Tuesday, September 09, 2014
Remembering Danny has been set-up by Dan's family and loved ones as a place to collect stories, videos, photos, memories, and more, to share with Ben and Lincoln and let them know who their father was and the many lives he touched. Please click over and share.
Also, a reminder that Florida State College of Law will host a memorial service for Dan at 3 p.m. next Tuesday, September 16, 2014, at the College of Law.
Call for Papers: AALS Program of the Business Associations Section
You may have seen this elsewhere on the web, or on the listserv, but if not -- you have until Friday! You can submit a paper or an abstract.
CFP: AALS Program of the Business Associations Section
AALS Program of the Business Associations Section
The Future of the Corporate Board
AALS Annual Meeting, January 4, 2015
The AALS Section on Business Associations is pleased to announce that it is sponsoring a Call for Papers for its program on Sunday, January 4th at the AALS 2015 Annual Meeting in Washington, DC.
The topic of the program and call for papers is “The Future of the Corporate Board.”
Monday, September 08, 2014
No Grants From the Long Conference?
The Court’s new policy of automatically re-listing cert petitions before granting them raises an interesting question: will the Court’s first conference of the new term (the “long conference”) generate any cert grants? This question has some practical importance and also draws attention to the Court’s frequently opaque operating procedures.
Straw Gods and Puny Gods
I was the surprised and grateful recipient of a public attribution from someone far more acclaimed than I, and was taken by the thoughtfulness and integrity of it.
Last spring, I attended a session of the Cambridge Roundtable at which the philosopher and novelist Rebecca Newberger Goldstein was the speaker. Her topic, taken from her recent book, Plato at the Googleplex, touched on "mattering," and specifically the not-so-pleasant consequences of privileging what matters to me or to us, and forgetting or not recognizing that if something matters to me or us, then things (although possibly not the same things) must also matter to others. If what matters to us is meaningful, then to recognize that things matter to others is to acknowledge their personhood.
In an email to her after the session, I suggested that if, per Wittgenstein, there are no private languages, there is no private mattering. What was surprising was not just that she responded graciously to my email, or that she adopted the idea in an interview with The Humanist just a week or so ago, but that she bothered to give me, a relative nobody, credit for the idea. If she hadn't, only she and I would have known.
But intellectual integrity is not the only reason to heap praise on Ms. Goldstein. Even though, as I'll describe after the break, she and I appear to disagree about how to define the playing field when we talk about belief, and particularly the beliefs we often refer to as atheism and agnosticism, I love her work. She is a public intellectual with full philosopher chops, including a Ph.D. from Princeton and a Tanner Lecture at Yale in 2011. What she writes isn't for everybody - she's drawing on ideas that cause you to have to exert some brainpower - but even her novels, like The Mind-Body Problem and 36 Arguments for the Existence of God: A Work of Fiction, draw you into issues like the hard question of consciousness or theodicy.
So, after the break, a comment on straw gods and puny gods.
Friday, September 05, 2014
NYU Memorial Service for Dan Markel, Tuesday, September 9th
For the benefit of Dan's many friends in New York City, we are holding a memorial service at NYU in the Greenberg lounge from 7-9 pm next Tuesday, September 9th. You can register to attend at this eventbrite webpage.
Destroying marriage to save it
Have efforts to defend marriage-equality bans crossed over into Ben Tre territory, where they are destroying the town to save it? States' legal efforts to "preserve" marriage as a heterosexual institution have denuded that institution. They no longer defend it as a sancrosanct and powerful institution reflecting long-term intimate arrangements by committed adults who love and care about one another; instead, it has become a metaphorical prison to place fornicators who unintentionally produce a pregnancy. As Posner put it: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." Opponents of marriage equality insist, without evidence (a point Posner nailed Wisconsin on), that allowing same-sex couples to marry would cause heterosexuals not to marry. But speaking as a heterosexual, I am not sure I would really want to join the marriage club that most states claim to have established.
Intellectual Property Infringement as Vandalism (Part 1)
In addition to empirical work in intellectual property, another area that has been keeping me occupied is the intersection between IP and criminal law. A few years ago, I wrote an article entitled The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harvard Journal of Law and Technology 469 (2011), in which I explored why we have criminal sanctions for copyright and trademark infringement but not for patent violations. Earlier this year, I published a paper called The High Cost of Low Sanctions, 66 Florida Law Review 157 (2014), that examined how low sanctions can lead undesirable laws to be passed and can eventually morph into high sanctions, an analysis whose focus was partly on copyright law. I then moved on to study, in an article called Intellectual Property and the Presumption of Innocence that is forthcoming in the William & Mary Law Review next year, the constitutional dimension of intellectual property criminal cases. I argued that prosecutors should have to prove that every element of such crimes, including the jurisdictional element, has been met beyond a reasonable doubt before convictions can occur. Most recently, I turned my attention to the relationship between the criminal (and civil) sanctions in intellectual property and those that we observe in property. This project, co-authored with Robert E. Wagner, is entitled Intellectual Property Infringement as Vandalism, and I would like to take the opportunity to describe it further here.
