 17, 2016
What is Obama supposed to do?
Many on the left are angry with Obama for not doing more, or at least shouting more, about the dangers of the looming Donald Trump presidency. The prevailing view is that this is not the time for Obama's "everyone chill the fuck out--I got this" style.
But what, exactly, should he be doing? One of the limitations of the office is that the current office-holder must ensure the peaceful transfer of executive power--screaming about the threat Trump poses to the nation and the world (or at least some parts of it) is not an option for someone in that office.* Nothing Obama does now can stop a Trump presidency or limit the power that Trump will wield as President (a la North Carolina). Perhaps if he had a Democratic Senate, he could at least put Merrick Garland on the Supreme Court (of course, he had a Democratic Senate, Garland already would be on the Supreme Court).
[*] There are some holding out hope that Obama will do that when the current Senate unavoidably ends on January 3. Putting aside that it is never been Obama's style. Because such an appointment would expire in December 2017, it would require Garland to give up being a judge for one year on SCOTUS. At 64, I do not believe he would make that deal.
Obama's power runs out on January 20 and there is nothing he can do to change that fact. Perhaps he believes that reminding everyone (including Trump) that actual power tends to sober people up is his best move. And if he is wrong about that, there is nothing he can do about it on December 16. The interesting question is whether Obama takes on an active opposition role as an ex-President; that is generally not done, even across party lines, but perhaps this will be the extraordinary exception. As for what he is doing about Russian interference, I assume that is happening behind the scenes.
Many believe that the transition from election to inauguration of roughly ten weeks is too long. Usually the complaint is raised because it delays the new President coming in during times of crisis, leaving a lame duck who cannot (or should not be the one to try) to handle the crisis. These complaints prompted passage of the 20th Amendment, which took effect in early 1933 during one of the two most obvious illustrations of the problem. Similar concerns were raised in 2008-09, with the economy cratering in fall 2008. Perhaps we now are seeing the flipside of the problem of the long transition--when there is nothing we can do to stop what looks like it is going to be a problematic presidency, the long delay in starting that presidency only exacerbates the fear and speculation. Let's get on with seeing what is going to happen and what we actually can do to stop the worst of it.
Think of it as the political version of ripping the band-aid off.
How 'Bout 'Dem Cowboys!!! Legal Edition
Because of the incidents of domestic violence involving players, the NFL imposed stricter penalties on player misconduct. Last year I wrote about the NFL's legal authority for imposing such penalties. The NFL's investigation into allegations of domestic violence made by an ex-girlfriend against Dallas Cowboys running back Ezekiel Elliott in the midst of a playoff run once again highlights this issue of the order and formality of the Commissioner's authority under Article 46.
Therefore, I argued that the NFL should invert its process. The hearing by an impartial arbitrator should be the first step. The NFL Commissioner may then hear appeals from those decisions. This would strengthen the authority of the Commissioner. As opposed to being overturned and drawing criticism. It also provides the Commissioner with a written record of findings made by an arbitrator in which to base his own decision. The imposition of sanctions under the revised policy tracts these procedures.
Friday, December 16, 2016
And now Princeton swimming (Updates)
It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."
Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.
Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.
Sharing Economy Symposium
To wrap up this week's posts on sharing economy topics, I wanted to highlight an upcoming sharing economy symposium taking place in February 2017 and hosted by the University of Hawaii Law Review. I’m excited to be participating on a panel dealing with ridesharing services, where I'll focus on tort liability. Other participants include Erez Aloni of Whittier Law School, Nancy Leong of University of Denver Sturm College of Law, Timothy Burr, Jr., Senior Public Policy Manager of Lyft, and Christina Sandefur, Executive Vice President of the Goldwater Institute. Additional participants will be announced here.
Thursday, December 15, 2016
AirBnB as Online Intermediary?
Tuesday I posted about tort law and the sharing economy, and today I want to continue with the sharing economy theme by discussing an AirBnB lawsuit against San Francisco.
A city ordinance was passed requiring short-term rental hosts to register with the city. One of the provisions allows the city to fine AirBnB and similar platforms if unregistered hosts rent places through the site. AirBnB is challenging the law on numerous grounds, including under the First Amendment, Stored Communication Act, and the Communication Decency Act (CDA). It's the CDA issue that some cyberlaw scholars are watching closely.
Section 230 of the CDA creates immunity for online intermediaries against liability for the content others post. This immunity has allowed the internet as we know it to flourish as a marketplace of ideas and haven for free speech. Without it, websites would police content and censor heavily to mitigate their liability risk. But the CDA is over 20 years old and its use has clearly expanded beyond its original purpose, which really contemplated defamatory comments on news sites or similar circumstances.
