Tuesday, August 16, 2016
Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations
As I argue in a book chapter, I am a fan of decentralizing to subnational governments disputes over what I call “RADDs” – that is, “reasonable and deep disagreements.” A RADD is potent and divisive cocktail created by mixing two explosive ingredients – first, a reasonable dispute over a baseline of entitlement and, second, an intense conviction that the dispute touches on one’s identity as a member of an ethnocultural group. I believe that it is prudent to decentralize fights over RADDs because the absence of any common baselines – that is, the absence of a social and legal consensus defining who owns what -- make RADDs simultaneously irresolvable and viciously divisive. Because each side believes that it is playing defense against an invading enemy intent on cultural hegemony, battles over RADDs are treated by contestants as existential threats, inspiring an endless culture war in which the contestants generate acrimony that poisons ordinary politics. To defuse such battles, one can lower the stakes by delegating the resolution of RADDs to subnational governments in a way that allows each side’s reasonable view to prevail in some subnational jurisdictions. Federalism is the Westphalian solution to our Thirty Years (and counting) Culture Wars.
If you share my taste for defusing RADDs with a decentralizing fix, then there is no more important precedent than Locke v. Davey, the SCOTUS’s 2004 precedent that permitted but did not require Washington State to exclude a student seeking a devotional theology degree from receiving funding from the State’s otherwise-inclusive scholarship aid program. Locke is the federalism complement to Zelman v. Simmons-Harris, in which the Court permitted but did not require parents to use otherwise-available state-funded vouchers at religious schools. Both cases expand the scope of states’ power to define what one might call “secular accommodations” – that is, the accommodation of one’s desire not to be forced to contribute one’s tax dollars to the support of someone else’s religion. Zelman allows states to dispense with such accommodations; Locke allows states to provide such accommodations. The Court’s allowing both such approaches could be understood as a meta-accommodation that allows different jurisdictions’ rival views about secular accommodations to co-exist. I suggest that such a meta-accommodation through federalism best shows equal concern and respect for the RADD over whether or not a religious school should be prohibited from receiving, or entitled to receive, state aid. There are equally reasonable legal and political traditions in favor of both positions. Why not let each rule the roost somewhere?
Trinity Lutheran Church v. Pauley, a Free Exercise case to be argued before SCOTUS in the upcoming term, threatens to undo Locke. (With a 4-4 Court, the threat is admittedly weak). At issue in Trinity is Missouri’s state constitutional provision providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran Church runs a school that wants assistance from an otherwise secular and neutral state funding program to re-surface its playground with ground-up tires. That state constitutional limit has been held to bar the aid, singling out a religious institution for a limit on state aid from which secular institutions are free.
Rick Garnett, my co-blogger and friend, would have the Court eat away at Locke by enforcing a nationally uniform rule of neutrality barring Missouri from discriminating against religious institutions in paving playgrounds with tires unless such discrimination is required by the Establishment clause. After the jump, I will argue why I think that this bid to resolve the RADDs with a nationally uniform rule cannot end well for either side.
Monday, August 15, 2016
Co-Authoring & Essays in the Legal Academy
Explaining to other professors why we law professors tend to write alone can be challenging. When I told an accounting professor about my impression that it was "better" to write a single-author piece than a co-author piece, he responded that from his perspective it looked like I couldn't find anyone else that agreed with me.
Is my impression unfounded? I'm curious about how other law professors view this issue. My perception is that law professors tend to discount co-authored pieces and essays against articles. If a well-placed, single-author law review article is the gold coin of the realm, essays and co-author pieces count for something less, maybe silver or bronze. But how much less? There doesn't seem to be any clear standard. If an article is worth 10 points, is an essay worth 4 points? Is a co-authored article also worth 4 points? And then you have the co-authored essay. Is that also worth 4 points? They all seem to have the same value: not as much as a single-author article.
Some are more pessimistic about the value of co-authored pieces. Another view I've heard about co-authored work is that everyone assumes that the other author deserves all the credit for the piece, meaning that neither author gets any credit. Thus, a law review article with one name on it would be worth ten points. Adding a second author to the article would entirely destroy its "value." Some more thoughts on co-authoring after the jump.
9th Junior Faculty Federal Courts Workshops
Saturday, August 13, 2016
More on names
Shima sparked a conversation over how prawfs and students should address one another. I want to explore a different issue of student names.
At SEALS last week, a co-panelist told a story relayed of a female law professor who had twice been the subject of formal administrative complaints by students whose (first) names the prof had mispronounced in class. In the discussion that followed, some panelists recognized the concern that mispronouncing the name can send a message of exclusion or otherness, while others suggested that this provided another good reason to use last names in class (hence the connection to Shima's post).
This story unnerved me, although I recognize that there may be more to it. I am troubled that students are so suspicious and so ready to assume the worst of what was presumptively an innocent mistake that the professor (hopefully) handled with some tact. I am troubled because, if mispronouncing a name does send a message of exclusion, there is not much I can do about it; any attempt to avoid mispronouncing would send that same message of "you have a funny name." Ask the student if I am not sure? "You did not ask Jim how to pronounce his name." Ask for phonetic spellings? "You didn't need Jim's phonetic spelling." Get phonetic spellings in advance? That does not help me during the first class. Use last names? I am not sure they are so much easier to pronounce (I began using first names in part because I thought it would minimize pronunciation problems).
As I said, I hope there is more to this story than the sparse details I heard.
Friday, August 12, 2016
Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016
Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016
Guest Post by Andres Sawicki, U. Miami
Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses a Matter of First Impression – Chris Holman, Claes Gustafsson& Andrew Torrance
Data-Generated Patents, Eligibility, & Information Flow –Brenda Simon
Inventive Application, Legal Transplants, Pre-Funk, and Judicial Policymaking –Josh Sarnoff
The Impact on Investment in Research and Development of the Supreme Court’s Eligibility Decisions – David Taylor
The Fallacy of Mayo’s Double Invention Requirement for Patenting of Scientific Discoveries – Peter Menell &Jeffrey Lefstin
Commons - IPSC 2016
Commons - Breakout Session IV - IPSC 2016
Licensing Open Government Data – Jyh-An Lee
The Romance of the Commons – Sean Pager
3d Bioprinting Patent Boundaries – Tabrez Ebrahim
The North American Mitochondrial Disease Consortium: An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg
Thursday, August 11, 2016
IP, The Constitution, and the Courts - IPSC 2016
IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts
Lexmark and the Holding Dicta Distinction – Andrew Michaels
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
A Free Speech Right to Trademark Protection? – Lisa Ramsey
Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)
Copyright Doctrine: IPSC2016
IPSC - Breakout Session II - Copyright Doctrine
Summaries and discussion below the break. If I didn't know the questioner, I didn't guess. If you asked a question and I missed you, feel free to identify yourself in the comments.