One of the recurring questions in scholarship is whether intellectual property qualifies as property and, as a correlative matter, whether IP infringement is theft. Content owners significantly push this analogy, including in heavy-handed ads that seek to remind people not to “steal” songs or movies. Meanwhile, critics have chipped away at the theft label. They have argued that when an object is stolen, the owner is entirely deprived of it, whereas IP owners maintain integral copies of their works when infringement takes place. Unlike in the case of theft, the intellectual property owner can also continue to sell copies of said work to willing buyers, if the market will bear it. Furthermore, to the extent the owner suffers a loss at the hands of the IP infringer, that loss is difficult to calculate. Not every infringer would have bought the work had he lacked the opportunity to infringe. At the same time, nobody can say with certainty about herself—even assuming perfect honesty—which works she would have bought in a zero-infringement world because the impulse to rationalize one’s actions in this setting is strong.
Thursday, September 04, 2014
Law and Law Breaking in the Game of Thrones Law
If you need a fun break from your more serious writing, and you happen to be a Game of Thrones fan, here is a call for papers from the editors of the Media and Arts Law Review in Australia. What angle would you take?
Using GoFundMe for Litigation
Here is a creative way this local news anchor is trying to raise public awareness and money for defending his case against a non-compete he had signed with his former employer. Watch him and his litigation team explain their woes.
In a Different Voice
Just a quick, basically neutral observation about the language of Judge Posner's opinion in Baskin v. Bogan: Unlike the language of many of the SSM opinions so far, it is virtually stripped of the kinds of terms and effects that crop up elsewhere. The word "dignity" appears exactly once, on page 38 of a 40-page opinion. At that, it appears in a quotation of another court, and only in passing. Similarly, the word "animus" appears just once, at page 27. Brown v. Board of Education, cited in at least three of the SSM cases so far, is absent; so is "segregation." If the opinion is forceful and effective, it nevertheless speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving.
A New Vision For Legal Education—Starting From Day One
Under the theory that change brings opportunity, here begins a series of posts with some examples of what others are doing and some ideas of how we could adapt them to our own use. And what better place to start than at the beginning.
Plato tells us that ““You know that the beginning is the most important part of any work, especially in the case of a young and tender thing; for that is the time at which the character is being formed and the desired impression is more readily taken....” yet it has taken a long time for professional education in the United States to take these words seriously. In our own field of legal education, “Day One” ( which I appreciate is pretty much over for this year in the United States) in just about every classroom in the country starts with students reading a case they don’t understand, being called on by an authority figure and often being humiliated. Not surprisingly, after three years of this we see evidence that while students are energized and invigorated, others suffer actual harm. Larry Krieger and his team have been telling us that for years. Here are some very thoughtful comments by Susannah Pollvogt about the effect of the “curve.” And an important study by Ruth Ann McKinney.
Moreover, there is no evidence that starting like this is beneficial, because there is no counter example. Every lawyer alive was trained in more or less the same way, as were the two generations before them.
Clerkship Letters of Recommendation
In the coming weeks, I look forward to discussing some of my research, which currently focuses on international investment law and other legal frameworks that govern the conduct of international business. But for my first post, I thought I'd share some thoughts on a different aspect of our job that I haven't seen much discussion of in the blogosphere: writing letters of recommendation for clerkship applicants. With the collapse of the hiring plan, students are now applying as early as their post-1L summer. I imagine many professors have already gotten requests for letters or are starting to now.
I have a relatively informed perspective on the topic because I've continued to help one of the judges I clerked for with screening applications since my clerkship ended. So at this point I have seen applications over the course of six hiring cycles and have formed some observations on what makes letters useful. But now that I'm on the other side and facing the task of writing letters myself, I'd also love to get the reactions of others to see if any of my views are idiosyncratic or if I'm missing any opportunities to increase my letters' effectiveness.
The Role of Race in Juries--and Jury Pools
A friend recently pointed me to a fascinating 2012 study of the role of race in criminal juries (h/t Marginal Revolution). The study is entitled "The Impact of Jury Race in Criminal Trials" and was authored by Shamena Anwar, Patrick Bayer and Randi Hjalmarsson. The study looked at the connection between verdicts in two Florida counties and the racial composition of jury pools--that is, the groups of about 27 from which actual juries of 6 to 7 are chosen. In short, all-white jury pools convicted black defendants at a higher rate, but the study found that that disparity evaporated if the jury pool--not the jury itself--included at least one black member.
Wednesday, September 03, 2014
Personality of An Entrepreneur
I am conferencing in Tokyo at an international conference on Intellectual Property and Venture Capital: The Secrets of Building Innovation Ecosystems. You can see the program here. The morning session began with a keynote by Professor Hiro Higashide, who teaches at Waseda University Business School in Japan. Professor Higashide's first argument based on his broad multi-industry research was that the predictors of success are far more tied to the personality of the entrepreneurs in which VC invest than the technology or IP involved. He described the entrepreneurial spirit as developing very early in life and Japan's goals of identifying potential entrepreneurs in their 20s. At the same time, in Japan the entrepreneurial gap is quite low, that is, there is, relative to other cultures, a low percentage of individuals interested in becoming entrepreneurs. Other cultural differences between Japanese and western entrepreneurial ecosystems were emphasized, namely the difficulty in Japan to replace management, not just legally but as part of the social norms. This means that the selection of the initial entrepreneur in which to invest is even more crucial. Professor Higashide harshly described most entrepreneurs as "Living Dead" - they will never make a significant exit; the start-up, despite the investment, is doomed to fail. This, circling back to the relative significance of IP/tech versus leadership/personality, is far more dependent according to Higashide's research on the entrepreneur's qualities than the venture itself. Higashide spoke of "Founder's Diseases", the worse one being the tendency to stick to what one had originally planned without flexibility to change and make use of opportunities along the way.
