Wednesday, October 10, 2018

California's New Law Requiring Corporate Boards to Include Women: Is it Constitutional?

On Sunday, September 30, California Governor Jerry Brown signed into law a new bill requiring publicly held corporations based in the State of California to include women on their boards of directors.  Specifically, any corporation with its principal executive offices in CA must have at least one woman on its board of directors by the end of 2019.  By the end of 2021, the minimum goes up to two female directors if the corporation has five directors, or to a minimum of three female directors of the corporation has six or more directors.  You can read the bill, Senate Bill. No 826, here

Many people--including Governor Brown himself!--have questioned the law's legality.  It is a facial sex-based classification, which means that it will trigger intermediate scrutiny in an analysis under the United States Constitution.  (To be precise, the law defines "female" as "an individual who self-identifies her gender as a woman," so it is a facial gender-identity-based classification, but that is unlikely to change the standard of review.)  And under the California Constitution, the law is likely to trigger strict scrutiny, based on past precedent, which would be even harder to pass.  In his signing statement, Governor Brown stated that "There have been numerous objections to this bill and serious legal concerns have been raised.  I don't minimize the potential flaws that indeed may prove fatal to its ultimate implementation." 

Indeed, it's very hard to see how this law could be upheld.  It essentially imposes a quota for women, and the Supreme Court has consistently looked with particular disfavor on any state action that involves quotas or set-asides on the basis of protected characteristics.   (Oddly, the state senator who introduced the bill apparently predicted that it would be held constitutional "because it doesn’t impose a quota or a percentage for board seats held by women"--but unless I'm missing something, it seems like the bill essentially does just that.)  Additionally, it seems that there are other facially-neutral measures to increase diversity that could be tried instead, such as requirements that director terms be shortened and that new directors be regularly cycled in. 

After acknowledging that the law might well be struck down in court, Governor Brown stated that "Nevertheless, recent events in Washington, D.C.--and beyond--make it crystal clear that many are not getting the message."  But does it even help the cause to adopt a measure that is so likely to get thrown out in court?  What message does that send?   I'm sympathetic to the ultimate policy goal of having more diverse corporate boards, but this doesn't seem like a productive route to me. 

 

 

 

Posted by Emily Gold Waldman on October 10, 2018 at 06:36 PM | Permalink | Comments (13)

Publishing opportunity--Kentucky Law Journal

Kentucky Law Journal is  looking for one article to round out its volume this year. They are specifically hoping to find a criminal law piece, but will consider other submissions as well. Authors can email submissions to [email protected]

Posted by Howard Wasserman on October 10, 2018 at 06:13 PM in Teaching Law | Permalink | Comments (0)

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Posted by Howard Wasserman on October 10, 2018 at 06:07 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Back-to-back Jewish World Series

Baseball's final four is set and all four teams have one Jewish player--Ian Kinsler (Red Sox), budding superstar Alex Bregman (Astros), Joc Pederson (Dodgers), and Ryan Braun (Brewers). This means we are guaranteed a consecutive two-Jew World Series for the first time (previous two-Jew Series before last year were 2004, 1959, 1945, and 1940). Moreover, each is a regular starter for his team.

Truly baseball's new gildene elter. 

Posted by Howard Wasserman on October 10, 2018 at 07:14 AM in Howard Wasserman, Sports | Permalink | Comments (4)

Tuesday, October 09, 2018

JOTWELL: Walsh on Hickman on severability

The new Courts Law essay comes from Kevin Walsh Richmond), reviewing Kristen E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2015), considering the use of severability to remedy separation of powers defects in the design of federal agencies.

Posted by Howard Wasserman on October 9, 2018 at 10:50 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 08, 2018

Better Call Saul does legal-academic fundraising

In the Better Call Saul season finale, Jimmy donates $23,000 to an area law school to name the library Reading Room after his brother. Just how unrealistic was that? What is the going rate for naming rights for a room in a law school?

Posted by Howard Wasserman on October 8, 2018 at 11:17 PM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Yes, please sue

Where to begin with this suggestion that Justice Kavanaugh should sue Christine Ford and the Washington Post for $ 20 million each and that the suit would be successful? This is a new talking point among conservative commentators.

I go point by point after the jump, because there is so much wrong here.

Continue reading "Yes, please sue"

Posted by Howard Wasserman on October 8, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, October 07, 2018

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Posted by Howard Wasserman on October 7, 2018 at 10:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Barnette at 75

I am happy to say that FIU Law Review's symposium Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" was a great success, with three terrific panels and a wonderful keynote speech by John Q. Barrett (St. John's) on Justice Jackson's particular approach towards a series of contemporaneous disputes involving Jehovah's Witnesses.

Video of the entire event can be found here.

One other shout-out: At the same time as our program, Georgia State hosted a conference on Anthony Kennedy's jurisprudence, including one panel on Kennedy's prose. At perhaps the same moment as that panel, several of us were having a conversation, sparked by one speaker noting the unformulaic nature of Jackson's Barnette opinion--was Kennedy, in opinions such as Obergefell, trying to be Justice Jackson?

Posted by Howard Wasserman on October 7, 2018 at 06:52 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, October 05, 2018

The Talk and The Whisper

In recent weeks I have been struck by the similarities between the advice different groups give each other. One is the Talk—the instructions passed on from parent to African American child (usually depicted as male) to avoid the police, and how to act if they cannot avoid the police. The other might be called the Whisper—the advice that women give to ensure that they are not assaulted by men, including identifying particular men and places as to-be-avoided.

In each case, the instructions require group members to avoid certain places or people, show deference when cornered, and take steps to escape as quickly and as safely as possible. In each case, the rest of society has, in general, not believed the group members' accounts. If they are believed, their testimony is dismissed: the approach is something like, I believe you but it will not change my behavior or your standing to challenge that behavior.

My colleague, Yxta Murray, has just written insightfully about the "belief" part of this problem in the context of epistemic injustice, a philosophical theory arguing that individuals will simply not be believed based on their social status: that their claims to knowledge are discredited. But a different problem is that their claims to knowledge are discounted. That they will be believed but not practically acted upon.

Both are serious issues. But epistemic discounting (to give a term to the practical problem of belief-but-inaction) creates an important dissonance: credible witnesses give testimony about events—in this case, events that are truly terrible—yet these witnesses are discounted, told that their testimony (and perhaps, by implication, their experience) does not matter.

I'll have more to say about epistemic discounting, and how it's forced me to rethink some interesting papers I've had the pleasure to write about on Jotwell. But at least one way of thinking of epistemic discounting is not as a form of mistake, or disinterest, but as a form of disrespect. Kate Manne, in her book on misogyny, Down Girl, has written persuasively of this form of disrespect as a robust normative system for putting people in their place.

Putting people in their place—being appropriately orderly—is also a core feature of policing. It's the form of social control at which the police excel. It's also the form of social control that is least visible to the courts, because it begins and ends on the streets. And it's a form of social control that runs deep in complicated raced-and-gendered ways.

I'll explore some of these complicated, raced-and-gendered ways in my next post.

Posted by Eric Miller on October 5, 2018 at 01:32 PM | Permalink | Comments (15)

Thursday, October 04, 2018

Barnette at 75 (Move to top)

Beginning at 9 a.m. Friday (tomorrow) is the FIU Law Review Symposium, Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." The link includes the video for the livestream. The livestream and recording also are available here. The issue of the Law Review (which will include published transcripts of the Q&A sessions) will be published later this academic year.

The full schedule is after the jump.

