Sunday, July 17, 2016
Greetings from France
As chance would have it, I happen to be in Paris at the moment (and was here at the time of the Nice attack, on the 14th of July). I can’t imagine what it’s like to be in Nice at the moment; Paris is very calm and even somewhat quiet, though this is probably at least partly attributable to the fact that the city is starting to empty out for the long holiday season for the French, which stretches from the second half of July to the end of August.
I haven’t had enough contact with actual French people here to tell you what they are thinking and feeling about the Nice attack; it would be pretty presumptuous to try to speak for them anyway, even if I did. But I was struck by a headline in the Sunday edition of Le Monde, which roughly translates to “After Nice, [Prime Minister] Valls responds to critics, denounces ‘Trumpification.’” (The article, which recounts an interview with the Prime Minister, makes clear that this neologism refers to Trump’s proposed policy of excluding all Muslims from the country.) Apparently, Donald Trump is already having an impact on policy, or at least rhetoric, abroad—though at this point the impact is mostly in the form of rejection of his views. I’ll leave it to others to imagine what the Donald’s Twitter response would be, if he ever read Le Monde...
Saturday, July 16, 2016
Free assembly at the Cleveland RNC
Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.
Part of Tabatha's argument is the following:
While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.
I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.
[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.
Friday, July 15, 2016
Interesting Development in Federal Capital Case in Vermont
As reported by a local Vermont paper, there is an interesting development going on in a federal capital case in Vermont, United States v. Donald Fell. Fell and an accomplice committed a carjacking in Vermont in 2000 in which they kidnapped the victim, Teresca King, drove her into New York, and killed her. Fell was convicted and sentenced to death in 2005. The Second Circuit affirmed but the conviction was vacated in 2014 due to juror misconduct. The case is back in the District of Vermont for retrial.
The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment. Curiously, the court issued an order this past February calling for a hearing on the issue. Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality. However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.” In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine the sources of social and statistical information cited by the defense” and “offer its own empirical evidence in response.”
That hearing began this past Monday and is scheduled to continue next week. Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal. My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States). I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances. Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.
SSRN postings and copyright
The following was sent by Stephen Henderson (Oklahoma) to the Law Prof Listserv; it is reposted here with his permission. It is one experience and could be unique, but it presents something to watch for.
It appears that the corporate takeover of SSRN is already having a real impact.
When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well. Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract. So, download counts are gone, and no article. Not the former working version nor the final version. And then in the revision comments, I found this:
It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to email@example.com, or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US.
Old Man Yells at Cloud, First Installment
I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship. This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece. I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points: these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed. On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).
For the first installment, I wanted to focus on a glaring error that I see more and more: Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.” It is as if those last three words don’t really matter, so they can be cut out. I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form. I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back. But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.
Thursday, July 14, 2016
Some reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"
A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty. It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs. Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick). And here, in the Journal of Law and Religion, are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin. The book, and the tickets, are -- like the man says -- "highly recommended"!
Privacy and Transgender Bathroom Access
In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.
Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.
First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.
As if on cue . . .
The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.
Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.
Wednesday, July 13, 2016
Violence and the future of public assembly
Since the Dallas shootings, I have been concerned about the possible effect on public protest. Local governments already cite vague concerns for public safety and risks of violence as grounds for restricting public assemblies, marches, and protests, and courts already accept those concerns too easily. An event such as the Dallas shooting makes those concerns more than abstract and allows government to argue for greater restrictions (if not for closing the streets entirely) with a "it-could-happen-here" argument. Reports of a link between a Baton Rouge burglary and a plot to shoot police (which the tiny conspiracy theorist in my brain finds a bit too convenient) have been used to justify police breaking up protests there.
See, then, this post from Michael Dorf, arguing that the threat of violence is unavoidably baked into the idea of public assembly and protest. This means government efforts to maintain order and safety, while legitimate, cannot be allowed to render hollow or meaningless the rights to assemble, speak, and petition. The balance to be struck must account for the risk inherent in the very nature of the First Amendment enterprise.
Hiring Posts - Schedule
An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 18) and the AALS conference (October 13-15).
Wednesday, July 13 (today): Hiring committee thread posted. Available here.
Thursday, August 25: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Thursday, August 25: Clearinghouse for Questions (last year's thread here).
Monday, October 17: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Monday, November 7: VAP thread (last year's thread here).
Late February/early March: Begin entry level hiring report data collection.
Hiring Committees 2016-2017
Please share in the comments the following information related to the 2016-2017 law school faculty hiring season:
Additionally, if you would like to share the following information, candidates might find it helpful to know:
I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)
If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.
Update: to clarify, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.
Pokemon GO and the law
Pokemon GO has quickly garnered a massive following since its release last week, prompting one University of Utah professor to call it "arguabl[y] the most popular video game in the world," and others to argue that "it's daily use is expected to exceed Twitter by the end of the week." But the app raises some very interesting questions about privacy and data protection law, as well as a variety of other possible liability issues. Supposedly it originally siphoned huge amounts of personal data off smartphones, but the developer has been pulling back after getting some bad press.
Users, by getting out of their lazy boys and joining the outside world in the hunt for monsters, have already begun harming themselves and putting themselves in real physical danger, and the app has reportedly sent dozens of players to at least one private residence (a remodeled church building) in search of a Pokemon Gym. Douglas Berman, over at the Sentencing Law and Policy LawProfBlog, has noted that criminals have begun (or could begin) to abuse the app. And Andrés Guadamuz has just posted a very interesting summary of some the legal issues raised by the game over at TechnoLlama, including privacy and data collection, security, liability, and virtual location rights (or: how can a person tell the app to move an unfortunately-placed Gym to somewhere besides the inside of his or her home?).
Have you seen students (or faculty colleagues) wondering around campus chasing Pokemon? Are there other interesting liability issues raised by an augmented reality game like this that haven't yet been addressed?
