Friday, September 15, 2017

A Big Test for “Big Waiver”

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

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

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

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

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

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

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

Conference at Marquette Law: The Ethics of Legal Scholarship

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

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

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

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

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

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

 

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

Thursday, September 14, 2017

Constitutional Torts, Proximate Cause and the Egg Shell Skull Rule

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

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

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

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

Law School Hiring, 2017-2018, Thread One

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

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

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

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

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

Four miscellaneous things:

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

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

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

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

 

Originally posted September 14, 2017.

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

Policing and Procedural Justice in an Unjust Society

There is a sense, at least among a chunk of people, that policing in this country is broken: that the police are an authoritarian group that too often ignore the rights of minorities, especially African Americans, but also Latinos and other minority groups. The police hold these groups in contempt, and engage in unwarranted violence against minorities without being held properly to account. The popular reform proposed for this kind of police violence is "procedural justice": training the police to allow the people they encounter to given their side of the story before engaging in further action, increasing the chances that the civilian will voluntarily comply. The upside for the public is that "procedural justice" lowers the likelihood of police violence. The downside is that it is touted as real reform. But "procedural justice" is an inherently conservative response to problems with policing, and ignores—and perhaps even obfuscates—the need for real change. Worse, it potentially places the police in harms way in a manner that has longlasting moral and political (and perhaps psychological) costs for the police and the public. Here's why.

Continue reading "Policing and Procedural Justice in an Unjust Society"

Posted by Eric Miller on September 14, 2017 at 12:58 AM | Permalink | Comments (1)

Wednesday, September 13, 2017

Infallible: The Pope or the President

In case you missed it, Pope Francis has ramped up his criticism of President Trump in the last week.   

First, when asked about climate change deniers in the face of the storms and fires taking place around the world, he turned to Scripture: “A phrase from the Old Testament comes to mind: ‘man is stupid, a stubborn, blind man.”   He referred those confused about the issue to scientists, who “speak very clearly.” 

Second, he denounced the decision to end the DACA program, questioning the President’s pro-life and family bona fides: “I hope they will rethink it … [Trump] presents himself as pro-life, and if he is a good pro-lifer, he understands that the family is the cradle of life and its unity must be protected.”  With that said, he promised “to study the law well.” 

Of course, this is not the first time the Pope has challenged our President or his policies.  But what struck me most this time was the vitriolic rhetoric from some quarters of Catholic leadership—taking Trump’s side.   Much of this backlash accused the Pope of being a hypocrite; here’s a small sample.  Michael Hichborn of the Lepanto Institute:

Pope Francis has caused great confusion and concern for Catholics since he took office. He called Emma Bonino, an Italian abortionist, one of Italy’s ‘lost greats.’  He suggested that contraception might be justifiable in light of the Zika outbreak.  He has hosted population control enthusiasts in the Vatican. … He gutted the Pontifical Academy for Life and actually appointed a pro-abortion theologian to the academy.

That’s right—the Pope is causing “great confusion.”  I thought the point was, that if the Pope said it, there was no confusion.  Question settled.  Case closed.    Now this is admittedly not quite a fair Catholic sample; the Lepanto Institute is dedicated to defending Catholicism from threats “from without as well as within,” including from so-called “traitors.”   But they are not the only American Catholic organizations who have taken up for Trumpism, or who have remained silent. 

But all this raises the larger issue, for me, of how folks deal with conflicting moral and political identities in our current climate.  For those with strong moral convictions, this should presumably be fairly straightforward.   But, I have to say, it doesn’t seem like it has been in recent years.  

Again, abortion is probably an unfair issue to draw larger conclusions from (but, then again, can't the Pope be right about DACA, notwithstanding anything he's done on abortion?).  In any case, I have to say I get the sinking feeling these days that, for more and more Americans, moral identity IS political identity.  And that unfortunate conflation seems true on both ends of the political spectrum.  I probably don’t have to point out that when moral rightness becomes nothing more than party platform, one has abdicated the right, indeed the duty, of self-governance.  That is a steep price, to say the least.

Posted by Ian Bartrum on September 13, 2017 at 05:19 PM | Permalink | Comments (8)

Monday, September 11, 2017

Federal Decentralization and Federalism

One of the issues that my article on federal decentralization has to address is the relationship between federal decentralization and federalism.  Some countries that feature federal decentralization have viewed it as a substitute for federalism.  Rather than empowering local majorities through separate, decentralized sovereigns, the goal has been to empower local majorities through the same—yet decentralized—sovereign.  In the American constitutional experience, federal decentralization has served as a supplement to federalism rather than a substitute for it.  Rather than relying on state governments and citizens far from Washington to persuade, cajole and even coerce the federal government in Washington to protect local majorities, local majorities are instead empowered in the federal government rather than instead of the federal government.  Federal decentralization provides the voice that federalism cannot provide local majorities.  The distinctive diffusion of powers that federal decentralization produces also generates distinctive costs.

Federalism features many positive theories explaining how local majorities are meant to be sufficiently empowered.  Each of these accounts of federalism, though, inevitably limits local majorities because local majorities are distant from—and therefore more limited by—federal officials.  Citizens or state governments outside of Washington can try to influence their federal government directly, but when the federal government is distant that will be hard to achieve.  Citizens or state governments outside of Washington can buy influence inside of Washington, but that will be expensive to achieve.

Federal decentralization gives local majorities greater voice by making them neighbors of federal officials, rather than servants (in Heather Gerken’s compelling framing) to them.  Federal officials hear more and hear better about the concerns of locals once they live amongst them, and come to care more about addressing these concerns.  Local majorities also can become federal officials, rather than just neighbors influencing them.  The result is a class of federal and state officials with unique capacities to mediate between federal and state power and ensure that both are respected.  Many prominent elected officials—such as New York City Mayor Bill De Blasio and House Majority Leader Kevin McCarthy—had earlier and formative experiences in federally decentralized positions.   

Federal decentralization generates costs for federalism whether it succeeds or fails.  If it succeeds, federal decentralization can replace federalism.  There are reasons to doubt whether this would ever be absolute.  Labor markets are notably elastic, pulling and pushing talented people into new and different places as desirable employment opportunities exist.  If a location delivers significant policy returns, then that could encourage more regulation from that location of both a state and federal variety, and therefore enough employment opportunities to attract enough talent to staff both federal and state efforts.  Federal decentralization is also analytically distinct from federalism in important ways that would preclude one from ever perfectly substituting for the other.

Federalism remains far from a universal practice in constitutional design, and that is because of concerns that federalism diffuses power excessively.  Federal decentralization adds to that already substantial diffusion.  To design in a way to avoid that risk, only policy domains that do not suffer as much from diffusion can be federally decentralized.  Inter-branch relationships, for instance, can remain centralized.

Posted by David Fontana on September 11, 2017 at 02:18 PM | Permalink | Comments (0)

Reply Brief on the Geography of Campaign Finance Law

The challengers in the Alaska campaign finance case in the United States Court of Appeals for the Ninth Circuit have filed their reply brief.  It is available here.  The case involves a First Amendment challenge to Alaska’s limitations on out-of-state contributions to candidates for state elected offices.  I will use this post to respond to their arguments related to our brief about the democratic self-government interest at stake in the case.  While we appreciate their engagement with these very important constitutional issues presented in our brief, their arguments fall flat.

First, the reply brief misreads Supreme Court and lower court precedents—and even a fantastic law review article by Jessica Bulman-Pozen—as directly addressing and rejecting the existence of a democratic self-government interest ever and as applied to state governments.  The reply brief first cites a Ninth Circuit case (Lair v. Bullock) and McCutcheon v. F.E.C. as rejecting any such interests, even though these interests were not addressed by those opinions. 

Most importantly, the reply brief misreads Bluman v. F.E.C.  Bluman is cited as rejecting the possibility of there ever being a democratic self-government interest in a First Amendment case, when in fact Bluman explicitly recognizes such an interest as applied to the facts of that case.  Bluman states that “the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government.”

Bluman does not directly address which or how many political communities exist for purposes of permissibly limiting contributions under the First Amendment.  Bluman says that an example of a political community is the entire nation, and in limiting foreign contributions in Bluman the entire nation was the relevant political community being protected. That does not mean Bluman rejected states as an additional political community that can be protected.  It just means that Bluman did not have to decide about the existence of other political communities. 

Our argument is that Bluman’s logic recognizing a democratic self-government interest in preserving the entire country as a political community supports finding a similar interest in preserving states as political communities.  Both sides should engage with this argument and the Ninth Circuit should decide that issue.  But to say that Bluman rejected there ever being a democratic self-government interest or rejected there being a state democratic self-government interest misreads Bluman as resolving this once and for all.

Second, the reply brief fails to engage with the constitutional argument for a democratic self-government interest independent of these few precedents. The reply brief mischaracterizes some parts of the Constitution and neglects other parts of the Constitution.  The reply brief treats the Republican Form of Government clause as being the same thing as federalism, when in fact these are very different constitutional doctrines generating very different arguments for democratic self-government.  The reply brief dismisses the constitutional argument for preserving the basic existence of states as constitutionally-required political communities as being “politically correct” and “not legitimate.”  The reply brief does this instead of engaging with the extensive history, structure, text, and doctrine behind the democratic self-government interest. 