Copyright State of Mind – Edward Lee
Authorship and Audience Appeal – Tim McFarlin
Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik
Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden
IP for Characters & Symbols: IPSC 2016
IPSC 2016 Breakout Session I: IP for Characters and Symbols
I summarize the following presentations, and the discussions about them, below the fold. If I didn't know an audience participant, I didn't include a name, but if you are an anonymous commenter, tell us who you are in the comments.
Is Copyright an Author’s Right? An Authorship Perspective on Copyright Law – Mira Sundara Rajan
Works of Fiction: The Misconception of Literary Characters as Copyright Works – Jani McCutcheon
Zombie Cinderella and the Undead Public Domain – Rebecca Curtin
Trademarks, Core Values and Cultural Leadership – Deborah Gerhardt
Intellectual Property in Internet Folklore – Cathay Smith
IPSC 2016 First Plenary Session
Thanks to Rachel Sachs for the following summary of the opening plenary session at IPSC! The following papers are summarized, and Q&A recounted, below the fold.
Scarcity of Attention in a World without IP
What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation
Mark McKenna & Christopher Sprigman
What We Buy When We “Buy Now”
Aaron Perzanowski & Chris Hoofnagle
Liveblogging the Intellectual Property Scholars Conference - 2016
Today and tomorrow (August 11 - 12), it's all IPSC, all the time. If you are at IPSC, send me your summary of the panel you attend, and I will post it here on Prawfsblawg. I will post links to posts about specific panels in the comments to this post.
Scholars are also tweeting using the #IPSC16 hashtag, so you can follow along there on Twitter.
Wednesday, August 10, 2016
Florida congresswoman is anti-Trump, does not know Florida law
Florida congresswoman Ileana Ros-Lehtinen said yesterday that she would not vote for Donald Trump for President, but instead would likely write-in Jeb Bush (since she also cannot support Hillary Clinton).
But it will not be that easy. Florida law does not automatically provide a write-in space for an office, but only if one or more people qualify as write-in candidates. And then a voter only can write-in the name of that qualified candidate, not some random person; writing in a random name results in an invalid vote. I do not know whether anyone has qualified as a write-in in Florida, but presumably Jeb! has not bothered. So Ros-Lehtinen's planned move would result in an invalid vote for President (which she may not mind, if he goal is just to make a point by not voting for either of the main named candidates).
How do I know all this? Because four years ago, I wanted to use a write-in so I could vote against Ileana Ros-Lehtinen for Congress. She ran unopposed, so there was no named candidate to vote for. But since no write-in candidate had qualified, I did not have that option, either. In fact, the office did not appear on the ballot at all, also depriving me of the option of a symbolic non-vote).
Fees & Your 403(b) Retirement Plan
After my last post on fees, you may be wondering about the feel levels in your defined-contribution retirement accounts. Many faculty no longer receive defined-benefit pension plans. Instead, universities and faculty contribute to a retirement account under the partial control of the faculty member. I say partial control because most 403(b) retirement plans only allow faculty to pick from a limited menu of options. Many people struggle to make optimal choices in this context for a variety of reasons, including, poor plan options, lack of expertise, an inability to invest elsewhere, and other reasons.
The New York Times has an article discussing a new lawsuit over fees in academic retirement plans. The suit alleges that faculty at M.I.T., N.Y.U., and Yale paid excessive fees because their universities failed to monitor the fees extracted from their defined-contribution retirement plans:
The complaints allege that the universities, as the plan sponsors, failed to monitor excessive fees paid to administer the plans and did not replace more expensive, poor-performing investments with cheaper ones. Had the plans eliminated their long lists of investment options and used their bargaining power to cut costs, the complaints argue, participants could have collectively saved tens of millions of dollars.
Some thoughts on what faculty might do to limit problems after the jump.
Tuesday, August 09, 2016
The Stanford Live-Blogging Experiment
This weekend, August 11-12, Stanford Law School hosts the Intellectual Property Scholars Conference. My colleagues and I will present 146 papers in two days. That requires concurrent tracks, and I inevitably miss hearing some brilliant scholars present interesting projects. I'm going to use my platform on Prawfs to contribute to the solution: I'm live-blogging the panels I attend. You can follow along here this weekend.
I didn't invent live-blogging at academic conferences; I assume Rebecca Tushnet did. At a minimum, she's a prolific live-blogger, and I expect she'll provide excellent summaries of those panels she attends at IPSC. But Rebecca and I can't cover every panel. That's where you come in. If you are attending IPSC, you can send a summary of the panels you attend to jlinford(at)law.fsu.edu, and I will post them here on Prawfsblawg. With your help, we can cover every session.
In addition, if you plan to live-tweet IPSC 2016, send me your twitter handle, and I'll post it as well. I'll do some IPSC-related tweeting @LinfordInfo, and I expect to see frequent updates from @scholzlauren and others.
Attorney advertising as jury tampering
While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.
I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.
This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.
Practice your talks--with dogs
One of the worst parts of attending conferences, workshops, etc., is sitting through the obviously unprepared presentation. Speakers meander, repeat themselves, run over time, race through the final points because they wasted too much time getting started, etc.* There is a tough balance to strike. You do not want to sound overly rehearsed or as if you are reading the paper (although that is the norm in many fields, such as English). But you want to be coherent and stay within the time limits. And that requires that you practice the talk with a timer and tweak as you must.**
[*] Not for nothing, I find these problems--especially the last two--exacerbated when the speaker uses PowerPoint.
[**] This is especially true for job talks, but it applies to any presentation.
So I liked this story about a program at American University's Kogod Center for Business Communications, which provides dogs as an audience for students (especially those anxious about public speaking) to practice presentations. The dogs have a calming influence; the students practice before a non-judgmental audience; and the students have to work a bit to keep the audience attention (the director of the study says a dog is no more distracted than the typical college student, which might not be untrue). The accompanying video is after the jump.
My dog better be ready to sit through some talks in the coming years.
Monday, August 08, 2016
Fragmented Financial Advice & Fees
In an earlier post, I mentioned that the term financial adviser lacks any real meaning. If you want to know the risks and likely biases of a particular financial adviser, you'll need to look behind the business card. For the retail market, the person identifying as a financial adviser is likely a stockbroker, registered investment adviser, or insurance salesperson, or some combination of the foregoing. A single financial adviser may even wear all three hats with one customer at the same time, depending on the accounts at issue. This makes it difficult to track what duties a financial adviser actually owes in a particular context. Making it more complex, the fragmented regulatory structure means that this single financial adviser may have three different primary regulators, FINRA, the SEC, and state insurance regulators.