Continue reading "Barnette at 75 (Move to top)"

Posted by Howard Wasserman on October 4, 2018 at 10:47 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Most lawyery "Better Call Saul"

This week's Better Call Saul, titled "Wiedersehen" (the penultimate episode of Season 4), may have been the most lawyery episode. Consider:

• Shout out to Justice Stewart. Jimmy and Kim discuss when the situation will again be right to pull the scams that make them both feel alive. Kim insists they will know the right situation when they see it.

• Appearing before the committee considering whether to reinstate him, Jimmy talks about attending the University of American Somoa, although he would have preferred to attend Georgetown or Northwestern (my alma mater).

• At the same hearing, Jimmy is asked  whether he has kept abreast of changes in the law. He talks at length about Crawford v. Washington and the Confrontation Clause.

Posted by Howard Wasserman on October 4, 2018 at 10:46 PM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Posted by Howard Wasserman on October 4, 2018 at 10:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, October 03, 2018

Diversity Requirements and Inclusion Riders

I’m excited to guest-blog here this month. A quick introduction: I’m now in my thirteenth year at the Elisabeth Haub School of Law at Pace University, where I currently serve as an associate dean and teach Employment Law, Constitutional Law, and Education Law.

During this past year, I’ve been examining the various customer/client preferences that can provide the basis for successful employer defenses to what would otherwise be actionable discrimination under Title VII.  I call them the “preferred preferences," because they actually get some deference from courts.  They include preferences like aesthetic appeal, physical privacy from the opposite sex, convenience, and more.  My article about the topic is coming out soon in the North Carolina Law Review, and a draft is available here.  I'll also be speaking about it at an employment law symposium at Belmont Law School this Friday.

In doing this research, I’ve become very interested in what might become another preferred client preference: diversity. Last year, Facebook announced that it would require women and ethnic minorities to account for at least 33 percent of law firm teams working on its matters.  (Here's the NY Times article about it.)  HP likewise announced a numerical minimum for how many female and ethnically diverse attorneys must work on their matters, warning law firms that it would “withhold up to 10% of all amounts invoiced by law firms that do not meet or exceed our minimal diverse staffing requirements.”

Even more recently, at the 2018 Academy Awards, actress Frances McDormand said—at the conclusion of her acceptance speech for the best actress Oscar—“I have two words to leave you with tonight, ladies and gentleman: inclusion rider.” McDormand was drawing on the work of Professor Stacy Smith, a USC communications professor who coined the “inclusion rider” term a few years ago.   The basic concept is for prominent actors and actresses to insist upon, as riders to their individual contracts with the studio, a certain level of diversity among the cast and crew.  If you're curious, Professor Smith's sample inclusion rider template appears here.

I completely understand and appreciate the sentiment behind these pushes within the corporate world and in Hollywood.   What I’m fascinated by, though, is the legal question of how much employers (whether it’s a law firm whose client is Facebook, or a studio trying to sign an A-list actor with an inclusion rider) can respond to these preferences. For example, can a law firm explicitly take race and sex into account when staffing Facebook’s matters to make sure it hits Facebook's 33% target, or does that violate Title VII’s prohibition against differential treatment on the basis of race and sex?  My view is that both doctrinally and normatively, it makes much more sense for employers to be proactive rather than reactive.   These new pushes should prompt them, even more, to  create broadly-applicable policies that promote equal employment opportunity for all employees, as opposed simply responding to individual client or customer diversity targets in a one-off fashion that may well subject them to liability.

This also connects up with the new law that California Governor Jerry Brown just signed, requiring publicly traded corporations headquartered in California to include at least one woman on their boards of directors by the end of 2019.  That said, the big difference is that now it's the government imposing this sort of target as an actual legal requirement, not just a private party expressing it as a preference. I agree with the many people who have flagged serious constitutional questions about this--to be discussed in a future post!

 

Posted by Emily Gold Waldman on October 3, 2018 at 11:41 AM | Permalink | Comments (7)

Tuesday, October 02, 2018

Teaching Transactional Skills

The following post is by Stephen L. Sepinuck, Frederick N. & Barbara T. Curley Professor and Director of the Commercial Law Center at Gonzaga University School of Law, and is sponsored by West Academic.

If you mention transactional lawyering to someone, that person is likely to envision a scribe toiling alone in a poorly lit office. Like Bob Cratchit working 60 hours per week for Ebenezer Scrooge (although Cratchit was a clerk, not a lawyer). Perhaps this vision is more common among our litigation-focused colleagues than among law students who never even contemplated what a transactional practice might be like, but the fact remains that the subject lacks allure. Put simply, transactional lawyering does not make for good television.

Continue reading "Teaching Transactional Skills"

Posted by Howard Wasserman on October 2, 2018 at 04:46 PM in Sponsored Announcements | Permalink | Comments (0)

Uninhabitable Habitats in Weyerhaeuser: The perfect “text versus purpose” sequel to TVA v. Hill

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For the little guy in the photo, Weyerhaeuser Company v. United States Fish and Wildlife Service, argued yesterday before SCOTUS, is the term’s most important case. At stake in this Endangered Species Act litigation are five ephemeral ponds and accompanying piney uplands in Louisiana that could some day be inhabited by the Dusky Gopher Frog, a species now tenuously represented by roughly 100 amphibians in a single pond in Mississippi. The Secretary of the Interior designated those Louisiana ponds as “critical habitat” that is “essential for the conservation” of the frogs under 16 U.S.C. §1532(5)(A)(2).

For law profs, the Secretary’s designation is chiefly interesting as a perfect counterpart to the TVA’s attempt to open the Tellico Dam in TVA v. Hill: Both cases involve classic showdowns between statutory text and purpose where the fate of a species turns on arcana of diction. In TVA v. Hill, SCOTUS famously followed the letter of the ESA, treating the decision to close the completed dam’s gates as an “action” covered by the statute over Justice Powell’s dissent that enjoining the operation of a nearly-complete dam to save the lowly snail darter was an absurdity. Letter beats spirit to save the little fish. In Weyerhaeuser, the plain text cuts exactly in the opposite direction, against the frogs. The pine forest in which those ponds are located cannot actually support the species without substantial modification. (The trees, apparently too dense and dark, need a bit of thinning by fire before the frogs can live there). Thus, the Secretary has designated land as “critical habitat” that is actually uninhabitable by the species for which it is “essential.” The Secretary’s justification: These are actually some of the only ephemeral ponds in existence capable of sustaining this species on the edge.

After the jump, some grudging support for the textualist reading, even though it might doom the frog and make hash of the ESA’s larger purpose.

Continue reading "Uninhabitable Habitats in Weyerhaeuser: The perfect “text versus purpose” sequel to TVA v. Hill"

Posted by Rick Hills on October 2, 2018 at 11:00 AM | Permalink | Comments (2)

Jurisdictionality confusion lives

I have not been writing or reading about jurisdictionality of late, so I was surprised to see that courts seem to be making the same mistakes. In this case from the Third Circuit, the district court had held that so-called statutory standing of a non-U.S. plaintiff under RICO was jurisdictional; the court of appeals affirmed, although shifting the framing to merits rather than jurisdiction. It said:

Because this case does not involve Article III standing, but rather presents an issue of statutory standing, subject matter jurisdiction is not implicated, and the parties incorrectly relied on Rule 12(b)(1) . Our precedent makes clear that "[c]ivil RICO standing is usually viewed as a 12(b)(6) question of stating an actionable claim, rather than as a 12(b)(1) question of subject matter jurisdiction." [*5] 38 Moreover, given that Rule 12(b)(6) provides a plaintiff with "significantly more protections,"39 and because we may affirm on any ground supported by the record and "there is no prejudice to appellants in our reviewing the district court's dismissal as if it were grounded on Rule 12(b)(6) ,"40 we will review this matter under Rule 12(b)(6) . Accordingly, we "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."41 In evaluating whether the complaint adequately pleads the elements of standing, we accept as true all material allegations set forth in the complaint and construe those facts in favor of Plaintiffs, the nonmoving party.42

I would have thought that Morrison, which held that extraterritoriality is merits, and Lexmark, which held that statutory zone of interest is merits, would have made this obvious. But Circuit precedent distinguishes Article III standing from statutory standing and lets the merits/jurisdictionality distinction turn on that. So whether standing is Article III or statutory often becomes a point of dispute between the parties and in the case. All of which reveals why Fletcher continues to be right and the best understanding is that is all about the cause of action and who can sue whom for what--and thus should be about the merits.