Now, AirBnB is using CDA immunity to argue that the San Francisco ordinance violates federal law by holding AirBnB accountable for the actions of hosts. Essentially, AirBnB says it's just an online intermediary and it can't be on the hook for its users' illegal activity. While the CDA is meant to immunize online intermediaries for liability for the actions of its users, its provisions are not absolute. Some websites have lost arguments about CDA immunity because they helped create or develop content, rather than merely serve as a passive platform for it.
Wide Area Surveillance - "Google Earth with TiVo Capability"
Reports emerged this fall that the Baltimore Police Department had accepted private funding to secretly retain the services of Persistent Surveillance Systems and its wide area surveillance system to help it investigate crime. Persistent Surveillance Systems owns an airplane. On the belly of the plane is an array of cameras. At first light, a pilot flies the plane up to 10,000 feet and circles the city for hours. While it is circling the city, every second, the cameras take a still image of a 30 square mile area. The photos are instantly processed and downlinked to a command center on the ground. Operators on the ground can pull up the images, and from any specific moment, go backwards or forwards in time, second by second, and watch everything that the plane saw. Operators can follows cars and people fleeing a crime scene, and look backwards to see how they got there. The system's developer, Ross McNutt, has called it "Google Earth with TiVo capability."
The system was developed to determine who was killing American soldiers in Iraq with roadside bombs. Baltimore's use followed shorter, but equally secret, law enforcement stints in Compton (Los Angeles) in 2012 and Ciudad Juarez, Mexico in 2009. There are some pretty amazing success stories: the system was used to track a murderer to a previously unknown cartel headquarters building; it followed a moving van used by a burglar to a parking lot across town, and enabled a show-up to confirm the ID of the burglar in less than an hour; it's tracked purse snatchers and all sorts of other offenders that would otherwise have been much more difficult, if not impossible, for law enforcement to track down.
This is a system that makes law enforcement drool. It also raises a number of legal questions, none more important than whether evidence gathered by law enforcement through a wide are surveillance system operating without a warrant would be considered to violate the 4th amendment's ban against unreasonable searches and seizures and would be subject to exclusion were it offered into evidence in a criminal proceeding.
Wednesday, December 14, 2016
UN Summit on the Movement of Refugees and Migrants
Guest Post by Jill Goldenziel
(cross posted on IntlawGrrrls)
This semester, I had the extraordinary opportunity to consult on the makings of a new international agreement to protect refugees and migrants. Following President Obama’s lead, the UN General Assembly (UNGA) decided to hold a special Summit at its September 2016 session to address “Large Movement of Refugees and Migrants” that have been occurring throughout the globe. The outcome goal of the Summit was to have all UNGA member-states affirm a Political Declaration to express their commitments to refugees and migrants. The Political Declaration would kick off a process that will result in member-states signing a new “Global Compact” on Refugees and Migrants by 2018.
The Academic Council on the UN System (ACUNS) and the American Society of International Law (ASIL) invited me to apply to attend the civil society consultations for the Summit as their representative. I was honored that the UN accepted my application from a highly competitive pool. On July 18, I attended the first “Multi-Stakeholder Hearings for the UN Summit on Refugees and Migrants” at UN Headquarters in NYC. Very few civil society representatives were allowed to speak spontaneously at the hearings. After I expressed my frustration to the Non-Governmental Liaison Office, I was invited back a week later for a Meeting with the Co-Facilitators of the Summit itself, the UN Ambassadors from Jordan and Ireland. By this time, the Co-Facilitators had been meeting with state parties around the clock and were frantically trying to solicit feedback to finalize the Political Declaration to present before UNGA. I was able to share my ideas about what the Political Declaration should contain, based on my own extensive work on refugees and migration. The Ambassador from Jordan also invited me to submit my written comments on the Political Declaration directly to her office. While I will never know for sure if my ideas made an impact, the final document reflected a number of my suggestions.
"Professors or Pundits"
I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena: Professors or Pundits." The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study. Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."
I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?
Motivations For Law Schools To Use Adjuncts to Fill Gaps in the Curriculum or to Reduce Expenses
Before i move out of Prawfsblawg for the holidays i want to thank Howard for the chance to post and also to close with a bit of musing about use of adjuncts in the law schools in 2017 and beyond.
First, though, in response to a comment, here are the results of a survey about nine years ago.
A significant percentage of the courses offered by law schools are taught by adjuncts. The median of the forty-four schools that provided this information is 24%; the range was 5% to 40% with the great bulk of schools between 20% and 30%.
Next, here is a partial list of the advantages adjuncts bring to legal education
- They bring extra brains, vocal cords, eyes, ears, and feet to the curriculum.
- Adjuncts are usually easy on the school's budget (although some schools have cut them or cut down on new adjunct taught courses to save a few dollars and/or since full time faculty may have excess capacity).
- Adjuncts, particularly in metropolitan areas, provide a pool of lawyers with special expertise and interest as well as a comprehensive knowledge of the subject matter and its application.