In some circumstances, a self-serving financial adviser may shuffle unwitting clients though these different roles in a series of transactions and arrangements that maximize the financial adviser's compensation. For example, a financial adviser may begin working with a particular client while wearing a stockbroker hat and receiving compensation tied to inducing transactions. First, adviser recommends a number of higher-fee mutual funds such as front-loaded A Class mutual fund shares that cost 4% up front and 1% in ongoing fees each year. While these funds will assuredly underperform the market, they do put immediate cash in the financial adviser's pocket. After this first conflicted recommendation, a financial adviser may not be able to justify more transactions without irritating the firm's compliance personnel. After a year or two, the financial adviser may pitch a new account type and move to collecting a fee on the basis of assets under management, say 1.5%, by switching hats and "servicing" the client as a registered investment adviser. Because it's awkward to badmouth the funds the adviser initially sold, they'll probably sit in the account, bringing the total fees paid to about 2.5% annually. See what these fees can do to a portfolio after the jump.
Sunday, August 07, 2016
MarkelFest! at SEALS--Tonight
We will continue the SEALS tradition of holding a MarkelFest! happy hour at SEALS. Come drink, catch up, watch the Olympics, and remember Dan. It will be at 9 p.m. on Sunday (this evening), August 7, in the Seaglass Lounge at the Omni.
Hope to see everyone there.
Friday, August 05, 2016
Thanks to the prawfsblawg powers that be for allowing me to bloviate over the past month. It’s been an eventful month, in terms of news (and for me personally my computer crashed (so I was offline for part of the month) and then I started off on a road trip.) This is my last post until (if) I get invited back.
I’ve been driving across the country from California to St. Louis to start a year visiting at Washington University in St. Louis, and while I’ve been driving I’ve been listening to podcasts. Three in particular: Criminal; Invisibilia; and Revisionist History. The one that most disappointed me was Criminal, hosted by Phoebe Judge and produced by Lauren Soper. It’s got great production values, and it pick interesting, sometimes “torn from the headlines,” sometimes offbeat topics. So I really should like it. But I don’t, and here’s why: it stops right at the point you want the story to start.
The one that made me somewhat angry was the third episode about Manhattan and Brooklynites faking $20 bills and passing them off in dark bars and nightclubs until one of the protagonists get caught. It is clear from the descriptions that the two counterfeiters are white and comfortably middle class, college educated types. There is an interesting description of them and their scheme, and one of them getting caught. At which point, the host asks “How did it feel to be a criminal.” And the criminal replies that she *doesn’t* feel like a criminal. And then, instead of exploring *this* fact—that she is wrong and that she is, objectively a criminal (morally, legally, and in every way except her own self perception); that she has impoverished the people to whom her notes (140 dollars worth per night of crime spree-ing) were passed; that there seems to be an issue of privilege here—class, race, and gender privilege (she was part of a male/female crime conspiracy, and the conspirators established that she was the one least likely to get caught); and so on. How could the interviewer…Just. Stop. There?! Ugh.
Am I wrong about Criminal? Are there any podcasts we criminal professors, or law folks in general, should be listening to? I’m planning on walking to work, and I listen to podcasts as I walk. I’ve also listened to Criminal (In)Justice with David Harris, Serial (how could one not); and The Center for Court Innovation podcasts. What other treats await?
Thursday, August 04, 2016
What type of voter fraud?
In setting up his pre-narrative of a stolen election, Donald Trump has decried recent lower-court decisions declaring invalid voting laws in North Carolina, Wisconsin, Kansas, Texas, and North Dakota, including voter ID requirements. These laws were designed to prevent impersonation fraud--someone voting as John Smith who is not, in fact, John Smith.
But note that Trump has not been complaining about impersonation fraud, but about repeat-voter fraud--"If you don’t have voter ID, you can just keep voting and voting and voting." (Chicago's old "Vote early, vote often"). But voter ID laws do nothing to eliminate repeat-voter fraud and do not seem designed to do so. The defense against that practice is the voter list; the poll worker does not allow someone to vote if she is not on the list (or allows only a provisional ballot) and she crosses the voter's name off the list once that person appears. Repeat voting is possible only if: 1) the poll worker fails to cross the name off or 2) the voter goes to other precincts, where she is not on the list, to vote. But requiring ID does not stop that practice. If the poll workers are not vigilant, I can repeat-vote to me heart's content with an ID, just as I could without an ID. That is, if I show an ID proving I am John Smith but the poll worker does not cross my name off the first time, I can come back again and again and vote as John Smith, showing my ID each time. Similarly, if I then drive to the wrong precinct with an ID proving I am John Smith but the poll worker allows me to vote despite my name not being on the list, I can cast that repeat vote as John Smith, showing my ID.
Unfortunately, most of the news reports of Trump's comments have repeated the (true) line that there is virtually no evidence of in-person voter fraud, without specifying that the fraud Trump is talking about is not even the type that ID laws are designed to redress. Which, also unfortunately, means the news reports are missing the fact that Trump is not aware enough to understand his own conspiracy theories.
Liberal Bias in Legal Academia?
I'm not sure I need to build my liberal cred being a minority, a first generation immigrant, a New Yorker, and a woman, but I will anyway. I campaigned, donated, and voted for Obama twice and have probably voted democratic in very national election I have been able to to vote in. I'll (unhappily) vote for Hillary, and so will my entire family (though my parents really did like Bernie during his run). In fairness, I was President of the Young Republicans in high school, voted for many Republicans while I lived in New York City (to create some political balance), and am a registered Republican in the state of Utah where I live, since it is a heavily Republican state with a lot of strong Republican candidates and I want to be able to attend the primary elections and have a say in who my local leaders are.
That said and my leanings somewhat clear to you, I am writing this post about what I see as potential liberal bias in the legal academy. This post poses several questions that are intended to be thought-provoking rather than damning to academics or prescriptive on some sort of solution.
According to a recent op-ed by Nicolas Kristof of the NY Times, there is ample evidence that the vast majority of academics are liberal. I am not sure the same data has been shown in the legal academy, but I would not be surprised if it is too far off. Kristof cites four studies that show that Republicans in the humanities are in the minority at between 6-11% and in the social sciences between 7-9%. A sociologist, George Yancey, conducted a survey in which 30% of academics said they would be less likely to support a job seeker if they knew that person was a Republican. The bias is even worse for evangelical Christians, where in the same survey 59% of anthropologists and 53% of English professors would be less likely to hire someone if they knew he was evangelical.
Michael Bloomberg addressed the Harvard graduating class in 2014 and discussed liberal bias in his talk. He pointed out the irony of the political shift over time, "In the 1950s, the right wing was attempting to repress left wing ideas. Today, on many college campuses, it is liberals trying to repress conservative ideas, even as conservative faculty members are at risk of becoming an endangered species. And perhaps nowhere is that more true than here in the Ivy League." Indeed, this is probably worse in the Ivy League than in other places. In the 2012 presidential race, according to the Federal Election Commission, 96% of all campaign contributions from Ivy League faculty and employees went to Obama.
I've heard some of this in the past, and thought, so what? Maybe academics are just smarter than the average citizen (this is certainly biased too) and so what if they are more politically aligned with the left? Maybe the Republican party needs to change in order to capture more academic values (whatever they are)? I definitely think there may be some validity to this argument, but I think there are problems with the current system.