Posted by Howard Wasserman on October 2, 2018 at 10:29 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Monday, October 01, 2018

Rotations

Thanks to our September visitors. For October, we are joined by returners Eric Miller (Loyola-LA) and Emily Gold Waldman (Pace).

And a reminder that we are always looking for visitors, so please reach out to me if you are interested in joining us for a month.

Posted by Howard Wasserman on October 1, 2018 at 07:44 AM in Blogging | Permalink | Comments (0)

Sunday, September 30, 2018

There Are No Secret Educational Theories--

Some final thoughts as I close out the month.

 

One of the things I always tell medical audiences I'm addressing for the first time is that there "are no secret laws."  If someone tells them something can't be done because it's "illegal" or must be done because "of the law" then they are entitled to ask to see the basis of that conclusion.  Often, the real answer is that it's a policy based on the institution's interpretation of the law.  That may be equally binding on any individual employee, but it leaves the door open to discussion in a way that declaring something "illegal" closes it.   

The way law professors are often confronted with educational theory is as something they "must do" because the "ABA Requires it" or because it's "the answer to our bar passage problem."  That may be true.  But I'd like to leave you with some insight gained during   the five years I spent getting a Ph.D. in Higher Education: for every intervention or innovation there is always a body of literature (articles reporting research studies).  Whether it be learning theories, learning outcomes, or active learning, you can look at the evidence and draw your own conclusions.  For example, one of the first things we did in a class on learning theory was develop a bibliography on the claim that students should find their preferred learning style and teachers should be presenting material in the way best suited to each of these styles.  Like many things in life, it turns out to have all been a giant misunderstanding.  Yes, everyone does have a preferred learning style.  And it may be possible to identify it.  But, in fact, gearing learning towards that style alone is actually the path to ruin rather than success.  If anything, knowing a preferred learning style should be a signal to make sure that you aren't relying on it alone.   Today, you seldom see the phrase "learning style" without it being preceded by the word "discredited."

See here and here as well.  There is also quite a bit of nonsense peddled about techniques that "directly" impact the brain.  They don't work. Consider this--no one is more interested in getting humans to learn things quickly than the military and no one has the budget they do to study ways of doing it (if you don't know DARPA, check it out).  If there was a magic machine--they would be on to it first and it would come down to us when they were ready to license it.

So be curious about different ways of teaching--seek out the sources of information at your institution.  There are things that work--it's just that nothing is a magic intervention that will work for everyone.  There are also ways of teaching that are more inclusive--and are well worth pursuing for that reason alone.

Your medical and nursing schools likely have monthly (if not more frequent) programs as do teaching & learning centers, offices of diversity and inclusion, and provosts's offices.  Ask questions when you're told to do something new with which you are uncomfortable.  Ask for the back-up data--and if there is none directly related to law students, ask if you can partner with a department of education at your institution or the office of institutional research/effectiveness to get the information you need.

I will be back here at PrawfsBlawg in April and probably will continue to be posting (like this) about my "day job" researching issues of public health and medical research at the O'Neill Institute for National and Global Health Law.  at Georgetown Law.

Until then, many thanks to Prof. Howard Wasserman and the Prawfs team, thank you to the people who have sent me comments and ideas--please stay in touch.

Posted by Jennifer Bard on September 30, 2018 at 08:31 PM | Permalink | Comments (0)

"(Communal) Life, (Religious) Liberty, and Property"

I highly recommend Prof. John Infranca's paper.  It's been available on SSRN for a bit, but I neglected to post about it before.  Here's the abstract: 

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalf, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

If the law-and-religion literature has, of late, seemed to you to be a bit stuck on the questions presented in cases like Hobby Lobby and Masterpiece Cakeshop, Infranca's wide-ranging and provocative piece should be an enjoyable read.    

Posted by Rick Garnett on September 30, 2018 at 12:53 PM in Rick Garnett | Permalink | Comments (0)

Data Science and Law (and Farewell)

In my last post I want to briefly discuss the experience of Bar-Ilan Law Faculty (where I serve as Dean) in a new joint research initiative with the Bar-Ilan Data Science Institute. This joint project builds on Bar-Ilan strength in data science (DS), especially in the fields of natural language processing (NLP) and network analysis. The project is motivated by idea that the law rich textual and web structure makes it a great medium for analysis using the methods of NLP and network science (see, e.g., my recent paper, Transnational Networked Constitutionalism, co-authored with Ofir Stegmann). We currently have more than 20 on-going research projects using DS methods in various stages.  

Our experience in these joint studies has raised several challenges and questions and I will be happy to hear from others who have been involved in similar projects about their experience. We will also be very happy to cooperate with other institutions.

Probably the most critical issue for the success of such projects concerns the need to move into a team based work. Almost all our projects are based on joint teams that include, DS and law profs, graduate students and supporting stuff. This mode of work brings legal research closer to empirical social sciences and research in the natural sciences. It requires willingness and openness from both the DS and law side.

Another challenge we had to cope with from the start is how to think about the roles of the DS and law profs in such joint project. A naïve way to think about such cooperation is that the law side should be responsible for collecting the data and the DS side should be responsible for analyzing it. We think that this is a mistaken paradigm. A good interdisciplinary DS-law joint-project must involve the two sides across the whole life-cycle of the project. It is important that the DS people will be involved at the data collection phase (which involves critical questions about what data to collect and how to structure it) and in the hypothesis framing phase. It is also necessary for the law side to be involved in the analysis phase (even if the technical analysis will be led by the DS people). This requires ‘each side’ to develop some understanding of the ‘other’ knowledge domain.

Another question concerns the publication and evaluation of the results of such interdisciplinary projects. In most cases the main contribution of the project would be in the legal domain and not in computer science or in mathematics. It will commonly use existing methods to study law-related questions (although law could also trigger innovation in the DS domain). However, a significant work may need to be done in order to adapt and apply such methods to specific research questions and environments. This means that the venues in which such work could be published would probably be in legal journals that accept empirical work. This could create a motivation problem for the DS people. Solving this problem requires university authorities to explicitly support interdisciplinary work and to recognize the contribution of DS people even when the work is published in journals outside the DS domain. Equally law profs should be ready to venture beyond traditional legal publications toward DS journals (where the focus could be on the more technical aspects of a project). Such extension of the publication spectrum is important for the feasibility of such joint-projects.

Let me close by thanking Howard Wasserman and the forum again for having me as a guest this month. Thanks also to all those who responded and commented on my posts.   

Posted by Oren Perez on September 30, 2018 at 09:39 AM in Article Spotlight, Howard Wasserman, Information and Technology | Permalink | Comments (0)

Saturday, September 29, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions and they are Never Appropriate (Final)

I am pleased that the final version of my article on universal injunctions has been published in Lewis & Clark Law Review. The editing process over the summer was quite adventurous. I added four or five different updates and sets of changes to account for new developments, including resolution of the travel ban (and Justice Thomas' concurring opinion), the court of appeals decisions on scope-of-injunction in both sanctuary-city cases, and the class action in the unaccompanied-minor abortion litigation.

