Friday, May 19, 2017

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Continue reading "Questioning DOJ Independence"

Posted by Carissa Byrne Hessick on May 19, 2017 at 11:30 AM in Criminal Law, Law and Politics | Permalink | Comments (6)

1L Fear

From the days of The Paper Chase to the constricted tightness in the air around exam time, “fear” is part of law school.  But, is there an optimal level of “fear” that creates healthy focus, but not paralyzing distraction?  Is any fear constructive, or is it all a negative emotion that should be eliminated? Should fear be part of the 1L experience?  Does it help, hurt, distort, or destroy students?  As the world changes (with different expectations of students and from students), does fear have any place in the first year law school curriculum? 

As a law professor “fear” is a tool.  Some professors use fear in obvious bullying ways.  Some professors use fear though humor and humiliation.  Some professors make you fearful of disappointing them.  Ask any 1L why they are always prepared, and in between answers about “love of the law,” intellectual curiosity, and ambition, you will get the answer “I was afraid not to be prepared.” 

1L classes set up in a Socratic or semi-Socratic teaching style generate fear of embarrassment.  Students are on call, on stage, called out to answer in public.  The fear of ignorance, confusion, or saying the wrong thing is present every day.  Professors demand answers to their questions.  And, the process generates a natural tension that can make some people afraid.  Add in differences in learning styles, culture, and a host of power dynamics, and law schools create an intimidating learning environment that generates a natural fear.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don't consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a "coach" not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question -- is fear healthy?

Again, looking at my own law school experience (and recognizing my own privileged status and engagement) fear definitely motivated me.  I was fearful of being called on (I can still hear the deafening sound of my own heart beating when I knew I was next to be called on in class).  I was fearful about failing (or at least not doing as well as I could).  And, I worked really hard, less out of love of contracts or torts, and more out of a fear of not being prepared and being called out for that lack of preparation.

I could be wrong, or a product of another generation, but fear of not doing well, of failing to meet expectations, or of literally failing law school was ever present.  Fear motivated me (and I believe others) which is why it was intentionally or unintentionally fostered by law professors trying to motivate mastery of the law.

Yet, fear is not a part of other educational environments.  You don't think of high school English class as frightening.  You don't necessarily think of college seminar courses motivated in any way by fear.  While there are certain professors who emulate John Houseman in their lectures (a style that pre-dates The Paper Chase), much of the undergraduate experience is decidedly not Socratic. It is still stressful, but not full of fear.  One reason why students have a difficult time adjusting to “learning the law” involves a greater sense of fear.  

And, I can't imagine fear is scientifically proven to improve learning.  I am no expert, but learning theory seems to suggest otherwise.  And, the intentional creation of fear in a classroom has to be distracting if not disabling to many students.  Fear can bring with it class, gender, and racial power dynamics and can interfere with interpersonal relationships and learning.

So of all the possible motivational emotions, should law schools encourage fear?  Should we make a conscious effort to reduce fear in the classroom?  Should we be more consumer friendly and kind?  Should we replace fear with inspiration? Or collaboration? Or self-reflection?  Or self-reliance?

Or, is the fear that motivates being 100% prepared a life skill we want to cultivate in lawyers?  Should we turn up the pressure and demand more work and stress from our students to be prepared for the always demanding practice of law?  Should every class be like an appellate argument? 

I am afraid I don't know the answer, but think it worth discussing?

Posted by Andrew Guthrie Ferguson on May 19, 2017 at 06:25 AM | Permalink | Comments (13)

Thursday, May 18, 2017

How other law schools do things

Looking for some ideas on how law schools handle some faculty matters.

1) Course/credit releases. How do you handle periodic/special releases from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). Not thinking about faculty buying out, but rather  one-year reductions because of big scholarly projects, etc. How often can faculty do this? Who decides--the dean, faculty, or some combination? Is there written criteria as to what justifies it or is left to decanal discretion? Do the credits get made up in a subsequent year? Is it a banking system?

2) Co-authored articles for P&T. How are P&T committees handling co-authored works in evaluating a colleague's productivity and in deciding what to send for outside review? Are such works being discounted? Do you ask the candidate for a breakdown of who did what or how the writing process worked on the project?

Please respond in comments.

Posted by Howard Wasserman on May 18, 2017 at 03:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

Continue reading "The "Fellowship Track": A Plea for Second Thoughts"

Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink | Comments (25)

Joining the Prawfs Community

I am extremely excited to join the Prawfs perma-blogger roster.

I started reading Prawfs in 2005, and I followed it kind of obsessively as I left my clerkship and started a teaching fellowship.  I did my first blogging here as a guest.  And it was the Prawfs community--Danny in particular--that introduced me not only to rigorous scholarship workshops, but also to a great number of people that I now consider to be close friends.

In short, PrawfsBlawg helped shape who I am today.  And I'm absolutely delighted to be a permanent part of the community.

Posted by Carissa Byrne Hessick on May 18, 2017 at 10:17 AM in Blogging | Permalink | Comments (2)

Wednesday, May 17, 2017

Welcome Carissa Byrne Hessick as perma blogger

We are happy to announce that Carissa Byrne Hessick of UNC has joined PrawfsBlawg as a permanent blogger. Carissa, who has visited hear many times in the past, writes on criminal law, including Redefining Child Pornography Law: Crime, Language, and Social Consequences.

Posted by Howard Wasserman on May 17, 2017 at 12:30 PM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 16, 2017

Conspiracy theory of the day

In July 2016, after Trump selected Mike Pence as his running mate, Pence visited James Comey at FBI headquarters and said, "I want you to help me become President of the United States."

Posted by Howard Wasserman on May 16, 2017 at 07:57 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Connecting the Law Review Dots

I quite enjoyed Benjamin's post on the overused "under-theorized" line in law review articles. As his link to an old post of mine suggests, it is on a topic dear to my obsessive little heart.

I have no great quarrels with his post, but I would suggest that there is no actual paradox at work. Perhaps there would be if calling something under-theorized were sincere and accurate most of the time that this language is used. But I suspect that it isn't. Sometimes, calling a topic under-theorized is just throat-clearing. Often, it's strategic rhetoric for purposes of placement. Much of the time, it is somewhere in between that and a slightly but importantly inaccurate way of defending one's decision to write about a particular topic. If, instead of the standard and ostensibly impressive-sounding--the less impressive the more often you see it; paragraphs that could be saved as boilerplate are not really impressive, but they are aimed at 24-year-olds who have not seen them hundreds of times before--"under-theorized paragraph," authors wrote what they actually mean, and in plain English, we would more often see something like the following: "[X] is an interesting topic. Plenty of interesting things have been said about it, but they have not exhausted interest in the issue (my interest, at least). Even if they have, I have a few things to say about it too." I would welcome that sort of candor, and less standard-issue academic verbiage. 

Benjamin's post is also arguably connected to Andrew's post about "game-changing" law review articles, as a commenter on that post suggests. And it is connected to another pet peeve of mine, also noted in the comments: the equally standard-issue "novelty paragraph." Law professors routinely write about issues that have been written about before--quite understandably, in my view, since little is new under the sun and people often like to write about old but big and interesting questions. But law professors also like fancy placements and the credentialization, platform, and opportunities for advancement that come along with them. There are three standard strategies for trying to satisfy both urges. First, one can claim--usually ridiculously--that this is the very first article to deal with X, or something of the sort. That's the novelty strategy. Usually and amusingly, the sentence asserting that an article is The First Article on a topic is accompanied by a footnote along the lines of, "Of course, there are honorable exceptions..." That footnote then lists some of the prominent prior articles that, as it turns out, also address the topic that this article is supposed to be the very first to address. Authors, it seems, are willing to do both things--to claim that an article is The First, and to cite prior articles on the same topic--and law review editors are willing not only to stomach this, but to reward them for it.

There appear to be few credible limits to this strategy. But in some cases, either the evidence of prior treatment is overwhelming, or the author has a reasonable amount of shame or integrity. In those cases, the thing to do is break out the second strategy: the "under-theorized" strategy. Yes, lots of people have written about X before. But X remains "under-theorized." And that is this article's reason to exist and claim its own share of the spotlight. The under-theorized paragraph is thus arguably a sub-category of the novelty paragraph. Or perhaps it could be seen as an alternative strategy for instances when a novelty paragraph would be glaringly false.