First, by way of introduction, I am an associate professor at Barry University Dwayne O. Andreas School of Law in Orlando, and I teach Torts, Business Organizations, Health Care Law, and several Health Care Law Related Seminars. I write about topics at the intersection of science and the law, most recently in areas related to contraception in the Affordable Care Act, egg freezing, surrogacy, and prenatal testing ( SSRN author link here). I hope to write about some of the new issues cropping up in these areas over the next few weeks.
As most you can empathize, the beginning of the semester is extremely busy. I am chairing our Appointments Committee again this year--but the other reason for the hecticness is because I decided to switch my Torts and Business Organizations books this fall. This is my sixth year of teaching Torts and this is the third Torts book I have used (I switched to Farnsworth and Grady). This is my fifth year of teaching Business Organizations and this is the first time I have switched books (I am now using Smith and Williams). Of course, my grand plan was to prep the entire semester for both courses over the summer--and big shocker, that did not happen.
The myth of body cams
This Slate piece by two criminology professors who have studied the issues. They doubt cameras will prevent another Ferguson shooting, which is almost certainly true. But they also found (from studies of police in Mesa, AZ) found changes in police behavior--officers with cameras conducted fewer stop-and-frisks and arrests, although they wrote more citations. They also initiated more contacts with citizens, perhaps after observing behavior for longer to ensure themselves they were seeing wrongdoing before initiating contact.
Tuesday, September 02, 2014
A jurisdictional tragedy
Forget taxes. What is really important about Burger King's deal with Tim Horton's are the jurisdictional implications. Has Florida (and Miami in particular) lost its greatest contribution to the civil procedure canon? Might this set-up a final exam question in which a plaintiff tries to use BK's "home" in Florida to get general jurisdiction over the Canada-based parent company in Florida that will be birthed by the deal? Would BK now prefer to litigate in eastern Michigan (where Rudziewicz wanted to be), which is closer to Ontario?
Introduction: Richard Chen
The following is by September GuestPrawf Richard Chen.
As a first-time guest blogger, I thought I’d write a short post to introduce myself. I am a visiting assistant professor at Pepperdine University School of Law, where I teach Contracts and International Business Transactions. I am also one of the 492 brave (or foolhardy) people testing the entry-level hiring market, so blogging will provide a much-needed distraction this month while I wait for schools to call.
I want to thank the team running Prawfsblawg for giving me this opportunity to participate. I was originally invited by Dan, whom I did not know but was introduced to by one of my Pepperdine colleagues. He was very gracious in our brief interaction and made me feel welcome. I wish I’d had the opportunity to get to know him, but I do feel privileged now to be joining this community that he created and that he continues to inspire.
As we indicated, one of our big goals in keeping Prawfs going is to continue Dan's tradition of having a wide range of guests from a wide range of schools and disciplines pass through this forum.
As September rolls in, Irina Manta (Hofstra) will continue with her visit from August. We welcome returning visitor Jennifer Bard (Texas Tech) and first-timers Richard Chen (Pepperdine) and Seema Mohapatra (Barry). In addition, Richard Re (UCLA) continues his extended guest stint.
And, again, we are always looking for visitors, new and old. So email Paul or me if you are interested in joining the conversation.
Friday, August 29, 2014
Video Chutzpah, defined
Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."
He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.
Substantial Similarity and Music
From Guest Irina Manta.
For those interested in more scholarship on the topic of substantial similarity in copyright law, Carys J. Craig and Guillaume Laroche (York University-Osgoode Hall Law School) recently posted a piece entitled Out of Tune: Why Copyright Law Needs Music Lessons. Here is the abstract:
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors illustrate how and why this test may fail to perform its necessary role in the infringement analysis. The authors conclude by identifying some ways in which the legal analysis could be improved, including a more extensive use of both expert and survey evidence, and greater consideration of the accepted norms and practices of the relevant creative community. The overarching aim of this chapter is to demonstrate the importance of bringing the insights from musical and other creative disciplines to bear on the law of copyright, so that it might more accurately reflect the very practices it is meant to encourage.
Rebecca Tushnet has posted some of the key excerpts here. The authors give an interesting overview of the special problems entailed in similarity determinations for musical works and show that Canadian law largely suffers from the same problems as U.S. law in that area. They are also open to the possibility of introducing surveys in copyright litigation (similar to the ones we use in trademarks cases), as I suggested in previous work.
Another SCOTUS counter-factual: Justice Posner?
Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).
But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?
More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.
Thursday, August 28, 2014
Learning Outcomes Are Coming, Learning Outcomes Are Coming--What They Are and How to Draft Them
[From our guest Jennifer Bard]
My last correspondence with Dan was in May when he asked if I would do another month as a guest in the fall, I said “yes” and “Thank you” and we agreed to September. Although I didn’t yet know him as well as many of you, and that is clearly my loss, I’m honored to be part of the continuation process and without further ado—I did get the be concise vibe—let’s go.