Posted by Howard Wasserman on September 29, 2018 at 09:00 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, September 28, 2018

Resources for Improving Legal Education at the Classroom Level (with a few examples from math education)

In one of my last posts, I want to share some resources directly related to law teaching (no analogies).  Here’s a guide from our friends at the Georgetown Law Library, the Institute for Law Teaching and Learning, the always helpful Legal Scholarship Blog, a copyright guide from the American University Law Library, and in particular our friends the publishers.  Call them.  Ask them questions—they know their inventory and would be happy to strategize with you.  Here’s a link to Wolters Kluwer as an example.    Around now, you might be thinking about feed-back and could find this material from University of Sheffield in England helpful.

For the past month, I’ve been sharing examples of how other fields have changed their instructional methods.  My primary focus has been on professional schools, like medicine, which have changed their curriculum in order to better prepare students for changes in the profession.  The contrast I’ve been drawing is the difference between innovations that occur in a single classrooms and ones that spread because they have been evaluated and proven effective across a number of different settings.  It’s true that we have few sources of funding in legal education to do the kind of evaluative studies so common elsewhere in education, but I hope you now know how to seek out studies from other areas of education, so you can make your own decisions about what might work in your own classroom.

Finally, to set out a dream, it would be great if we could interest our colleagues in other areas of the university to work with us in developing evidence based teaching methods and curriculum designs.   Maybe some day, there will be a law school equivalent to the body of research we’ve looked at in medicine and other subjects   As a last look of how something that has been static a very long time can change, have look at what’s going on in math.  As many of us recall,  instruction in the U.S. is often quite poor—but  it is very recalcitrant to change because of the lack of resources to train the teachers who are on the front lines of teaching.  Teaching math has become a topic of tremendous study—there is the National Council of Teachers of Mathematics, the Education Development Center, and many websites designed just for math teachers.  There are also entities like the NEA devoted to supporting teaching math (and other science subjects).

Posted by Jennifer Bard on September 28, 2018 at 02:40 PM | Permalink | Comments (0)

Thursday, September 27, 2018

Revising the Web of Science JCR ranking of law reviews

I want to conclude my discussion of the Web of Science JCR ranking of law reviews by offering several proposals for revising this ranking, which  draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber). I want to emphasize that our proposals are tentative because I don’t think there is a single right answer as to how to devise such a ranking. They also do not cover the whole range of problems associated with such rankings. One of the main lessons of our analysis is that the choices underlying any ranking should be made explicit and that anyone using them should make sure that these methodological choices fit his needs. A further important note concerns the purpose of our project. We do not call for the use of metrics in evaluating research. As I noted in my first post, our project is based on the observation that there is currently an increasing global pressure to use metrics in order to evaluate research (both at the individual and the institutional levels). This trend makes it worthwhile to critically examine the methodology and structure of such metrics.

Our proposal draws on our finding that that PR and SE journals form two separated communities (see the citation graph here); however, this inward tendency is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This finding reflects, we argued, a tacit cartelistic behavior, which is a product of deeply entrenched institutional practices (for a defense of this argument see my previous post). Because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals lumping the two categories can generate a distorted image of the ranking of law reviews (see my post for a demonstration of this effect).   

We believe that there are two main paths for revising the WOS ranking. The first path is to create two separate rankings, one for student-edited (SE) (non-peer-reviewed) journals, and another for peer-reviewed (PR) journals. This approach reflects the different writing and citation styles of the two categories and their strikingly different article selection practices. Creating two different rankings would also cancel out the advantage that U.S. SE journals have in a combined ranking structure. While this approach does have some logic, it is also problematic because the two journal categories, despite their differences, still belong to the same scientific domain, explore similar questions and have over-lapping audiences. It is also inconsistent with the current practice of all the existing global law reviews rankings.  A second strategy would continue the current practice of lumping the two journal categories in a single ranking, but would offer a way to counter some of the distortive effects of the current structure of the WOS ranking. A basic component of this strategy would be to adjust the value of citations received from SE journals. As I demonstrated in a previous post, adjusting the citations of SE journals by a factor of 0.4 significantly changes the relative ranking of PR journals. Using an adjusted impact factor would not amount to a satisfactory solution by itself. We think that a better strategy would be to combine an adjusted impact factor with an algorithm that takes into account the prestige of the citing journal drawing on some variant of the page-rank algorithm. The idea is to calculate the prestige of a journal through an iterative process that computes the “prestige” gained by the journal through the transfer of prestige from all the other journals included in the network through citations. JCR already offer a ranking based on such algorithm although it is not widely used. 

Another problem concerns the composition of the ranking sample. The WOS includes a relatively small sample of law reviews (147 out of more than 1600 law reviews based on our recent counting of the Scopus, WOS and Washington and Lee datasets). This reflects the WOS philosophy that only well established and high quality journals should be included in the list. While this approach has some merit the current list leaves out many good journals which should have been included (both SE and PR). Another problem concerns the inclusion of interdisciplinary journals (especially PR) such as the Journal of Law & Economics, Law and Human Behaviour and International Environmental Agreements-Politics Law and Economics. These are high-quality publications, which publish articles that are very related to law, but are dominated by economists, psychologists and political scientists that study law-related questions (although law profs do publish in these venues occasionally). Should these publications be included in the same list as more classical law journals? I believe that they should because they provide a high-quality venue for interdisciplinary work that discusses legal problems, but I can see good arguments for both sides.    

 

Posted by Oren Perez on September 27, 2018 at 09:13 AM in Article Spotlight, Law Review Review | Permalink | Comments (0)

Arguing about the right issue

Bloomberg reports on oral argument in Hargan v. Garza, the challenge to HHS policy surrounding pregnant unaccompanied immigrant teens seeking abortions. (Marty Lederman analyzes the arguments). The district court certified a class of all pregnant immigrant teens in HHS detention, then issued a class-wide injunction. According to the report, the plaintiffs' attorney received some pushback on the scope of that class, because it includes pregnant teens who are not seeking abortions (counsel responded that the issue also was access to abortion counseling).

The point is that the plaintiffs in this action followed the right procedures--define and redefine the class, then have the injunction match the class. Universal injunctions in individual cases allow plaintiffs to skip that step--no one would take on the difficult work of defining and certifying a class if the court is willing to leap to an injunction that protects the universe based on a complaint by one person.

Posted by Howard Wasserman on September 27, 2018 at 08:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Farewell

As September comes to a close, it is time for me to sign off.  Thanks for having me and all the great comments--I look forward to chasing up all the leads.

Until we meet again,

Margaret

Posted by Margaret Ryznar on September 27, 2018 at 02:22 AM | Permalink | Comments (1)

Wednesday, September 26, 2018

Can you say "Speech or Debate"?

I am a Democrat. But this may be the dumbest thing I have seen. Even if a court could enjoin executive branch officials to turn over documents (questionable on political question grounds), the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote. As one commentator put it, that's just not how any of this works. I also doubt Merkley has standing to sue the executive, but there is no reason to even reach that issue.

Posted by Howard Wasserman on September 26, 2018 at 04:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Barnette at 75

6ab403bdc2d5f9de3624331c42bd9be9I have mentioned this previously, but FIU Law Review and FIU College of Law will host Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" next Friday, October 5, at FIU College of Law. We have a great slate of speakers, including our own Paul Horwitz.

The program is open to the public, so please attend if you are in the Miami area.

Posted by Howard Wasserman on September 26, 2018 at 11:25 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

I Quit Facebook, But What About Those Who Remain?

Social media platforms started as a fun way to connect with family and friends at the turn of this century.  Since then, they have turned into a science fiction nightmare due to their capacity to gather and misuse the data on their users. 