Third, the reply brief misunderstands the role of facts in First Amendment cases.  In deciding whether is a strong enough interest to limit campaign contributions, federal courts look to factual evidence supporting that interest in the particular case before them.  The factual evidence will be different in different jurisdictions and at different time—and therefore different in different cases.  The reply brief says that Alaska’s presentation of its situation is asking for a “special privilege” and a “unique license” in order “to pummel First-Amendment-protected free speech.” All that Alaska is doing is what constitutional law requires: looking at the “special” and “unique” facts of a case in arguing what to do about that case.  That is not asking for special treatment.  This is just using the common law method of asking courts to decide the cases based on the facts before them.

Cross-posted from Free Speech for the People Blog

Posted by David Fontana on September 11, 2017 at 02:14 PM | Permalink | Comments (4)

More on Corpus Linguistics and the Criminal Law

When people ask me why I became a law professor, I have an endless list of reasons at my disposal: Teaching is an outrageous amount of fun. I get paid to write and think about interesting ideas.  No one ever expects me to wear a pants suit.  But a major reason that I enjoy being a law professor is that I absolutely love to disagree with people.  

So imagine my delight when I saw how many comments my original post on Corpus Linguistics and the Criminal Law received. Not only did many of the commenters engage with my essay, but the commenters included Steven Mouritsen (who wrote the first law review article suggesting that judges conduct corpus linguistics analyses and who has a forthcoming article with Justice Thomas Lee in the Yale Law Journal on the topic), Neal Goldfarb (who runs a blog on Law & Linguistics and who attended the 2107 BYU corpus linguistics symposium), and Brian Slocum (who also attended the BYU conference and whose co-authored paper formed the basis for my essay advocating against the use of corpus linguistics to interpret criminal laws )

The comments are all quite good, and many of them have helped me refine some of my concerns with corpus linguistics.  But I also want to push back against others.

Continue reading "More on Corpus Linguistics and the Criminal Law"

Posted by Carissa Byrne Hessick on September 11, 2017 at 01:01 PM in Criminal Law | Permalink | Comments (24)

Who Cares Whether Cake-Baking Is "Expressive"? The Doctrinal Costs of Focusing on Private Burdens Rather Than Governmental Purpose

In their focus on the creative artistry of wedding cakes, the briefs that are now piling up in Masterpiece Cakeshop read more like an episode of Cake Boss rather than a typical SCOTUS argument. Many focus on a question that, I shall suggest after the jump, ought to be legally irrelevant -- whether baking a wedding cake is sufficiently "expressive" to qualify as "speech" the compulsion of which violates Wooley v. Maynard's "forced speech" doctrine. Baker & Botts has submitted an amicus brief on behalf of "cake artists" that dives the deepest down this particular rabbit hole of edible art by supplying the justices with numerous photos of (admittedly gorgeous) cakes the sole point of which is to prove that cake-makers are artists entitled to the same protection from regulatory burdens that any other artist enjoys.

The problem with this focus on the burdens experienced by artists is that, as Elena Kagan and Jed Rubenfeld both argued roughly two decades ago, it should be, legally irrelevant. First Amendment doctrine generally focuses on governmental purpose, not private burdens. If the local health department, for instance, forced Jack Phillips to post a sign ordering employees to wash their hands after using the bathroom, the content-neutrality of the requirement's purpose (at least prior to the stringent formalism of Reed v. Town of Gilbert, which may have caused the law of warning signs to fly off the rails) and its commercial purpose would sustain the rule, regardless of how artistically Phillips wielded his spatula. By contrast, even if Phillips were a mere confectioner drudge devoid of creativity, it would raise a serious constitutional question for the Colorado Human Rights Commission to require him to post a sign declaring that same-sex marriage is morally equal to heterosexual marriage. The difference between the two rules is not the private burden imposed but the public purpose expressed: The first sign is patently aimed at prevention of spread of disease, whereas the second seems to aim at barring the spread of ideas.

And yet the Masterpiece Cakeshop briefs, in kind of odd doctrinal atavism, focus on some old burden-based tests derived from mostly outmoded precedents like O'Brien and Spence. First Amendment Speech and Press doctrine of "expressive association," combined with "forced speech" precedents like Wooley, invite briefing on the incidental burdens on bakers' expression by even content-neutral anti-discrimination law. Despite the urging of Kagan and Rubenfeld, there is still no Speech & Press clause precedent analogous to Washington v. Davis or Employment Division v. Smith presumptively making the presence or absence of a content-neutral purpose the test of constitutional liability.

After the jump, some thoughts about (1) why this focus on private burdens rather than governmental purpose comes at a high doctrinal cost and (2) why courts and litigators are tempted nevertheless to pay the price anyway.

Continue reading "Who Cares Whether Cake-Baking Is "Expressive"? The Doctrinal Costs of Focusing on Private Burdens Rather Than Governmental Purpose"

Posted by Rick Hills on September 11, 2017 at 08:23 AM | Permalink | Comments (20)

"Procedural Justice" is not procedural justice

"Procedural justice" has recently become a big deal in the politics of policing. It was a core recommendation of the President's Task Force on 21st Century Policing; and has spawned a whole literature of its own, both in North America and in the United Kingdom. The basic idea is that certain ways in which speakers interact with targets during face-to-face encounters have an important psychological effect on the target of the encounter. The target feels that the speaker is justified in making demands upon the target, so that the target under an obligation to comply with the speaker's directives. Importantly, the target feels that way whether or not the speaker is, normatively, justified in making those demands; that is, whether or not an obligation to comply exists.

While "procedural justice" may be a useful tool in inducing compliance, it is distinct from actual, normative procedural justice. Justice is a normative concept, not a psychological one. And so a way of treating a target may be normatively unjust even if it fits the psychological theory of "procedural justice." Here's why.

Continue reading ""Procedural Justice" is not procedural justice"

Posted by Eric Miller on September 11, 2017 at 12:32 AM | Permalink | Comments (0)

Saturday, September 09, 2017

Eisgruber and Jenkins on nominees' faith and senators' questions

Following up on Paul's recent post, two open letters by university presidents Chris Eisgruber (Princeton) and Fr. John Jenkins (Notre Dame) might be of interest.

Posted by Rick Garnett on September 9, 2017 at 06:56 PM in Rick Garnett | Permalink | Comments (0)

Friday, September 08, 2017

Bard signing in-some thoughts on how hurricanes can disrupt preventive care

Hello from the  Happy Valley where it is my honor to be spending the year at Penn State Law and Penn State Medical as a visiting professor.

Thank you so much to Howard and the Prawfsblawg team for inviting me back--and in such good company.  I think I said this last year as well, but it truly is a tribute to the strength of what Dan Markel started that we are all still here.  I hope Prawfsblawg remains a place where people in legal academe can talk to each-other about the things that we are thinking about/working on.

I will be wearing my public health hat as we move forward into another weekend of catastrophic disruption from another "once in a 1000 year storm."   I think everyone is well aware of the health hazards that come from massive disruption of the infra-structure intended to keep us safe from the biggest threat to public health--contaminated drinking water.  There are other less obvious serious consequences that only emerge later--like an increase in stillbirths.

Something of particular concern to me in this cycle though is the disruption to the routine interventions that keep people healthy--everything from disruptions in childhood immunizations, exercise routines, and access to fruit, vegetables, and other good food choices to more immediately serious disruptions in closely monitored drug regimes, wound care, and medical implants.

All evidence from the Southern Hemisphere suggests that this year's flu season will be a tough one

The vaccine is available now--there would be serious ripple effects if large numbers of people don't get it because of Hurricane induced disruptions.

Posted by Jennifer Bard on September 8, 2017 at 06:13 PM | Permalink | Comments (0)

The Disappearing WASP

Over at the Public Religion Research Institution (PRRI), Daniel Cox and Robert Jones have posted the results of an interesting new study on Americans’ religious identity and affiliation.  The Executive Summary lists 14 major findings, but I’ll highlight just a few.

  1. White Christians are now less than half the American population.
  2. Since 2006:
    1. White Evangelicals: Down from 23% to 17%;
    2. White Mainline Protestants: Down from 18% to 13%;
    3. White Catholics: Down from 16% to 11%
  3. Christians are demographically much older than non-christians.
  4. Catholics are becoming significantly less white, and more Hispanic: In 1962 almost nine out of ten American Catholics were white; just over half are today.
  5. White Christians make up 29% of the Democratic party; they comprise 73% of the Republican party.
  6. Nearly 1 in 4 Americans now identify as religiously unaffiliated.

The findings are interesting in any number of ways, focused as they are not only on religiosity generally, but also on the intersection of race and religion, and the intersection of age and religion.  Protestant Christians, taken together, still make up roughly 55% of the population, and Catholics add on another 11%.  So 2/3 of Americans still identify as Christian—but fully 1/3 of that population is now non-white.  And Christians of all races are concentrated in the older demographics—44% of those aged 18-29 identified as non-christian, which was true of less than 20% of those over 65.  All of this, of course, intersects with America’s changing racial demography—the Pew Research Center has suggested that white American’s will make up less than half the population by 2055

What can we make of this, especially as it relates to our social and political lives?  I’m not sure—but I’ll pose a few of the questions that came into my mind.  Maybe others can provide answers or insights.