Ginsburg's Double-Down: Not Defensible--And Also Interestingly and Problematically Elitist
Since the round of interviews I wrote about yesterday, Justice Ginsburg has doubled down, in an interview with Joan Biskupic. (Biskupic's interview, incidentally, raises the same question I noted yesterday: Who is more damaging to Justice Ginsburg--her enemies, or her friends?) I thought her last set of remarks was inappropriate, and that the new remarks are even less appropriate and less defensible. So, naturally, there have been some defenses. Those defenses are mostly wrong.
I'll address those points in my next post. (I may be slow getting around to it, for medical reasons. For the same reason, and with apologies, I'm going to close comments.) First, I wanted to deal with some related issues--more far-flung in certain respects, perhaps, but also less likely to be remarked upon by the legal academic commentariat, which is basically conventional, non-radical, and establishment-oriented. Although these observations are less immediately related to the question whether the defenses offered on Ginsburg's behalf are sound or credible, I think they provide some useful background to that question. They also add some necessary points unlikely to be raised elsewhere, since most law professors enjoy essentially and often unconsciously privileged positions and are not likely to go in for self-wounding class warfare.
So, a couple of preliminary and certainly opinionated observations. The first has to do with the substance of Ginsburg's remarks. One understands why politeness might dictate not saying much about that. Still, one can and should ask: Do her remarks offer something new, insightful, wise, expert, or authoritative? Does she say anything that one would consider useful and novel regardless of the speaker's identity, or that draws usefully on any particular expertise? Or are her remarks essentially conventional, unexceptional, and banal? My view is that they fall easily into the latter category. This view does not depend on whether her opinions are right or wrong. I think some are right, and some buy into a conventional narrative that is so un-nuanced as to be more wrong than right. But even if they are all correct, they are still all conventional, unoriginal, and uninteresting. One remembers a fuss a while back when Justice Scalia said that he had stopped bothering to read anything other than the Wall Street Journal and the Washington Times. The opinions Ginsburg offers here are fully consistent with the views of a well-educated if impressionable person who reads, and only reads, The New York Times and The Washington Post every day, takes what is written there as conventional wisdom, and then passes it along. Apart from the identity of the speaker, there is no value-added in the substance of anything Ginsburg says in her latest interview. That's not a terribly kind thing to say, perhaps. But it is ultimately relevant to the underlying question whether her remarks are appropriate or defensible. Extraordinary extrajudicial statements may be justified because the circumstances are so novel, or (in my view, and only on rare occasions) because the remarks are so interesting and valuable that we would lose something if the judge remained silent. I'll deal with the first case later. But these remarks certainly don't fall into the second category.
Even if banal, are her comments expert? One can, of course, hold a conventional opinion that is still buttressed by expertise. Hearing it from one more expert doesn't really add all that much, but it is still an expert opinion, at least. None of Ginsburg's remarks fall into the category of expert statement. Of course she has more experience dealing with the press, with powerful people, and with fellow members of the elite than most of us could ever hope for (or, perhaps, want). But her remarks do not really seem to call seriously on any of that experiential knowledge, and certainly not on any of her legal expertise.
So we are left with the fact that Ginsburg indulged herself in a series of statements, vastly amplified by the megaphone provided by her fame and her office, that if offered anonymously on the comments section of, say, Slate or Salon, would read like every other comment to be found there. Not that there's anything wrong with that! No one should expect people to be wise because they are smart, or original because they are wise, or brilliant because they are heroic, or to have fascinating and unconventional opinions on matters that are essentially outside their expertise. Ginsburg spoke as the average well-educated citizen-member of a certain cohort of the population offering a fundamentally conventional set of opinions. That's fine, or would be if she were simply the average citizen of this kind and was not also making use of an ethically constrained public office as a megaphone. But it certainly doesn't make her remarks vital or necessary.
And this is the preliminary point I wanted to reach before showing why Ginsburg's defenders are wrong. Ginsburg's statements essentially present a representative, non-expert elite view--not wrong, necessarily, and perhaps quite right, but also not new or interesting. It is not an authoritative view in itself. But, because of who she is and because the statements are broadcast as coming from a Supreme Court Justice, they do trade on her authority, and get vastly more attention than they would have if coming from the average, anonymous, highly (perhaps unduly) self-confident and assertive Ivy graduate.
It's worth thinking a little about the ways in which her remarks speak to, and about, problems with class, social status, and elites. Our democracy would, in my view, be healthier if citizens paid no more attention and gave no greater weight to extrajudicial statements on non-legal matters from Justice Ginsburg than they did from the next randomly chosen person. And it might be healthier still if members of elites did not--as they so often tend to do--think of their own non-expert opinions as especially sage, interesting, courageous, or well-qualified. Failing that, if and when elites, by virtue of some office or position they occupy, are given special attention, authority, and weight by listeners when speaking in an unofficial capacity on matters outside their authority and expertise, but in circumstances which they know take advantage of their office and status, it does not seem like a heavy burden to ask them to use that status lightly--if at all. The failure to display that kind of modest silence, aside from the particular concerns that arise where a Supreme Court Justice is involved, speaks in broad terms (I am not accusing Ginsburg herself of these qualities) to the risks of arrogance and hubris that may afflict the successful members of what people sometimes think of, consciously or not, as a kind of natural aristocracy of high SAT-scorers.
One last aspect of the overlooked elite-centric nature of Ginsburg's remarks is that they were essentially costless. Supreme Court Justices have lifetime tenure and, as many others have complained on many other occasions, are substantially insulated from the same kinds of ethical rules and requirements that would confine many another professional. They make enough money and can draw on enough resources to insulate themselves quite effectively from many other pressures of everyday life or notoriety as well, if they choose to. Ginsburg can and, famously, will retire whenever she feels like it and not before. She will not face any serious repercussions for trading on her official status and celebrity in this very public fashion, other than being condemned on blogs or subjected to angry tweets. An Army staff sergeant with a couple of mortgages who decided to throw on her uniform, head downtown to the local newspaper, and make the same remarks would....Well, most likely she would not be paid any attention at all; she's not a Supreme Court Justice, after all, just a common soldier. But if she were, she would face the risk of the kinds of serious and even devastating disciplinary and professional consequences--military discipline, perhaps dishonorable discharge--from which Ginsburg at this point is essentially completely insulated. And, unlike that staff sergeant, for every critical remark she gets, Ginsburg will also receive any number of garlands from like-minded friends, fans, and courtiers. It's always worth remembering that one reason elites sometimes, if rather rarely, "speak truth to power," whatever that phrase means exactly, is because doing so is fairly cheap for them. It seems to me that if we're going to consider fully and seriously how we feel about Ginsburg's recent escapades and whether they are defensible, we should not overlook the heavy elements of class, elite social status, and privilege that feed into the whole affair.