Just this year, a whistleblower revealed that the 2016 United States presidential elections and the Brexit vote in the United Kingdom may have been influenced by “psychological warfare” on the public enabled by Facebook.  A few years ago, Facebook admitted to running a psychological experiment by exposing users to particularly negative or positive content, then tracking and measuring the user’s mood to see whether “emotional contagion” could be spread. 

It is irrational for consumers of social media not to expect social media providers to utilize their data when they provide the platforms for free.  Indeed, the business model of social media is to sell data to third parties for marketing and other purposes. 

Yet, users should be able to expect that their data is not used to hurt them or is sent to disreputable companies.  Fewer people would use social media if the price were incurring a mood disorder or being manipulated to vote in a particular way that does not necessarily align with their interests.

Technology continues to push the boundaries of law as it evolves.  The field of privacy has clearly failed social media users.  Meanwhile, the field of cybercrime arose to address cybersecurity, but it does not solve the issues with social media because many of the things done with user data were legal.  However, these legal actions have increasingly become the target of criticism and desire for legal change.   

There are several choices lawmakers and policymakers have when it comes to the protection of social media data from exploitation by social media companies.  They include fiduciary duties permeating corporate and trusts, as well as the duty of care in tort law.  However, can these centuries-old legal frameworks grasp the risks and consequences of the improper use of big data generated by social media?  If not, how can they be tweaked?

I consider these questions in my forthcoming Notre Dame law review online supplement article here, and welcome comments.

Posted by Margaret Ryznar on September 26, 2018 at 03:15 AM | Permalink | Comments (7)

Tuesday, September 25, 2018

Lady Lawyers

 

Sometimes things just come together.  On exhibit right now at the Supreme Court is an instillation entitled “In Re Lady Lawyers: The Rise of Women Attorneys and the Supreme Court.”  It consists of memorabilia documenting the history of women admitted to the Supreme Court Bar, and more broadly the history of women attorneys in the United States.  It includes items like a 1905 woman’s suit loaned from the costume collection of the Daughters of the American Revolution Museum as well as personal items from all of the past and present women Justices.  Its intent, most likely, is to create a narrative of progress from the days when only a few women were admitted to practice law to today when as many women as men graduate from law school every year.    And down the street from the Supreme Court at the U.S. Senate on Thursday we will see a woman attorney hired by the Senate Judiciary Committee to question Dr.Christine Blasey Ford, the woman who is accusing Supreme Court nominee Judge Brett Kavenaugh of sexually assaulting her when both were high school students in the early 1980s.  In both cases, the exhibit at the Supreme Court and the hearing at the Senate, the salient identifying feature of the attorneys involved are their gender. 

In 1905, around the time that women first began to be admitted to the Supreme Court Bar, “Lady Lawyer” was a term meant to highlight the oddity of a woman credentialed to undertake what was until then an exclusively male profession.  In the 1980s when the alleged incident occurred between Dr. Blasey Ford and Judge Kavenaugh, the world “Lady” wasn’t so in fashion, but there were still plenty of occasions to use a gendered prefix to describe police officers, pilots, doctors, clergy, and legislators to suggest that somehow the performance of their job duties were altered by their being women.  Yet even then and certainly in the years since, there was also a feeling that with the graduation rates from law schools approaching gender parity soon women would achieve levels of success in law equal to that of men—so much so that the word “lady lawyer” would go the way of “stewardess” or “co-ed.”  But that’s not what happened. 

The most recent statistics from the American Bar Association’s Commission on Women in the Profession reports that while women do, indeed, graduate from law school at roughly the same rate as men, they are still represent only 35% of licensed attorneys.  And in most cases they make less money.  They make up only 19% of the Equity Partners in private law firms 26.4% of the General Counsels of Fortune 500  companies, 32.4% of Law School Deans, and 27.1% of Federal and State Judges.  This gap is worse in law than in other professions. The statistics for women of color are much worse, with numbers in  most categories in the single digits.  (see here also). Looking at qualitative measures of success, a report prepared by the Center for WorkLife Law at the University of California at Hastings in partnership with the Minority Corporate Counsel Association found that “Women lawyers of color were eight times more likely than white men to report that they had been mistaken for janitorial staff, administrative staff, or court personnel.”

So maybe given this grim picture, it is not surprising that when faced with the fact there were not now and never had been any women on the Senate Judiciary Committee and faced with the task of questioning a woman about allegations of sexual assault the Committee has decided to seek out not just a lawyer experienced in interviewing women alleging sexual assault, but a woman lawyer with that experience. 

That they have found a highly competent and experienced prosecutor who fits this description is not at issue—but that they went looking for a woman certainly is.  Because by proceeding from a premise that the best person to question a woman was another woman the Judiciary Committee has, perhaps unwittingly, endorsed the belief that the converse is also true: the best person to question a man is another man.  And given the realities of the gender imbalance in business where only 24 of the CEO’s of today’s Fortune 500 companies are women this belief serves to create not so much a glass ceiling as an iron wall between women who are lawyers and the most lucrative areas of legal practice in areas like finance, banking, and securities.  And extending this endorsement of “matching” lawyer with witness (as seems to be the case here) provides even less hope for change in the statistics for women of color or indeed any other perceived identity under-represented in the client base of the most highly compensated areas of legal practice.

So long as the institutions designed to create the laws that prevent discrimination, Congress, and those designed to defend them, the Courts, quickly default to the worst forms of discrimination when faced with the most public possible display of gender based hiring, the chances for moving towards a competency based society in which women, people of color, and other under-represented minorities in any field can achieve professional success based on their ability rather than their identity remains poor.   Rather than a celebration of progress, perhaps the “Lady Lawyers” exhibit at the Supreme Court should be visited as a reminder that while access is a necessary component to combatting discrimination, it never has been and is not now a sufficient one.

Posted by Jennifer Bard on September 25, 2018 at 11:50 PM | Permalink | Comments (0)

JOTWELL: Effron on Manta on Tinder lies

The new Courts Law essay is from Robin Effron (Brookyln), reviewing Irina Manta, Tinder Lies (Wake Forest L. Rev., forthcoming), which proposes a small-claims court vehicle for remedying lies and fraud on dating apps.

Posted by Howard Wasserman on September 25, 2018 at 08:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Recent Cases on Cohabitation

In a recent post, I outlined two major and recent French family law innovations, including one related to cohabitation in the form of the PACS. 

Meanwhile, there have not been many legal developments on cohabitation in the U.S.  Most of the legal protections afforded to cohabitants by the law are still rooted in contract law—meaning that cohabitants should make agreements with each other regarding their responsibilities to each other, which may be enforced by the courts upon separation of the cohabitants.

However, the traditional view on cohabitation—which is still the minority approach in some American states—is that cohabitation contracts will not be enforced because cohabitation and agreements based on sexual relationships are against public policy.  Illinois is the leading state taking this position, and despite the opportunity to change its approach to cohabitation and recognize cohabitation agreements last year, the Illinois Supreme Court declined.

There were several other recent legal cases on cohabitation in the United States, but they also have been relatively modest.  For example, New Jersey now requires written contracts instead of oral contracts in palimony enforcement actions between cohabitants.  The problem, of course, is that very few cohabitants enter into written contracts before moving in together, so they are often left unprotected at the end of the relationship.   

Otherwise, the law is just not moving as fast as people are when it comes to moving in together.  I consider a few other minor legal developments on cohabitation in the comparative context with a European co-author in our forthcoming Georgia State law review article, available here if you’re interested.

Posted by Margaret Ryznar on September 25, 2018 at 05:16 AM | Permalink | Comments (5)

Sunday, September 23, 2018

Dean Search, The Catholic University of America, Columbus School of Law

As the national university of the Catholic Church in the United States, the Catholic University of America is committed to being a comprehensive Catholic and American institution of higher learning, faithful to the teachings of Jesus Christ as handed on by the Church. Dedicated to advancing the dialogue between faith and reason, the Catholic University of America seeks to discover and impart the truth through excellence in teaching and research, all in service to the Church, the nation, and the world.