For one, censorship of conservative speakers has been a prominent problem in the last few years. Conservative speakers have been uninvited to speak at Johns Hopkins, Brandeis, Haverford, Rutgers, Smith, Swarthmore and many other universities simply because some students did not agree with their message. This censorship may also demonstrate a certain homogeneity of thought among academics that could be dangerous. If we pride ourselves in being open to all ideas, examining principles carefully and trying to come to the "right answer," it would be more fitting if we were open to a broader range of ideas, rather than the ones that were approved as a majority view.
And more on a personal note, I've had colleagues who have been nervous about their job talks seeming too "conservative", being ashamed that having clerked for a conservative judge (who they may not have agreed with) has created a scarlet letter for them in academia, going through lengths to hide their religious affiliation, and most depressing of all, having not written about topics they have researched about for fear that they didn't fit with the liberal norms of their faculty.
Just two quick anecdotes from my own research that I hope many of my colleagues do not share experience with. In one study I did with an economist early on in my career, we discovered (in looking at bail and violent crime) that when released on bail young black men commit more violent crime than any other age group, race, or gender, and preventatively detaining them before trial would cut down on a lot of violent crime. I would never advocate this due to constitutional prohibitions against race-selective detention, and other moral and philosophical problems with this concept. The thing I want to highlight though is how nervous I was about this finding. My coauthor and I didn't know what to do with this. We felt racist finding it, we were nervous to highlight it in our paper (and didn't), and I didn't want to let it even influence my opinion or future work. But why? Shouldn't knowing that a certain subset of the public commits a massive disproportion of violent crime be important to me as an empirical criminal law scholar? Do others in my field deserve to know this? Could this not necessarily help make America safer if we tried to understand the root of this statistic?
I had a similar experience when I looked at whether judges were "racist" in their bail determinations and determined (surprisingly) that they actually weren't detaining enough black people if their focus was on preventing violent crime. This finding as well I massaged and explained in a way that would not make me seem like a racist or conservative or someone speaking out of the norm. I never hid the finding or misrepresented anything, but I hated feeling that I couldn't just state the facts of what I found empirically without worrying about the perception of how I would be perceived by my colleagues. I don't know what to make of these experiences. I worry that I may have an implicit liberal bias that may be getting in the way of helping me to be objective and find truth. And I worry that it is not just me that may feel this from time to time.
Fellow academics, I would love your feedback and thoughts on this issue.
Evaluating Publication Agreements
As regular readers of these pages know, the need to pay close attention to publication agreement seems to be increasing. Elsevier recently purchased SSRN and has removed SSRN uploads in instances where it wasn’t certain about whether the author held the right to post the material on SSRN.
Law reviews usually send over a publication agreement after you’ve selected each other and committed to publishing. When I look at these, I generally lack any context to evaluate whether particular requests are industry standard or abnormally restrictive. One potential resource to go to for help is the Authors Alliance. The group aims to enable authors to share their work more broadly.
There is also another interesting project afoot. Berkeley’s Rachael Samberg has begun collecting publication agreements. The goal is to look at what different publications request and put together a picture of standard and non-standard terms. If you want to push back on a particular request, it may be helpful to be able to point out when a proposed copyright agreement strays from the norm. If you’ve got publication agreements, send them to Rachael at: email@example.com with the subject line Publication Agreement.*
*Provided that your agreements are not confidential and you’re able to share them.
Wednesday, August 03, 2016
MarkelFest! at SEALS
We will continue the SEALS tradition of holding a MarkelFest! happy hour at SEALS. Come to drink, catch up, watch the Olympics, and remember Dan. It will be at 9 p.m. on Sunday, August 7, in the Seaglass Lounge at the Omni.
Hope to see everyone there.
Tuesday, August 02, 2016
Random Links on Donald Trump and the Draft
There have been some interesting discussions of Donald Trump's exemption from the draft during Vietnam. Here, in case anyone is interested, are copies of Army Regulation 40-501 from that era, outlining the medical conditions which will result in ineligibility for induction or enlistment. And here, on Google Books, is a copy of the article Mel Ziegler, Selective Service Meets Massive Resistance, New York Magazine, June 29, 1970, at 28-31, discussing the creative ways in which some men got out of the draft in the east in that era. Banana Republic founder Ziegler reports: "[M]ore and more inductees and pre-inductees are showing up at their physicals with a physician's letter in hand testifying to one or more of the 500 disqualifying defects" listed in the reg. "Sympathetic physicians abound, and many counselors and attorneys maintain their own lists." In 1973, a U.S. District Judge granted a petition for habeas corpus to review an induction where the government had failed to evaluate evidence including "spur formation on the talus." Ballard v. Commanding Gen., Fort Leonard Wood, Mo., 355 F. Supp. 143, 149 (W.D. Mo. 1973). So heel spurs did seem to have been a recognized basis for disqualification.
Guest Blogger | Ben Edwards - Doing Due Diligence on a Financial Adviser
First, thank you to the folks at at PrawfsBlawg for the invitation to join as a guest blogger for August. PrawfsBlawg has been an incredibly valuable resource. I'm grateful for the opportunity to write for this audience. I recently finished my first year as an Assistant Professor of Law at Barry University Dwayne O. Andreas School of Law in currently sweltering Orlando, Florida. I teach Business Organizations, Securities Regulation, Securities Litigation, & Professional Responsibility and write about securities litigation, financial products, and retail investor protection. While at PrawfsBlawg, I plan to write about the the retail side of securities law with a focus on providing some useful information. There are new and interesting things going on in this space that should be fun to talk about. I'll also try to cover topics of interest to the community generally.
Turning to that front, I want to talk about doing basic due diligence on a financial adviser. It's a common problem. Imagine: a beloved and trusting relative comes to you and tells you about the "really sharp" financial adviser encountered at an educational seminar. Plus, this adviser even sprang for the meal! What a nice person! More, your relative plans to turn over a good chunk of retirement money to this market-savvy professional. What sort of vetting can you do when all you have is the financial adviser's name? The first thing to know is that the term "financial adviser" lacks any real meaning. The title appears on business cards for con artists, stockbrokers, registered investment advisers, insurance salespeople, financial planners, and others. Fortunately, there are some relatively easy ways to get more information.
If you don't do anything else, you should run an adviser's name through the BrokerCheck portal provided by the Financial Industry Regulatory Authority (FINRA). If the financial adviser is registered as a stockbroker or as an investment adviser, BrokerCheck will pull up some of their information or redirect you to an SEC website with detailed information. It'll tell you whether the person is registered, some employment history, and will reveal certain "disclosures" -- often red flags that would indicate that a particular financial adviser may be associated with problems. FINRA has even run ads advertising the importance of checking a financial adviser's background. If the person claims to be stockbroker and doesn't show up in the database, it's either the wrong name or a con artist.
