Tuesday, January 26, 2016
Is It TB That Ails Us?
Last week, the New York Times reported a tuberculosis outbreak in Marion Alabama so severe that TB incidence in Marion is now at a rate that exceeds TB incidence in much of the developing world. Marion is the county seat of Perry County and it is saying something when a city of roughly 3,600 people has had 20 cases of active TB diagnosed in the last two years alone, producing two TB related deaths. Those who count TB infections do not typically count latent infections -- relatively easily if time-consumingly treated -- though these have been documented in a further two dozen people.
Now, if there have been 20 active cases, the latent infection rate is likely much higher than that, but no one knows how much higher since screening for latent TB infection in the general population is not standard procedure in the United States. Why such screening for latent TB has not been pursued earlier in Alabama is a more difficult question. Long before the New York Times arrived on the scene, TB cases have been unusually high in Alabama. The number of tuberculosis cases increased in 2014 in Alabama, but decreased nationwide. Across the nation, the number of new infections decreased by more than 2 percent. In 2014, there were 133 cases of tuberculosis in Alabama, compared to 108 the year before. The TB trajectory in Alabama has not been good for some time.
The reasons for this are hard to parse. As the New York Times points out, there is a tradition of limited access to health care in this low income rural community where lack of reliable transportation to health care venues looms as one of the chief causes of limited health care access. Since the data shows that those with transportation -- disproportionately the insured -- use that transportation to leave the community for health care, leaving the uninsured lacking transportation to seek care locally, it is no wonder 54 of Alabama's 55 rural counties have official shortages of primary care providers. After all, good payor mix in your patient panel is one of the ingredients to successful sustainable practice.
The Third Team at the Super Bowl
On Sunday night, my beloved Denver Broncos and the Carolina Panthers punched their tickets for Super Bowl 50. Both teams should be proud. The Broncos have spent months working together to gel as a team to reach this moment, and the Panthers no less. But the outcome of the game may ultimately rest on the teamwork of another group in the field, a group that will have barely worked together at all. I’m talking, of course, about the officiating crew.
National Football League officiating crews generally remain together through the regular season: the same officials work together (at different venues) each week. Once the playoffs start, however, the highest graded officials at each position are chosen to continue working games, and they are reshuffled into new “All-Star-style” crews. The crew assigned to the Super Bowl (headed this year by referee Clete Blakeman) gets one divisional round game as a warm-up, but that’s it. The officials who take the field on February 7 are among the very best individually at their positions, but their performance as a group is a much greater unknown.
Does it matter? Cognitive psychology says yes, and the lessons carry broadly into many realms of law.
Fashion & Design Law: Stories the Students Collected
As part of their first week assignment, I asked the students to bring in stories about fashion law legal disputes that they found interesting. The variety of stories they chose reflect the diversity of topics that arise in fashion law.
Some students were interested the business aspects of fashion law, including what we should consider a “fair” business practice. For instance, students discussed trademark infringement claims against retailers that sell inexpensive imitations of designer clothes. Even when the courts found no trademark infringement, some students were concerned that such retailers were unfairly profiting by copying the creative work of others. Of course, what is fair or unfair can be a matter of perspective. While some of the students disagreed with this “free riding,” other students observed that these retailers service a different clientele from the upscale fashion boutiques. It was not clear to them, therefore, that the high-end designers suffered any loss of business. Nonetheless there seemed to be some consensus that the reputation of a luxury brand could be harmed by widely available low quality look-alikes.
Students also selected stories, such as the Gucci/Guess trademark dispute about the interlocking G’s and other Gucci trademarks. The Gucci/Guess dispute presents a good comparative law case study because the litigation led to different results in different countries. For instance, Gucci found success when it litigated in the United States. However, Italian courts were less sympathetic to Gucci, and decided in favor of Guess. Another case that was identified by students was the recent copyright litigation, Varsity Brands Inc. v. Star Athletica, LLC, which addressed whether the stripes on cheerleading uniforms could be protected by copyright. The Court of Appeals for the Sixth Circuit concluded that the stripes were “conceptually separable” from the utilitarian aspects of the cheerleading uniform. The Court rejected Star’s argument that the stripes on the uniform are utilitarian and that the uniform would not be recognized as a cheerleading uniform without the stripes.
On the international human rights and employment side, a couple of students talked about child labor and sweatshops, and the relationship with our demand for low cost products. Finally, students made the connection between culture and fashion. For instance an indigenous group in Mexico objected to a French fashion designer basing her clothing designs on their cultural clothing. The Mexican group asserted that the actions of the French designer amounted to theft and cultural appropriation. There are other issues that we will discuss in Fashion & Design Law, but this represents a good sampling of the topics we will cover over the course of the semester.