The ABA dropped something of a bombshell last week when it sent out a letter to the Deans of ABA approved law schools with an advanced copy of a document now on their website, letting the Deans know that not only were going to adopt Standard 302 to require learning outcomes, but they expected Law Schools to implement the change immediately.
The topic of today’s Post is Standard 302.
A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:
(a) Knowledge and understanding of substantive and procedural law;
(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;
(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and
(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.
Learning outcomes are already required of schools accredited by the Southeastern Associations of Colleges and Schools, as well as other regional accreditors, Indeed, quite a few law schools and law professors are way ahead of the curve on this—here are some examples from Hastings, Belmont Law School, Thurgood Marshall, and a book by Gregory Munro.
But as we know, the temptation within law schools is to address anything new as “yet another administrative burden” and, always, that “just doesn’t fit with a law school education.” We can’t do that anymore. And I don’t think it’s going to be terrible. In fact, I’d suggest that the way we teach now is unduly Procrustean--and these latest requirements are a path to measuring what’s going on the classroom and a method of identifying students who are struggling as well as those who may be bored. Here is a very thoughtful article by Mary Lynch at Albany that addresses concerns specific to legal education. Anyway, as the saying goes, this is not a situation that requires our belief—it’s something we have to do.
So—to dive in. The big concept here comes from Bloom’s taxonomy of learning in which he argues that there are “levels” of expertise that everyone goes through in learning new material. People start at “knowledge” and end up moving through comprehension, application, analysis, synthesis, and evaluation. Our job is to evaluate the level of student learning within our own classes along that continuum—and the way to do that within the Bloom framework is by using "measurable verbs." And, Good News! There is lots of help available. I close today with some resources—and will go into more detail later. This overview from the learning center at UNC Charlotte is helpful. Here’s another from Tulane, a youtube video from a doctoral candidate, a lot of detail from Rutgers, and one we use at TTU. Another interesting practice is to have students draft their own learning objectives—here’s one for an experiential learning program from the University of Central Florida.
Welcoming Back Jennifer Bard, and a Note
We're happy to welcome Jennifer Bard back to Prawfs. She is the Alvin R. Allison Professor of Law at Texas Tech University School of Law and an adjunct associate professor at the TTU School of Medicine.
Let me say as an aside that in the wake of our loss of our friend Dan, many old and new friends have stepped forward to serve as guest bloggers over the coming year. We're eager to keep what I think of as The House That Dan Built going and grateful that so many people are helping to maintain a fraction of the energy that Dan brought to this blog, along with everything else. And we are grateful to our readers as well.
A Clearinghouse for Questions, 2014-2015
In this comment thread to this post, you can ask questions about the law teaching market, and prawfs or others can weigh in.
Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, slawsky*at*law*dot*uci*dot*edu.
We have a different thread in which candidates or prawfs can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.
Here is a link to the last page of comments.
First posted 8/28/14.
Law School Hiring, 2014-2015, Thread One
Those on the market are invited to leave comments on this thread regarding whether they have received:
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level market.
Four miscellaneous things:
1. If you don't want your contact information displayed, enter email@example.com or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. Finally, in each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
We now have an aggregator, and we will thus continue our spreadsheet approach: All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.
Here is the spreadsheet, which is downloadable.
Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.
First posted 8/28/14.
Wednesday, August 27, 2014
The Doctrine Formerly Known as "Statutory Standing"
Last week, I posted on Hobby Lobby and its effort to grapple with older cases that had assumed federal jurisdiction, contrary to the now-settled rule established in Steel Co. Some comments about the post reminded me that Hobby Lobby wasn't the only decision last year that dealt with assumed jurisdiction: Lexmark did as well--but you wouldn't know it from reading the Court's unanimous decision. On its face, Lexmark simply re-characterized the doctrine of "statutory standing" as a form of merits inquiry. But, in doing so, Lexmark silently demolished one of the foundations underlying Steel Co.
This episode offers a rich example of how legal revolutions can be achieved, not through grand decisions overruling precedent, but rather through gradual re-characterizations. This episode also has a discrete doctrinal payout: after Lexmark, it appears that federal courts must now assure themselves of jurisdiction before turning to the doctrine formerly known as statutory standing.
Two from Dorf on policing and body cameras
Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.
ASU Aspiring Law Professors Conference
A quick note: ASU's annual aspiring law professors conference is coming up on Saturday, September 27. The keynote speaker this year is Paul Caron of Pepperdine. The conference announcement, which can be found here, includes the following description:
Designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.
- Learn to succeed in the entry-level law teaching market
- Obtain an insiders perspective on the appointments process from faculty with extensive hiring experience
- Participate in a mock interview or mock job talk and gain feedback from law professors
I had the pleasure of speaking at the conference a couple of years ago. It's a well-designed and, I believe, helpful event. It will certainly help you if you're in the market; it may also help you decide whether you want to be in the market or not.