More on the question whether Ginsburg's remarks were defensible, which essentially turn on two arguments--"emergencies justify extraordinary conduct," and "all citizens are entitled to speak"--in the next post.
NBA changes to stop Hack-a-Shaq
The NBA on Tuesday announced rule changes designed to limit the "Hack-A-Shaq" strategy of intentionally fouling bad free throw shooters away from the ball. Beginning next season, all fouls away from the ball in the final two minutes of every quarter will result in one free throw and the ball out of bounds for the offensive team (this has been the rule for the final two minutes of the fourth quarter). The same rule will apply to fouls on inbounds plays (the new rage was jumping out of bounds to foul the inbounder). And jumping on a player's back during a free throw (a recent development used in the final two minutes) will be deemed a flagrant foul, punishable by one free throw and the ball, plus possible future punishment of the fouling player for repeated violations.
Unfortunately, I am not sure this gets the NBA where it wants to be, because it does nothing to deter Hack-a-Shaq outside the last two minutes of a quarter. Perhaps the league had statistics showing that the strategy was more prevalent in those times. But the rule change does nothing to stop the reductio of the strategy--a January 2016 game in which the Houston Rockets intentionally fouled DeAndre Jordan of the Los Angeles Clippers twelve times in a row (four times, using an end-of-the bench player, to put them in the bonus and eight times to put Jordan on the free throw line) at the beginning of the third quarter. I still believe the better rule would be to give the offense the choice of shooting the free throws or taking the ball out of bounds for off-the-ball fouls. Presumably, teams will choose the latter option for all but their best free throw shooters, thereby eliminating the perverse incentive to intentionally foul, at least away from the ball. But the NBA went a different way, given us temporal, if not complete, relief from this eyesore.
Update: This Deadspin piece makes a fair point: Hack-a-Blank only becomes worthwhile if the hacking team is in the bonus following the fourth foul of the quarter, so that the hacked player would shoot. If a team is otherwise playing good defense and the game is not being called unusually close, that may not happen until 6-8 minutes into the quarter. So the window left for Hack-a-Blank is not the first ten minutes of a quarter, but maybe only a 2-3 minute window before the last two minutes. Teams typically do not do what the Rockets did in the game described above, hacking right from the beginning of the quarter, using an end-of-bench player only to commit a succession of fouls; this is what drew so much attention to that game.
Tuesday, July 12, 2016
Professor Patricia Leary
Random free speech stories for a Tuesday
1) It is sad that an even-handed attempt to mourn police and victims of police violence--and thus to show that the problem affects all sides--nevertheless devolves among those who cannot accept the possibility that some police shootings are unjustified, that an antagonistic relationship between law enforcement and those they police cannot hold, or that police conduct is a legitimate subject of public discussion and protest.
2) If this story is even a bit true, I can hear the consent decree language ordering Baton Rouge to establish policies and training regarding "the right to criticize or complain about police conduct without being subject to retaliation" and "the right to engaged in lawful public protest." Part VIII offers a good start, as the same things keep coming up.
3) If Black Lives Matter is responsible for the "horrible" and "divisive" rhetoric of some protesters, then is Donald Trump responsible for the rhetoric of some of his supporters, not to mention himself? And will anyone point that out to Trump? Obviously, Trump is not responsible for his protesters' rhetoric. But then neither is BLM. And Trump cannot have it both ways.
Monday, July 11, 2016
Judges--and, Perhaps, Journalists--Behaving Badly
I was glad to see I was not the only person who thought Justice Ginsburg spoke obviously inappropriately in a couple of recent press interviews, in which she pronounced on presidential politics--although there is no particular reason to think she has any special expertise, insight, or wisdom about presidential politics--and on current cases. There is no point in loading another dollop of high moral dudgeon on about this, but there are a couple of other interesting things to be said about it.
The most interesting thing, to me, is what Jonathan Adler points out today on the Volokh Conspiracy blog. I'll just quote the relevant material from Jonathan's post:
[Ginsburg] said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has not been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.
I was going to write about the changes to the Liptak story before seeing this second example. I hate to attribute motives or actions to others on the basis of what "obviously" must have happened, because I know life is regularly more boring and contingent than that. From my brief experience in journalism, I know that although editors often help prevent reporters from screwing up, reporters nevertheless routinely have to fight editors to make sure that their edits don't introduce new inaccuracies into a story. And that was in the pre-Internet days, when one fought only one or two editors for only one or two editions of a story, rather than having to put up different versions of stories all day and struggle against a larger and less experienced cadre of editors. Still, one obvious possibility was that Justice Ginsburg, or someone from the Court, had asked Liptak or his editors to change the story between one version and the next, so that Ginsburg would not be seen as publicly trumpeting her desires and intentions for future cases. Against that, however, one has to factor in the possibility that the original version was the inaccurate one, and that the requested correction had to do with accuracy and not with saving the Justice from embarrassment.
I still refuse to impute or ascribe motives or anything else absent much stronger evidence. But it becomes much harder to accept the charitable readings so easily in the face of the second example, noted by Rick Hasen and reported by Jonathan Adler. In both cases, it appears that the story was changed to soften some of the details provided by Justice Ginsburg, on the record in a press interview, and thus reduce the damage done by the interview. That damage includes reputational damage in both instances, at least for those fuddy-duddy traditionalists who still think judges ought to abide by standards of dignity and discretion in extrajudicial statements. And it would include perhaps greater and broader damage in the case of the Liptak interview, since the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases. Given that both examples involve changing the story in the Justice's favor t0 make it less rather than more revealing, it is harder to simply assume that the change in both cases had to do with eliminating inaccuracies.