A third strategy, one that I think is increasingly popular but less noticed as such, is what we might call the taxonomical or Clever Label strategy. It bears some relation to the other two strategies. Yes, X has been written about before. Yes, it has already been "theorized" plenty. But this article offers a remapping of the well-covered territory, in a way that makes better sense of all those other articles that have come before. That's the standard taxonomical approach. Sometimes, the author will place such implicit stock in the new Clever Label that he or she will not even bother to concede that the territory has already been marched into dust. The implicit claim will not be that the new article is valuable because it offers a way of making sense of the issue that takes into account and builds on the earlier literature, but that the new Clever Label is so great that the label is the novelty. I love some of these articles; hey, the best of them really are clever, and sometimes really do usefully place the earlier literature in a new light, putting different approaches into conversation with each other in a new way. But I am extremely leery of those articles that, TED-talk-like, treat neat new labels and snappy, no-colon-and-subtitle-needed titles as genuinely new and profound substance. They often place well, however. So long as they do, they're not going away.

All of these are strategies for placing articles well, not for placing them as such. It is not hard to place an article somewhere. Rather, these are efforts to convince a young editor at a well-placed law review that the article under submission is not just a fine and creditable discussion of something that has been discussed before but merits continued discussion, but that it adds something sufficiently new and terrific to the mix that it deserves prestigious placement. Most scholars, if they're lucky, turn out singles and doubles, along with the occasional pop fly. Claiming that your article is the first, or the first to properly "theorize," or that it provides the niftiest new labels, is a way of trying to convince editors that everything you do is at least a triple, if not a home run. And that's the connection to Andrew's post on game-changing articles, and the comments on it. If the legal academy and its publishing arm were functioning reasonably well, we would look for a lot more singles and doubles--and in hiring new scholars, we would look for evidence that they could turn out a long succession of solid base hits. But entry-level scholars have for some time now been trained by their schools to turn out articles that at least look like triples or home runs. In reality, many or most of those articles are actually either easily fielded fly balls or carefully disguised singles. All those paragraphs up top--whether they involve novelty claims, "under-theorized" claims, or Clever Labels--are ways of making us think otherwise. It's far from clear to me that this is the best way to encourage good habits or sound scholarship.  

Note that I say "making us think otherwise." Usually, with legal scholarship being the comic and reformist industry that it is, this would be the point for someone to write about how peer review would solve all our problems, by putting into place a system that would not require scholars to aim all these strategies at easily cozened 24-year-old law review editors. That might be true in especially sober or empirically based disciplines. Articles like this make me doubt it is true for all disciplines. Much depends on the soundness of one's peers. And I think there are at least two problems with law as far as this is concerned. First, we appear to be impressed by these strategies. Authors of grandiose articles that provide the illusion of clearing the bleachers, and that place well, do well on the hiring market. It's not the 24-year-olds doing the hiring, so I don't think we can fob off our problems on them alone. Second, all this has been going on long enough that I fear we have internalized all these tactics. If we insist on hiring through the fellowship process, and if fellows are being trained in the use of these strategies, and if they then succeed on the hiring market and mentor and judge the next generation of applicants, then I see little reason to hope that peer review alone will save us from our own sins.

It might save us, if one adopted the cynical view that everyone realizes that these strategies are just that, and that many novelty claims and other such boilerplate should be disregarded in favor of a focus on the substance. But in a field in which everyone on the faculty judges specialist articles when voting on hiring, it's hard to judge soundly on the substance rather than the bells and whistles. And I think this is actually a somewhat naive, first-order form of cynicism. It assumes that everyone is smart enough to know better, and that they are also strong enough to act better when they know better. A more convincing cynical view, to my mind, would conclude that we are not always smart enough to know better; that we suffer from the same cognitive defects as everyone else, and thus are likely to fall for the same tricks as everyone else, especially if we have profited from and internalized those tricks; and that even when we know better, we may lack the strength of will to resist in the face of professional norms, the praise of recommending professors at big schools, and the votes and voices of other members of our own faculty. Even if I am usually aware enough of and peeved enough by the kinds of things I have written about here to spot them when candidates come calling, I am sure I am not always strong enough to stick to my objections in the face of those influences, especially when I know that the strategies work in the wider world and I would like my law school to enjoy enhanced prestige. And I do not think I am significantly weaker-willed than most of my colleagues. So I have little good cheer to offer, other than the faint suggestion that we ought to be spending more of our time looking for solid base hitters than for long-ball hitters. 

Posted by Paul Horwitz on May 16, 2017 at 06:18 PM in Paul Horwitz | Permalink | Comments (10)

Parlor Games and the FBI Directorship

Mitch McConnell (following the lead of Utah's Mike Lee) is urging President Trump to nominate Merrick Garland for FBI Director. McConnell insists that Garland would provide the nonpolitical professionalism needed for the position, plus he would get Democratic support, which would be a benefit for this appointment. And, of course, although McConnell does not say so, it also would give Trump a vacancy on the D.C. Circuit.

But Garrett Epps argues that it need not create any vacancy. Nothing in the Constitution or federal statutes prohibits a judicial officer from holding executive-branch office (I wrote in January wondering whether Garland would have had to resign his seat had Obama made a recess appointment). Epps cites numerous examples of simultaneous work, including Justice Jackson taking a one-year leave from SCOTUS to serve as Nuremberg prosecutor and Chief Justice Warren simultaneously chairing the commission investigating the Kennedy assassination. Epps argues that Garland could take a leave of absence from the D.C. Circuit to head the FBI for a few years (long enough to investigate Russia and anything else that comes down the Trumpian pike), then go back to the court after a few years in the Hoover Building* All it takes is the approval of the Chief Judge of the Circuit--and the Chief Judge of the Circuit is Merrick Garland.

[*] Although how much administrative trouble would it create when Garland came back to the D.C. Circuit. Would he have to recuse from nearly every federal criminal case in which FBI agents investigated?

Of course, McConnell is politically savvy and would ensure that Garland agreed to resign from the bench as a condition of confirmation. But Democrats might still score some political points, showing that McConnell's desire for bipartisanship is a ruse to create a judicial vacancy for a Republican president. If McConnell is  serious about wanting Democratic support and a non-partisan figure for the FBI, he should not insist on the new partisan gain of the judicial appointment

Ultimately, this is a parlor game (hence the title of the post) that makes for fun musings but will never come close to reality.

Posted by Howard Wasserman on May 16, 2017 at 02:23 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Spencer appointed to Civil Rules Committee

Ben Spencer (Virginia) has been appointed to the Civil Rules Advisory Committee. Congratulations to Ben.

Posted by Howard Wasserman on May 16, 2017 at 10:00 AM in Civil Procedure | Permalink | Comments (1)

Game-Changing Articles

This will be the last time I try to crowdsource the wisdom of Prawfsblawg this month.  But, like many relatively new law professors, I have tried to figure out what makes a game-changing, seminal law review article.  Some articles create new theories that shape law.  Some articles canvass an area of law.  Some reconstruct ("under-theorized") theory in new ways.  There are even wonderful law review articles about law review articles -- filled with citation counts and metrics which help identify articles that qualify as influential. 

But, what have been the true game-changing articles in the last seven years (since I have should have been paying attention)?  What are the articles that changed perceptions and qualify as seminal articles?  As just one of many possible examples, something like Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) which helped shape tort law, Fourth Amendment law, and an understanding of privacy. 

Self-nominations welcome.

Posted by Andrew Guthrie Ferguson on May 16, 2017 at 09:45 AM | Permalink | Comments (9)

Monday, May 15, 2017

The Under-Theorization Paradox

The "under-theorization" paragraph has become a standard move in article introductions. To explain why editors and readers should value a law review article, many authors include a paragraph pointing out that the issue has not received enough attention or is "undertheorized," whatever that means.  The phrase's proliferation has led to posts discussing undertheorization.  We even have a law review article on the Under-Theorized Asterisk Footnote.  A quick Westlaw search reveals that undertheorized or under-theorized has appeared in 1,982 law reviews.  The number stood at about 11,00o in 2012.  In books, the term first began showing up in the 1980s and its popularity has grown steadily. 