Bloom, "Against Empathy"
There has been a long debate in law about the role of empathy in judging, a debate that gained new prominence during and after the nomination of Justice Sonia Sotomayor. Those who are interested in that debate may enjoy a new essay in the Boston Review by Paul Bloom titled "Against Empathy." There are a host of responses, with a reply by Bloom. He defines empathy as "the process of experiencing the world as others do, or at least as you think they do." A couple of snippets:
I’ve come to realize that taking a position against empathy is like announcing that you hate kittens—a statement so outlandish it can only be a joke. And so I’ve learned to clarify, to explain that I am not against morality, compassion, kindness, love, being a good neighbor, doing the right thing, and making the world a better place. My claim is actually the opposite: if you want to be good and do good, empathy is a poor guide.
* * *
Certain features of empathy make it a poor guide to social policy. Empathy is biased; we are more prone to feel empathy for attractive people and for those who look like us or share our ethnic or national background. And empathy is narrow; it connects us to particular individuals, real or imagined, but is insensitive to numerical differences and statistical data. . . . In light of these features, our public decisions will be fairer and more moral once we put empathy aside. Our policies are improved when we appreciate that a hundred deaths are worse than one, even if we know the name of the one, and when we acknowledge that the life of someone in a faraway country is worth as much as the life a neighbor, even if our emotions pull us in a different direction.
I encourage you to read the essay and the responses. I would note one pet peeve of mine about the empathy debate in law: the frequent, implicit assumption that empathy for the plight of another ought to entail legal victory for that claimant. I tend to believe that empathy is useful in judging, both because it may aid in understanding a claim and, sometimes, the wider effects of a legal ruling, and because it may enable the empathetic judge to speak more clearly and effectively to the losing side. But there is no necessary connection between feeling someone's pain and ruling in favor of his or her claim.
Tuesday, August 26, 2014
More on body cameras
This morning, I was on Minnesota Public Radio's The Daily Circuit talking about police body cameras. The other guest is a captain in the Houston Police Department, where they have been doing a pilot program equipping 100 officers with cameras. It was the usual discussion--these are a good idea, but be careful in our use of the resulting video. On top of everything else, I was very happy to hear about the regulations the department has enacted, including requiring that the cameras always be turned on for all encounters (rather than leaving it to the officer's discretion) and spot-checks of the uploaded video. The specifics and details of implementation in each department will be an important consideration going forward.
Checking in With the Episcopal Chaplain at Yale
The New York Times has this interesting letter to the editor today, responding to an op-ed from Deborah Lipstadt the other day about anti-Semitism in Europe. Without comment, I offer it in full:
To the Editor:
Deborah E. Lipstadt makes far too little of the relationship between Israel’s policies in the West Bank and Gaza and growing anti-Semitism in Europe and beyond.
The trend to which she alludes parallels the carnage in Gaza over the last five years, not to mention the perpetually stalled peace talks and the continuing occupation of the West Bank.
As hope for a two-state solution fades and Palestinian casualties continue to mount, the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question.
(Rev.) BRUCE M. SHIPMAN Groton, Conn., Aug. 21, 2014
The writer is the Episcopal chaplain at Yale.
Monday, August 25, 2014
Heien and Certificates of Reasonable Cause
Near the start of its new term, the Supreme Court will hear argument in Heien v. North Carolina, which poses the question whether a police officer violated the Fourth Amendment when he performed a traffic stop based on a mistake of law. When the case was granted, I suggested that Heien involves the "other" rule of lenity--that is, the notion that government officers (not criminal defendants) should be given clear notice before suffering personal consequences for having performed illegal action. The briefs in the case have now been filed, and they contain a surprise: a significant chunk of the briefing revolves around founding-era customs law. That history provides a fascinating point of comparison for current law and practice.
Pity the Non-Donor
Eric Posner's recent co-authored article, An Empirical Study of Political Bias in Legal Scholarship, has attracted a good deal of attention. On his blog today, he writes an interesting follow-up, asking whether Republican law professors are cited more often than Democratic law professors and answering, "yes." He offers some speculations about why that might be. Intuitively, I tend to think the second reason he offers--"Because they must find someone to criticize in their papers, [liberal law professors] end up citing Republicans frequently. Citations by Republican law professors are divided among the larger pool of Democratic professors, so on a per capita bases the latter are less frequently cited than the former."--is more convincing than the other three possibilities he raises. But that's just intuition.
More interesting still, to me, is Posner's finding that "non-donors are cited less often than both Democrats and Republicans are." He speculates that "articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited." That hypothesis is quite similar, I think, to the explanation he ventures above about why Republican law professors are cited more often than Democrats.
Judging Similarity (Part 3)
This post is by guest Irina Manta
Now that I have discussed the background and methodology of the studies in “Judging Similarity”, it is time to turn to a fuller discussion of the implications of our results for the third and last part of this post.
We had three key findings:
1) Knowledge of copying significantly raises the similarity rating.
2) Knowledge that a high level of labor went into creating the original work significantly raises the similarity rating.
3) Knowledge that market substitution occurred does not appear to significantly raise the similarity rating.
As discussed in Part 2, we have reason to believe that the first finding is the result of confirmation bias. This finding is troubling in that it suggests that, at the most basic level, decision-makers may be unable to separate the two prongs of the substantial similarity test and that the copying prong (to borrow rhetoric from Barton Beebe’s work on the trademark multi-factor test) is “stampeding” the similarity prong.