  1. If America ever was a Christian nation (and I’ll suggest that at least some of our basic principles—such as separating civil and religious authority—have a distinctly Protestant feel to them) will, or should, we become something else?
  2. Will party politics continue to splinter along religio-racial lines? Asians are now the largest group of incoming immigrants, and the PRRI study shows them to have diverse religious beliefs.
  3. It seems likely that much of the current white anger and backlash/MAGA is something of a retreat and rearguard assault in the face of these numbers—what is the endgame there?  How does our constitutional culture reshape itself and evolve?

Posted by Ian Bartrum on September 8, 2017 at 03:47 PM | Permalink | Comments (15)

Thanks for inviting me

Belated thanks to the PrawfsBlawg team for inviting me back again. There are a few topics I plan to discuss this month: "procedural justice"; the concept of the police and the nature of policing; and how all this relates to questions of race and social justice. I've been doing some work recently on "procedural justice", and my simple claim is that the sociological concept of that name need not be procedurally just to count as "procedural justice." That is, conduct that fits the sociological category "procedural justice" can be (normatively or morally) procedurally unjust—as well, of course, as distributively and correctively unjust as well. That's because the sociological theory is not a theory of justice, but of what makes for effective psychological coercion. Whether psychological coercion is effective is, of course, a different question from whether it is just or not. I hope then to turn to the question of the concept of the police (which is importantly different from the concept of policing). What is the nature of the public or state institution, "the police?" What is it that the police in America do? Should the stuff they do (and their self conception of what they do) drive our concept of what they are? Do we place the police in morally untenable positions, given the nature of their current job and our society? This last question is particularly a problem for societies in which there are fundamental issues of social justice, including issues of race, class, and gender. If we give the police credit for engaging in non-violent psychological coercion of the folks they encounter, are we given them—and ourselves—too much credit for promoting "just" policing. An ambitious agenda, I know, for a month of blogging. We'll see how it goes.

Posted by Eric Miller on September 8, 2017 at 03:25 PM | Permalink | Comments (0)

Thursday, September 07, 2017

Cal Bar's Nadir

This lack of leadership on the part of the California state bar is astonishing.

No joy in Mudville, as the mighty California bar has just struck out.

 

Posted by Dan Rodriguez on September 7, 2017 at 06:09 PM | Permalink | Comments (12)

Number of FAR Forms in First Distribution Over Time - 2017

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FAR Forms Over Time.20170907

(All information obtained from various blog posts, blog comments, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted September 7, 2017.

Posted by Sarah Lawsky on September 7, 2017 at 12:22 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Again With the Religious Test Question

There were some real gems in the questions and statements of senators at yesterday's Senate Judiciary Committee hearing for Seventh Circuit nominee Amy Coney Barrett. (Full disclosure: I was a visitor at Notre Dame for one semester some 11 years ago. I did not see much of Barrett, but I believe I socialized with her a couple of times.) As usual, they concerned religion and its relationship to judging. I must acknowledge up front that I am cobbling together the quotes from various sources, some of them from distinctly partisan media outlets. I would have preferred to draw them from ostensibly nonpartisan outlets, or obviously ideologically tilted outlets that are still treated as reliable news sources by the intelligentsia, but I did not find any reports in a (cursory) search of those outlets, nor have I found a transcript. In particular, I draw on a story in the Daily Caller, despite my general distaste for that paper. I am interested in the statements, of course, not the sources. I worked with what I could find. (For background purposes, here is a story from The Hill.) If you have links to a transcript or to other reporting on the hearing, you are welcome to provide them in the comments. 

1) Senator Dianne Feinstein questioned Barrett on the 19-year-old article "Catholic Judges in Capital Cases," on which Barrett was listed as a co-author with John Garvey; she assisted Garvey with the article when she was a third-year law student. The focus of the article is, as the title suggests, the death penalty. Feinstein's questions appears to have had more to do with abortion, although I would want to review a full transcript to see whether that is entirely accurate. Speaking about that and other statements by Barrett, Feinstein said in a kind of awkward, Yoda-like fashion, "When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country."   

2) Senator Dick Durbin questioned Garvey (and Barrett's) use of the phrase "orthodox Catholics" in the article. (The phrase, incidentally, is generally used in the article to refer specifically to federal judges.) The report puts it this way: "Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term 'orthodox Catholics' as it appears in her article, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heretical. [para.] 'Do you consider yourself an orthodox Catholic?' Durbin asked." Durbin later offered this explanation for his question. 

Speaking after the hearing, the senator — himself a Catholic — told The Daily Caller News Foundation that Barrett has written at length about the role of faith in public life, which warrants questions about her views.

“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance,” he told TheDCNF. “But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law.”

“So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question,” Durbin added.

As usual, some of Barrett's defenders on and off the Senate raised the Religious Test Clause of Article VI of the Constitution.

As I have written before, I think the best reading of the legal application of that clause is narrow. (In looking at the abstract for this article, I note with shame that I used the strategic "first article" trope. Mea culpa. People do foolish things when they're young.) The paradigm case the clause addresses involves various English test acts that required putative office-holders, among others, to avow or disavow particular religious beliefs, under oath, as a condition of entry into that office. Insofar as such statements under oath were taken seriously as a religious matter, these test acts were particularly significant. For the most part, either that Clause was a success in eliminating this problem, or social and political changes rendered it less important. (It is nice to see that various legal commentators are now taking the oath clauses of the Constitution more seriously, although I'm not sure they're doing an especially good job of it, or that they are doing so non-selectively, or that those who have argued that the oath clauses are judicially enforceable are right.)

For the reasons I've offered in the article linked to above and elsewhere, I don't think it's a viable rule, or one required by the Religious Test Clause, that nominees can't be questioned, or even selected or opposed, based on their religion. To quote from the abstract, "There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee." If, for example, a nominee for head of the EPA has stated a religious belief that the world will come to an end in precisely six years, and opined that the imminence of that event means we should use up all our natural resources now and not bother conserving them for the future, that is certainly a valid subject of questioning, and of opposition. There are more current and potentially controversial possibilities. Some broad-brush critics of Islam have argued that a correct reading of the Koran suggests that the faithful or, to use an apparently problematic term, "orthodox" Muslim may lie to non-Muslims. I will not bother citing either those assertions or the many arguments against them. It is evident in any case that it is not an accurate empirical account of how most Western Muslims generally understand or practice their faith. But if a Muslim nominee had publicly asserted a belief that Muslims can and should lie to non-Muslims in order to advance the faith, including lying for purposes of achieving the political supremacy of Islam in the United States, it is hard to believe that the Test Clause would utterly preclude questioning the nominee about this statement or even voting against him or her. The question might be ignorant and offensive, but not, I believe, unconstitutional.

I offer two or three observations about the latest kerfuffle. I generally do not favor expanding the legal operation of the Religious Test Clause by analogy or by reasoning from some ostensible underlying "principle" behind it. But nothing prevents us from questioning and criticizing questions of the sort asked yesterday, as what we might call a matter of "constitutional etiquette" rather than constitutional law. Both the senatorial statements quoted above are excellent targets of criticism.

Continue reading "Again With the Religious Test Question"

Posted by Paul Horwitz on September 7, 2017 at 10:28 AM in Paul Horwitz | Permalink | Comments (17)

Does Legal Scholarship Need a "Sokal Affair"?

Admit it: sometimes you pick up a journal article and say to yourself, "how the hell did this thing get published in [top 20 Law Review]?"  Most of the time, I think that statement is born out of jealously ("I could have written that!") rather than a belief that the article is poor scholarship.  But either way, there is an enduring belief that law journals, and more specifically, student editors at those journals, lack the expertise to distinguish between high quality and low quality scholarship.  

One way to test this hypothesis is to intentionally submit trash and see what happens.  That's what Alan Sokal did in 1996, and he got it published.  Sokal was a physics professor at NYU and was deeply skeptical of some postmodern sociological scholarship.  So he--a physics professor, mind you--submitted an article to "Social Text" titled "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity."  At bottom, Sokal argued that gravity was a social and linguistic construct.  But he dressed it up in lots of postmodern-sounding language.  Sokol's stated goal was to see if he could get nonsense published by--and this is key-- appealing to the idealogical priors of the editors (Social Text was not a peer reviewed journal at the time).  After the article was in print, Sokol revealed his hoax and the "Sokal Affair" was born.  There is a nice history of the affair in The Chronicle.

For the most part, I don't think we need a Sokal Affair in the world of legal scholarship.  Sure, student editors (like the rest of us) make mistakes in assessing scholarship, but it's not clear to me that they come to the table with strongly-held idealogical priors.  The one exception to this might be some types of  specialty journals.  A lot of specialty journals are simply focused on an area of law (international law, for example) but some appear to be focused on a particular idealogical principle--say "social justice."  If a school has a publication titled "Journal of Law and Social Justice," and it appears that the journal regularly publishes articles advocating a particular worldview, then one might suspect that students editors would select into the journal because of their affinity for that worldview and be thus more susceptible to a Sokal hoax.  To be clear, I'm not criticizing student editors here. We all have ideological priors and are thus all susceptible to a Sokal hoax.  Nor am I criticizing social justice journals or any other journal with a specific focus.  I'm simply observing that some contexts are more likely that others to support the growth and influence of ideological priors.  