While BrokerCheck can get you started, FINRA doesn't tell you the whole story. There may be things you should know that have been expunged or otherwise obscured that you can still find out fairly quickly. After the jump, I cover how to see get the rest of the picture and look like a wizard to your friends.
Monday, August 01, 2016
Law Professors Running for Office-Who are They?
Although Larry Lessig dropped out of the presidential race, several law profs remain in the game this cycle.
U.S. Senate Candidate: Immigration scholar Margaret Stock (Alaska).
U.S. House of Representatives candidates: Nova Southeastern's Tim Canova is challenging incumbent Debbie Wasserman Schultz for a Florida seat. IU prof. David Orentlicher (Indiana).
American's Jamin Raskin, a sitting member of the Maryland Senate, won his primary. Zephyr Teachout of Fordham (NY).
Statewide Office: U Missouri law prof Josh Hawley is running for Attorney General in Missouri.
State legislative candidates: Ken Chestek of Wyoming (Wyoming House). U of Arizona professor Kirsten Engel (Arizona house). Elon law prof Eric Fink (North Carolina senate).
Buffalo prof. Monica Wallace (New York Assembly).
Victor Williams of Catholic also must be mentioned; he ran briefly for the Republican presidential nomination, evidently to establish standing to challenge Ted Cruz on the ground that he was not a natural born citizen, and now is running a lawyers and law professors pro-Trump/Pence SuperPAC.
Who else is out there?
Federalism Planks in Democratic Party Platforms
At this point in our quadrennial election cycle, thoughts turn to party platforms. In doing my research on a 1937 federal death penalty case in Michigan (the only case I have found before 2002 in which the federal government succeeded in securing a death sentence for a crime committed in a State that did not authorize the death penalty for the same offense), I wanted to look at the Democratic Party platforms over time, to see how much emphasis was paid to “states rights” at various times. Fortunately, I found a great website (http://www.presidency.ucsb.edu/platforms.php) that catalogs the platforms of the major parties going back to 1840.
How do I promote my legal scholarship?
Friends--It is great to be back on Prawfs. I have to admit that I sometimes dread my time to blog before it comes, like I do work travel when the time comes to do that (especially if there are layover flights). But, like work travel, it's always one of those things that by the end of it, I'm so happy I did it, and wish I could continue doing it. I always learn so much researching or thinking about my posts and hearing from others in this process.
Today I want to talk about how to promote your scholarship. Let's face it, law professors are NOT the best at public relations. We like to do our work and really want people to read it--but how much time do we spend promoting our work to make sure it has maximum reach among people who care about our topic? I think we can all do more. One of my colleagues recently asked me advice on this issue so I thought I would write a post on some tips I think are helpful for both junior scholars, fellows, and old timers on how to promote your scholarship, and make it more impactful (read and cited more, and used by authorities more).
1. An Op-ed In an ideal scenario, when you write a piece and it is accepted for publication (so not finalized yet), it is accompanied by an op-ed in a major newspaper (ideally tying your idea to a topic that is “hot” right now) and a legal blog post. Dan Markel used to recommend to me to put a post on Prawfs as an early draft, get feedback from the readers and then turn it into something to submit to a newspaper. Good advice. I did it once with the result being an Op-ed in the NY Times.
2. Send to Textbook Authors Something many people may not think of is reviewing the textbooks in your field on the area you just wrote and cutting out snippets from your article that may help enhance or update a section of that textbook and send an email or letter to the textbook authors informing them of this. That may seem a bit over-the-top, but trust me, this would have been SUPREMELY helpful for me when I was drafting the Fourth edition of the Criminal Law textbook I’m working on. Ideally, a textbook author working on a new edition is aware of every new piece of literature that has been published on every topic in the textbook they drafted, but that is an impossible expectation. I'm working with two great coauthors in my field as well (Paul Robinson and Michael Cahill), but still we aren't able to review everything. So, make us aware of your work if you think it is particularly on point.
3. University PR Reach out to your university and law school public relations staff and let them know about the article being accepted for publication and inform them that they can send out a tweet or announcement that you are willing to discuss that topic in case any media is interested.
4. Post it Online Posting on Social Science Research Network (SSRN), Bepress, ResearchGate or some of the other online repositories for articles is a great idea as well. I know SSRN has been a bit problematic for some people and some pieces lately, but my thought is that it is still the largest and it is worth posting there. And why not post to as many online repositories as you can? If I ever get emails asking me to upload my piece for access on these sites, I usually allow it if it looks reputable and if I've retained copyright (which I usually try to do, if possible).
5. The Conversation Another possibility that may be helpful is once you draft a sort of op-ed on your article, you can post it to The Conversation. This is a way for you to distribute a timely op-ed or article that allows any newspaper to publish it. It can help distribute your op-ed fast. This may be a better avenue for some of the more technical pieces you write. The editors there will also help you make it more accessible to a general audience. When the Panama Papers were all the rage, I wrote a brief article on The Conversation that ended up getting picked up the the New Republic and getting me an interview on NPR.
6. Send it to Courts Getting your article to the decisionmaking authorities may require a little bit more effort but is worth it. I've had colleagues reach out to litigants writing briefs on their topic. Reaching out to courts considering a topic on point to something you have written or simply sending your article to them is also another way of getting your work read and cited. If you know the topic you wrote about happens to be pending in a certain court, send them a copy of your article and call the chambers and let them know that you are sending it so they can direct it to the appropriate clerk. This is also a great approach with legislatures or policy makers or nonprofits or think-tanks that are working on policy change in your area.
7. Email it out! And if you aren’t exhausted already by that point, I still think it is helpful to send emails to everyone who remotely writes in your field to inform them of your piece and see if they have any thoughts or feedback on it. Even if the people in your field don’t have time to give you feedback, they usually read the abstract and are aware that it is out there. Also send a draft of your article to your entire faculty via email. Even if they are not in your field, if they travel they may run into similar topics and spread your great ideas by word of mouth. Because lets face it, academics love to gossip about each other’s work when we run out of things to talk about (which I don't think is a bad thing).
I would love to hear others thoughts on how to promote legal scholarship to add to this list.
The Long Journey Home
It's a pleasure to be back for another round of blogging. I'm excited to share some thoughts about copyright and trademark law this month. But right now, I have traveling on my mind - my family is finishing what my ten-year old calls "an epic road trip." We've driven through ten states already, and we'll drive through four more big (mid)western states, and recross several others, before we are done. In honor of the trip, I'll share one of my favorite traveling songs: The Long Journey Home by Rodney Crowell. Feel free to share songs that make you think of or yearn for travel in the comments. More substance to come in subsequent posts.