Continue reading "Dean Search, The Catholic University of America, Columbus School of Law"

Posted by Howard Wasserman on September 23, 2018 at 03:21 PM in Teaching Law | Permalink | Comments (0)

A Curricular Response to Law Student Depression—With Particular Focus on Newer Law Professors

We in legal education have a logistical problem when it comes to bringing new law professors up to speed—each law school is so small that often only a few join every year and we don’t have standards for orientation that includes a review of the literature on legal education.  It’s been my honor for many years to participate in some of the extensive programming that the Southeastern Association of Law Schools (SEALS) provides to newer law professors-which is how I know that this lack of continuity doesn’t come from a lack of interest among new faculty.

So, here’s a quick overview of one important issue--Law Student Depression as well as some resources for combatting it given the current structure of legal education, some analogies from medicine (of course)—and some thoughts about how our curriculum makes it worse which I hope spur your thoughts on structural change.

Continue reading "A Curricular Response to Law Student Depression—With Particular Focus on Newer Law Professors"

Posted by Jennifer Bard on September 23, 2018 at 02:45 PM | Permalink | Comments (0)

The Marvelous Ms. Professor

I have enjoyed my co-guest-blogger’s posts on medical education this month.  It also made me curious about business schools—what are they doing?

Among other things, they have been doing improv to develop students’ listening skills, collaborative behaviors, creative thinking, and confidence.  The classic Chicago-style improv is done using the “yes, and…” technique, by which players build on each other’s improvisation.  Law schools seem to be catching on, with improv seminars recently at Northwestern Law and at my own school.

It’s definitely a fun and creative way to build skills.  Meanwhile, for us faculty, stand up seems a good way to sharpen our skills—although we can’t all be the Marvelous Mrs. Maisel.  Any other fun and creative ways to better oneself in our profession?

Posted by Margaret Ryznar on September 23, 2018 at 03:59 AM | Permalink | Comments (3)

Saturday, September 22, 2018

Kavanaugh and the burden of proof

In The Atllantic, Benjamin Wittes addresses the issues of burden and standard of proof with respect to Brett Kavanaugh, the allegations against him, and his confirmation. A lot of people have been talking about these issues (often under the catchphrase "presumption of innocence") in the abstract, without diving into what they mean or how they apply.

Wittes argues that Kavanaugh bears the burden of persuasion because he wants the factfinder (50 Senators) to do something--confirm him to the Court; he is not entitled to that unless he can affirmatively convince them that he should be on the Court. The burden of persuasion is understood as the risk of non-persuasion--who bears the risk of losing and of not getting something if the factfinder is not persuaded. In other words, what is the status quo, who must change the status quo to prevail, and who loses if the status quo remains the same. If Kavanaugh were being prosecuted for sexual assault or sued by Ford for sexual assault, the burden would be on the state or Ford to change the status quo and show that he did what is alleged. If Kavanaugh was impeached and facing a Senate trial to remove him from the D.C. Circuit, the burden would be on the impeachers to show that he should be removed from the bench because he committed the disqualifying act. In each of those, the status quo is that Kavanaugh is free, not liable, and on the court of appeals. Here, the status quo is that he is not on the Supreme Court, so he bears the burden of showing that he should be, including whatever relevance the incident in 1982 may have to his qualifications.

Wittes also considers the standard of persuasion as the more-interesting question, because there is no agreed-upon or meaningful standard for this proceeding. One possibility is there is none, that the standard is ideological and nothing more. Wittes suggests two standards from Kavanaugh's standpoint--"minimally convincing" (enough to convince the few Republican stragglers to join the already-declared Republicans to confirm him) or "no asterisks," meaning enough evidence that a reasonable person will not doubt Kavanaugh's integrity or fitness for the position. Wittes argues that meeting something somewhere in the middle will not be sufficient for Kavanaugh to not only serve on the the Court, but to serve meaningfully or effectively.

Posted by Howard Wasserman on September 22, 2018 at 05:16 PM in Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, September 21, 2018

Something Fun to Try Over the Weekend—LSAT Prep

 

One of the most fun things I have done lately is become a volunteer member of the LSAC Audit Committee which resulted in my being able to attend the LSAC Annual Meeting and be present at Sal Khan’s presentation of his collaboration with LSAC to make high quality LSAT preparation available to all prospective law students(and everyone else) free of cost.  I love Sal Khan and the Khan Academy.  Their materials were lifesaving to me while I was plowing through the statisticsand research methods part of my Ph.D.  Not only is the material clear, it’s actually fun. You can find yourself dipping into subjects from art historyto Differential equations-all presented in manageable chunks with exceptionally clear visuals.

For the LSAT, the Khan Academy program provides individualized diagnostic testing that direct students to practice materials in the areas where they are the weakest.  These practice questions are not just similar to the LSAT, they are provided to Khan by the folks who write LSAT Questions.  And if that’s not enough, it creates a scoring system that makes studying for the LSAT a game and encourages students to put in the time needed to become comfortable with some very odd looking material. It can supplement a commercial program or be used as a stand-alone.

I introduce this material to you not to open up a debate on the value of the LSAT in predicting law school success or even to encourage you to share this information with anyone you know considering taking the LSAT (although they will appreciate it). 

Continue reading "Something Fun to Try Over the Weekend—LSAT Prep"

Posted by Jennifer Bard on September 21, 2018 at 11:11 PM | Permalink | Comments (0)

Thursday, September 20, 2018

An infield fly rule for fake fair catches?

Last weekend, North Texas pulled off an amazing trick play, scoring a touchdown on a punt return by having the entire team (and everyone had to be involved) pretend the returner had called for a fair catch, then racing upfield when opposing players ran to the sideline believing the play was over. On Tuesday, there were conflicting reports as to whether the NCAA was considering outlawing the play. This New York Magazine piece by Will Leitch suggests a rule change may be necessary, with arguments sounding in the infield fly rule.

The infield fly rule (and similar rules) is necessary to address situations defined by four elements: Team A acts contrary to ordinary athletic expectations or fails to do what is ordinarily expected; that move produces an extraordinary cost-benefit advantage; Team B is powerless to counter the move in light of the game's rules, practices, and structure; and that imbalance creates a perverse incentive for Team A to try this often. Leitch's piece suggests that this is a situation requiring a limiting rule.

The key is the third element of Team B's powerlessness to counter the play in light of the game's structure. The punting team's counter is obvious--play to the whistle and hit the ball carrier unless you see the fair-catch signal and/or hear the whistle. But Leitch argues that the renewed focus on head injuries and player safety has changed that calculus. Tacklers no longer want to light-up a defenseless ball carrier and likely will draw a penalty for doing so, even if the hit was legal, because it "looks bad" and results in an injury. And it already can be hard for the punt coverage team to see and determine the fair catch signal.  North Texas' coaches essentially exploited that reluctance and that limitation on the tackler.

So while there is a counter, it is one that the tackling team will be unable to utilize without risking penalties on anything that looks close, making not a meaningful counter. Alternatively, if such hits are not going to be called, Team B gets its counter, but it is one the game's rulemakers will not want to encourage. This become a situation that gives one side a cost-benefit advantage (and thus a perverse incentive) and leaves the other powerless to respond, at least without creating other problems in the game's structure.

My first thought after this play was that it was a one-time, not-replicable event, because punt-coverage players now will be instructed to hit the returner unless they hear the whistle on the fair catch. Leitch's piece convinced me otherwise, that the cultural shift away from hitting defenseless players creates a limit on the tackling team and thus a control disparity that requires a limiting rule.