A final note: just because most mainline journals would not be fertile places for ideological priors to exert much influence does not mean that there are not other types of priors that might be at work.  Letterhead bias, publication history, etc, likely play some type of role in publication decisions--though how much, nobody knows.   

 

     

Posted by Jack Preis on September 7, 2017 at 09:33 AM | Permalink | Comments (6)

Wednesday, September 06, 2017

Hiring Announcement: Loyola-Chicago

Loyola University Chicago School of Law invites applications for a tenure-track position beginning in the fall of 2018, pending final approval of funding.  We welcome applicants whose primary area of expertise is Environmental Law with a willingness to teach either Civil Procedure or Property.  We are particularly interested in candidates whose scholarship aligns with Loyola’s mission of social justice, as well as candidates who are members of communities traditionally under-represented in the legal profession.  We seek applicants whose research and teaching will contribute to Loyola University’s commitment to solving societal and environmental problems, and advance Loyola's position as a national university leader on environmental research, policy and justice.  Appointment rank will be determined commensurate with the candidate’s qualifications and experience. 

Continue reading "Hiring Announcement: Loyola-Chicago"

Posted by Howard Wasserman on September 6, 2017 at 06:03 PM in Teaching Law | Permalink | Comments (2)

Corpus Linguistics and Criminal Law

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

I was fortunate enough to be invited to the 2017 corpus linguistics conference at BYU.  I wasn’t a natural person to invite to the conference—I’m not an expert in statutory interpretation, and my undergraduate degree in linguistics did not prepare me for the sorts of analyses that corpus linguistics requires.  Nonetheless, I was intrigued by the Fed Soc panel, and so I was eager to learn more at the BYU conference.  But as I read the papers for the conference, and as I prepared my remarks as a commentor, I found myself more and more concerned about corpus linguistics as a methodology.  In particular, I found myself concerned about it being used to interpret criminal laws.  Corpus linguistics raised some of the problems that I had confronted in my past research on the void-for-vagueness doctrine, and it touched on many of the issues that I was grappling with in a new project about criminal common law.  After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

Continue reading "Corpus Linguistics and Criminal Law"

Posted by Carissa Byrne Hessick on September 6, 2017 at 09:45 AM in Criminal Law | Permalink | Comments (23)

Founding Federal Decentralization

One of the arguments in my article on federal decentralization is that Founding constitutional theory and practice was interested in federal officials located outside of Washington.  Founding constitutional theory was committed to the principle that the diffusion of powers required pitting faction against faction, and an important part of pitting faction against faction was pitting places against places.  The separation of places, in other words, was a defining feature of constitutional law.  Early federal behaviors and statutes are replete with examples of federal officials operating partially or entirely outside of Washington to generate this separation of places even within the federal government

The Federalist Papers include perhaps the first sustained explanations of political geography in the American context.  Different places would feature different politics because different people moved to and remained in different places, and also because individuals bonded more and cared more about their proximate neighbors rather than their distant colleagues.  State capitals were located near the population centers of state territories to ensure that different places would be empowered in state governments.  The Declaration of Independence references the problems with the British government being only or more accessible to certain places, undermining the ambition to empower different places to influence power.  Indeed, there was even discussion of creating three different presidents, one for each of the three main political regions in the country.

An examination of early federal practice reveals this interest in federal decentralization.  Washington was centrally located to ensure access to federal power by different places.  Washington was a new city, meaning that no entrenched interests in that place could dominate it over the range of other places trying to influence federal power.  Federal officials like customs officials, marshals, prosecutors, and bankers were placed by federal law outside of Washington.  At the highest levels, even the Justices and the Attorney General would operate often outside of Washington.  Constitutional debates at the time focused on interpretations of Article I’s District Clause that would support this federal decentralization.

Posted by David Fontana on September 6, 2017 at 05:13 AM | Permalink | Comments (3)

Tuesday, September 05, 2017

DACA, the Travel Ban, and Presidential Power: Coming Clean on How Policy Preferences Really Drive Legal Interpretation

Trump supports a broad construction of his powers under a 1952 statute authorizing him to "suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." But Trump takes a narrow view of his powers to confer "affirmative benefits" like the right to work on an entire class of unlawfully present aliens, despite a provision in IRCA defining an "unauthorized alien" as someone "not... "authorized to be ...employed ... by the Attorney General." Is this a hypocritical institutional flip-flop? As Mike Dorf suggests, President Trump's narrow construction of the IRCA delegation but broad construction of the 1952 delegation seems like just another example of how politicians hypocritically tailor their institutional preferences to their substantive views of what the institution (here, the Presidency) is actually doing. Right?

Well, maybe -- but it is hard to make that accusation stick here, given the legal ambiguity of canons andd statutory language. The Llewellyn-style contradictions in doctrines governing statutory interpretation, the ambiguity of the "shadow constitutional norms" protected by canons like Kent v. Dulles, and the ambiguity of textual "ambiguity" necessary to trigger canons like Brown & Williamson make principled cross-statutory generalizations about presidential power here (and perhaps elsewhere) almost impossible.

There is perhaps a big moral buried in this morass about the death of theory in public law. I am happy, however, to rest on a simpler proposition: Trump's opponents should stick with the policy merits -- as Ilya Somin notes, suspending DACA is a really, really bad idea -- and forgo accusations of Article II hypocrisy.

Continue reading "DACA, the Travel Ban, and Presidential Power: Coming Clean on How Policy Preferences Really Drive Legal Interpretation"

Posted by Rick Hills on September 5, 2017 at 09:03 PM | Permalink | Comments (1)

Rotations

Happy September. Thanks to our August guests.

And welcome to a big slate of September returning guests: Jennifer Bard (Cincinnati), Ian Bartrum (UNLV), Elizabeth McCuskey (Toledo, visiting at SLU), Eric Miller (Loyola-LA), and Jack Preis (Richmond).

Posted by Howard Wasserman on September 5, 2017 at 11:15 AM in Blogging | Permalink | Comments (0)

Federal Decentralization

I have posted my article on federal decentralization forthcoming in the Virginia Law Review.  Here is the abstract:

 

Constitutional law relies on the diffusion of powers among different institutions to ensure that no one person or faction controls power. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected to consider another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in those in a single place. Federal decentralization ensures that federal officials in Washington and in places distant and therefore different from Washington compete with and constrain one another. This Article identifies and evaluates federal decentralization as a dimension of constitutional law. 

This Article first uncovers the long but lost history of federal decentralization, and places it at the core of our constitutional experience from the Founding to its current moment on constitutional center stage. The First Congress located important federal officials in a different metropolitan area than the President and Congress, and arranged for the Congress and the White House to operate in different buildings in different neighborhoods. The current Congress is considering legislation proposed by both parties that would increase federal decentralization. 

This Article then argues that federal decentralization makes visible the diffusions of power that federalism and separation of powers cannot provide, and executed properly attempts to provide them. It gives federalism the voice it needs, and separation of powers the exit it lacks. Federalism aspires to empower local majorities, and federal decentralization enhances the voice of local majorities by making them empowered neighbors rather than unfamiliar strangers to federal officials—or even permits local majorities to act as federal officials themselves. The separation of powers aspires to generate rivalrous branches, but rival interests can only be generated by ensuring that sometimes federal officials exit Washington rather than operate in it. Federal decentralization, though, risks injecting excessive diffusion into the American system. It therefore requires its own vocabulary to recognize and resolve the persistent set of institutional design challenges that it raises.

Posted by David Fontana on September 5, 2017 at 03:10 AM | Permalink | Comments (0)

Remedying Democratic Self-Government Wrongs

Following up on my initial post and previous post about my article and our Ninth Circuit brief, this final post addresses the remedial authority of political communities such as states facing threats to their capacity to engage in fundamental tasks of self-government.

American constitutional law remains uncomfortable admitting that two different parts of the Constitution conflict with one another.  Admitting that two parts of the Constitution are implicated often requires courts to pick one part of the Constitution over another.  The preferred doctrinal approach is to find a way to argue that really only one part of the Constitution is implicated after all.  The constitutional law of other countries often approaches these issues differently.  As Stephen Gardbaum has written, comparative constitutional law features courts admitting that some part of the Constitution is violated and trying to find whether there is a good reason for the violation, rather than saying there is no constitutional violation if there is a good reason for the violation.

There are many actions that state governments can take to protect their capacity to engage in fundamental tasks of self-government that do not implicate other constitutional provisions.  Sometimes, though, the only way to protect one part of the Constitution is to implicate another part of the Constitution.  When the remedial authority to address harms to democratic self-government implicates other constitutional provisions, doctrine has generally required the same sort of means-ends examination that other areas of constitutional law require.  The greater the interest in protecting the state’s fundamental political community, and the greater the threat to that interest, the more the state can do in response.  The Supreme Court cases in this area have recognized this logic.  In one case, for instance, the Court indicated that judicial review of limitations on other constitutional interests “will not be so demanding” when core features of state self-government are involved.