Reforming the police by focusing on the courts
Matthew Segal, legal director of the ACLU of Massachusetts, has written an interesting op-ed in the Guardian in which he argues that many of the concerns that the Black Lives Matter movement has about police violence and the need for police reform are the result of court decisions in Fourth Amendment cases. In his words: "Courts have shaped American policing by defanging the fourth amendment’s prohibition on 'unreasonable searches and seizures.'"
It's also interesting to see this coming just after the establishment of the bi-partisan Fourth Amendment Caucus in the US House of Representatives. The Fourth Amendment covers a wide swath of law enforcement action, of course, but it does appear that most of the comments I've seen about the caucus are either broad statements about protecting civil liberties or limiting mass surveillance (EFF). The clearest exception to this in the Caucus's press release was the statement from Malkia Cyril (Co-Founder and Executive Director, Center for Media Justice; Member of the Caucus's Steering Committee): "In an era of escalating police violence, Black communities urgently need political leadership to protect us from illegal search and seizure, invasions of privacy, and other Fourth Amendment violations."
With Supreme Court decisions (many cited by Segal in his op-ed) restricting the ability of lower courts to give the Fourth Amendment its "fangs" back (to use Segal's language), I wonder whether something like the Fourth Amendment Caucus will actually do something to address the Fourth Amendment's impact on day-to-day policing in communities across the country.
Update on PrEP Access
As a follow-up to my initial post on barriers to accessing pre-exposure prophylaxis (PrEP) as a means of preventing HIV, I wanted to highlight new numbers provided by Gilead, the maker of the only FDA-approved PrEP pill—Truvada. According to Gilead, more than 79,000 people started using Truvada as PrEP in the U.S. during the period of 2012-2015, based on a survey of retail pharmacies (this number may be an underestimate because it does not include certain prescription programs). Recall that the CDC has suggested that over 1.2 million people have indications for PrEP. While the number of people starting PrEP has grown each year, Gilead indicated that those using PrEP are disproportionately white. As discussed, HIV is disproportionately spreading among black people (in 2014, 44% of new diagnoses were among black people, notwithstanding that black people accounted for 12% of the population). This seems to confirm that access to PrEP as a means of preventing HIV, like access to health care more broadly, has been uneven and that efforts to expand access through Medicaid expansion and awareness campaigns need to be strengthened.
Been great visiting this month! Thanks to Howard for the opportunity!
He has no right . . .
Presumably because he cannot resist, Donald Trump is fighting back against Khzir Khan over his speech at the DNC. In response to Khan's move of asking Trump whether he had read the Constitution, displaying his pocket copy, and offering to lend it to him, Trump tweeted "Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, which is false."
People are having fun with the circularity of this--Trump asserts that Khan has no right to stand in front of millions of people and criticize him, but that right quite clearly is in the Constitution, thereby confirming Khan's point about Trump reading the Constitution. But I want to give Trump the benefit of the doubt. The key is the last clause--"which is false." Trump is not saying Khan has no right to criticize him, only that that Khan has no right to make a false statement about him, or, really, no right to defame him.
So let's break this out and see if Trump is right that Khan had no right to say what he did in front of millions of people.
As July turns into August (and the end of my writing summer looms), we bid thanks to our July visitors, some of whom might be sticking around for some extra days. And we welcome our August visitors--Shima Baughman (Utah), Benjamin Edwards (Barry), and Jake Linford (FSU).
Welcome and enjoy the month.
Friday, July 29, 2016
Government-Sponsored Torture in Chicago
I was listening to NPR this week, and the Planet Money section of the broadcasts was discussing the $100,000 payout received by each of the 120 victims of the City of Chicago Police Department. The payout was “reparations” for Police-sponsored violence in furtherance of the Department’s policy of torturing African Americans to extract confessions that were used at trial to convict them. Let me just say that again: a major American city had a *decades-long policy of torturing Black criminal suspects*.
Just so you’re convinced it was really torture, news reports from 1996—twenty years ago—listed the techniques as “appl[ying] electric shock and burn[ing] [a suspect]’s face, chest, and thigh by holding him against a hot radiator."
That article was based on a report from the Chicago PD’s Office of Professional Standards concluded that “detectives at Area Two had engaged in ‘systematic abuse, including “planned torture,” for at least 13 years.’ [The Report] listed the names of 50 alleged victims, grouped them by techniques applied (electroshock, suffocation, hanging by handcuffs, etc.), listed the names of detectives that had surfaced in connection with the victims' complaints, and concluded that ’particular command members were aware of the systematic abuse and perpetuated it either by actively participating in same or failing to take any action to bring it to an end.’”
Thursday, July 28, 2016
The Prisoner’s Dilemma in Airing Fox’s Corporate Culture
I have a new op ed today in Fortune about Gretchen Carlson's lawsuit against ousted CEO Roger Ailes. read it here. The sequence of events - Carlson apparently having reported internally sexual harassment as early as 2009 - and many other women either silenced or signed confidential agreements in a secret arbitration agreement - raises once again questions about how to balance new governance principles of self-regulation, including internal prevention program with the realities of silencing and cosmetic compliance which many whistleblowers face. Yuval Feldman and I have a few experimental studies which try and understand how to design reporting systems.
Wednesday, July 27, 2016
Video Voyuerism, Privacy-Related Sex Crimes, and Gender
Over the past few months, I've been working with some colleagues on a comparative project investigating privacy-related crimes across 9 different countries. One of the crimes that is frequently found in these countries is voyeurism (or some form of unlawful visual observation). Recently, we've received suggestions from multiple people outside our team to focus more of our attention on the gendered nature of voyeurism offenses - both in their text and application as well as in their legislative history - and, although we are still in the very early stages of pursuing this line of thought, we think there might be something interesting to say here that speaks to privacy theory more broadly (and we are also researching non-consensual ("revenge") pornography and stalking offenses, among others, as well).
In Anglo-Saxon common law jurisdictions, voyeurism is generally considered a sex crime. Voyeurism offenses often require a sexual purpose or motive or the visual observation or recording of some state of nudity. Many of these provisions can be found in the "sexual offenses" sections of various criminal codes (although in some US states, these provisions may also exist alongside criminal trespass). While some codes cover the traditional "peeping-Tom" scenario, many require the use of some technical device (e.g. a camera, binoculars, etc.) and/or require actual recording. In many continental European jurisdictions, however, voyeurism (or "unlawful observation") is generally not linked to a sexual purpose, nudity, or sexual activity; rather, it focuses on non-consensual visual observation that invades a person's private life in a broader sense, violates his or her right to privacy, is captured inside a person's home, or results in the voyeur obtaining information he or she is not entitled to obtain.
At least in the common law systems, with their focus on voyeurism as a sex-related crime, we see a gendered element to these offenses. Many have been crafted directly as a response to conduct referred to as "up-skirting" or "down-blousing." For example, in 2003, Senator DeWine introduced the federal Video Voyeurism Prevention Act of 2003, describing video voyeurism as encompassing
"...what is referred to as 'upskirting' or 'downshirting.' As the terms imply, this subset of video voyeurism involves the use of a tiny, undetectable camera to film up the skirt or down the shirt of an unsuspecting target, most often a woman."