Yet supporting an undertheorization claim may undermine an undertheorization claim.  If you want to show the reader that your article addresses an under-theorized area, the usual proof may cast doubt on your claim.  For example, I believe that the academic literature does not examine industry self-regulation enough.  For support, I turned to others making similar claims:  

Jonathan Macey & Caroline Novogrod, Enforcing Self-Regulatory Organization's Penalties and the Nature of Self-Regulation, 40 Hofstra L. Rev. 963, 963 (2012) (“[f]ew issues are as poorly understood and under-theorized as the concept of ‘industry self-regulation’”); Andrew F. Tuch, The Self-Regulation of Investment Bankers, 83 Geo. Wash. L. Rev. 101, 105 (2014) (explaining that FINRA’s “self-regulation of investment bankers has thus far attracted scant scholarly attention”); Saule T. Omarova, Wall Street As Community of Fate: Toward Financial Industry Self-Regulation, 159 U. Pa. L. Rev. 411, 414-15 (2011) (“what is conspicuously absent from the . . . broader debate among academics and policy-makers, is a meaningful discussion of the role and shape of industry self-regulation in the emerging postcrisis regulatory order”).

Evidence for the claim that little attention has been paid to industry self-regulation comes from other articles about industry self-regulation. While we're all correct about the need for closer attention to industry self-regulation, marshaling evidence that an area needs more attention may—at some point—cast doubt on the claim.  

This is the under-theorization paradox:  as claims that not enough people write about an area accumulate, the likelihood that an area actually needs more academic attention declines. 

Posted by Benjamin P. Edwards on May 15, 2017 at 08:07 PM | Permalink | Comments (11)

Algorithms in Blue

A little later in the month I am going to preview my book, “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” (releasing October 2017).  But, today, I wanted to discuss some new revelations out of Chicago about how predictive policing works in practice.

As some of you may know, certain police departments across America have adopted a “predictive policing” strategy that targets both places of forecast crime as well as the people predicted to be involved in crime.

The Chicago Police Department has been at the forefront of developing a predictive model to identify the individuals most at risk of violence.  The theory – arising from sociological studies – is that proximity to violent acts increases one’s risk of being the victim or perpetrator of violence.  Essentially, if you are a young man involved in Chicago’s gang culture and your friend is killed, you are statistically more likely to be shot yourself or avenge the killing.  Your risk of violence is elevated due to your personal connection to violence and the cyclical nature of violence. 

Police have taken this insight and created a rank-ordered list (scored 10 to 500+) of the high risk offenders in the City.  They call it the “Strategic Subjects List” or colloquially the “heat list” and it includes 1400 names (although recent reports include a higher number).  Prior to last week, there was little information about what factors were included to get on the list or how the risk scores were calculated. 

But, last week, The Chicago Sun Times released a fascinating story on who exactly gets on “the heat list.”  More after the break.

Continue reading "Algorithms in Blue"

Posted by Andrew Guthrie Ferguson on May 15, 2017 at 12:01 PM | Permalink | Comments (1)

The Half-Sized Law School and the Cost in New Prawfs

Two years ago I asked the question: should we have fewer law schools or fewer students per school?  I think there are normative arguments for either approach: more schools means more geographic diversity but fewer economies of scale.  The legal academy has clearly chosen the "more schools" approach.  As Derek Muller documents in "The Incredible Shrinking Law School,"  law school graduating classes dropped from an average of 206 graduates in 2013 to 161 last year.  These numbers back up the myriad of anecdotal pieces about shrinking class sizes that have, frankly, lost their newsworthiness.  Meanwhile, despite some initial claims that as many as one-third of law schools would close, we've seen almost the other end of the spectrum.  Two schools have merged, one school has shut down, and one other is likely in the process of shutting down.  More may be on the way, but thus far fewer students per school has clearly won out.

One ramification of this approach has been the loss of jobs for new law profs.  As documented in Sarah Lawsky's annual census, the numbers went from annual hiring in the 150s to a low of 70 new hires in 2015.  This, too, is old news.  But I think the connection between the "fewer students" and the "fewer entry-level hires" has not necessarily been made.  Yes -- under either approach, there would be fewer law profs.  But when schools close, law professors of all ages lose their jobs.  When schools shrink, the first jobs to go are the hires that haven't yet happened.

I've blogged before about law school sustainability, and I think legal academia needs to recognize this big drop in hiring as a sustainability problem.  There has been some attention paid to the bubble of hires made in the 1970s and the effect of those hires on law schools now.  But there has been comparatively little attention paid to the folks like me who populate this blog's masthead and were hired between 2000 and 2010.  We too are something of a bubble.  And we are a longer-term problem, if only because we are earlier in our careers.

So, what should be done?  Should there be stronger post-tenure review to push out those "bubble" hires who are taking the place of a new and more productive hire?  That seems extremely unlikely to me.  Similarly, it seems more likely that schools will continue to shrink rather than close.  But there is unquestionably a "decade of hiring" effect within legal academia, and the academy should be thinking of ways to deal with this generational disparity.  Otherwise, we are depriving our students and our field of contributions from the next wave of academic innovators.

UPDATE: Rick Bales made the same point here.

Posted by Matt Bodie on May 15, 2017 at 10:47 AM in Life of Law Schools | Permalink | Comments (4)

Friday, May 12, 2017

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.

Posted by Orly Lobel on May 12, 2017 at 04:42 PM in Books, Employment and Labor Law, Life of Law Schools, Orly Lobel, Workplace Law | Permalink | Comments (0)

Shifting Ground in the Battle for a Fiduciary Standard

The Trump administration has moved aggressively to roll back the Department of Labor's fiduciary rule.  In a move that likely cost investors billions in lost gains, the new administration first delayed the regulation by moving its effective date back sixty days to June 10th.  More administrative delays may come. Press reports indicate that President Trump's freshly confirmed Secretary of Labor Alexander Acosta has "made stopping the measure his top priority."

With federal investor protection measures stalled, states may soon play a larger role.  Nevada has pending legislation designed to impose a fiduciary standard at the state level.  If these efforts succeed, they may increase protections on a state-by-state basis and outcomes for some.  

There is a real need to improve financial advice because far too many get bad advice.  In a local op-ed supporting the Nevada legislation, I explained how bad advice can cost investors:

The worst segments of the financial services industry oppose the bill because their high profits come from convincing savers to buy the wrong shares in the wrong funds. For example, Rydex sells an index fund tracking the S&P 500 with 2.31% annual fees (RYSYX). Vanguard sells a similar fund tracking the S&P 500 with 0.05% annual fees. The lower-cost Vanguard fund will always outperform Rydex because the funds track the same index. These fees add up to significant costs over time.

According to the American Institute for Economic Research, a decade-long investment of $100,000 would have accumulated $204,758 in the Vanguard fund and only $163,619 in the Rydex fund. The high fees create a $41,139 difference over time. Despite this, many stockbrokers recommend Rydex because it kicks a significant percentage of its fees back to the financial adviser. While Rydex provides a glaring example, financial advisers often steer clients toward suboptimal decisions in countless other instances.

Astonishingly, the fund has over $270 million in assets.  This is not the only high-fee index fund in the market.  Most investors do not behave as rationally as financial theory expects. Imagine what a scrupulously  honest financial adviser would have to say when recommending this fund:

I think you should put $100,000 in Class C shares of the Rydex S&P 500 Index Fund.  It's about 46 times as expensive as the Vanguard fund tracking the same index.  If the next ten years go like the last ten years, you'll end up behind the Vanguard fund by over forty grand--that's enough to buy a Corvette.  I still think you should buy it because the Rydex fund uses its fees to pay me for the excellent services I provide you as your financial adviser.  Think about how much you like it when our client-management system cues me to send you birthday and holiday cards!  These fees allow me to build our trusting relationship so I can continue to guide you with wise financial decisions in the future. While I won't get $4,000 a year personally because of the fees that go to Rydex, that is how much you're effectively paying.  So what do you say?  Corvettes are overrated anyway.