Posted by David Fontana on September 5, 2017 at 03:07 AM | Permalink | Comments (0)

Sunday, September 03, 2017

How to Mark Judge Posner's Retirement

Howard has already shared the news of Richard Posner's retirement from the bench. I have written several posts about him and published a couple of reviews of his recent books here and elsewhere in the past few years, and although (or because) they seem entirely relevant, I won't link to them here. I will, though, repeat one thing I have said often: Posner was and is easily my favorite contemporary legal writer, whether in his opinions or in his academic and other writings, although I have pointed to what I think are notable and increasing problems with those writings in recent years. Other than where great rock drummers are concerned, I'm not much into fandom (of course such a rule should not apply to a giant like John Bonham!). But I was and am indeed a Posner fan. In particular, I think his books published between 1990 and 2000--especially The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, An Affair of State, The Essential Holmes, and Law and Legal Theory in England and America, and Aging and Old Age--marked a tremendous high point in his work. In this post, I want to discuss how to mark Posner's retirement from the bench--and how not to. Fair warning: There is much general hobby-horse riding about the American legal academy and legal profession ahead, although I think it's relevant to the post.  

I have often suggested in my Prawfs posts that there is a kind of extended or eternal adolescence problem in the American legal academy and profession, one marked especially by the clerkship culture and the tendency to speak worshipfully of one's "judge" for decades after one's clerkship has ended. The legal academy and profession tend to reject, at least by outward show but I think inwardly as well, the adage that no man is a hero to his valet. I think this is unhealthy and ultimately bespeaks a deep immaturity in the American legal culture, as well as a certain amount of insecurity and credentialism (a credentialism that takes the form of seeking greatness by association, and thus requires one continually to rekindle the flame at the altar of one's idol, so that one shines in the reflected light).

The NYU Law Review in 1995 published a great symposium issue on judicial biography, including a solid contribution from Posner. The first sentence of the preface to that symposium issue reads, "American law makes giants of its judges." That personification obscures the reality: American lawyers make giants of their judges. It is thus unsurprising that two recurring themes in the NYU symposium are the tendency toward hagiography in American judicial biography, and the tendency to "canonize" various judges, although once they become canonized they may fall out of favor, or the nature of their "greatness" may change in each generation to suit the needs of the time. (Justice Holmes's reputation illustrates both phenomena, since we have celebrated many different versions of Justice Holmes over the decades, and at times he goes out of fashion altogether; his stock seems to be going down right now. It will be interesting to see how our love of celebrating anniversaries, our current disagreements over free speech, and Holmes's fluctuating stock will come together in a year or two as we start celebrating the centennial of his most famous free speech dissents.) 

John Hart Ely famously dedicated his classic book Democracy and Distrust to the judge for whom he clerked, and for whom the book was a kind of apologia, Earl Warren. Ely wrote: "You don't need many heroes if you choose carefully." It is perhaps indicative of our culture--American culture generally, perhaps; certainly American legal and legal academic culture--that the dedication has been quoted at least 26 times in law reviews but has never, so far as I can see, been subjected to any skepticism or questioning. It is as if it our culture treats it as obvious and beyond question that having heroes is a good and desirable thing or, of greater importance, that it has no risks and side effects beyond the obvious and banal risk of choosing the wrong heroes. One might expect at least one article or passage, among the infinitude of words in the law review universe, that is willing to ask the heretical question whether a culture of heroes tends to become a culture of hero worship or idolatry, and whether that might not be an entirely good thing for an adult legal and political culture. There is a sense in which constitutional theory since 1980 has exhibited an odd dual tendency. On the one hand, it endlessly disparages the text of Democracy and Distrust itself. On the other, it endlessly celebrates and emulates its dedication, with the implication that Ely had the right goal--find the right "hero" and invent a constitutional theory that would enshrine his or her opinions--but the wrong specifics. I would venture the opinion that we have been too hard on the book and too easy on the dedication. A surprising amount of American constitutional theory, and American legal scholarship generally, still consists of a series of extended applications of or glosses on Ely's dedication, with the judge one clerked for (or wishes one had clerked for) substituted for Warren's name. One needn't be an absolute iconoclast to harbor some doubts and concerns about this phenomenon. 

These musings are relevant to Posner's retirement because they are similar to what he has often written himself, and thus suggest something about how Posner would, or should, want to be written about on this occasion. I develop that point, and say something about how we should mark his retirement, below. 

Continue reading "How to Mark Judge Posner's Retirement"

Posted by Paul Horwitz on September 3, 2017 at 12:28 PM in Paul Horwitz | Permalink | Comments (0)

Peace & Reconciliation Commissions versus Acts of Oblivion: Confederate Monuments as a Problem in Undoing an "Oblivious" Settlement of Civil Conflict

Suppose that a society, out of a desire to avoid violence and instill cooperation, wants to end a bloody civil conflict even at the expense of what the winning side regards as justice. Traditionally, there have been (at least) two mechanisms for such a settlement: the Act of Oblivion and the Peace & Reconciliation Commission. With an "Act of Oblivion," exemplified by the statute enacted by the Covenant Parliament ending the English Civil War, the winning side enacts a statute (the "Act of Oblivion") literally wiping clean the slate of the rebels, providing a general pardon that allows them to participate fully and immediately in the political life of the country. The key characteristic of the general pardon is that there is no specific description of the wrongs and rights of the conflict and no individualized hearings precisely assigning blame to specific individuals. Instead, the Act literally "forgets" what the conflict was all about toward the end of erasing hard feelings and allowing vanquished opponents to serve with honor in the new regime. The English Act of Oblivion, for instance, referred vaguely to "the long and great troubles, discords and wars that have for many years past been in this kingdom" without much further description and handed out a general pardon allowing Commonwealth and Protectorate military and civilian leaders like Pepys, Montagu, and Penn to serve Charles II with distinction. By contrast, Peace and Reconciliation Commissions try to hash out the rights and the wrongs with specific findings of the injustices committed, toward the end of reconciling the winners to allowing the losers to escape punishment.

One can regard Confederate Monuments as a sort of de facto "Act of Oblivion." As most famously described by David Blight, Northern white Republicans gradually adopted the position proposed by white Southerners like L.Q.C. Lamar (in his 1874 eulogy for Charles Sumner to the Massachusetts Legislature) and Henry Grady (in his 1886 address to the New England Society in NYC) that no blame should be assigned for the Civil War, which was not really about slavery but instead about constitutional questions of local autonomy. If this de facto Oblivion had an official recognition, it was the 1913 Gettysburg Reunion of Union and Confederate veterans in which Woodrow Wilson -- the first Southerner elected to the Presidency since the Civil War -- gushed " "We have found one another again as brothers and comrades in arms, enemies no longer, generous friends rather, our battles long past, the quarrel forgotten-— except that we shall not forget the splendid valor." In the process of reconciling, as Blight notes, northern and southern whites conveniently forgot about the South's past and current oppression of the freedmen and black citizens' equality more generally.

One can ask two questions about our national Act of Oblivion. First, was it a justified injustice, or not? Second, whether it was justified or not, how can it be undone now that it has served its end of reconciling losers and winners and its immediate beneficiaries are long dead?

Continue reading "Peace & Reconciliation Commissions versus Acts of Oblivion: Confederate Monuments as a Problem in Undoing an "Oblivious" Settlement of Civil Conflict"

Posted by Rick Hills on September 3, 2017 at 12:42 AM | Permalink | Comments (0)

Friday, September 01, 2017

Judge Posner retires

Effective Saturday, September 2 (tomorrow). Official Seventh Circuit announcement is here.

Posted by Administrators on September 1, 2017 at 06:19 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

A Clearinghouse for Questions, 2017-2018

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

After the AALS hiring conference, there will be a different thread in which candidates or professors can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.

You may want to take a look at the many questions and answers in the threads from 2014-20152015-2016, and 2016-2017.

Originally posted September 1, 2017. 

Posted by Sarah Lawsky on September 1, 2017 at 12:31 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (442)

Thursday, August 31, 2017

Grading the Slave-Owning Framers (and Yourself) on a Historical Curve: The Moral Case Against/For George Washington -- and Everyone Else

Mike Dorf has an interesting post exploring whether and why monuments to slave-owning framers like Washington are more morally acceptable than monuments celebrating Robert E. Lee or Woodrow Wilson. Dorf notes that it is not enough merely to say that Washington is celebrated for reasons other than his racism and slave-owning. After all, the same could be said about Woodrow Wilson, yet the debate at Princeton over expunging the name of the Great Segregator and admirer of the Birth of the Nation is surely at least a close call -- closer, at least, than the case for re-naming our capital and tearing down the Washington Monument.

I agree with Dorf's assessment of Wilson, but I think that he overlooks the most important distinction between Wilson (on one hand) and Washington (on the other): Historical relativism. Historical figures -- i.e., everyone, including you, Gentle Reader -- should be graded on a curve. We cannot be expected to be much better than the people who surround us and the times into which we are born. Scoring an "A" in one's views about racial equality in 1789, therefore, ought to be much easier than scoring an "A" in 1912. Washington was surrounded by whites whose virulent and virtually unconsidered racism reenforced his belief that enslaved Africans were unfit for self-rule. Precious few in the late 18th century thought that slavery was such a moral abomination that it should be abolished immediately: "Immediatism" was several decades in the future. Wilson, by contrast, had the advice of William Monroe Trotter and the example of thriving black communities throughout the United States to steer him straight on the evil of racism. Yet he self-consciously persisted in adopting policies deplored by his contemporaries. Grade? I'd flunk Wilson, despite his achievement of appointing Brandeis.