 Varsity Brands, pp. 26-28
Monday, January 25, 2016
More judicial departmentalism
A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.
First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]
Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.
Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.
Sunday, January 24, 2016
Sunday Sci-Fi Pay Equity Blog
The X-Files returns tonight. The world seems a wee bit better when Mulder and Scully are flirting while chasing aliens and discovering inbred Pennsylvanians tied under beds.
And the good news is that the show's stars, David Duchovny and Gillian Anderson, will be receiving equal pay for the revival. According to this story, as well as a gaggle of others, Anderson was initially offered half of Duchovny's salary. Which is, you know, silly, especially since she had to fight for equal pay with her co-star the first time around. Apparently, when the show first started, Anderson was instructed to walk behind, rather than alongside, Duchovny, so she would seem more like a sidekick than a partner.
I, of course, blame the government. It's a conspiracy. Aliens are involved. The truth is out there.
Saturday, January 23, 2016
Harvard Hillel Conversation and Shabbat Dinner in Memory of Dan
After the jump is an announcement about an event on April 15, sponsored by Harvard Hillel and the Markel Family--a Law School Conversation and Shabbat Dinner in Memory of Dan. Spread the word. We will post additional announcements as the event draws near.
Show (audibly), don't tell
Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.
Little Minorities/Little Staff Attorneys
Several of the same old structures continue to defy meaningful and lasting progress and continue with inequities. I'm talking about "little minorities" and "little staff attorneys," and the variety of or dearth of responses to an outcry against discriminatory practices.
As everyone is no doubt aware, the Academy of Motion Picture Arts and Sciences this week announced its nominees for the 88th Annual Academy Awards. Variety reports that the nominees:
A Powerful Shock to the System: Cardiac Rhythm Management at the False Claims Act Crossroads
For the past several months, a series of announced hospital settlements with the U.S. Department of Justice under the Federal False Claims Act has been gathering momentum and interest. Reported to be the product of years of investigative work, the 450 plus hospitals that have settled with the government for more than$250 million dollars are rumored to yet be only the tip of the iceberg of a nationwide investigation into the suspected overuse of implantable cardiac devices. These ICDs are spendy, costing about $25,000 each in comparison to a more conventional pacemaker that might cost less than 50 percent as much. It has been noted elsewhere that, "[c]ardiovascular disease remains one of the largest cost drivers in medicine."
Anything involving more than 450 American hospitals ought to be of interest and an investigation involving a rumored twice that number of American hospitals out to be riveting. The fact that HCA has 42 hospitals, to date, involved in these settlements (though scores more, reportedly, involved in the investigation) also ought to be of interest. HCA's troubled history with overuse of lucrative cardiac treatments is the stuff of legend. HCA is a hospital behemoth, particularly in the disproportionately Medicare enrolled population of Florida. An estimated two thirds of the entrants on this 2014 list of the most profitable hospitals in the United States are HCA facilities. A full five percent of all U.S. hospital services take place at an HCA facility.
"Affirmative" Benefits versus "Negative" Non-Prosecution: May the President Provide Former When It's Necessary & Proper for the Latter?
The Fifth Circuit's decision in Texas v. United States distinguishes the Obama Administration's DAPA policy from ordinary executive decisions not to prosecute on the ground that the former provide "affirmative benefits"-- work authorization -- rather than mere "negative" prosecutorial inaction. "Negative" refusal to prosecute is generally immune from judicial review under APA section 701(a)(2), becase it is "committed to agency discretion by law" under Heckler v. Chaney. "Affirmative" decisions to (for instance) extend work authorization and trigger accompanying benefits like unemployment insurance are said to be quite different (see page 36 of Texas v. United States).
This "affirmative"/"negative" distinction, however, runs against one practical obstacle: No president could sensibly or practically adopt a decision not to prosecute certain categories of offenders without providing those offenders with at least some "affirmative" protections. The latter, therefore, can be said to be "necessary and proper" for implementing the president's undoubted Article II power of prosecutorial discretion.