Posted by Benjamin P. Edwards on May 12, 2017 at 04:20 PM | Permalink | Comments (1)

“Smart” Snitches

Do you drive a “smart” car or live in a “smart” home? In addition to receiving the benefits of convenience, efficiency, and quantifiable self-awareness, you also happen to be living with a world-class “snitch” who will tell police whenever you end up on the wrong side of the law.   

Consider the fate of James Bates, a Bentonville, Arkansas man charged with murder.  According to police reports, Bates and three associates spent the night drinking and watching football.  The next morning one of the men was dead, floating in the hot tub.  Was it a tragic accident or a murder?  Signs of a struggle led police to suspect Mr. Bates, but police needed a witness.  It turned out they had one – Bates’ smart home.  Bates, its seems lived in a smart home outfitted with an Amazon Echo, a Nest Thermostat, a Honeywell alarm with door monitoring motion sensors, a wireless weather monitoring system, and WeMo devices for remote access lighting. 

The case has received significant news attention because of the possible implications of the technology – what if Amazon’s Echo had overheard potentially incriminating words, “Alexa, how to do dispose of a dead body?” or “Alexa, how to you remove blood stains?”  In addition, Amazon filed a First Amendment motion in opposition to the government’s subpoena requesting the data, an initial legal response that signaled an aggressive privacy and public relations pushback.  

I have been playing around with the idea in a few law review articles, but really the constitutional – Fourth Amendment questions – are quite open.

We know the Fourth Amendment protects “persons, houses, papers, and effects, against unreasonable searches and seizures” and that the Supreme Court has interpreted this language to protect you if you can demonstrate a “reasonable expectation of privacy.” 

So, do you have an expectation of privacy in your smart car?  You drive that smart car on public streets, knowing that each turn is being monitored by a computer connected to a central command.  You even paid extra for it.  Can you claim privacy?  You gave up the information to a third party – Ford or GM via OnStar or 911 Assist – and the service they provide.  And, you are in public.  Should you have any privacy claim against the government watching you in public? 

We know the Supreme Court has expressed caution that long-term direct police monitoring using a GPS device or searching a smartphone both would require a warrant, but with a lawful and narrowly tailored search warrant there may not be much constitutional protection.   The Supreme Court has held in other contexts – like your bank records and phone records – that by giving a third party access to the information you have also given up any expectation of privacy.  The smart thinking is that this “third party doctrine” would apply to your smart car.        

More broadly, how should the Fourth Amendment protect smart data emanating from our “persons, houses, papers, and effects”?  This is a puzzle that lawyers (and law professors) are only just beginning to address.   Think about the data from your smart heart monitor which could reveal your heartbeat at the time of the alleged arson, or the smart energy monitor that shows you are growing pot.  Can police intercept this information from the smart data sources collecting it?  Does the Fourth Amendment even apply to data that lives outside our smart devices?  If not, is there any legal protection from police collecting all of our unsecured smart communications? 

I wrote about the idea in a new article “The Smart Fourth Amendment” but welcome thoughts and other ideas. 

These questions will continue to arise as the Internet of Things develops, expands, and eventually takes over our world.   Your data will become the clues for next generation police investigation. You will unknowingly become your own snitch.        

Posted by Andrew Guthrie Ferguson on May 12, 2017 at 07:00 AM | Permalink | Comments (1)

Wednesday, May 10, 2017

Trump Judicial Nominees

President Donald J. Trump has announced ten judicial nominees to the federal circuit and district court nominees.  Two quick reactions to these nominations.

(1) While Trump’s campaign and presidency have reflected and leveraged the internal divisions and therefore weaknesses of the Republican Party, his judicial nominations so far have reflected what I blogged about previously: the strength of the judicial nominations part of his party. Neil Gorsuch would have been a front-runner for a Supreme Court nomination in a more traditional Republican Administration.  His first nominees to the lower federal courts are incredibly traditional and/or Establishment-dominated—many Supreme Court clerks and many current or former law professors.  Rather than displacing or challenging his party on judicial nominations, he has approached judicial nominations in the most unsurprising way possible for a contemporary Republican President.

(2) I recently wrote an essay for a symposium in the Wisconsin Law Review about the relatively “cooperative” approach to judicial nominations utilized by the Obama Administration. The Obama Administration’s first nominee to the circuit courts was David Hamilton, a centrist district court judge in Indiana with established ties to both political parties.  Hamilton was not particularly young, not particularly famous, and was the only circuit court nominee announced the day he was announced.  By contrast, many of Trump’s nominees announced this week are very connected in the Republican Party, very young, and very known—and he announced ten nominees in one day.  Republican Senator Tom Cotton has mentioned this week that Senate Republicans are considering abolishing the blue-slip rule.  The difference in behavior between the first few months of the Obama and Trump Administrations on this issue are striking.

Posted by David Fontana on May 10, 2017 at 03:23 PM | Permalink | Comments (13)

Author’s Corner

In my last post, I tried to engage the age-old debate about the professional merits of publishing law review articles over books, and now I want to flag a few upcoming books.  (All I would note written by senior law professors).

As many of you know, this year the AALS Mid-Year Meeting is taking place in Washington D.C. at Washington College of Law at American University (with its new construction, now one of the most beautiful law schools in America).

As part of the events, the AALS Criminal Justice Section has organized a series of “Author meets Reader” forums which showcase a wealth of interesting ideas.  Some of these books you may have heard of as they are driving national conversation about criminal justice policies.  Some have yet to be published.  Some are just really excellent takes on important topics.  I list them here in no particular order, but all are worth checking out. 

I have read David Gray’s book and it is fabulous.  For more on the book, here is a YouTube link.  https://www.youtube.com/watch?v=pHUNRndaYIo

I have also read John Pfaff’s book and James Forman’s book which are both game changers in the national debate over criminal justice.   But, as you can see there is a wealth of good reads available at the AALS Criminal Justice Section Mid-Year Meeting.  Join us.

Posted by Andrew Guthrie Ferguson on May 10, 2017 at 02:00 PM | Permalink | Comments (9)

Comments on the attorney disciplinary hearing on Better Call Saul

Better Call Saul moved to Jimmy's bar disciplinary proceeding this week. Spoilers and discussion after the jump.

Continue reading "Comments on the attorney disciplinary hearing on Better Call Saul"

Posted by Howard Wasserman on May 10, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (6)

Tuesday, May 09, 2017

The 2017 Texas Regional Legal Scholars Workshop

The following is from Dave Fagundes of University of Houston Law Center, on behalf of that school and Southern Methodist University Law School, on the 2017 Texas Regional Legal Scholars Workshop.

Continue reading "The 2017 Texas Regional Legal Scholars Workshop"

Posted by Howard Wasserman on May 9, 2017 at 08:12 PM in Teaching Law | Permalink | Comments (0)

A new definition of chutzpah?

In The Joys of Yiddish, Leo Rosten offers the classic definition of chutzpah: The man who, having killed his parents, begs the court for mercy on the ground that he is an orphan.

But might we have a new definition: Donald Trump--who spent months insisting that Hillary Clinton's handling of emails constitutes a jailable offense (if not treason), spent part of the election criticizing FBI Director James Comey for coddling Clinton, and was elected president at least somewhat (studies are unclear how much) with the help of Comey's three public announcements about the FBI investigation (two in the final weeks of the campaign)--has fired Comey [ed: purportedly] for his disclosures about the email investigation.

Posted by Howard Wasserman on May 9, 2017 at 06:33 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

National Impact/Expertise via Articles or Books

“Should I write a book?”  That is a question I am asked on regular occasion by junior faculty. 

It is an oddly difficult question to answer and one that I think the Prawfsblawg community might be helpful in debating.

Unquestionably, law review articles are the coin of the realm for most law professors.  Junior faculty members are told to focus on them.  Scholarly potential is judged by them.  Status (if you care about such things) is guided by placement in them. True, outside the legal academy not as many people as you would wish read them, but they are the focus of attention.