- Adjuncts give students supplemental perspectives and insights into legal reasoning, critical thinking, and crafting legal arguments, as well as into the subject matter of the particular course.
- Practicing lawyers and judges are often uniquely situated to teach practical skills courses, such as trial and appellate advocacy.
- It is perception, and perhaps reality, that adjuncts provide networking opportunities for employment during law school and after graduation.
- Finally, if a school works to create a working and communicative faculty community, which includes both full-time faculty members and adjuncts, and successfully encourages meaningful interaction among them, both the full-time faculty and the adjuncts will benefit as will the law students. This interaction can also dilute any resentment or disrespect that may exist from full-time faculty members to adjuncts or from adjuncts to full-time faculty members.
Now for a partial list of the risks that adjuncts bring to legal education.
- Although many law schools require that adjuncts have “office hours” and be accessible by email and by phone, adjuncts generally are less available than full-time faculty members to students to address their questions about the course and other concerns the students may have.
- Although some adjuncts do write articles, nearly all of the true legal scholarship is done by full-time faculty and very little is done by adjuncts.
- Adjuncts regularly have “emergencies,” which interfere with class and with preparation for class. As the pace of practice picks up, adjuncts will likely sacrifice their preparation or even their class time. If the drowning adjunct fails to develop effective additional or alternative resources and the law school is unaware of this situation, it is likely the course will be a dismal failure.
- Just as adjuncts may be better teachers than full-time faculty, they may also be worse teachers. More often than not, adjuncts are ignorant of the benefits of various alternative teaching methods and either lecture or fall back on a harassing use of the Socratic method.In addition, they often underestimate the importance of grading and violate school grading and median scoring policies.
- Finally, a greater percentage of adjunct means there is less “there” there in the core of the law school.
The current pressure on law schools to be more practical would likely push law schools to find additional ways to make use of adjuncts in the curriculum. The recent reduction in revenue to many law school seems, anecdotally, to be pushing law schools in opposite directions. On the one hand, since adjuncts are much less expensive than full time faculty this should push law schools to use more adjuncts. On the other hand, deans looking for short term ways to reduce costs and constrained by salaries of tenured faculty might reduce or freeze adjunct-taught courses and push full time faculty who are less busy with fewer students to teach the courses formerly taught by adjuncts. Fascinating to watch all of this.
Tuesday, December 13, 2016
Pennsylvania recount rejected
On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final). The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.
Tort Law and the Sharing Economy
Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.
The downside of Bartnicki
In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.
Time-constrained, In-Class Final Exam Essays
Having spent the last week reading a bunch of final exam essay answers, I'm questioning the assessment value of having my Evidence students answer an essay-type question during their three-and-a-half hour final exam. The essay portion (35% of the final score) involved a single fact pattern and directed them to analyze the admissibility of 5 specific pieces of evidence/testimony. I do essay and multiple choice because Evidence is tested on the bar exam in both the multiple choice and essay format, and because I believe in using multiple forms of assessment.
Yet I'm doubting the value of the essay portion because, once again this year, the students' performance on the essay portion of the exam, as a general rule, does not significantly vary from their performance on the multiple choice portion of the exam. Rarely does a student exhibit a difference of greater than 8% between the two (that is, if a student gets 85% of the multiple choice questions right, that student's score on the essay portion is likely to be somewhere between 77 and 93%). I don't have the numbers in front of me now, but I'm pretty sure that not a single student who scored in the 70s on one portion scored in the 90s on the other.
This suggests to me that the 2 different sections are not assessing different skills or knowledge, but are instead asking students to demonstrate the same skills/knowledge in different formats. Since my students write a graded motion in limine halfway through the semester, which allows me to see and assess their written legal analysis, I've minimized the weight of the essay portion of the final (and reduced its length) over time. And some reading about psychometrics, best practices for writing multiple choice questions, and trial and error, has allowed me to compile a library of multiple choice questions that appear to produce reliable results that successfully distinguish amongst the students. All of which leads me to doubt the value of the essay portion of my time-constrained final exam.
I'm curious what others think about assessing students with a time-constrained essay (assume that you must, as I must, give a final exam in the class that cannot be a take home exam).
Monday, December 12, 2016
Advice for the Academic Resume
Picking up on an earlier discussion on PrawfsBlawg found here, I thought I would start a thread to solicit advice from Prawfs on how to put together an academic resume. For the general legal job search (i.e. law firm, government), I think it is better to be inclusive and detailed as opposed to merely sticking with a single page at the expense of your experience and accomplishments. But, what about tailoring your resume in pursuit of a position with the Academy. Does it make a difference if you are applying for a tenure track or adjunct? While publications should naturally be in there, what about citations from other works? How do you handle presentations?
Defining terms and talkng past one another
A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.
It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.