Posted by Howard Wasserman on September 20, 2018 at 11:50 AM in Howard Wasserman, Sports | Permalink | Comments (3)

More than a Home for the Holidays

I’ve been thinking a lot about the tax reform since it passed late last year.  There are a couple of things I want to say, one of which is to highlight homeownership as a savings mechanism—homeownership begins with a down payment and then continues with monthly payments for decades.  This point has not been made much, although I think it’s an important reason to have tax support for homeownership, such as the mortgage interest deduction and the SALT deduction.

Homeownership might as well be a 401(k), except that people do not ignore it—its best feature and the very reason tax policy undercutting it poses a problem.  In fact, more people own homes than save significantly for retirement, probably because they cannot afford to do both.  And, just as we incentivize retirement saving in the tax code, so should we incentivize homeownership if that is people’s preferred savings method.

I make this point in my forthcoming U. of Miami Law Review article, along with the full argument for not curtailing tax homeownership benefits too severely.  You can read it here if interested.

Posted by Margaret Ryznar on September 20, 2018 at 04:54 AM | Permalink | Comments (4)

Tuesday, September 18, 2018

Executives, Golden Parachutes & #MeToo - great op ed by Professor Rachel Arnow-Richman

 My terrific friend and collaborator Rachel Arnow-Richman (Denver Law) has an op-ed today in the San Francisco Chronicle about CBS's ousted CEO Moonves and the contractual obligations of corporation toward their highest executives in the case of firing for cause, in the midst of severe sexual harassment allegations:

If #MeToo is to have lasting impact, companies must consistently take a hard line against high-level harassment, not just when it aligns with their other interests. This means abandoning contracts that insulate executives from accountability in favor of those that preserve employers’ ability to respond swiftly and nimbly to alleged violations of law. 

Posted by Orly Lobel on September 18, 2018 at 09:07 PM | Permalink | Comments (3)

When in France, Do As the French Do…and When Not in France, Still Do As the French?

France has had two big innovations in family law, and I look forward to see if they spread across the world as quickly as a hot new Chanel bag.    

First, in France, movements to grant rights for same-sex couples culminated in 1999 in a form of civil partnership called PACS (civil pact of solidarity), which aimed to protect unmarried cohabitants.  To gain political support for the bill, opposite-sex cohabitants were also included as its beneficiaries.  When the French Parliament adopted PACS, approximately 42% of couples who entered into PACS agreements were opposite-sex.  Today, over 90% of PACS agreements are between opposite-sex couples.   The number of registered opposite-sex couples under PACS has been continuously increasing, and there are now two PACS for every three marriages.  After the introduction of same-sex marriage and skyrocketing opposite-sex cohabitation rate, PACS is replacing marriage.  In the United States, cohabitation is also increasing and marriage is decreasing, but there is no middle-ground like PACS.

Also in France in 2016, non-judicial divorce was introduced.  In other words, spouses in France can now divorce by contract after hiring their own attorneys, which is then registered and official—no courts involved.  It has to be consensual, and children of a certain age can halt the non-judicial process, which then reverts to the court for judicial protection and oversight.  Non-judicial divorce is now not only an option in France, but is common.  In the U.S., American courts have been involved in every divorce case since the earliest cases of divorce.  While mediation and summary dissolution have been on the rise, American courts still have to at least rubber stamp agreements.  Recently, Minnesota legislators introduced legislation in 2015 and 2017 proposing an administrative divorce option, but it never became law.  If another state decides to further liberalize its divorce law, France certainly provides a compelling model to simplify the process while protecting the parties. 

I describe the French process more in my forthcoming Seattle article here, and I described PACS in my recent article here.  I think both are huge developments in recent family law, and I wonder if they will be transplanted to other countries, including the U.S.

Posted by Margaret Ryznar on September 18, 2018 at 05:14 PM | Permalink | Comments (5)

Monday, September 17, 2018

We are Not Alone

We in law schools are not alone  in our efforts to more effectively bridge the gap between professional school and the actual practice of the profession.  It is the vocabulary of our time—perhaps spurred by the general pace of life in an age of instant and constant communication.  Business, Pharmacy, Veterinary, Architecture, Speech Pathology & Audiology , Osteopathy, and Medical Schools are all proclaiming their progress in helping their students be “practice ready” so that they can “hit the ground running.” In the health sciences, the commitment to readiness for practice has resulted in a deep commitment to interprofessional training that reflects the realities today’s workplace.

Yet whether or not we should be doing this (let alone how) is still a matter of considerable debate that, unfortunately, has become wrapped in a false and unnecessary dichotomy between the scholarly  and the practical.  I hope that looking at how other professional schools prepare their students for post-graduation work life can help us get beyond a framing of this discussion that creates unnecessary stress and discord.  Study of the theoretical framework or historical development of a field is essential for all professionals so they can develop a deep understanding of the “why” as well as the “how.” Equally, there can be no effective skills training without substance.  The data on learning is in—everyone learns more in context than in a vacuum. (lots of great resources posted by Yale).

Perhaps some of the tension comes because one of the early justifications for increased emphasis on practice was to make students more attractive to the big law firms after the financial crash.  That never seemed likely and quickly revealed itself to be a myth. As Dr. Lauren A. Rivera explains in this article and in her book Pedigree: How Elite Students Get Elite Jobs the realities of large firm (law included) hiring are rooted in class and culture. And speaking of class and culture, another good reason for doing this is to level the playing field and send all our students with the tools they need to succeed in an environment that still very much skews in the direction of country clubs and old school ties.   

Nor did it seem plausible that with the right combination of courses newly minted lawyers without access to start-up funds, financial support, or a pre-existing client base could become self-sufficient solo practitioners   

But for the next two posts, I will talk about accessible resources for helping our students succeed in a job market that starts almost as soon as they arrive   Outside the big law firms, there is an increasing emphasis on expecting that students will have substantial exposure to work settings in clerkships, clinics, and externships before they go on the market for their full-time job. (This is true in undergraduate job searches as well).  Some of these placements can result in direct hires, thus turning  into an extended interview, but even placements that cannot offer permanent employment still have considerable value by their ability to offer informed, positive references. 

So, what can we do to prepare students to be successful in externships, summer jobs, and later on the job market?   The laws of physics prevent us from instilling judgement or experience in ways that would make our students appreciably different from graduates of the past.  [This is why law students who have had prior work experience tend to advance more quickly once they hit the market—they don’t know any more law than their classmates, but the maturity they bring with them in the world of work makes a big difference]. But  there are two major categories of things we can do to help.   

The first, which I discuss today,  includes the kind of training that  business schools have been offering for years: how to make a successful transition from student to employee/professional.   Many universities have entire career service departments that devote considerable type to developing very helpful information about things like dress and basic expectations of the workplace, that our students may have missed because they weren’t directly entering the workforce from college. The second is more specific to law and many schools are already far ahead in doing the kinds of things that students need to make the connection between what they learn in class and what lawyers do in practice.  More on that later.

Category 1--making the transition

In addition to the general information available at most universities, there are already terrific law-specific resources.

Nancy Rapport and Jeffrey D. Van Neil have a book called “Law Firm Job Survival Manual: From First Interview to Partnership” that should be required reading before a student so much as shadows a practicing lawyer.  Last year I highlighted Randolph Kiser’s Soft Skills for the Effective Lawyer. Calvin Gladney calls these Wrap-Around Skills.  Our friends in the profession of Law Librarians have been way ahead on gathering information helpful to the new lawyer—see Harvard and American for examples, but look at your own library's website too. Also the ABA Young Lawyers Division, the National Association of Bar Executives, and indeed local bar associations are really shining in their efforts to be of assistance to new lawyers.  See DC, and Ohio as examples.  Finally, it is at best unfair to our students not to prepare them for the diverse world they are about to enter.  A good place to start is an ABA publicationWhat if I Say the Wrong Thing? 25 Habits for Culturally Effective People (ebook) by Verna A. Myers which has practical and helpful ideas specific to lawyers.