I suggest, in short, that we should judge as we would be judged -- charitably, by the standards prevailing during his own time, the standards with which humans naturally take their bearings. By that standard, Washington (despite his quite aggressive efforts to recapture his slaves) easily outscores Wilson in my book. Surrendering power peacefully and conscientiously exercising power at the dawn of the republic to establish republican precedents -- those keep him on the pedestal in my book despite his all-too-human willingness to adopt the views about slavery prevailing with everyone except a few prescient Quakers and "fanatic" evangelicals.

That we should all be judged by the temper of our times naturally gives rise to the question: How well would we score if we were born in earlier times? There is a progressive smugness that judges the past by what we know today but avoids the touchy question of how we would be judged were we born in the world of yesterday. So take a test: Imagine what sort of morality or politics you would likely have if you had the age and social position roughly analogous to your current status but in the America of, say, 1750. Where do you guess you would likely stand on slavery, women's suffrage, Indian rights, and so forth? Be honest. If you are (as I am) a conventionally ovine sort of academic, in the middle of the academic road on most issues, then imagine that you likely would have been just that sort of person in 1750. An ACS liberal faculty member of 2017 with left-of-center views and teaching at a northeast law school, on this account, might likely translate into (I am guessing here) a New Light Congregationalist theology prof or schoolmaster (few law schools back then) who might have (in a fervor of Country Party egalitarian zeal) supported the Massachusetts Land Bank of 1744 but would have been shocked by women's voting and likely had no discernible views about slavery at all.

Humbling exercise, huh? So the next time you cry out to tear some equestrian off a pedestal, think a bit about coming off your own. Imagine yourself in someone else's rear-view mirror a century or two hence.

Posted by Rick Hills on August 31, 2017 at 09:26 PM | Permalink | Comments (27)

In Memoriam: Lesley McAllister

I am deeply saddened by the untimely passing of our beloved friend and colleague Lesley McAllister. Lesley, a brilliant environmental law scholar, had been bravely battling cancer for several years. She was strong and open and loving and compassionate about her disease and she was incredibly active, both in her professional and personal life, till the very end. Last year, at AALS San Francisco, the Center for Progressive Reform, in partnership with her current faculty, UC Davis, and former faculty, University of San Diego, held a Festschrift for Professor Lesley McAllister, celebrating her work and life. It was a beautiful event. At the McAllister Festschrift, I was honored to represent our colleagues at USD in delivering words - which I am pasting here below - about how much we love, admire, and miss her since she left to UC Davis. 

Words for Lesley - McAllister FestSchrift Jan 2017

Lesley and I started our teaching careers together, we were both hired by Dan Rodriguez at USD just before he stepped down from his deanship. So for me so much of the beginning of my career as a baby professor is tied to my friendship with Lesley. (actual babies too are tied to our friendship – Lesley and I each had the pleasure of throwing the other a baby shower for our daughters.). I can’t overstate how significant it was for me to have trusted colleague and friend to think together about everything we needed to learn in all the facets of academia, scholarship, writing, teaching, faculty life, and institutional leadership.

In each one of these facets Lesley always inspires me. She works hard but also finds balance. She is a great scholar and an amazing mother. She is generous and kind with her times and thoughts. She is a source of wisdom and a force of good.

Others will be talking about the scholarly dimensions of your work, Lesley, but I will just say a couple of things. First, I admire how Lesley chooses her projects in a deliberate way – driven by passion for the research, for the field, and most importantly a passion for making a difference. It is no coincidence that Lesley’s book about environmental protection in Brazil is called Making Law Matter – Lesley cares about writing that matters. She loves the environment, she is passionate about the outdoors, from hiking, backpacking, biking, camping, and - we use this expression far too often but in Lesley’s case it simply is true -  Lesley wants to make the world a better place. I think it is quite rare to find such strong synergies between one’s writing and one’s passions outside of the office. Lesley’s work matters.

Lesley is also inspiring in her rigor and devotion to interdisciplinary and comparative work. And again others this evening will talk about particular dimensions of her writing but I will just say that my own work about regulation and governance has very much benefited from Lesley's deeply insightful articles on public/private governance, private enforcement, the role of persuasion, collaboration and alliances in achieving compliance.

Beyond the scholarship, and here I want to say something not only my behalf but on behalf of all of Lesley’s former colleagues at USD, Lesley has played an amazing role as an institutional leader. She basically put together USD’s environmental and energy program and grew it from scratch. She came in as a junior faculty and took on the incredibly time-consuming role of leading EPIC – USD’s Energy Policy Institute Center – including planning the center’s annual symposium. As one of our senior colleagues writes about Lesley, “I was amazed to see how Lesley could get anyone to appear – she was rather like Johnny Carson in his prime – everyone wanted to be on her show.” Lesley was also the driving force behind the San Diego Journal of Climate and Energy Law and the faculty advisor to the environmental law student group – and as another colleague writes, “her students adored her. She has not only informed them and taught them skills for life but has influenced and inspired them.”

Lesley has been incredibly generous with her time and thoughts and energies with both students and her colleague. Obviously, we all miss Lesley very much at USD. Personally, I cannot tell you the number of times I find myself at a frustrating committee meeting or a thought provoking workshop, when I look around the room and think, “if only Lesley was still here in San Diego, we could share thoughts and move things forward”. But our loss was Davis’ gain and I am so happy to be here all of us together to celebrate Lesley’s influential work and her remarkable life.

 

Posted by Orly Lobel on August 31, 2017 at 08:33 PM | Permalink | Comments (4)

Why Masterpiece Cakeshop is a Harder Case Than You Think (and Why Federalism Can Help Resolve It with a Meta-Accommodation of Religious Disagreement)

In our polarized times, it is easy to be overly dismissive about arguments that contradict one's strongly held convictions. Common judicial and academic reactions to the "wedding vendor" cases like Masterpiece Cakeshop or Arlene's Flowers provide a case in point. As I suggest after the jump, academics tend to dismiss these vendors' claims with slogans that, in other contexts, would be regarded, at best, perfunctory -- the beginning rather than the end of an argument. My own view is that the vendors' claims raise genuinely hard questions that cannot be cavalierly brushed aside by brandishing Smith or blustering about commercial actors' lack of First Amendment rights. In fact, as I argue here, these questions are RADDs -- reasonable and deep disagreements -- that our federal system is well-suited to finesse rather than resolve. For that reason, I am inclined to urge that SCOTUS affirm the Colorado court in Masterpiece Cakeshop-- not because the baker does not have a plausible First Amendment argument (he does) but because, in a federal system, the federal courts ought to bend over backwards to allow different states to adopt different reasonable views about religious liberties.

But, first, consider why the the usual arguments brandished against wedding vendors' claims for some sort of accommodation are merely plausible rather than slam-dunks.

Continue reading "Why Masterpiece Cakeshop is a Harder Case Than You Think (and Why Federalism Can Help Resolve It with a Meta-Accommodation of Religious Disagreement)"

Posted by Rick Hills on August 31, 2017 at 12:00 AM | Permalink | Comments (37)

Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Monday, August 28, 2017

Violations of the Democratic Self-Government Interest

Following up on my last post on my article and our brief, the question about the democratic self-government interest is what s significant enough to constitute a violation of this interest.  Constitutional doctrine has generally recognized that violations of democratic self-government transpire when those outside of a political community interfere with actions that “go to the heart of representative government.”  This has usually foundational interference with the selection of important state officials across the three branches of state government.  The paradigmatic examples referenced in these cases is that states can limit those holding important state offices to those who can demonstrate requisite connections to the state.  The Constitution uses the language “inhabitant” to refer to those who can be elected to the House and the Senate (in both cases, elected officials must be inhabitants—for the House, of the state in which their district sits, and for the Senate of the state that they are representing).  The Supreme Court has also upheld limiting those who can be police or probation offices or who can teach in public schools, for instance.

Contributing to a state campaign is different than but substantially analogous to those activities.  Contributing to a state campaign does not involve trying to be the actual person holding the state office, but still can involve dictating the identity of the actual person holding the state office.  When a three-judge panel reviewed the constitutionality of the federal prohibition on foreign nationals contributing to federal campaigns, Judge Brett Kavanaugh wrote for the panel in stating that “spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher.”  

Continue reading "Violations of the Democratic Self-Government Interest"

Posted by David Fontana on August 28, 2017 at 05:43 AM | Permalink | Comments (1)

Chafetz on Congress

Joshua Chafetz has a fantastic new book on Congress's role in the Constitution..  The Take Care Blog ran a great symposium on the book last week, and I contributed a post.  