Saturday, August 23, 2014
NPR on police body cams
I was interviewed for an NPR Weekend Edition story on police body cameras and whether they represent any sort of great solution to the problem of figuring out what happens in police-public encounters. As expected, I provide the "no, video is not some all-showing neutral observer" perspective.
Friday, August 22, 2014
Number of FAR Forms in First Distribution Over Time
The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.
(All information obtained from various blog posts and blog comments over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)
An Update on the "Satanic Black Mass" Story
For students of law and religion, not to mention the much larger audience that likes stories about replevin, the story about the planned Satanic "black Mass" at the Oklahoma City Civic Center Music Hall has been very interesting. Here are some updates about this controversy. In short, the organizer of the event has returned (or said he has returned) what he said was an authentic piece of the Catholic host that he intended to use at the Mass. The story quoted at the MoJ cite adds: "Archbishop [Paul] Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility. 'I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.'" I cannot help but wonder, on the basis of this and similar statements that he has made, what Archbishop Coakley's position is on the Bronx Household of Faith case.
Talking about free speech or talking about racial justice?
The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protest, sit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).
(*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.
(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.
On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.
But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).
Would “Pattern or Practice” Litigation Work in Ferguson?
The following guest post is by Stephen Rushin, a VAP at Illinois.
Earlier this week, Howard wrote an interesting post about the possibility of DOJ intervention into the Ferguson Police Department under 42 U.S.C. § 14141. This statute gives the Attorney General authority to initiate structural reform litigation against local police agencies engaged in a “pattern or practice” of misconduct.
This post raised some important questions. How might the DOJ use § 14141 to reform the Ferguson Police Department? And would it work? Over the last two years, I've been empirically studying the DOJ’s use of § 14141 litigation in American police departments as part of my doctoral dissertation. I am in the process of converting this dissertation into a book (in contract with the Cambridge University Press) that argues that § 14141 is the most effective legal mechanism available to combat police misconduct. So it is safe to say that I am a strong proponent of § 14141 litigation. But this regulatory mechanism is not without its limitations. After the jump, I’ll breakdown what we know about § 14141, and I’ll describe how this sort of structural reform litigation could work in Ferguson.
Thursday, August 21, 2014
A Somewhat Interesting Question from a Terrible, Terrible Writer
At Slate, regular higher education writer Rebecca Schuman raises the question whether a professor should ever assign to students a book that he or she has written. Her answer: No, never! Except, yes, sometimes. And adjuncts probably should do so, because the mistreatment they receive matters more than the mistreatment that students receive.
I find the question an interesting one. But, I readily confess, I link to it here mostly to make publicly a point I've made more privately elsewhere: Rebecca Schuman is, by leaps and bounds, the worst writer on higher education I've ever read. That's not a critique of her views or her complaints about the university, only some of which are wrong. Nevertheless, taken on the whole, article for article, screed for screed, she is just awful--so consistently "love-to-hate" awful that I almost can't get enough of her work. This is not true for everyone--I wouldn't say it of Eric Jarosinski, for example--but in this case I would say that the fact that Schuman is leaving the academy for web journalism says far more about web journalism than it does about the academy. Nor does her regular column at Slate speak well for Slate, which used to be quite good.
Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.
But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).
Judging Similarity (Part 2)
This post is by August/September GuestPrawf Irina Manta.
In my first post on this subject, I wrote about the background that motivated us to conduct our studies on copyright infringement for our paper “Judging Similarity”. Today, I would like to discuss our methodology and results in more depth.
In the first study, we tested the hypothesis that images seem more similar simply by virtue of being copies. We used an online format and recruited subjects on Amazon Turk. Subjects were told that they would be shown image pairs and would be asked to rate their similarity on a numerical scale. We specified that subjects had to base their answers entirely on a comparison of the works themselves. We also told subjects that while there would be both similarities and dissimilarities, they had to judge the works as a whole. Further, we told them to assume each time that the work shown on the left was created before the work shown on the right. Subjects were randomly assigned to either the independent group or the copy group. The former group was told that the creator of the work on the right did not know about the work on the left during the process of creation. The latter group received the instruction that the creator of the work on the right copied from the work on the left during the process of creation. Subjects then proceeded to view image pairs such as this one.
We conducted statistical analyses and found that the individuals who were told that copying occurred rated works as significantly more similar to one another than did individuals who believed that the creation process had been independent.
Thoughts about Perez on Courage and Rationality in Regulation
Oren Perez (Bar Ilan University) has published Courage, Regulatory Responsibility, and the Challenge of Higher-Order Reflexivity in Regulation and Governance and on SSRN. Here's the abstract:
Contemporary regulators must respond to ever-increasing societal demands in various domains. Regulators must cope with these demands under conditions of extreme epistemic scarcity and ideological divide. This leaves regulators perplexed about what action they should take. Regulatory praxis offers two primary responses to this moral and epistemic dilemma: technical canonization and reflexive regulation. While these two approaches represent contrary regulatory philosophies, they suffer from two common blind spots: (a) disregard of the critical role of discretionary judgment in regulatory action; and (b) disregard of the dilemma of higher-order reflexivity. The article explores the idea of higher-order reflexivity in the regulatory context. This exploration renders visible the abysses that are faced by regulators as they attempt to resolve regulatory dilemmas through a cognizant and introspective process. The article argues that the Socratic concept of courage and the idea of forward-looking responsibility provide a plausible framework for thinking about the challenge of regulatory judgment. It concludes with a discussion of the legal and institutional mechanisms that could both facilitate and put to scrutiny the realization of this ideal (but noting also several features of the contemporary regulatory system which constitute potential barriers).