This kind of readiness training is also something our alumni and employers would be delighted to help us with—for example I once organized a boot-camp for first years before their first externships experiences that was primarily staffed by the local bar(both recent graduates and seasoned supervisors) as well as  by the heroic career services folks who got the calls when things went wrong.  

Next post:  Category 2- Integrating the practice of law into the existing curriculum (not just adding skills courses) so as to encourage the application of legal knowledge to legal practice.  Hint--we can find ideas in 1) the work medical schools have done in integrating their curriculums without reducing rigor or the amount of material each class covers as well as 2) in the creative programs developed by some of our most forward thinking colleagues.

Posted by Jennifer Bard on September 17, 2018 at 03:21 PM | Permalink | Comments (0)

FIU COL leads Florida Bar passage . . . again

A bit of shameless school self-promotion. I am happy to say that FIU College of Law again led Florida law schools in bar passage, at 88.1 %. By my count, this is the sixth time in the past seventh Bar administrations that we have led the state (on the seventh, we finished second, missing by one). We remain a well-kept secret in legal ed.

Posted by Howard Wasserman on September 17, 2018 at 02:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

  1. Regulation and Governance (10)
  2. Law and Human Behavior (13)
  3. Stanford Law Review (1)
  4. Harvard Law Review (2)
  5. Psychology, Public Policy, and Law (18)
  6. Yale Law Journal (3)
  7. Texas Law Review (4)
  8. Common Market Law Review (22)
  9. Columbia Law Review (5)
  10.  The Journal of Law, Medicine & Ethics (29)
  11. University of Pennsylvania Law Review (8)
  12. Journal of Legal Studies (15)
  13. Harvard Environmental Law Review (14)
  14. California Law Review (6)
  15. American Journal of International Law (19)
  16. Cornell Law Review (7)
  17. Michigan Law Review (9)
  18. UCLA Law Review (12)
  19. American Journal of Law & Medicine (36)
  20. Georgetown Law Journal (11)
  21. International Environmental Agreements-Politics Law and Economics (41)
  22. American Journal of Comparative Law (25)
  23. Journal of Law, Economics, & Organization (37)
  24. Journal of Law and Economics (35)
  25. International Journal of Transitional Justice (42)
  26. Law & Policy (44)
  27. Harvard International Law Journal (26)
  28. Chinese Journal of International Law (47)
  29. Journal of International Economic Law (48)
  30. Law and Society Review (46)
  31. Antitrust Law Journal (27)
  32. Indiana Law Journal (24)
  33. Behavioral Sciences & the Law (51)
  34. Virginia Law Review (16)
  35. New York University Law Review (17)
  36. Journal of Empirical Legal Studies (39)
  37. Leiden Journal of International Law (54)
  38. University of Chicago Law Review (20)
  39. Social & Legal Studies (58)
  40. World Trade Review (61)
  41. Vanderbilt Law Review (23)
  42. Harvard Civil Rights-Civil Liberties Law Review (32)
  43. Modern Law Review (63)
  44. Annual Review of Law and Social Science (49)
  45. European Constitutional Law Review (64)
  46. Oxford Journal of Legal Studies (59)
  47. Journal of Environmental Law (65)
  48. European Journal of International Law (57)
  49. Law & Social Inquiry (62)
  50. George Washington Law Review (31)

Posted by Oren Perez on September 17, 2018 at 02:53 AM in Article Spotlight, Howard Wasserman, Information and Technology, Law Review Review, Peer-Reviewed Journals | Permalink | Comments (13)

Sunday, September 16, 2018

Australian politicians as bad as U.S. politicians . . .

in their reaction to a nine-year-old girl refusing to stand and sing the Australian national anthem (as a show of support for Australia's indigenous people). (H/T: A student looking ahead to our Law Review Symposium on Barnette's 75th anniversary).

The CNN story says "the school had tried to be respectful of her wishes by providing alternatives, such as not singing along." There remains a nice question as to precisely what Barnette protects as a First Amendment matter (which obviously has nothing to do with the Australia story. Is it all participation in patriotic rituals or only having to recite the words while otherwise participating in the ritual. That is, could the proposed alternative (stand at attention, don't speak) be imposed on a student?

Posted by Howard Wasserman on September 16, 2018 at 08:28 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Guest Post: Would Appointment of Judge Kavanaugh to the Supreme Court be Constitutional?

If the Senate votes Judge Brett Kavanaugh onto the Supreme Court, it seems pretty clear that he will solidify a staunchly conservative majority on the Court. This new majority will stake out firmly conservative positions on a range of critical issues, including voting rights, reproductive rights, and corporate rights. With a Justice Kavanaugh on board, the Supreme Court will bring a strong ideological bias to its decision making. While that is highly controversial, it’s one of the features of our judicial appointment process.

Or is it? We ought to consider the constitutional implications of ideological bias on the Supreme Court. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal majority should be able to impose its views on the Court.  

The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral court decides cases without any personal, political, or other bias. Once Judge Kavanaugh joins the Supreme Court, it won’t be a neutral court. Any party promoting a liberal viewpoint before the Justices would not be able to count on a fair shot at prevailing.

Because it is unfair for litigants to have their cases decided by an ideologically-biased court, other countries and some U.S. states have designed their highest courts so decisions reflect a broad range of ideological views. Arguably, due process requires something similar for the Supreme Court.

Continue reading "Guest Post: Would Appointment of Judge Kavanaugh to the Supreme Court be Constitutional?"

Posted by David Orentlicher on September 16, 2018 at 02:41 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (22)

Friday, September 14, 2018

The Deuce '77

I just watched the season two premiere of The Deuce, which time-jumps to 1977 and depicts the late-'70s New York City of Ed Koch that I remember as a I kid. After the jump, one thought and one question:

Continue reading "The Deuce '77"

Posted by Howard Wasserman on September 14, 2018 at 03:27 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

Serena and the umpire

I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.

Continue reading "Serena and the umpire"

Posted by Howard Wasserman on September 14, 2018 at 10:52 AM in Howard Wasserman, Sports | Permalink | Comments (15)

Thursday, September 13, 2018

Go Fish

We are now teaching students with an attention span shorter than that of a goldfish.  We ourselves now have an attention span shorter than a goldfish.  Since 2000, the human attention span decreased 33%, from 12 seconds to 8 seconds.  It is no coincide that the first smartphones appeared in the 2000’s.  So, how do we motivate students to learn despite shortening attention spans?

This is what I am working on right now for my next article, Motivating Law Students, with the help of the empirical data from student focus groups. 

Right now, I am knee-deep in the literature.  Daniel H. Pink is right in Drive to say that motivation is complicated.  There are two types of motivation: intrinsic motivation (curiosity, engagement, etc.) and extrinsic motivation (grades, bar passage, jobs, etc.).  It turns out that intrinsic motivation is far more effective.  But, intrinsic motivation is also more finicky—the conditions have to be just right for students to feel intrinsically motivated. 

There are ways to build courses to bring out the intrinsic motivation in students.  And, I am intent on finding as many of them as possible.  I have some early ideas that are in line with the literature, which include feedback on assessments and autonomy, but I welcome thoughts in the comments.  

Posted by Margaret Ryznar on September 13, 2018 at 06:55 PM | Permalink | Comments (10)

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Posted by Howard Wasserman on September 13, 2018 at 04:56 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)