From my point of view, if it is in fact the case that Justice Ginsburg, or someone in her office or acting on her behalf, or some officer of the Supreme Court, contacted both reporters to get them to try to soften their stories in subsequent editions, that itself is not blameworthy conduct--for the Justice or her proxies, that is. After all, they don't work for the paper. But if the original versions of the stories are accurate, it would be entirely blameworthy for the reporters, or their editors, to change the story because someone associated with the Justice complained about it. It is certainly not a reporter or newspaper's job to save a judge or Justice from indulging, embarrassing, or even hanging him- or herself in print. To the contrary, and I doubt any journalist would disagree with me, if Justice Ginsburg or some other judge or justice wants to say something either slightly or incredibly inappropriate in an interview, the journalist's job is to provide him or her with enough rope to effect the hanging. And there is only one reasonable journalist's response to a request or demand from a source to change a story for any reason other than that it is inaccurate. The answer is a colloquial one, and the colloquialism is "get bent," or "go to hell." Via FB I have asked Adam, a regular and generous reader of the blog, to shed some insight into how or why the change was made in his story.
There are two words I think highly relevant but too rarely spoken or offered, due to the law's culture of flattery, in thinking about Ginsburg's recent rash of foolish public statements. The first is "senescence." Never having met Justice Ginsburg, I have an insufficient basis to think, or at least to say publicly, that she has become partly or completely senile. I also have no desire at all to speak lightly or casually about such things. But I think foolish interviews of this sort, which she has given increasingly over the last few years, do not just demonstrate a changing cultural standard that is being applied by an increasing number of judges. They also suggest, on an individual level, a possible increasing loss of the kind of judgment and restraint that Justice Ginsburg once would have displayed. I raise this not to suggest that she is not still capable of doing her job as a Justice--although this is not saying much, since I think even a pretty senescent individual can continue to fulfill the function of judge or Justice in a staff-heavy environment. But Justices are effectively managed by their staff in their official work, not their extrajudicial statements. And the increasing lack of prudence she is displaying with regard to the press, in circumstances where her staff does not or cannot run interference for her up-front, does suggest that she is no longer functioning at her best. (This, incidentally, is the kind of point we once would have expected Judge Posner to raise especially keenly, given his interest in aging and old age and his realism about judges as human beings. But I dare say that Posner's own recent extrajudicial statements suggest that he is suffering from the same condition.)
The second word is "enabling." One wants one's friends, not one's enemies or adversaries, to look out for one and to speak up if one is behaving badly or showing signs of decline. I wonder whether all the Ginsburg fans, friends, and admirers who have enjoyed and passed along these interview remarks, or who have indulged in the fun of meme-sharing and buying trivial T-shirts and coffee-table books, recognize just how much of a disservice they are doing to the person they purport to admire. If they really admired her, they would be better advised to urge her, publicly and privately, to keep quiet off the bench.
Should junior legal academics write a book? (and if so, when?)
As a junior academic, I found Chris Walker's recent Junior Law Prawfs FAQs Series here at Prawfs to be quite useful and informative. I don't intend to add an exhaustive series of posts on this topic this month, but I do hope to contribute a little to that rich conversation, as I think it's worth continuing.
First of all, I want to ask about the place of books in legal academy - specifically, should junior (or aspiring) law profs seriously consider writing a book? And, if so, when? How should such a decision be approached and where should a junior prof be thinking about submitting their work? (Brian Leiter has previously blogged about ranking the prestige of presses in law, but there are also other such lists for other disciplines - often with some overlap.) Books obviously consume a large amount of research and writing time, and could potentially distract an author from publishing as much in journals. However, many legal academics write books (though quite a few authors often incorporate a number of previously published law review articles as chapters, which does help keep the book from completely consuming the author's output during the writing period). As a point of reference, I have just signed a book contract myself, and I know others who are proposing and writing books at the moment, both inside and outside of legal academia. The process, and the decision-making that up to my decision to initiate it, was both difficult as well as quite encouraging, and the prospect of the book itself is quite exciting.
I've noticed what I suspect might be two approaches to writing books among legal authors. First, those that started as book-length projects from the outset, with select chapters sometimes also serving as the basis for separate law review articles published in the months or year before the full book. Second, I would guess that other books only became books after an author had published quite a bit on a topic and then, subsequently, decided to incorporate his or her scholarship together into a longer, more extended discussion. I suspect both of these approaches have their pros and cons.
FIRE podcast on Nazis in Skokie
The latest edition of FIRE's So to Speak podcast features an interview with Aryeh Neier, who was the ACLU's Executive Director in the late 1970s, when the Nazis marched in Skokie and wrote a book on the controversy. Neier makes an interesting point in the interview--this case is a strong symbolic victory for speech, although not necessarily precedential victory, as the case really ended in the Seventh Circuit. Nevertheless, this case is the reverse slippery slope for free-speech advocates--"If the Nazis can march in Skokie, then ____ is permissible."
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part I
This post and the next (Part II) are drawn from my contribution to the forthcoming edited volume Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge University Press 2017).
In the wake of Whole Woman’s Health, what will be the future strategy of anti-abortion activists? One possibility, for which there is at least some evidence, is that they will turn away from working to enact restrictions justified by purported health and safety benefits and instead focus on restrictions that advance a claimed state interest in the life and/or dignity of the fetus.
Restrictions that fall into this category include reason-based bans on abortion—laws forbidding abortions that are sought for particular reasons, such as fetal abnormality or sex selection. It may be easier for such restrictions to pass constitutional muster after Whole Woman’s Health v. Hellerstedt, because, given the intangible nature of the dignitary interest supporting them, states will not bear the onus of justifying them with hard medical or scientific evidence. Abortion opponents may also reason that such justifications are more likely to appeal to Justice Kennedy, who has shown concern for various kinds of dignitary harm, including to the fetus (see Gonzales v. Carhart).
It is therefore worth considering whether such bans (at least one of which—Indiana’s—has recently been challenged) are constitutional. In the remainder of this post, I’ll analyze that question. In the next post, I’ll consider a different form of reason-based regulation of reproduction: state laws that distinguish between therapeutic and non-therapeutic uses of contraception for purposes of insurance coverage mandates.