Books are secondary. Great books can change career trajectories and influence policy, but their influence is usually outside of the academy.  I don't want to minimize the importance of books because many scholars write both books and articles with equal influencing impact.  But, many times books are seen as an extra bonus, maybe not even counted for tenure review, although certainly not a negative.  Sure, as you get more senior, books can shape or define a career and as larger works they tend to offer more fully developed ideas.  But, as an untenured professor, they are a lot of work with less obvious institutional reward.

At least this is my sense of the conventional wisdom (with usual caveats that it is institution dependent and a host of other qualifiers).  And, it may even be correct in terms of promotion and tenure.  But, if you want to become a recognized expert with national impact (which is sometimes also required for tenure) I am not sure I agree with the traditional advice.  I have been teaching for 7 years (not much, I concede).  I have written 19 articles and 1 book (with the second on the way).  And, over and over it has been my book that has opened doors nationally, defined my “expertise,” and been my calling card.  Even though 14 (or 15 depending on how you count) of my articles have been on technology and criminal justice issues, my book on juries provides a legitimacy that the articles do not.

My sense is that with lawyer groups, judges, journalists, legislatures, and professional organizations, the status of “book author” opens doors more than “professor” or “scholar of well written law review articles.”  Similarly, in today's media culture, a book is a marker of expertise.  Even if you have written 120,000 words in law reviews on a subject, those insights are less visible than a 60,000 word book on the same issue.  Producers call.  Journalists ask.  Invitations arrive in the mail.

To be clear, I am not convinced anyone buys books anymore, or even reads them when they do, but the marker of “author” provides a legitimation that law review articles do not.

This influence may be true more with non-law professor audiences.  And, so for junior faculty members deciding on a book, it may well be preferable to focus on gaining the respect of one's colleagues for traditional scholarship and not on being an expert in any broader way.  Again, individual goals and institutional culture plays a role. 

But, if your goal is to get your ideas out there to the legal world and beyond and make an impact then writing books may open more doors than writing in law reviews.  Or maybe I am completely wrong, which is why Prawfsblawg is such a grand place to engage the debate.  What do you think?

Posted by Andrew Guthrie Ferguson on May 9, 2017 at 03:19 PM | Permalink | Comments (6)

Northwestern Law Review exclusive summer submissions

From July 1-July 21. Details here.

Posted by Howard Wasserman on May 9, 2017 at 11:50 AM in Teaching Law | Permalink | Comments (0)

Monday, May 08, 2017

JOTWELL: Mulligan on Subrin & Main on state procedural rules

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure (Case Western Reserve L. Rev), which argues against "reflective" state emulation of the Federal Rules.

Posted by Howard Wasserman on May 8, 2017 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Entry Level Hiring, The 2017 Report - Not Last Call for Information

The hiring season is not yet over, so I will not be closing the Entry Level Hiring report today. Rather, I will leave it open until the end of May.  As always, please submit information regarding entry-level hiring to me via email or the original post.

Posted by Sarah Lawsky on May 8, 2017 at 10:27 AM in Entry Level Hiring Report | Permalink | Comments (0)

Sunday, May 07, 2017

Opening up broadcast indecency

At the end of the day, the minor controversy over the FCC's "inquiry" into Stephen Colbert's "cock-holster"* joke is going to be a lot like people in the administration talking about "opening up the libel laws"--a lot of noise that will never be put into any legal effect and cannot be taken seriously.

[*] As George Carlin reminded us, "cocksucker" is one of the words you cannot say on television. It is not clear that the word "cock," standing alone, falls in the same category.

The ban on indecent speech on broadcasting is 6 a.m.-10 p.m., so Colbert (at 11:30 p.m.) operated in a zone in which indecent speech is not legally prohibited. Colbert and CBS thus can be punished only if his joke was obscene under Miller. But we are past the point that written words alone can be held legally obscene, given how community values have evolved in understanding what is patently offensive. And that is before we get to the fact that the comment was a joke about the President of the United States, so it has serious political value. Frankly, I doubt this comment would be deemed punishable indecency, even if broadcast outside the safe harbor. If it could not be indecent, no way could it be obscene.

Still, I found this Fortune story by Aric Jenkins both wrong and problematic. The author objects to calling an FCC investigation "censorship," insisting that it is merely following standard operating procedure in logging and reviewing complaints. Plus, the author insists, any "penalty would be monetary — not any form of censorship." Again, I thought we long ago left behind the idea that post-publication punishment is not a form of censorship of speech. And I wonder if Mr. Jenkins would be so sanguine if the federal government established standard operating procedures for reviewing complaints about his articles and imposing a monetary penalty on them--would he insist that this is not censorship.

Posted by Howard Wasserman on May 7, 2017 at 05:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, May 06, 2017

Announcement: Prospective Law Teachers Workshop at SEALS

Each year, SEALS hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Boca Resort in Boca Raton, Florida on Wednesday, August 2 and Thursday, August 3. On Wednesday, there will be mock interviews between 8 and 10 AM with CV review sessions at 1:00. On Thursday, mock job talks will take place from 8 to 10 AM. And at 3:00 on Thursday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will give advice about getting hired in this “new" market. There are also many excellent panels on Tuesday, Wednesday, and Thursday that are targeted to newer law professors, which prospective law professors will also find helpful. See http://sealslawschools.org/submissions/program/programwp.asp.

If you are interested in participating in this year’s workshop, please send your CV to professor Brad Areheart (Tennessee) at brad.areheart@tennessee.edu, who co-chairs the committee along with Leah Grinvald (Suffolk). Applications are due by May 15, 2017. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at a wide variety of schools, including Tulane, South Carolina, UNC, Cal Western, Oklahoma, Boston U, Idaho, Colorado, Louisville, and others.

Posted by Howard Wasserman on May 6, 2017 at 04:35 PM in Teaching Law | Permalink | Comments (5)

Thursday, May 04, 2017

Should we explain bicameralism to President Trump?

And a question asked in all seriousness: When, if ever, has a President held a Rose Garden ceremony, surrounded by his party's house caucus, to celebrate one house approving a piece of legislation?

Update: A different question: What is the procedural equivalent of what Trump and the caucus did here in celebrating something that has no legal effect, but is a necessary step towards a conclusion that will have legal effect? Celebrating the denial of summary judgment or a motion to dismiss? Celebrating an indictment (this one is common in high-profile cases, but an indictment arguably has more legal meaning than passage in one house)? Celebrating (depending on which side you are on) the grant or denial of a motion to suppress evidence?

Posted by Howard Wasserman on May 4, 2017 at 06:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Call for Exclusive Submissions: Penn State Law Review

The following is from Penn State Law Review:

The Penn State Law Review is conducting a direct article review to fill positions in Volume 122: Issue 1 and 2. Any article submitted to this review between now and May 12th will be considered and evaluated by May 17th. If you have submitted an article to the Penn State Law Review previously, you must resubmit your article for consideration in this direct review. 

Continue reading "Call for Exclusive Submissions: Penn State Law Review"

Posted by Howard Wasserman on May 4, 2017 at 01:57 PM in Teaching Law | Permalink | Comments (0)

Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But let's suppose, just for sake of argument, that there were state action. How is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.

[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?

2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted by Howard Wasserman on May 4, 2017 at 12:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Let Us Compete

I am excited to share my op-ed in the New York Times which features my ongoing research on talent mobility, including my collaboration with the White House under the Obama administration.  I hope we can bring change - May the Fourth be with Us! One of the arguments I make in the article which I have not developed elsewhere is that while noncompete restrictions impose hardships on every worker, for women these restrictions tend to be compounded with other mobility constraints, including the need to coordinate dual careers, family geographical ties and job market re-entry after family leave. In other words, non-compete restrictions are likely to have a disparate impact on women and to contribute to the gender pay gap. I would of course love to get your thoughts. Here you can read the whole article.

I really like the original illustration by Scott Menchin in both the print and the digital editions. What I don't love is that the Times changed my title from Let Us Compete to Companies Compete but Won't Let Their Workers do the Same in the digital -- because it is questionable whether some companies these days compete enough, as Kenneth Bamberger and I are asking in a new paper called Platform Market Power, about antitrust law, dominance, and competition in the digital era; and in the print edition they gave it the title, Isn't Competition a Worker's Right? - which it should be yes, but my arguments in Talent Wants to be Free and here have always been that noncompetes are also problematic from an innovation policy perspective; it's not just a labor versus management issue.