A growing number of cases deal with up-skirting and down-blousing, and it doesn't appear that such conduct is likely to cease anytime soon. Indeed, last Tuesday, a TSA agent at Seattle's Sea-Tac Airport was caught holding his phone under women's skirts and taking photographs on an escalator at the airport. In 2015, the University of Toronto reversed its gender-neutral bathroom policies after multiple female students began complaining about smartphones appearing above the bathroom and shower room partitions in gender-neutral washrooms. In 2014, the Massachusetts Supreme Judicial Court held that the state's law did not cover up-skirting. In response, the state legislature hastily drafted a bill the day after the decision, and the Governor signed the bill into law the very next day. Similarly, less than two weeks ago, a Georgia court of appeals also held that the criminal provisions in that state's eavesdropping and voyeurism law did not cover "up-skirting."
Oral Arguments for Law Students
I will sometimes – not often, maybe once a semester, if that – play a couple of minutes of oral argument from the Supreme Court for my students if they are particularly enlightening. For example, I have played portions of the argument in the recent Facebook threat case, Elonis v. U.S., in Criminal Law in order to put a spotlight on how the Court decides on what mental state requirement it will impute to a statute when the statute is silent. Particularly helpful is Justice Kagan’s ticking off of the Model Penal Code’s taxonomy of mental states, just as the students are being introduced to this taxonomy in class. In my death penalty seminar, I recently had the students do moot courts of two pending cases, and then in subsequent classes we listened to the actual arguments. This was particularly helpful because students were by then intimately familiar with the issues in the case and had read the briefs.
It occurred to me recently that we ought to encourage, or perhaps even require, our students to listen to full oral arguments outside of class. For students who are still under the mis-impression that law school is about learning the law as opposed to learning to think like a lawyer, listening to arguments is a helpful reminder that the law is largely indeterminate and in flux, and that good advocacy skills are essential to the practice of law.
I would even strongly suggest that students listen to a few oral arguments before starting law school in the fall. After all, the back-and-forth between judge and advocate is strikingly similar to the back-and-forth between professor and student. Listening to oral arguments will prepare students for what law school is really all about. It may also teach students to avoid some of the common pitfalls for students, which are often reflected in poor advocacy, such as dodging the question and fighting the hypo.
While most of our students will never make it to the Supreme Court, I think there is a value to having them listen to arguments from that Court rather than some other court. First, the recordings are easily available. Second, the arguments in the Supreme Court are much more likely to cut to the heart of an issue, whereas arguments in lower courts can get bogged down in jurisdictional, procedural, or factual issues that are less interesting and accessible for future lawyers. Third, the students are more likely to be familiar with the issues in Supreme Court cases without having read the briefs. Finally, and most importantly, the issues that arise in Supreme Court cases, of course, are not peculiar to Supreme Court cases. The same issue might arise in scores of lower court cases that, for one reason or another, never make it to the Supreme Court.
Tuesday, July 26, 2016
If you write and think about policing, as I do, acting on behalf of the community has become one of the core problems of recent weeks. I have found the whole business of shootings and assassinations in Dallas, Baton Rouge, and Minnesota, quite appalling. These shootings have raised questions about who can claim to act on our behalf. And that question—how we get to act on behalf of or in the name of some community—seems to me to be one of the most pressing issues in modern policing. For the police are legitimate only if they act on behalf of the law and of the community.
Michelle Madden Dempsey, has proposed one answer to the “acting on behalf of” conundrum in her great book on criminal prosecution, Prosecuting Domestic Violence: A Philosophical Analysis. The book’s title is misleading: it goes way beyond a focus on domestic violence, although domestic violence prosecutions form a test case for some of her claims. If you are interested in criminal prosecution, or applied analytic philosophy, or just probing, clear thought, it's a must read.
On the subject of law enforcement and communities, Dempsey suggests that:
Philadelphia police and public protest
Interesting discussion of how the Philadelphia police are responding to public protest during the current DNC (as well as how they have responded to more recent Occupy and Black Lives Matter events). And he contrasts it with the city's absurd overreaction to the 2000 RNC, which produced 400 arrests in four days, few or no convictions, and unknown amounts in civil settlements. I was clerking in Philly during the 2000 convention and it was walking around a police state, in the pre-9/11 days, when that was not the norm.
Monday, July 25, 2016
JOTWELL: Campos on aggregating administrative action
The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.
Google Scholar Law Review Rankings - 2016
Google has published its 2016 Google Scholar Metrics, just in time for the fall law review submissions angsting season to begin (I see that in response to folks already calling for a new Angsting Thread, Sarah has just posted the Fall 2016 Angsting Thread slightly ahead of schedule). I've placed a table with the 2016 Google Scholar Rankings for flagship/general law reviews below the break (with comparisons to the 2015 ranking). I started tracking these Google Rankings as part of the Meta-Ranking of Flagship Law Reviews that I first proposed here at Prawfs in April (combining USN, W&L, and Google scores into a single ranking). And, as both Google and W&L have updated their rankings/metrics since that time, I'm also working on an updated meta-ranking in time for the opening of the fall submissions period (just for fun).
I realize most people probably don't make any submissions decisions based on the Google Rankings (and the methodology does have its limitations; and one startling change in the 2016 data is that the North Carolina Law Review, ranked #21 in 2015, doesn't even show up in Google's metrics this year for some reason - perhaps their article repository no longer meets Google's inclusion criteria), but I do think it provides an interesting metric for measuring law journal impact, alongside the W&L rankings, particularly for someone like me who publishes in both law reviews and peer-reviewed journals in other disciplines. I like that Google Metrics can provide some idea of how a particular range of law reviews measure up to a social science journal - and vice-versa - in terms of scholarly impact. The W&L ranking doesn't provide much of that information, as it is generally limited to law reviews; US News college rankings don't apply; and the Journal Citation Reports rankings by Thompson Reuters doesn't have very good coverage of legal journals.
However, with Google's metrics I can see e.g., how the social science journals I've published in (or am thinking about submitting to) stack up against law reviews. For example, I can see that Government Information Quarterly has a slightly higher average Google Metrics score (63; h5-index of 51, h5-median of 75) than the Harvard Law Review (61; 40/82), that The Information Society (26.5; 21/32) ties with the UC Davis Law Review (26.5; 20/33) and the Ohio State Law Journal (26.5; 18/35), and that Surveillance & Society (21; 18/24) ties the Houston Law Review (21; 16/26). I think this can be helpful for gauging where to submit research that crosses disciplinary boundaries, but I see how it might not be so useful for someone who only wants (or needs) to publish in law journals. I'm curious if any readers find the Google metrics useful for comparing law/non-law journals or for thinking about (law) journal submissions generally.