Saturday, July 09, 2016
Law professor responds to students on "Black Lives Matter" (Updated)
Update, July 10: As noted in the comments, the response states that the professor wore the t-shirt on the day the Crim Pro class discussed police violence against the Black community. But that leads me to a curriculum question: How many of you cover police violence (or, more broadly, Fourth Amendment/excessive force) in crim pro? This seems an odd fit in a course that typically focuses on how police conduct affects subsequent prosecution and the evidence that can be used in that prosecution. I think of excessive force (aside from physically coercing confessions, which has not been BLM's focus) not as a matter of the lawfulness of a search or seizure for evidentiary purposes, but only for subsequent civil damages suits.
This letter by an unknown crim law professor at an unknown law school responding to an anonymous student complaint about the prof wearing a "Black Lives Matter" t-shirt to class is making the rounds and drawing raves in the left-leaning interwebs, as well as Facebook accounts of law profs.
I post it and welcome responses comments. I have not yet figured out what I think.
Friday, July 08, 2016
Police body cameras raise a host of legal (Fourth Amendment) issues
Police use of body-worn cameras raises a host of difficult and interesting legal questions. I have spent a good deal of time watching body camera videos over the past couple of years - both those that show up on sites like YouTube as well as those filmed by officers with whom I have been conducting field research with two municipal police departments in Washington State. Because some of my recent (forthcoming) research is focused primarily on issues of state privacy and access to information laws, I wanted to raise some issues for discussion here at Prawfs related to some of the videos I've watched most recently, and in the context of the Fourth Amendment (as this is the next area I need to begin really grappling with). One of these videos is now on YouTube, and the other hasn't made it there (but I describe it more in my paper and forthcoming book), but both were filmed by officers in the departments where I conducted my research).
The first video (I'm not going to provide links, as I don't want to directly increase the number of views of these videos) was captured by an officer's camera as he responds to a call for service from an elderly woman who is complaining about people she believes are trying to scam her into a fraudulent loan for home renovations (I know this because the conversation is captured on the video). Upon reaching the woman's house, the officer says hello and enters the home when he is welcomed in by the woman. He does not verbally announce the presence of the camera - and under the State AG's legal interpretation of Washington State law, he has no obligation to do so - but he does continue to record the conversation that takes place inside the woman's house. The second video is captured by a camera worn by an officer as he responds to an emergency inside a private residence, and the video depicts a truly horrible scene, including the failed efforts of the officer to revive a lifeless little baby who has stopped breathing. We see other children, adults, a wailing and distraught mother, and a number of other officers throughout the video as the officer's chest mounted camera captures the scene in front of him.
In both of these cases, body cameras were worn into private homes and captured different types of officer-citizen interactions. In both cases, much of the video (and audio) was subject to public disclosure, even to anonymous requestors, at the full expense of the police department. Officers also wear cameras during warranted searches and arrests inside homes. However, on June 9, a number of new exemptions to Washington State's Public Records Act became effective, and one of these exemptions specifically covers body camera footage that records "[t]he interior of a place of residence where a person has a reasonable expectation of privacy." (Another prohibits disclosure of dead bodies.)
Thursday, July 07, 2016
Learning About Gender Identity
As transgender people have gained more visibility over the past couple of years, many of us have had to consider what it means to be transgender for the first time. Understanding what it means to be transgender is important for unpacking the legal issues confronting transgender individuals, but, as educators, being knowledgeable about gender identity is also necessary to make sure we are serving our students. As a recent study by UCLA’s Williams Institute concludes, roughly 1.4 million adults in America are transgender, suggesting we are likely to have trans or gender nonconforming people in our classrooms.
So, while in future posts I will dive into some of the legal issues, I thought it might be useful at the outset to share some of things I’ve learned about gender identity.
First, a transgender person is someone whose sex assigned at birth (usually based on a quick exam of their external genitalia) does not accurately reflect their gender identity.
Second, we all have a gender identity, which simply refers to one’s personal sense of being a certain gender. People whose gender identity comports with their sex assigned at birth are referred to as “cisgender.”
Your first big news story
What's the first major news story you can remember living through as a child?
(Note: This is not necessarily the same as "where were you when" or even the first story you could understand; it is the first story you remember hearing or knowing about, even in simplest terms):
For me, it was Nixon's resignation and the impeachment talk in the month-or-so leading to that.
Have at it in comments.
Wednesday, July 06, 2016
A short take on churches' tax exemptions
This might be timely, given our recent commemoration of the July 4 tax revolt! Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions. A bit:
. . . But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.
The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .
. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not simply that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.
The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.
Alton Sterling and Police Backlash
Once again we are confronted with the police engaged in the violent killing of an African American man, one who appeared unable to defend himself. This time it was Alton B. Sterling, a 37-year-old father who was pinned to the ground by two officers when one of them shot him.
Once again, we would not know of this shooting were it not captured by a member of the public on a smartphone camera and made public. Yet the police hate this activity, which Brooklyn Law Professor Jocelyn Simonson calls “Copwatching.” But the police have their own name for it—the “Ferguson Effect”—and sadly that is the name that has been picked up by the press and certain sections of the public.
FBI Director James Comey has argued that this “viral video effect” makes “officers wary of confronting suspects for fear of ending up on a video” and undermines their willingness to undertake their conceptually basic duties of upholding the law and intervening to prevent misconduct and ensure civilian safety.
The “Ferguson Effect,” if it exists, is wrongly named. It should be called a “backlash effect.” Thanks to ordinary citizens independently scrutinizing police officers on the street, policing has become less able to operate without civilian observation *and recording* (the ability to record and to *publish* the recording is vital). That scrutiny has often been directed at race-based or race-disparate policing tactics. A consequence is that those tactics are now both public and publicly denigrated. And a further consequence is that society has become more anti-racist, if only in the sense that it denigrates these procedures.
Tuesday, July 05, 2016
Some thoughts about Whole Woman's Health v. Hellerstedt
Cross-posted at Casetext
I'm delighted to be back blogging at Prawfs! Thanks to Howard and the rest of the regulars for inviting me.