Posted by Orly Lobel on May 4, 2017 at 11:54 AM | Permalink | Comments (0)

A Kingdom of Sensorveillance

Imagine a world of all seeing technology.  RFID bands track you from point to point.  Cameras surveil you everywhere you go.  Your movements, actions, what you eat, what you wear, who you are with are all monitored in real time and with the purpose to understand and predict your every need.

This dystopian future exists, is expensive, and is called Walt Disney World.  I know, because I became a subject in this totalizing surveillance experiment last month.

Continue reading "A Kingdom of Sensorveillance"

Posted by Andrew Guthrie Ferguson on May 4, 2017 at 10:00 AM | Permalink | Comments (2)

Wednesday, May 03, 2017

Infield fly rule is not in effect and it produces a triple play

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first.  It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central District of California Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.

Update: There is a debate in the umpiring community over when an umpire should invoke the Rule. One school says the call should be made when the ball is at its apex, the other says to wait longer until it is clear the infielder could catch the ball with ordinary effort, even waiting until the ball is almost in the glove. Those who urge invoking when the ball is at its apex point to plays such as this one as the justification--waiting longer than that does not leave the baserunners sufficient time to react and run on the non-call.

Posted by Howard Wasserman on May 3, 2017 at 01:57 PM in Howard Wasserman, Sports | Permalink | Comments (12)

Tuesday, May 02, 2017

transparency and Trump

I want to briefly plug my forthcoming book called The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information.  It extends and reshuffles writings I've published on transparency over the past decade or so. Among the problems with book publishing is the long lead time between submitting a manuscript and publication, and the results of the 2016 election requires at least some comment. Thanks to my editors at Stanford UP I was able to include a short epilogue extending the book's thesis and analysis to the election and President Trump.

More recently I published a brief essay in the public administration journal Governance about how Trump's version of populism and transparency's populist impulses collide and separate (and last I checked it wasn't behind a paywall). The easy answer is that Trump's populism excludes or is likely to curtail the basic assumptions of modern open government. This is what advocates maintain, and they're not wrong -- it's very difficult to imagine the current administration maintaining even the Obama administration's commitment to the traditional release of government documents. (Debates about the Obama administration's compliance with open government norms are complicated and highly contested; I discuss them in the book.)

That is by way of introduction to another remarkable document from the Trump Administration, released last week, entitled "President Trump's 100 Days of Accountability." (See also his op-ed in the Washington Post over the weekend.) Transparency has come to occupy a key position in the definition of "accountability," and of course the latter days of the 2016 campaign focused especially closely on (allegedly) lost government emails and the use of a private email server. But the president's notion of accountability speaks not of transparency but of returning power to the "American people." He is accountable by definition because he represents the people who had previously been shut out of government -- those whose interests and voice had been suppressed by and within the federal "swamp."

I'm less interested in the bullshit here than in what Trump's shifting use of accountability says about transparency. His supporters don't seem to mind Trump's efforts to decrease the flow of government information, despite the frequent assistance that Clinton should have been "locked up" at least in part because of her private email server. This shift could mean two things: First, that his supporters don't actually care about transparency. Hypocrisy! Of course, this allegation could be turned against Hillary supporters who were willing to overlook her email server or diminish its importance after they had no doubt shouted from the rooftops about Bush administration secrecy a decade earlier and Trump's secrecy now. Hypocrisy is a right answer, but also a boring one and it might merely be symptomatic of something else.

So, second, Trump is revealing that transparency is itself a component of a populist conception of governance and skepticism about the state; and, except for those advocates who are focused on the issue as a preeminent administrative norm, transparency is not in fact something about which there is a broad political consensus at the margins. In the abstract, we all agree that an open government is better than a closed one. But, if pushed, we jettison abstract administrative norms. Trump's redefinition of accountability as something that doesn't include transparency is acceptable to his supporters because they don't agree that transparency is more important than the positions that Trump symbolizes and those for which he advocates. Which is a key reason why transparency, despite its seeming preeminence, always frustrates its strongest advocates.

Posted by Mark Fenster on May 2, 2017 at 03:26 PM | Permalink | Comments (2)

Sabbatical?

"Sabbatical."  The word conjures up relaxation, release, and freedom.  Like a magical island that appears only once every seven years, it arrives free of attachments and boundless in possibilities.

But that freedom creates a problem.  There are no real rules, the rest of the world doesn't stop, and all of those grand projects saved up for "later" can't be accomplished in four months (or even seven months including the summer).

I have 17 days left of my first sabbatical and realize I wish I had been given some guidance about how to maximize the experience.  I know there has been some discussion in past years (2012 seems to be the last on Prawfsblawg), but I would have loved to hear the real successes or strategies. 

So Prawfsblawg community, what are the best uses of one's time on a sabbatical? 

  • Should sabbatical beneficiaries do something unusual (write a screenplay or novel)?
  • Should one focus on articles and more law review articles?
  • Should one concentrate on research?
  • Should one focus on class prep or non-writing projects?
  • Should one write that book you always talk about wishing to write?
  • Should one relax (head to a beach or foreign capital) to change one's perspective?
  • What should one not do?

Looking forward to your thoughts (for next time).  Thanks.

Posted by Andrew Guthrie Ferguson on May 2, 2017 at 02:35 PM | Permalink | Comments (6)

Two steps back on jurisdictionality

On Monday, SCOTUS unanimously (through Justice Breyer) held that plaintiffs must prove, not merely make non-frivolous allegations of, the elements of the exception to the Foreign Sovereign Immunities Act for cases where "rights in property taken in violation of international law are in issue." The plaintiff must prove and the court must find that the case involves property rights and that the property was taken in violation of international law--if the claim fails on either point, the court lacks jurisdiction. This must be the approach even if the findings overlap with the merits of the claim and even if the findings are not made until later in the case (although the Court also said resolution should be made "as near to the outset of the case as is reasonable possible").

This is the first time in a while the Court has declined to draw a sharp separation between jurisdiction and everything else and to adopt the narrower conception of jurisdiction. The Court was swayed by the foreign-relations and international-comity implications of the contrary result, under which sovereigns would have had to litigate the merits, which may have caused litigation to continue for longer. The Court rejected the plaintiff's analogy to § 1331, emphasizing the different language and the textual import of consistency with international law as to FSIA but not to § 1331. The Court was unconcerned with merits-jurisdiction overlap, emphasizing that in most cases the jurisdictional facts (property and violation of international law) are not part of the merits.* These facts thus were more like the fact of citizenship in diversity cases than whether a claim is created by federal law.

[*] The court of appeals tried a middle ground--proof of jurisdictional fact was necessary where the merits did not overlap, while nonfrivolous allegations were sufficient where they did. SCOTUS said this approach was contrary to the text of FSIA.

Continue reading "Two steps back on jurisdictionality"

Posted by Howard Wasserman on May 2, 2017 at 08:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 01, 2017

Law-STEM junior scholar conference. Papers wanted!

INAUGURAL JUNIOR FACULTY FORUM FOR LAW AND STEM

University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

 Call for Papers

 

 The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford.  The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017.  The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present.  One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

  • Artificial intelligence
  • Assisted reproduction
  • Autonomous vehicles
  • Bitcoin and other blockchain technologies
  • Computational law
  • Customized medicine
  • Epigenetics
  • Genomics: Human and Non-Human
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Smart contracting and automated analysis of legal texts
  • Stem cell research
  • Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years.  Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria.  Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible.  Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.”  The deadline for submission is Friday, June 9, 2017.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at ctic@law.upenn.edu

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Posted by Dan Rodriguez on May 1, 2017 at 05:48 PM in Daniel Rodriguez, Information and Technology, Symposium | Permalink | Comments (0)

Genuine dispute as to any basic fact

In response to my posts on the cert denial in Salazar-Limon, a civil procedure colleague blames Celotex, calling this decision a logical extension of the opening of summary judgment. The explanation was as follows: 1) Defendant can move by "pointing" to a lack of evidence, here of not reaching for the waistband; 2) plaintiff could not offer proof of his version, because he did not say at his deposition (because he was not asked) whether he reached for his waistband; 3) plaintiff bears the burden of persuasion, so defendant wins.