I always take note of Professor Perez's work, because he (among others) confronts, as he refers to it, the higher-order rules that determine how we go about applying rules, and the inherent regress or circularity in trying to come up with an objective foundational concept of judgment, an archimedean place to stand (as Ronald Dworkin characterized it here at page 88).
This particular essay is in the context of regulatory judgments, but it applies more generally. What do we mean by "higher order"? Let's suppose that I need to decide on an appropriate response to my child's misbehavior. Should I choose the first level rule of justice (in which case he's grounded until he's thirty) or the first level rule of mercy (oh, c'mon, I did the same thing when I was his age)? What rule do we apply in choosing between justice and mercy rules? Let's call this "Rule-Prime". Do I apply "justice" rules when the action involves a physical danger? Do I apply "justice" rules when the action has consequences for others? Okay, what's the rule for deciding how to decide how which rule is appropriate in "Rule-Prime" cases? Well, I guess there must be Rule-Prime-Prime. You can see when this is going to end. Never. (Note the application of this to the problem of the internal point of view in the "what is law?" jurisprudential debates. We could do an objective study of parents' disciplining habits and that would tell us about the practice, but it wouldn't tell us anything about how the parents came to see that as the governing first order rule.)
The lesson here is that, sooner or later, the power of rational thought runs out, and we have to turn to something else when we make decisions. Not only do I like his choices - courage (i.e. deciding even if we are uncertain) and responsibility (i.e. accepting the consequences of the decision) - I've written something similar in connection with business (and other) decisions: "The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions."
Wednesday, August 20, 2014
Who's Afraid of Assuming Federal Jurisdiction?
In the Supreme Court's much-discussed Hobby Lobby decision (decided at the end of June), the Court addressed whether for-profit corporations should be able to assert claims under the Religious Freedom Restoration Act (RFRA). The majority answered “yes” for a variety of reasons, mostly involving the statute’s text and history. But at one juncture, the majority and dissent also jousted over a pre-RFRA decision called Gallagher v. Crown Kosher Super Market. In the opinion of the Hobby Lobby majority, Gallagher “suggests, if anything, that for-profit corporations possess [free exercise] rights.”
Gallagher is a remarkable decision. In short, a plurality of the Court assumed standing before reaching the merits—contrary to the general rule later established in Steel Co. v. Citizens for a Better Environment. And, almost as remarkably, both the majority and the dissent in Hobby Lobby appear to be in denial about it. Hobby Lobby thus represents an interesting example of the Court’s willingness to engage in doctrinal revisionism. And, on inspection, the Court’s revisionism could have been done better.
More on police "pattern or practice" in Ferguson
Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.
Response(s) to Rick Garnett's Essay on Freedom of Religion and Freedom of the Church
As Rick noted here a while back, he has a piece up at the Liberty Law site on "Freedom of Religion and Freedom of the Church." There have been several interesting responses to it by Donald Drakeman and John Inazu. Here is my own, less interesting response. It was a pleasure to read and respond to Rick's essay.
"Criminals In Uniform"
I have been profoundly disheartened by the police shooting, peaceful protests, draconian police response, and the slide into sporadic rioting currently dragging out in Ferguson, Missouri. The frustration expressed by the Ferguson protestors has reminded me of the restrained anger behind Professor of Jurisprudence at the University of Oxford, John Gardner's discussion of another police shooting: the London Metropolitan Police killing of Jean Charles de Menezes in 2005.
In a broadly "Diceyan" take on legal equality, Gardner argued that police officers are properly understood as "citizens in uniform." The austere Diceyan approach to police responsibility argues that lawless policing—searches and seizures without authority of law—are criminal acts. If an ordinary citizen who invades property, offensively touches, or detains and removes someone is guilty of a trespass, battery, or kidnap, then so is the citizen in uniform who acts without proper legal authorization. Worse, when a person charged with protecting the public and upholding the law harms the public and violates the law, they fail in their moral duties in particularly egregious ways.
Suppose this austere Diceyan approach applied to the police in Ferguson Missouri—or American policing more generally. Then Fourth and Fifth Amendment violations renders those few who engage in such acts police criminals in uniform just as much as extra-judicial killings do. The result is that, from an austere Diceyan perspective, those police officers fail the citizenry in the most egregious way: by becoming criminals themselves.
From this Diceyan perspective, Justice Cardozo's famous dismissal of the exclusionary rule in People v. Defore is deeply disingenuous. Cardozo asked should the criminal "go free because the constable has blundered." Blunderers do not intend harm: they are innocent-but-clumsy. More Keystone Cops than Stacy Koon (of Rodney King fame). But the austere Diceyan might argue that central problem with police misconduct is not clumsy cops, it is criminal ones.
Does it Even Matter What Steven Salaita "Tweeted?"