I wanted to start off with some thoughts about the Supreme Court's momentous decision in Whole Woman's Heath v. Hellerstedt -- more thoughts on the case may follow as they develop.
In Whole Woman’s Health v. Hellerstedt, the most important abortion case in over two decades, the Supreme Court handed the plaintiffs as sweeping a victory as they could have hoped for. In doing so, the Court also saved the “undue burden” standard and quite possibly the right to abortion itself.
Since the Supreme Court’s joint opinion in Planned Parenthood v. Casey, which was co-authored by Justices O’Connor, Kennedy, and Souter, the constitutionality of an abortion restriction depended on whether it imposed an “undue burden” on the ability of a “large fraction” of women to obtain an abortion. This standard was not only less protective of abortion rights than the strict scrutiny standard that the Court had set out in Roe v. Wade, it was also so indefinite and malleable that it opened the door to greater and greater envelope-pushing by states adopting increasingly onerous anti-abortion laws.
In Whole Woman’s Health, the Supreme Court was confronted with one such anti-abortion law—Texas’s H.B. 2. The Texas law required abortion clinics to meet the standards of ambulatory surgical centers (essentially, mini-hospitals) and abortion providers to have admitting privileges at a local hospital. The ambulatory surgical center requirements were prohibitively expensive for existing clinics to meet, and admitting privileges can be impossible for certain abortion providers to obtain for reasons totally unrelated to clinical competence, such as opposition to abortion (for example, by a Catholic hospital). Thus, the combined effect of the two restrictions—restrictions extant in numerous other states as well—would be to shut down approximately three quarters of Texas’s abortion providers, forcing many women—especially those outside the major metropolitan areas—to travel long distances and undergo long delays in order to obtain safe and legal abortion services.
In a 5-3 majority opinion by Justice Stephen Breyer, the Court held the Texas abortion restrictions to be an unconstitutional undue burden on abortion rights. In some ways, this holding was not surprising. After all, even Justice Kennedy, the most conservative member of that 5-Justice majority, would have to admit that if anything is a substantial obstacle to abortion access, H.B. 2 is. The bigger surprise was the way the Court went about it. In finding an undue burden, the Court held that the actual health and safety benefits of the law had to be balanced against the impact of the law on abortion access. Given that the two Texas requirements were found to have essentially no meaningful benefits to women, the massive burden on abortion access was unwarranted (or “undue”).
It is hard to overstate how important this particular approach was.
The ABF and the Legal Academy
Happy 4th of July! Thanks again to Howard, Sarah, and the rest of the Prawfs community for allowing me to be a guest blogger during the month of June. I’ve been a longtime admirer of PrawfsBlawg, and I had the honor a couple of years ago to participate in a PrawfsBlawg book club on my book, Making the Modern American Fiscal State (thanks to Matt Bodie for helping organize that online discussion). It was a real privilege this time around to share with you some background about the ABF and a few of our research highlights.
In my last post before I depart, I thought I’d discuss how the ABF connects to the legal academy.
Monday, July 04, 2016
Happy Interdependence Day
I would imagine that if you ask people to summarize what Jefferson was saying in that stirring second paragraph of the Declaration of Independence, most would focus on the words “all [people] are created equal” or “life, liberty, and the pursuit of happiness.” The focus, for them, is on equality or freedom, both manifestations of individual rights.
But, really, the Declaration is more about the collective right of self-governance. The important language comes after the bit about “life, liberty, and the pursuit of happiness”: “[T]o secure these rights, governments are instituted among [people], deriving their just powers from the consent of the governed.” That is, the Declaration is really about democracy and, in turn, law. Life, liberty, and the pursuit of happiness are the ends, but democratically enacted laws are the means by which to secure those ends. Liberty and happiness are abstract notions; reasonable people can disagree over what they mean in real life and how they can best be achieved. The Declaration is more about the process by which people get together and decide these things rather than about the substance of liberty and happiness themselves.
How do we know this? Read the Declaration. The whole thing, not just those first two stirring paragraphs. Most of the document is a list of grievances against the King, and the first eight of these grievances have to do with either the King’s failure to make laws or his creating obstacles to local lawmaking in the colonies. Indeed, the very first complaint is this: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.” So, when we celebrate the Fourth, we are not primarily celebrating individual rights. We are primarily celebrating local democracy and the resulting laws that in many ways constrain individual freedom. We celebrate independence from one legal regime but we also celebrate interdependence: free citizens relying upon one another to make mutually beneficial laws that constrict some individual freedom in exchange for what they collectively determine to be optimal “liberty” and “happiness.”
In other words, Happy Fourth everyone! Now let’s go blow stuff up!
A Belated Eulogy, Of Sorts
Before I begin blogging in earnest, I would be remiss if I didn’t say something about Dan, given that I haven’t blogged here since before his death almost two years ago. I am a little hesitant to offer any kind of eulogy, not just because it is so late in the day but also because I’m not sure I can say anything about Dan that hasn’t been said before, with much more eloquence than I can muster. In addition, I didn’t know Dan as well as some did. I had met him only a handful of times IRL (as the kids say), including being on a panel with him about five summers ago. Nonetheless, the magic of the internet – blogging and Facebook – gave me the illusion that I knew him better than I actually did, and I knew him well enough to be utterly shaken to the bone upon hearing of his death. In any event, I don’t think anyone will mind if I add a few thoughts.
Greetings from the Netherlands (and happy Fourth of July to US readers)
Thanks to Howard for inviting me to join you here at Prawfs this month! To introduce myself, I'm an American (and a California-trained lawyer) working in legal academia in The Netherlands. For just over a year now, I've been a researcher in the Law and Technology department at Tilburg Law School, where I also teach privacy and surveillance law subjects. I'm a JD/PhD (Information Science), and I enjoy mixing legal and empirical research as much as I can. I am looking forward to blogging about a few themes over the coming weeks, including questions related to policing, criminal procedure, and criminal law, especially as they relate to privacy and access to information concerns. I also anticipate mixing in some posts about socio-legal research and interdisciplinary approaches to studying law, as well as some issues that will hopefully be relevant especially to junior or aspiring members of the academy. I look forward to engaging with you over the next month or so on these topics.