I do not find Celotex problematic--having the exchange of evidence on summary judgment resemble the exchange of evidence on judgment as a matter of law at trial makes sense. But I agree that the lower court was wrong in Salazar-Limon.

My explanation for those conclusions is something I suggested but did not fully elaborate on in my first post and the comments. Courts on summary judgment are insisting on contradictory direct evidence (i.e., contradictory testimony) on a basic fact. What courts are supposed to do is dive into the record, identify the material fact to be inferred from any basic facts, and determine whether all the evidence allows a reasonable jury to find that material fact in either direction. In other words, courts are asking if there is a genuine dispute as to a basic fact. Courts are supposed to look for a genuine dispute as to a material fact, a dispute that can arise because of a dispute over a basic fact or because of other evidence of the material fact that does not rely on the same basic fact.

Continue reading "Genuine dispute as to any basic fact"

Posted by Howard Wasserman on May 1, 2017 at 04:59 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Film Notes: PRE-CRIME

Thanks to Howard and the Prawfsblawg family for having me back.  Apologies for quick first post, but I am just coming back from one of the cooler perks of an already cool job, being flown to the opening premiere of a documentary film that just so happens to capture most of one's scholarly interests.  I will admit that the red carpet at the Toronto HotDocs Film Festival has fewer cameras than the Oscars and my post-screening Q & A was far more substantive than Ryan Seacrest's usual questions, but it is hard to beat as an experience.

The film is PRE-CRIME – a documentary that exposes the world of predictive policing and big data surveillance (two of my favorite scholarly subjects).  The topics explored by the film involve the growing use of predictive technologies to forecast crime as well as new forms of mass surveillance technologies to investigate crime.  The film directors – Monika Hielscher and Matthias Heider – provide a wonderfully visual description of the type of technology I detail in various law review articles, making me wish I could turn all of my articles into documentary films.

If you see it come your way, PRE-CRIME is an engaging film. 

Posted by Andrew Guthrie Ferguson on May 1, 2017 at 11:10 AM | Permalink | Comments (1)

Entry Level Hiring: The 2017 Report - Final (?) Call for Information

Update, 5/5/17: It appears that the hiring process at several schools will not be over until at least the end of the month, so I will hold off closing the report until then.

 

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Monday, May 8. If, however, you know that there is ongoing hiring (last year, for example, I was told that some schools were working on hiring until mid-May), please let me know, and I will extend that date. Absent any such information, though, I will close the report on Monday, May 8.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 8, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 1, 2017 at 11:00 AM in Entry Level Hiring Report | Permalink | Comments (0)

Congress: Step Away from the Class Action!

My previous posts noted that, for libertarians, there is no simple algorithm for fixing the class action.  Despite this, there is a once-a-decade push from right-of-center think tanks for a congressional class action “fix.”

The problem with this, I’ve suggested, is that congressional legislation in this area tends toward crude categorization and simple algorithms. First, the intensity of interest group attention to class actions tends to push reform in directions that serve blunt private interests of portions of the practicing bar, at the expense of more complex public values.  Second, class action reform has long been an important battleground for partisan identity signaling—one does not get on the good side of the base of either party by arguing for a nuanced treatment of class litigation (although, as Adam Zimmerman highlighted in a comment, there are signs this may be changing). 

Both problems explain Congress’s tendency, evident in features of the Fairness in Class Action Litigation Act, to take some arguably useful refinements of the class action law in the private market class action and reflexively extend them to public rights litigation, where those refinements may do more harm than good. 

That’s why I tend to agree with Myriam Gilles that it is better to leave reform of certification standards, at least in the near term, to the Court, which is much better adapted than contemporary Congresses to make the often nuanced institutional judgments that certification doctrine demands.  Libertarians and progressives may not agree on every feature of class action reform, but they ought, I would argue, to agree on that much.

It’s a position, by the way, I’ve come to reluctantly:  I’ve argued elsewhere that separation of powers principles favor a more robust role for congressional oversight of the class action.

But I’ve also come to appreciate that the Court can capture some of the benefits of functional political branch oversight in the class action area by replicating that oversight “in house,” through a system of intrabranch or “internal” separation of powers.  This is something I explore, by the way, in this new draft piece.

Anyway, thanks to Howard and Prawfs for having me—and apologies to the Prawfs management for infrequent posts. I’ve been pulled in ten different directions this month at my home institution, making this a much busier April here in Chicago than I expected!

Posted by Mark Moller on May 1, 2017 at 03:56 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Rotations

Welcome to our May guests--Ben Edwards (Barry, headed to UNLV) and Andy Ferguson (UDC) and thanks to our April guests, some of whom will be sticking around for a few more days.

Posted by Howard Wasserman on May 1, 2017 at 03:38 AM in Blogging | Permalink | Comments (0)

Thursday, April 27, 2017

reforming law reviews (a non-radical solution)

In my last post, I outlined what I saw as the incumbent players who would be likely to resist significant and comprehensive reform. To summarize, most law reviews want to self-govern; administrators view their law reviews as co-curricular activities and worry more about other important issues that their schools face; faculty complain but benefit from the current system because it allows them to avoid administrative responsibility for scholarly publications in their field; and AALS has not to date demonstrated much interest in reforming the system (though that might change, according to Brian Galle in a comment). Add to that list an additional incumbent that a comment smartly noted: Scholastica (and to a lesser extent Expresso), which profits from the multiple submission, student-run model of law reviews -- a model that peer review would most likely harm if not destroy.

This is why I am bearish on significant reform, absent an external shock to the legal academic system. And it's why I am especially bearish on the potential for the kind of radical reform that many if not most comments (especially the anonymous, snarky ones!) want: the single-submission, double-blind peer-review model that pervades most of the rest of the academy.

My main goal in this series has been to move the blame for this system off of the students -- which I often feel is where it lands, especially during submission season -- and place it not solely on faculty (where the blame also lands, especially among snarky, anonymous comments) but on a set of institutions (including faculty) that have grown up around a longstanding and imperfect system. Faculty are a part of the problem, but to view them as the sole problem is to misunderstand the system.

That said, I do have one relatively small idea that places some small responsibility on all the major players.

Continue reading "reforming law reviews (a non-radical solution)"

Posted by Mark Fenster on April 27, 2017 at 09:46 PM | Permalink | Comments (13)

#I 🔫U: Considering the Context of Online Threats

Tomorrow, I'm fortunate to be travelling to the Yale Freedom of Expression Scholars Conference. I love the format of this conference, because you have to present someone else's paper and someone else has to present yours. This format really helps you understand where your draft is lacking and get creative ideas for filling the holes. My paper, written with UF Law/Journalism JD/MA Linda Riedemann Norbut, is called #I 🔫U: Considering the Context of Online Threats and  advocates for a context defense to prevent overcriminalization of threats. Here's the abstract, in case you're interested. Email if you'd like to receive a draft. I've already found that having an emoji in one's article title is a hassle, in case you were contemplating using one. The hassle factor may be even worse if one chooses to use a gun emoji.

The U.S. Supreme Court has failed to address a number of fundamental questions regarding its true threats doctrine. Unanswered, for example, are whether lower courts should view threats from the vantage of the speaker, a reasonable recipient, a reasonable reader, or all of the above; what mens rea the First Amendment require before an alleged threat can be subject to criminal punishment; whether a threat must be specific to justify criminal punishment; and whether threatened violence must be imminent. The Court’s failure to provide guidance for the legal decision-makers who investigate, prosecute, and adjudicate threats is especially acute in the social media era: as billions of people have begun using social media for communications, alleged threats have grown massively. Meanwhile, the Court’s failure to clarify true threats doctrine is having real consequences for real people. This article illustrates by close examination of the case of a Texas teenager who made hyperbolic comments about shooting up a school and found out the hard way that legal decision-makers do not always apprehend how Facebook conversations differ from their offline counterparts. Using the Justin Carter case as an analytical springboard, this article proposes richer inclusion of contextual evidence in threats case to ensure that innocent hyperbole is not confused with culpable threats. The article compares social media speech with its offline counterpart, examining facets of social media that can make hateful and even terroristic speech potentially more common and more damaging to victims, as well as facets that can magnify the potential for a speaker’s innocent words to be misunderstood. This analysis suggest that it is impossible to correctly interpret social media speech without reference to contextual factors such as emojis or hashtags as well as the distinct discourse conventions within social media platforms; only by considering these and other contextual clues can legal decision-makers avoid imposing liability on innocent speakers for protected speech. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often before they must undergo the anxiety and expense of trial.  This article therefore proposes to give criminal defendants a new defense in threats cases: this defense will permit defendants to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases where contextual issues cannot be resolved pre-trial, the context defense entitles a defendant to produce evidence of context at trial and have the jury be instructed regarding the critical role of context in separating threats from protected speech. Although the context defense will be especially helpful in social media cases, its use in all threats cases will provide an important safeguard against erroneous convictions of speech protected by the First Amendment.