Posted by David Fontana on August 28, 2017 at 05:36 AM | Permalink | Comments (0)

Sunday, August 27, 2017

The process of the Arpaio pardon and civil-rights enforcement under Trump

Josh Chafetz (Cornell) has a Twitter thread and WaPo op-ed arguing that the focus should be on the underlying racism, sadism, and abuse of power motivating the Arpaio pardon, not the fact that the pardon was for a criminal contempt conviction. In other words, the problem is that Trump pardoned a racist, sadistic serial abuser of state power, not that he pardoned someone who had been held in contempt. Josh suggests that we might want a President to pardon someone convicted of contempt, at least in some circumstances.

His example is the facts underlying United States v. Cox (5th Cir. 1965). Two African-American men testified in a federal suit against a state official, saying the official had refused to register them as voters; when he denied discriminating, the federal judge presiding over the case recommended that the two men be charged with perjury. DOJ investigated, but found no grounds for a perjury charge. Nevertheless, the judge ordered the case submitted to a federal grand jury, which convicted. When the US Attorney (acting on orders of Acting AG Nicholas Katzenbach) refused to pursue the indictment, the judge held the US Attorney in contempt and ordered Katzenbach to show cause why he should not be held in contempt. On direct review, the 5th Circuit reversed the contempt order, but refused to grant a writ of prohibition to Katzenbach, who had not yet been placed in any risk of contempt.

Continue reading "The process of the Arpaio pardon and civil-rights enforcement under Trump"

Posted by Howard Wasserman on August 27, 2017 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 25, 2017

Ingredients or Garbage?

Law professors often talk about stages of a research project in terms of food - "half-baked" or "fully-baked." There are other stages to project development. Extending the food analogy, one of the earliest stages (if not the earliest) is the "Ingredients or Garbage?" stage. For example, let's say I have three-day old ramen, an egg just past its expiration date, and some Taco Bell hot sauce packets. Maybe with some work, creativity, and a few more ingredients, this could be a meal. Or maybe it's all just garbage. I am at the "Ingredients or Garbage" stage with something, and I thought I'd run it past the good folks of PrawfsBlawg. The beauty of this stage is that, unlike projects that are even at the "half-baked" stage, I'm not nearly invested enough in it yet that my feelings will be hurt, or that I will even feel particularly frustrated, with an honest "Throw it in the garbage." I don't know if other people have had this experience with the "Ingredients or Garbage" stage, but it's just a loose set of ideas I'm kicking around based on some reading and observations, and every once in a while I think, "Maybe this could be something" and other times I think, "This is just garbage." 

Continue reading "Ingredients or Garbage?"

Posted by Rhett Larson on August 25, 2017 at 07:10 PM | Permalink | Comments (7)

More on pardoning Arpaio (Updated)

Thanks to Paul for flagging Marty Redish's NYT op-ed on the potential Arpaio pardon. Like Paul (and Marty), I do not know if the argument works. But I wanted to flag how his argument interacts with the version of "judicial departmentalism" I have been urging. My framing relies on Gary Lawson's version of departmentalism--the president can ignore judicial precedent as precedent he believes gets the Constitution wrong, but cannot ignore court orders. That includes the orders by which he is bound by as a defendant (e.g., the challenge to the travel ban) and the orders he must enforce on behalf of the federal courts involving other officials,even if he disagrees with the underlying constitutional judgment.*

[*] Lawson allows that the president might ignore a court order in extraordinary circumstances, but I put that to the side for the moment.

Marty's argument gives Gary's (and my) distinction a Fifth Amendment grounding. There is no functional difference between the president ignoring or declining to enforce a judgment and a president pardoning (or promising to pardon) another official who ignores court orders. If one violates due process, so does the other. And if departmentalism does not extend to one, it does not extend to the other.

Finally, if this becomes a concern, consider the federal courts' counter: Stop using criminal contempt and rely on civil contempt to enforce injunctions, including by jailing the recalcitrant official. There is no crime or conviction from which to pardon.

Update: Trump pardoned Arpaio on Friday.

Posted by Howard Wasserman on August 25, 2017 at 01:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Small and Vast Difference Between Two Op-Eds

Two op-eds published in the past two days provide a wonderful contrast with each other. In neither case do I evaluate or endorse the ultimate correctness of the arguments offered. Nevertheless, all the difference in the world lies between them. 

In the first, Professor Martin Redish argues that the president cannot pardon former Sheriff Joe Arpaio. And he writes, after making his argument: "I admit that this is a novel theory. There’s no Supreme Court decision, at least that I know of, that deals specifically with the extent to which the president may employ his pardon power in this way."

In the second, in Slate (which I admittedly avoid reading, but a friend pointed out the piece), my friends Nelson Tebbe and Micah Schwartzman assert, as the headline puts it, that "Charlottesville's Monuments Are Unconstitutional." The key paragraph I want to point to is this one:

So far, the lawsuit over Charlottesville’s monuments has focused on arcane issues of state law. But there are larger constitutional principles at stake—most importantly, that the government is prohibited from conveying messages that denigrate or demean racial or religious minorities. While private citizens may engage in hate speech under existing law, the government may not demean racial or religious minorities without running afoul of the guarantee of equal protection contained in the 14th Amendment. Unlike limitations on hate speech, which remain controversial, this rule against racialized government speech should enjoy widespread support.  

I'm not sure I agree with this argument (or with Redish's), although I'm quite sure that for present purposes I don't care whether I agree with it or not. What I care about is two words: "principles" and "rule." Normally, when one argues about missing nuances or counter-arguments in an op-ed, the author can be relied upon to make the "I only had 800 words" defense. I have used it myself. It's one reason I prefer blogging: so I can be excessively prolix but get in all the qualifications I think necessary. In this case, though, a small edit would rescue the Slate op-ed from what I am inclined to think of as a fatal flaw without changing the word count. All one needs to do is change "principles" and "rule" to "arguments" and "argument," respectively.

This is a point on which one might receive pushback--from cynics, from idealists, from those touched with or addicted to a sense of urgency, from those who think little differences in wording matter little and can be understood to mean what they do not actually say, and so on. I am content to hear them. But I think the difference in wording makes an enormous, essential difference: to public and political discourse, to law and legal scholarship, to journalism, to trust, candor, and responsibility. For the same reason, I also think Professor Redish's wonderfully old-fashioned approach is, in these times, especially praiseworthy.     

Posted by Paul Horwitz on August 25, 2017 at 10:45 AM | Permalink | Comments (4)

Thursday, August 24, 2017

The emptiness of "judicial activism"

The latest Slate Dialogue between Judge Posner and Judge Rakoff considers the meaning of judicial activism and judges using the bench to effect social change. Neither Posner nor Rakoff is having it. Both reject the idea that there can be judicial activism, that there is some clear "existing law" to be departed from in an activist decision, and that common law courts do not "make" policy. It ends up as a somewhat silly conversation, with the moderator putting forward every bromide about activism and misuse of the judicial power (even quoting Wikipedia's definition of judicial activism) and Posner and Rakoff rejecting the premise at every turn. But it shows the emptiness of the term and the concept of activism, which Rakoff labels a "myth."

Posted by Howard Wasserman on August 24, 2017 at 11:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Wednesday, August 23, 2017

Sponsored Post: A critical foundation for the change agents of tomorrow: Teaching today’s law students the business of law

The following is by Katrina Lee, Associate Clinical Professor at The Ohio State University Moritz College of Law, and author of The Legal Career: Knowing the Business, Thriving in Practice (West Academic 2017). This post is sponsored by West Academic

I teach a business of law course at The Ohio State University Moritz College of Law. Some assume that I teach the business of law because I want to help students get jobs at law firms and make partner. I hope that my course benefits those students aspiring to succeed at law firms, and I’ve been told that it does serve that purpose.

But, I have another, complementary, goal for my business of law course, and for the business of law coursebook that I recently wrote. I want to help prepare law students to be change agents in the world of legal.

Continue reading "Sponsored Post: A critical foundation for the change agents of tomorrow: Teaching today’s law students the business of law"

Posted by Howard Wasserman on August 23, 2017 at 10:13 PM in Sponsored Announcements | Permalink | Comments (0)

Is Cancel the New Normal?

I had fully intended to write a post this week on academics working in an online world (to follow up on my last post on academics and fake news), but something else is more pressing on my mind and is certainly related. Clearly, social and dating culture among students has changed in a tinder/bumble world such that when a better date or social offer comes along, people have no trouble cancelling on the first offer. This is documented in many contexts. Has this virus spread to academia? I wonder if our culture is changing in both the university environment and life such that cancelling (or to say it more glibly, flaking) has become the new norm. Sometimes cancelling just means not showing up to a conference, or a meeting, or to class. Sometimes it can come in the form of tardiness for an appointment or quitting a job altogether that you have committed for in advance. All of this is often done lightly and with little remorse

I have seen more of this cancelling phenomenon in the last three years or so than I ever have in my academic or professional career. My colleagues and I often complain about how often our research assistants, students, and others cancel/flake/drop out of whatever commitment they have made to us. I have told colleagues and people out of my field that I regularly receive student assignments a week after they are due, and people in Generation X are shocked, but I have grown accustomed to this. I actually build in a week or two of a cushion in case a student drops out of the task (cancels) or is late on a research assignment (not for a graded one, there are obviously repercussions for those).  This one is just sad, but I even often ask two or three research assistants to do the same research because I’m not sure that one or more will cancel on me.