My first substantive post (coming in the next day or two), will address and ask some questions about the legal implications of police officers wearing body cameras into private homes, as this is something I've been grappling with in my own socio-legal field research with two police agencies in Washington State over the past 22 months. I think there are some interesting and unresolved issues raised by this particular use of technology, both in terms of the federal Fourth Amendment, but also stemming from varying state constitutional and statutory rules about criminal procedure, privacy (including eavesdropping), and public access to footage.
Saturday, July 02, 2016
Nationalism and Reciprocity
Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.
I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).
If Nationalism is a bilateral or multilateral affair, such that asserting the exclusionary status of membership Nation X entails asserting that members of Nation Y are not participants in the Nation X project, then Nation X’s nationalism is likely to have consequences for Nation Y. One of those consequences is that members of the excluded nation are likely to feel shunned. In a *United* Kingdom, the Northern Irish, Welsh, and, yes, the *English* all participate in the Scottish project. In an independent Scotland, they do not. Indeed, one reason that Scottish nationalists want independence is precisely to prevent and exclude England from participating in the Scottish project. It’s not at all clear that they also want to exclude our Celtic Cousins the Welsh and Irish. But there is it: reject one, reject all.
Greetings! I’m happy to be guest-blogging here after a long absence. For those who don’t know me, I teach Criminal Law, Criminal Procedure, and related courses at Salmon P. Chase College of Law at Northern Kentucky University, and I write mostly in Criminal Procedure. Much of my work has been centered around identifying and elaborating upon what I see as a neglected federalism component in the Bill of Rights. This month, I hope to blog about that, as well as some items related to teaching, the mechanics of writing, the latest Supreme Court Term, and my new-ish role as Associate Dean for Faculty Development at my school.
Friday, July 01, 2016
Happy July. Happy Canada Day, in honor of Paul, Dan, and our Canadian readership. And happy Fourth of July weekend.
Thanks to our June guests, who may be sticking around for the holiday weekend.
And welcome to our July guests--Jessie Hill (Case Western), Michael Mannheimer (Northern Kentucky), Eric Miller (Loyola LA), Bryce Newell (Tilburg), and Scott Skinner-Thompson (NYU).
Against "God Bless America" at ballgames
Aside from the atheism, I could not have said this any better and could not agree more.
The Garland Network
I have written before in a popular piece--and then in an academic article I am putting the finishing touches on now--about how much of constitutional law can be understood by the fact that there are far fewer conservative lawyers graduating from the top law schools that tend to staff the top positions in the three branches of government. Smaller networks tend to denser networks with fewer transaction costs, and this produces different dynamics than the larger and hence looser network on the left.
In this context, Merrick Garland is truly an interesting figure on the left of the legal center. As The Washington Post joked, Garland has been portrayed as "the perfect human being" partly because of his range of his relationships. He knows and has had the vocal support of law professors, private sector lawyers, governmental lawyers, and public interest lawyers. Federal judges nominated by Republican Presidents--or at least a few conservative federal judges--tend to be networked in with many different parts of the legal power structure. Federal judges nominated by Democratic Presidents tend not be as networked in--or, rather, more of them tend to be somewhat networked in but not completely networked into the power structure. My guess would be that a network analysis of judges appointed by Democratic Presidents would find Judge Garland the most connected judge appointed by a Democratic President in my lifetime.
Expanding Access to the HIV Prevention Pill, Truvada
Thrilled to be guest blogging with Prawfs this month!
To kick things off, I thought I’d highlight some of the barriers that are preventing widespread access to Truvada, a once-daily pill that can help prevent infection with HIV even if exposed to the virus. Although approved by the FDA for use as pre-exposure prophylaxis (or “PrEP”) in 2012, awareness of Truvada as a tool for preventing the spread of HIV is not universal, and several barriers to uptake exist.
According to the CDC, daily use of PrEP can reduce the risk of getting HIV from sex by over 90%. Importantly, Truvada is not a replacement for condoms, and should be used with condoms (particularly since Truvada doesn’t prevent other STDs). The CDC recommends that those at “substantial risk” of HIV consider taking Truvada. In America, about 1.2 million straight and queer people engage in behavior that puts them at “substantial risk” of HIV, and yet the number of people taking Truvada as PrEP numbers only in the tens of thousands. If taken more widely, PrEP could meaningfully reduce the number of people infected with HIV each year, which has remained steady over the past few years at about 50,000 new infections each year. (More than 1.2 million people in the United States are currently living with HIV).
As outlined in a wonderful new report by Duke Law’s Carolyn McAllaster and the Southern HIV/AIDS Strategy Initiative (SASI), the key barriers to PrEP uptake include lack of awareness, stigma, and cost/access. Of these, I want to draw attention to two key points.
First, as recognized by the White House’s National HIV/AIDS Strategy, HIV stigma remains one of principal roadblocks in preventing, detecting, and treating HIV. In addition to discouraging PrEP, HIV stigma contributes to what is known as the care continuum, where, according to estimates, roughly 86% of those with HIV are diagnosed, only 40% are engaged in care, and only 30% are virally suppressed through use of anti-retrovirals. But, unfortunately, certain government policies, such as the FDA’s blood donation deferral policy toward gay and bisexual men and laws that criminalize HIV transmission, stigmatize HIV and push it further into the shadows. But there is also PrEP-specific stigma, with some suggesting that those who use Truvada are promiscuous and irresponsible, when, in reality, taking PrEP is sexually responsible.
Second, as the SASI report notes, while HIV is disproportionately spreading in the South and, there, disproportionately among black women and black men who have sex with men, most Southern states have not adopted Medicaid expansion. Why is this significant? Medicaid and most private insurers will actually help pay for Truvada, which costs about $1,300 a month. But nearly 3 million adults fall in the so-called “coverage gap” between traditional Medicaid and the Affordable Care Act’s insurance subsidies (a gap that Medicaid expansion would cover). And 89% of people in the coverage gap are in the South, the region most in need of HIV prevention tools. As such, without Medicaid expansion, millions of people lack health insurance, including many who may have indications for PrEP.