Posted by Lyrissa Lidsky on April 27, 2017 at 03:45 PM | Permalink | Comments (1)

More on summary judgment and qualified immunity

Following on my post on Monday's cert denial in Salazar-Limon: Justice Sotomayor questioned that denial in light of the Court's recent summary reversals in cases denying qualified immunity. It is notable for the coincidence that on the same day, the Court denied cert in Needham v. Lewis, a case in which a divided Sixth Circuit denied summary judgment in favor of the officer in a case featuring dashcam video. The majority insisted that a reasonable jury could interpret the video in competing ways (in the face of the dissent saying "That is not the video I have reviewed," not realizing that this is not her job on summary judgment) and that general principles clearly establish that fleeing a traffic stop, without more, does not justify deadly force. The denial also is surprising, first because the type of case the Court has been summarily reversing, and second because of the presence of video and the greater leeway the Court has allowed itself in video cases.

One interesting feature in Needham is that the defendant moved for summary judgment prior to discovery, with the video as the only thing in the record. The court declined to treat the video as one-sided. But perhaps officer testimony confirming the video would have placed the case more squarely within Scott and Plumoff.

Posted by Howard Wasserman on April 27, 2017 at 07:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Wednesday, April 26, 2017

"Gimme My Drugs"

My last post was a little depressing (even for me) so I thought I’d bring my blog stint to a close with another big event in the death penalty world this past week: the FDA’s final decision on 1000 vials of imported sodium thiopental.

To be (in the United States), or not to beThat’s been the question since 2015, when the drugs were confiscated by customs and border protection pursuant to an FDA-requested hold. The FDA issued its answer late last week—not to be—and on Monday, Texas said it would challenge that decision in federal Court. Gimme my drugs, now.

The backstory on all this is that the FDA is required to refuse entry to imports of “unapproved and/or misbranded” drugs (it originally tried to say that its duty in that regard didn’t apply to execution drugs, but a court in 2012 disagreed so here we are) and in 2015, the FDA warned states that importing the drugs from Harris Pharma, an Indian pharmaceutical company (kinda sorta, more on that in a minute) would be illegal.

Yet, they persisted. Arizona, Texas, and Nebraska bought the drugs from Harris Pharma anyway, so when they arrived at the border in 2015, they were confiscated.  Each state paid Harris $25,000 for the sale.

My sense is that the FDA hoped that would be the end of the matter, but of course that was wishful thinking. Texas eventually sued, alleging that the FDA couldn’t hold the drugs without making a decision on the legality of their being imported.  So the FDA made a decision, which brings us to where we are now.

The FDA has given several bases for its decision.  The vials have “no recommended dose and offer no instructions for reconstituting the powder inside the vials” and “its labeling contains no precautions, contraindications, or warnings, or other information required in prescribing information for health professionals.”  In short, it’s not just misbranded—it’s not branded at all.

And Harris Pharma is not an FDA-approved supplier of sodium thiopental. The last FDA-approved supplier of sodium thiopental stopped making it in 2011 for the very reason that states were using it for executions.

All that is well and fine—but the most interesting part of the story is the one that neither the FDA nor the states are talking about, and that’s Harris Pharma.

Harris Pharma is just a guy. His name is Chris Harris, and he has no pharmaceutical background whatsoever.  Before he was Harris Pharma, he was working with the Mumbai-based Kayem Pharmaceuticals—not working for Kayem (despite showing off business cards that listed himself as Kayem’s “director”) but working with it.  Kayem’s CEO says the company was looking to get into e-commerce, and that he was introduced to Harris online.  He never met Harris, but they had a “commercial understanding.”  That understanding soured when Harris sold 500 vials of Kayem’s sodium thiopental to South Dakota for executions (they expired without ever being used).  That year—2011—Kayem and Harris parted ways, and Harris started Harris Pharma.

That’s the sum of Harris’s pharmaceutical experience. Before working with Kayem, Harris worked in a duty-free shop in the Abu Dhabi International Airport, and then held a handful of jobs at various call centers, staying for around a year at each.

Wait, there’s more. The location of Harris Pharma—where this pharmaceutical company’s manufacturing and distribution business is based—is actually just one of 61 offices on the 8th floor of an office complex in Kolkata.  The office rental company representative who manages the property says that Harris doesn’t manufacture drugs in the rented office (it’s too small to accommodate the sort of lab equipment to manufacture pharmaceutical drugs) and that he only comes in 2-3 times a month.  So where is Harris Pharma doing its business?

Harris Pharma has a second listed business location, the location Harris gave the DEA as an address (Nebraska too)—but that’s a residential apartment and he hasn’t lived there in more than 2 years. Harris’s landlord says he hadn’t paid rent or electricity bills in 7 months, and then just left.

Interestingly, Harris told a former neighbor that his job was manufacturing and selling “sexual feel drugs” on a website.  Kayem Pharmaceuticals does sell drugs to “enhance male sexual performance” so perhaps Harris was selling Kayem’s performance drugs on the sly too.

This is Harris Pharma, the overseas supplier of the drugs that Texas, Nebraska, and Arizona claim that they are entitled to. It’s worth noting that both Texas and Arizona have secrecy laws—and Nebraska is debating one as I write—that would keep us from knowing about any of this if it hadn’t been for  the FDA border spat and some good investigative reporting that followed.

I would probably find all this amusing if not for the fact that we’re talking about the state taking the life of one of its own citizens—the most serious and solemn task it can possibly have.

Posted by Corinna Lain on April 26, 2017 at 01:05 PM | Permalink | Comments (12)

Problems of scope and nomenclature in nationwide injunctions

Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.

This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.

And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.

The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.

But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.

Posted by Howard Wasserman on April 26, 2017 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Better Call Saul does professional responsibility

If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.

Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?

I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.

Posted by Howard Wasserman on April 26, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (8)

A Bipartisan Federalism Alternative?

I am late to the conversation, but at the end of last year and early this year there was a discussion about progressive interest in federalism during the Trump Administration.  The dialogue was rich and substantial, and some good posts to consult as part of that discussion were those by Rick Hills here, Heather Gerken here, and Ilya Somin here.  One of the topics of contention was whether federalism had or could attract bipartisan support in hyper-polarized times.

I want to present an alternative institutional arrangement that has attracted bipartisan support: decentralizing federal power.  I have written about this previously, and blogged about it last month here, here and here.  Several Republicans in Congress have introduced legislation to address this issue, and last week prominent Democratic Representative Tim Ryan from Ohio introduced related legislation (even though previous votes on this issue had been along party lines).

The Republican proposal—unfortunately called the “Drain the Swamp Act of 2017”—suggests that 90 percent of federal officials in Washington D.C. be relocated and relatively soon.  This is a very bad idea.  While I have argued that too many federal officials are in Washington, moving this many this fast is a very bad idea.  The Ryan proposal seems more sensible, asking for a commission to consider the issue and make suggestions.

One of the issues I have addressed in past writings and am addressing in current writings is how decentralizing federal power is both a compliment and substitute to federalism.  The comparison is particularly instructive now, given that decentralizing federal power could attract bipartisan support in a way that federalism might not be.

Posted by David Fontana on April 26, 2017 at 09:03 AM | Permalink | Comments (0)