Now don’t get me wrong, I try to be an empathetic professor and person. I am very sorry when students are ill, or their car breaks down, or a student has a family emergency. These things happen to all of us. In fact, in full disclosure I have had to cancel two or three conferences that I committed to myself due to Zika (I was pregnant and couldn’t travel to this part of Florida), passport issues, and newborn difficulties. And even though I felt bad cancelling, half of the panels I was supposed to speak with had to cancel as well. I think there is a growing culture of acceptance of people cancelling. I think on panels now, for instance, I will invite a few extra sometimes, just because I know some will cancel. And I wonder why this is happening. Is it because of the ever growing online nature of communications? It is so much easier to email a professor to tell them that you can’t turn in an assignment then to go to their office and have a talk about it. It is also easier for a professor to cancel on a colleague over email than to call and have to deal in person with the response. And what about cancelling on jobs. This is one that concerns me more than any. I have seen and heard about an unusually high number of students cancelling jobs they have committed to after receiving a better offer or opportunity. Maybe I am just focusing on the exceptions and not the rule, but I would be interested to hear others’ thoughts on whether cancelling seems to be the new normal.

Posted by Shima Baradaran Baughman on August 23, 2017 at 07:43 PM | Permalink | Comments (15)

Tuesday, August 22, 2017

"Revisionist History," power, and Alabama v. Tom Robinson

Malcolm Gladwell has a podcast called Revisionist History, which finished its second 10-episode season. Four of the episodes in Season 2 dealt with civil rights and the Civil Rights Movement, including episodes 7 & 8, which are about Donald Hollowell, an African-American attorney in Georgia, and Vernon Jordan, who assisted him. The podcast is great (unless you are predisposed against Malcolm Gladwell, then it likely confirms what you do not like about him) and these two stories were highlights.

Episode 7 focuses on the story of Nathaniel Johnson, an African-American man executed for raping a white woman (with whom he claimed to be having an affair) in 1959 Georgia. Gladwell compares this case to Tom Robinson in To Kill a Mockingbird, where a white woman's romantic interest in an African-American was turned into rape. Gladwell focuses on some bits from the book not included in the movie: Robinson's testimony that Mayella Ewell said she had never kissed a man before and that what her father did to her didn't count and that Bob Ewell's first words when he saw them through the window were "you dirty whore".

Continue reading ""Revisionist History," power, and Alabama v. Tom Robinson"

Posted by Howard Wasserman on August 22, 2017 at 12:00 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Monday, August 21, 2017

Teaching Seminars

Next semester will be my first experience teaching a seminar. It will be a seminar on "Special Topics in Water Law," with an enrollment under 20 students. I'm looking forward to it, but I'm sure it will require me to adapt how I teach. I'm accustomed to teaching large classes. For this seminar, I could take a deep dive into a particular area or aspect of water law, into complexities that we can't address in my larger water law class. Or I could focus more on skills development, simulations, and case studies, maybe with more field trips and guest speakers. I'm hoping it will help students satisfy their writing requirements, so perhaps I should just focus on making sure each student researches and writes a good paper on a particular water law issue. I'd also like to use the class to discuss and hone some of my own research questions, but I don't know to what extent I should make the class about my own research agenda. I'd appreciate any suggestions or thoughts about organizing and teaching a good seminar.

Posted by Rhett Larson on August 21, 2017 at 09:21 PM | Permalink | Comments (4)

The Democratic Self-Government Interest

Slate has a nice essay up covering my article on campaign finance law and my amicus brief based on the article with Ron Fein of Free Speech for People.  There are several arguments featured in both the article and the brief, and I will break them down into a few posts.  This post will address the basic doctrinal idea of constitutionally-required autonomous political communities, foregrounding states as one of these necessarily (at least minimally) distinctive political communities.

There are certain political communities that must be different from other political communities for the basic design of the Constitution to operate.  James Madison wrote in Federalist 51 that the diffusion of power required “distinct and separate departments.”  Each “department” would only be distinct and separate if it had a distinct and separate political community selecting its leaders and holding those leaders accountable.  If every political community and thus every department was the same—to paraphrase Madison—then the departments would not “control each other.”

States are surely one of these necessarily—at least minimally—distinct political communities.  Think of every major rationale given for federalism, and how it is substantially undermined if states are substantially similar.  States cannot be more directly accountable to the distinctive situations of their citizens if all states operate the same.  States will not experiment with new policies if all states operate the same.  States will not constrain one another and the federal government if they are subject to the same underlying political factions. 

Posted by David Fontana on August 21, 2017 at 06:12 AM | Permalink | Comments (2)

Saturday, August 19, 2017

Heckler's Veto?

According to reports, tens of thousands of counter-protesters showed up in marches and rallies in Boston, vastly outnumbering the few hundred people attending the the planned rally in Boston Common, which disbanded after an hour without planned speeches. From what I have read, there were so many more counter-protesters than ralliers that the latter could not be heard. And that was the goal of the counter-protesters.

So: Heckler's veto? And if not, how is it different from some of the campus incidents in which crowds outside the lecture hall have made it impossible for the invited speaker to be heard inside the hall?

Posted by Howard Wasserman on August 19, 2017 at 05:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, August 18, 2017

Trick plays and baseball rules

This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.

Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Bolivia and Chile Head to ICJ Over Silala River

While governance of transboundary international waterbodies is a constant challenge in many parts of the world, these challenges rarely result in cases before international tribunals. But Bolivia and Chile have brought competing claims over the Silala River to the International Court of Justice (ICJ).  Chile contends that the Silala is an international river subject to international law. Bolivia claims that the river - which originates in springs in the Bolivian highlands - cross the Chilean border only because of man-made canals constructed over a hundred of years ago. Mining interests in Chile's Atacama Desert depend on the Silala for industrial water uses in one of the driest, and most copper-rich, regions of the world. The UN has designated the Silala basin as one of the "the most hydropolitically vulnerable basins in the world."

Continue reading "Bolivia and Chile Head to ICJ Over Silala River"

Posted by Rhett Larson on August 18, 2017 at 09:14 PM | Permalink | Comments (0)

Thursday, August 17, 2017

Are Academics “Validators” of Fake News?

Fake news is a term we have all (unfortunately) become familiar with in the last year. It is misleading or unverified information spread through news and media outlets in order to grab attention of readers. During the election, fake news was published at alarming rates by both conservative and liberal websites. There have been recent high profile reports that mainstream media have spread fake news, including CNN and other reliable sources.

I want to talk and think about this fake news phenomenon, strictly as it applies to academics. The merits of what was actually fake and which party (or country) is most responsible for it is a more complicated question that I will punt on for now.

But what is the role of academics in spreading fake news? Do we unknowingly validate it? Or worse create it?

The Atlantic reported earlier this year that academics are “VIP Validators” of fake news. It pointed out that during last year’s primaries, Seth Abramson, assistant professor of English at the University of New Hampshire wrote in the HuffPost some “increasingly delusional blog posts explaining why Bernie Sanders would likely win the Democratic nomination.” These posts went viral among Bernie followers. The Atlantic also pointed to the example of Laurence Tribe, a professor of law at Harvard who “has been an especially active booster for the [Palmer Report], routinely tweeting links to highly questionable, unverified news stories about Trump.”

Forbes similarly discussed recently the role of academics in spreading fake news and information. Kalev Leetaru claims: “Not a day goes by that an academic paper doesn’t pass through my inbox that contains at least one claim that the authors attribute to a source it did not come from. I constantly see my own academic papers cited as a source of wildly inaccurate numbers about social or mainstream media where the number cited does not even appear anywhere in my paper.”

So with those examples as a preface (though I could name several of my own), I ask, are academics furthering the problem of fake news? I’ll share my thoughts and hope to hear some of yours.

I am absolutely mindful (maybe frightened is a better word) of spreading false information in my work. In today’s academic world, there is a much greater reliance on online sources. For instance, in my field, criminal law—and the topic I’ve written most about—bail, there is a lot of empirical work done by policy and advocacy groups and the government. I do my own empirical work and can stand behind that, but I often have to rely on others work as well. In drafting my book on bail, I have certainly relied on online articles (nonscholarly) about bail related issues and examples of stories of individuals struggling to make bail in the criminal justice system.

 Ten years ago, academics (and students) were only to rely on books or articles in print and had to verify everything by checking the original source. Now, many of the citations acceptable in law journals and other academic sources are online sources. Online publications, including newspapers, academic journals and other sources are fair game for prestigious academic publications. And while there is a hierarchy of online sources (possibly academic peer review journals being best on down to facebook/twitter being at the bottom) there is a lot of room for more reputable sources relying on less reputable ones and this information spreading.

So I worry that with the increasing reliance on online sources, that fake news and information will spread more and that academics will have a dangerous role to play in this. And this worries me because if academics are not providing reliable information, then who will? Academics should be shielded from the whims of a news cycle and deadlines to publish quickly and catchy over claiming titles that catch the eye of a reader and exacerbate the fake news problem. But are we?

More on this in my next post…

Are Academics “Validators” of Fake News?

Posted by Shima Baradaran Baughman on August 17, 2017 at 06:24 PM | Permalink | Comments (9)