That’s enough for now, but for those interested in additional steps that can be taken to expand access to PrEP and prevent the spread of HIV, I once again recommend the SASI report!
Thursday, June 30, 2016
Overview of ABF Research (Part III): Law & Globalization and Legal History
In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present. From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time. Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.
Let me start with a brief description of our research on law & globalization.
Same-sex marriage, religious opt-outs, and constitutional procedure
On Monday, Judge Reeves of the Southern District of Mississippi declared that Mississippi cannot statutorily authorize county clerks to opt-out of issuing marriage licenses to same-sex couples based on religious objections to same-sex marriage (the law was enacted soon after, and in response to, Obergefell). But the order was entirely bound-up in the procedure of constitutional litigation, particularly with respect to marriage. Refreshingly, Judge Reeves took his time on the process and got it right.
JOTWELL: Malveaux on Marcus on public interest class actions
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus, The Public Interest Class Action (Geo. L.J.), which considers the special role of the public-interest, equitable-relief class action and how to shield it from the Court's recent narrowing decisions.
The Middle of America?
It is something beyond a truism at this point that we live in increasingly ideologically divided times with increasingly ideologically coherent political parties battling each other (even after Donald Trump's success in the primaries!). When one party controls a branch of government, it tends to push that branch of government either to the left or to the right based on which party is controlling that branch of government.
Imagine that I told you, then, that one branch of government in the past few weeks had taken actions that had the following practical effects: making it harder to regulate abortion; making it easier to have affirmative action policies; and making it harder to have immigration reform. Three salient issues, two liberal results, and one conservative result. This might sound like the ideological valence of a President or a Congress from the middle of the twentieth century, but not of the start of the twenty-first century.
With all of the reports of the Court moving to the left, it is notable how much the Court still sits more to the center than the other branches of government. It might be moving one way or another, or about to move one way or another, and we might not know entirely why, but my sense is that it even this year it still tends to sit more in the middle of American public life more often than the other branches of government are.
Should the Supreme Court Go Public?
I appreciate the fantastic comments on my earlier post regarding Justice Sonia Sotomayor's dissent in Strieff. These comments raised great questions related to Strieff itself, as well as larger issues related to public outreach by the Justices. I want to write something short about the latter issue.
Why doesn't the Supreme Court engage in more and more significant public outreach? This public outreach is fairly common for state court judges to do. I can still remember members of the press office of the Florida Supreme Court standing out front of the courthouse to announce how the Florida Supreme Court had resolved the presidential election controversy in 2000. Of course, though, large numbers of state judges must stand for election.
There is a whole literature in political science about foreign high courts engaging in public outreach. Two of the leading works in that area are Jeffrey Staton's great book on the Mexican Supreme Court, and Georg Vanberg's equally great book on the West German Constitutional Court. American scholars have started to think about this issue more, but they are analyzing subtle rather than salient outreach efforts by Justices.
Wednesday, June 29, 2016
The Many Constitutional Laws
The primary field of scholarship that I write about is constitutional law. It has occurred to me in my writing this summer how much constitutional law has subdivided itself--and how common it is for academic fields to do that as both cause and effect of their increasing prominence. New scholarship begets new scholarship, and new sub-fields beget new sub-fields.
It would be absurd to think that there is just one area of political science, for instance. Michael Sandel is doing something very different than what Robert Dahl was doing; Adam Przeworski is doing something very different than what Hans Morgenthau was doing. Because and as political science became more and more complicated, it had and has an increasingly plausible claim to subdividing itself. To respond to the sophisticated claims of a specialist, it requires the equally sophisticated claims of another specialist.
Zero and Positive Sum Psychology
One of the best academic theories to help us explain the passionate divide regarding Brexit or Donald Trump's success is the so-called "zero-sum bias." Empirical research has suggested that many people tend to understand life as essentially zero sum. If some other individual or group is gaining more of something, then there is less of it left for other individuals or groups. Immigration, then, means more for other people and less for my people. If one team wins, then one team loses.
Others understand competition as positive sum. Voluntary exchanges benefit all parties to the exchange. Immigration, then, means more for other people and more for my people as well. Both teams win.
Monday, June 27, 2016
Sunday's season finale played out the constitutional election/selection/succession contingencies to the last, producing what, in reality, would be a genuine constitutional and political crisis. And it leaves the show in the position of a genuine reboot when it comes back next season, which presents some interesting possibilities.
Posner is Much More Right Than Wrong
Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post.
The second is a reply from Dawn Johnsen. She writes, in part:
I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.
A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.
And the third is Posner's response. Again in part:
I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you.
I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.
Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.
The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work.
You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.
Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix.
Sunday, June 26, 2016
Dan Markel Memorial Lecture July 23 in DC
If you are in Washington DC in July please make a note in your calendars. Matthew Price will give a d'var Torah on Shabbat morning, titled “Reflections on Friendship,” in memory of Dan Markel, z”l, on the occasion of his yahrzeit. Dan was a beloved friend of many members of Ohev Sholom. Saturday, Jul 23 Dan Markel Memorial Lecture Time: 11:00 am.
Friday, June 24, 2016
Overview of ABF Research (Part II): Diversity & Inclusion and Access to Justice
My apologies for the long gap between posts about ABF research. I’m clearly not as prolific as other guest bloggers. In fact, I don’t think I can read as fast as David Fontana can blog. Well done, David!
Let me see if I can pick up the thread on the different parts of the ABF’s research portfolio.
In addition to Criminal Justice and Legal Education (described in my previous post), ABF research has also focused on the important topics of Diversity & Inclusion in the Profession and Access to Justice. Like most ABF research topics, these two aren’t self-contained or isolated areas of scholarship and programming. In fact, they often blend together.
Let me begin by describing some of our work on Diversity & Inclusion in the Profession.
Annual Law and Religion Roundtable
With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.)
A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.
I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.
Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.
Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.
Whole Women's Health
Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?
If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed out, Fisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.