I have followed with interest the various stories and blog posts about Steven Salaita. Although there are aspects of Mike Dorf's initial post on the subject that I am uncomfortable with, I agree with him that there are some possible differences between firing and not hiring an academic candidate. We shouldn't be sanguine about those differences; refusing to hire a candidate for the wrong reasons--not liberal enough, say, or too liberal--is also a dereliction of academic duty. And we should be very cautious about "collegiality," without treating it as irrelevant. But there are, I think, potential differences between the kinds of factors that are relevant at one stage and those that are relevant at another.
I agree that the Salaita case raises serious concerns about academic freedom. I'm less convinced by some of the confident descriptions of the process and its legal consequences, but I haven't read every document. To my surprise, moreover, I find some aspects of the argument that some of Salaita's tweets have been overread persuasive. (We should always be cautious about confidently assuming that some statement is really a "dog whistle," as long as it can be read otherwise. I find it unfortunate that this seems to be an inconsistently applied principle.) I should add that that's a far cry from admiring the heated, obnoxious rhetoric that Salaita seems comfortable with in his tweets. In my view, which admittedly may be an outlier, most academics should be embarrassed to tweet at all; and all of them should be embarrassed to tweet like that. (The post I link to promises to go on to demonstrate that "Nelson's authority to speak about Salaita's termination"--note the assumption--"is compromised." I assume that most of the serious critics of university's treatment of Salaita consider that part of the argument irrelevant, if not damaging to their arguments.)
What I'm moved to wonder is how relevant much of the later discussion has been. The letter to which Dorf is a signatory describes Salaita's tweets, in rather general terms, as "statements on a matter of public concern," as as the voicing of views on "complex matters of public concern," as "participat[ion] in a rich, and at times heated, climate of debate on the issue of justice in the Middle East," and so on. Some critics, such as Steven Lubet, have criticized the letter writers and others for "soft-pedaling the anti-Jewish sentiments in [Salaita's] tweets." In addition to pointing to the post I linked to earlier reading those tweets differently--which, as I said, I found somewhat persuasive--critics of that position have ended up in a lengthy discussion of Hamas, the situation in and around Israel and Gaza, etc. And I wonder: Does it matter?
As I understand the strongest statement of the position that has been offered, this is a matter of academic freedom, pure and simple. On this view, Salaita was fired, or refused a process that should have led to his employment, and not just "not hired." The firing was a result of the content and viewpoint of his speech on Twitter. That is a violation of basic principles of academic freedom. Salaita's hiring itself, based not on his tweets but on a review of his scholarship and, presumably, his teaching and service, indicate his suitability for the position. If that's the case, it seems to me that what Salaita said is basically irrelevant. Provided that he was engaged in a "rich, and at times heated," debate on "a matter of public concern," and that he was fired, in violation of academic freedom, for doing so, why should we care whether his tweets were anti-Israeli, anti-Zionist, offensive, or indeed anti-Semitic? The question should be (almost?) entirely irrelevant.
On this view, it does not matter--except for public relations purposes--that the letter writers offered a rather anodyne description of Salaita's tweets. Nor--except for public relations purposes--would it matter if the letter writers had written instead, "A number of critics have said that Salaita's tweets trade in anti-Semitic tropes and imagery, are indifferent if not gleeful about doing so, and are enthusiastic in displaying bloodthirstiness about the people he reviles. We don't care, and we're outraged that he was fired."
It seems to me that if we take seriously the criteria applied by Salaita's defenders--and not without reason, if we care about academic freedom--it would hardly matter if Salaita had instead "tweeted" (leaving aside the question why grown-ups, let alone grown-up academics, bother with such an activity) any of the following:
"I'm beginning to think the Protocols of the Elders of Zion are right."
"One, two, a thousand Auschwitzes!"
"Obama is a traitor and a dictator. Time to exercise some Second Amendment remedies, NOW!"
"Maybe if the girls on campus dressed with decency and stayed off the booze, there would be fewer rapes at this school."
"If those monkeys in Ferguson want to burn down their own town, let them! Why waste the rubber bullets?"
Of course most people will find these statements objectionable. But that's hardly the point. They are, and the letter writers would describe them simply as, part of the rich climate of debate on matters of public concern. It's strange to me, then, how quickly the discussion in the comments has moved to questions about the nature and motivations of Hamas, whether it bears moral agency for the murders it commits, and so on. It should matter no more than it would matter whether Salaita, or some other academic, believed and argued that women's indecency and promiscuity is a major contributing factor to campus sexual assault, or that black criminality is a greater problem in Ferguson than police brutality. And, given that the real issue is one of academic freedom, the letter writers would surely be within their rights to describe one set of beliefs and arguments as abstractly as they describe any other.
One last note: an interesting comment on the Faculty Lounge wrote, in response to a question whether it would matter if Salaita were, instead, a Grand Wizard of the KKK who concealed his membership until he was hired, "[T]here is obviously a fundamental difference between holding racist ideas and acting upon them, just as there is a fundamental difference between engaging in terrorist acts and expressing sympathy for them. No one would argue academic freedom requires hiring either a Grand Wizard or a terrorist." That may be right, but note that this response assumes that the question is one of hiring, not firing. That is not what the question to which he was responding said. Moreover, the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason. And of course a suite of responses to such a dismissal is required, including protest and, for some, a refusal to participate in any events at that university.
Tuesday, August 19, 2014
Reforming the Ferguson Police Department
This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency.
Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.
One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.
The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.