Submission Angsting Fall 2016
This is the post to share information or ask questions about submitting to law reviews.
The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.
Additionally, a spreadsheet to gather information is here (and embedded below).
I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.
Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.
Here is the final page of comments.
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II
In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.
About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.
In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.
These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.
Saturday, July 23, 2016
Dudziak on Trump on Turkey (Updated)
Mary Dudziak (Emory) critiques Donald Trump's comments about not lecturing Turkey about civil liberties in light of our problems at home. A legal historian, Dudziak describes how this argument--that the United States could not exercise moral authority abroad because of problems at home--was made by the Soviet Union, not Presidents of the United States. Instead, those Presidents responded by seeking to remedy domestic injustice (she points to Eisenhower sending troops to Little Rock and Kennedy's response to Birmingham), expressly to bolster international standing.
But as I argued, Trump is not making the same argument that the Soviets made during the Cold War, that we cannot exercise moral standing on matters of justice because we have not corrected racial injustices at home. He is not arguing that we are estopped to exercise moral leadership because of our own failings, failings these other Presidents then tried to correct. He is arguing we should not care about exercising moral leadership until we get our house in order. And getting our house in order means not eliminating barriers to racial equality, but eliminating barriers to police maintaining law and order. Trump does not want to convince Turkey to be more like us; he wants to make us more like Turkey.
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Clinton's VP and the Senate
I do not pretend to know anything about Hillary Clinton's political calculations in choosing Tim Kaine (forever a/k/a, "The Boring Choice") as her running mate. There was a lot of media discussion about the effects on the Senate. Four of Clinton's choices were sitting Senators--Kaine, Cory Booker (NJ), Sherrod Brown (OH), and Elizabeth Warren (MA)--who would resign their seats if elected VP. All but Kaine would be replaced by a temporary appointee appointed by a Republican governor, possibly costing the Democrats control of the Senate, which might come in at 50-50. In theory, that was a factor in his favor.
But this also means the Democrats will have to defend that seat in a special election in a purple state, a low-turnout situation in which Democrats tend not to fare well. Which means if the Senate is 50-50 beginning in January 2017, Clinton may have her majority only for a year. By contrast, at least with Brown Booker and Warren, Democrats would have had the opposite problem--a lost or weakened majority at the beginning of the term (because those seats would be filled by Republican governors), but a greater chance to win the special election in a deep-blue state (Booker won his seat in a 2013 special election), giving or increasing that majority for the second year of Clinton's term. Moreover, the calculus likely assumes that Democrats will lose the Senate in 2018, when they have to defend 25 seats, including a number of people in Republican states who won on the strength of Obama turnout in 2012. So is it better to have the bigger majority in the first year or the second year? Probably the first, since by 2018, the Republicans will be gearing up for a landslide mid-term.
Advocates for selecting Warren had been pushing a way to make the appointee term even shorter. Massachusetts requires a special election 145-160 days after a vacancy occurs (in the other states, the special election would be in November 2017). So if Warren had resigned on January 20, the election would have been in June; if she resigned November 8 (or whatever date it became clear she and Clinton had won and that she would be VP absent some catastrophe), the special election would have been in April. The Democrats likely would have won that seat (having learned the lesson of Scott Brown), so Clinton would have gotten her majority 3-6 months into the first year of her term.
Friday, July 22, 2016
The Meaning of Sex Discrimination
In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.
A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.
The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.
But if you try sometime
The Rolling Stones' "You Can't Always Get What You Want" has become a staple at Donald Trump rallies, including following last night's acceptance speech (the band objected months ago, but the campaign has not relented). Some questioned the choice, that it seems odd for a political candidate to adopt a theme of settling because you could not get what you wanted to get.
But the theme of last night's speech-- "I alone can fix it"--suggests that the key phrase is what comes later in the chorus--"if you try sometime, you might find you get what you need." Trump is positioning himself as the essential person, the only person to save the nation from, apparently, a dystopian hellscape. The American people need Donald Trump, and only Donald Trump, to be President. By electing him, the American people will find they got what they need.
Or am I giving them too much credit?
Call for papers: Visual Data as Accountability, Resistance, and Surveillance (Law & Social Inquiry)
Along with my colleagues Sarah Brayne (UT-Austin, Sociology) and Karen Levy (Cornell, InfoSci), I am excited to announce our call for papers for a special section of a forthcoming issue of Law & Social Inquiry. Abstracts of ~500 words are due August 10 via email to LSIvisualdataspecialissue [at] gmail [dot] com. You can find a PDF of the full CFP here, and in text form below.
We are happy to receive a broad range of proposals for the special issue as long as they fall within the theme Visual Data as Accountability, Resistance, and Surveillance. Indeed, quite a few topics in the news recently also speak to the importance of greater legal, technical, and social understandings of these issues, including the continued use of citizen video/body camera video/CCTV video to document police action or even livestream events, Erdogan's use of FaceTime after the recent attempts at a coup in Turkey, and even Kim Kardashian's snapchat video of Kanye West and Taylor Swift.
Overview (continues after the break):
The capture, analysis, and dissemination of visual data—including video (with or without audio), photographs, and other visual recordings—has become ubiquitous. Facilitated by digitization, globalization, and the proliferation of mobile media, visual data is transforming the documentation of activities in a wide range of contexts, including policing, legal adjudication, war, human rights struggles, and civic action. Visual data is being collected by state actors and individual citizens, each often documenting the actions of the other. The use of this data as evidence (both inside and outside formal legal proceedings) raises significant issues related to privacy and ethics, authentication and credibility, interpretation, inequality, power, and legibility. Law is implicated at both the point of recording (or documentation) and during downstream activities, such as when recordings are shared or posted online, publicly disclosed under freedom of information laws, or introduced into evidence during legal proceedings.
Different technologies afford different viewpoints. Visual data constitutes a unique form of information that presents emergent legal and policy questions because of its technical form and social effects. The mobilization of visual data can shape and reshape public opinion, representation, suppression, visibility, inequality, and admissibility of evidence; it can serve to incriminate or exonerate. Visual evidence can legitimize certain accounts of events while calling others into question. And, thanks to the proliferation of mobile devices, more people can capture video and photographs than ever before, at a moment’s notice, simply by pulling out their phones—and can distribute them instantaneously, creating visual records of all types of behaviors and conflicts, from confrontations between citizens and police to political gaffes, from sex tapes to dashboard camera footage of traffic-related events. The recent adoption of police body cameras and the use of video by bystanders as a tool for inverse surveillance demonstrate our increasing reliance on video as a check on power, as well as a source of ostensible authority when accounts about “what really happened” are in conflict. At the same time, the crucial role of interpretation suggests video is not as much of an “objective observer” or independent witness as it is sometimes claimed to be, and visual evidence may have unforeseen implications for weighing evidence in civil or criminal cases—or in the court of public opinion.
Thursday, July 21, 2016
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.