The point can be illustrated by the Treasury Department's guidance on banks' accepting deposits from marijuana-related businesses. The guidance seems awfully similar to work authorization under DAPA: It allows banks to engage in actions flatly forbidden by federal money laundering laws, not merely by "negatively" refusing to enforce those laws against banks but by "affirmatively" providing a safe harbor for banks that meet the guidance's criteria. The guidance has inspired mighty little opposition from those who seem otherwise perturbed by DAPA. (Texas v. United States does not discuss FinCEN's banking guidance at all, even though Judge Smith distinguishes DAPA from the Cole Memo defining non-prosecution marijuana-related businesses at footnote 101. Senator Charles Grassley complained that the guidance violated the Take Care clause, but his complaint has gotten no traction with others).
One reason might be that the relationship between banking guidance and federal non-prosecution of marijuana-relatd businesses in Colorado seems as tight as a rusty nut and bolt. Allowing marijuana-related business to operate free from criminal prosecution but not allowing them to park their cash in safe and sound banks is an invitation to chaos and thievery. If the former policy is legitimate prosecutorial discretion, then the latter is surely necessary and proper to implement the former. But note that precisely the same argument justifies DAPA: Bringing unlawfully present persons covered by DAPA out of the legal shadows seems just as practically necessary for sustaining DAPA's non-prosecution as bringing pot money into bank vaults.
Against this reasoning, one might make (1) a text-based argument that Article II contains no "necessary and proper" clause and (2) a more functional argument that, by making it practically onerous to engage in non-prosecution, the absence of such an implied N&P executive power deters de facto presidential law-making. After the jump, I will offer a couple of reasons why these arguments seem thin to me.
Is Lawless Behavior by Street-Level Bureaucrats "More Executive"? The Mystifying Persistence of "Case-by-Case" in the Debate over Prosecutorial Discretion
As everyone knows who follows the debate over the Obama Administration's DACA guidance and whether it violates the "take care" clause, a central issue in the debate has been whether DACA provides for "case-by-case" review of unlawfully present alien's applications for DACA status. The OLC memo on the subject of prosecutorial discretion makes the "case-by-case" character of such review critical to determining whether the executive is unconstitutionally engaging in legislation or permissibly exercising prosecutorial discretion. The Obama Administration's briefs and affidavits and the DACA policy itself proclaim that they permit DHS officials to exercise "case-by-case" discretion in implementing the guidance. The Fifth Circuit's opinion in Texas v. United States affirms the district court's finding that the policy did not have this apparently necessary "case-by-case" quality (albeit not on the constitutional question but rather on the APA question of whether the DACA qualified as a "policy statement" exempt from the obligation to undergo N&C rule-making process).
To all of which I am inclined to say: Why would anyone think that the "case-by-case" character of a policy has anything whatsoever to do with the question of whether it constitutes permissible "executive" discretion or unconstitutional "legislation"? I see no reason to view a policy as any less "executive" in character because it honors rule-of-law values by being a bright-line rule admitting of no exceptions,. Why is lawlessness the hallmark of "executive" action? Is there some purpose to encourage street-level bureaucrats to engage in a little whimsical and unpredictable action, immune from presidential oversight, immanent in Article II? True, prosecutorial discretion often has such a lawless character -- but I took that to be a bug, not a feature.
Adam Cox, my colleague (and former con law student: Damn, I'm old) and Cristina Rodriguez (my former colleague) have asked this question in article-length form in The President and Immigration Law Redux. I reiterate the question just to advertise their contribution and solicit defenses of the opposite position. Unaided by your crowd-sourced wisdom, I am afraid that I cannot fathom the point of protecting opacity in enforcement priorities with constitutional doctrine.
Thursday, January 21, 2016
What Would Publius Do? He Would Not Cite Publius.
I am now in Austin, Texas, attending a conference on The Federalist Papers, enjoying 60+ degree F weather, sunny skies, and historians who know far more about Madison and Hamilton than I do. Sandy Levinson's book of essays on The Federalist is one focus of the conference; Noah Feldman's intellectual biography of Madison is another. Jack Rakove has been commenting on both. If I am lucky, I will get snowed in until Sunday.
The Federalist is, I imagine, the most frequently cited Founding Era source regarding the purposes of the Constitution's institutions. If one regards Publius as not just a polemicist but also as a political scientist, however, then such a use of The Federalist is precisely the sort of use that Publius himself (themselves?) would reject. Publius the Political Scientist made many predictions about institutional behavior that, according to Publius, had to be tested against experience. As John Ferejohn and I argue in "Publius as Political Scientist," an essay that will appear in a Cambridge collection edited by Jack Rakove and Colleen Sheehan, James Madison came to repudiate many of the specific institutional predictions about the behavior of Congress, the states, the President, and voters that he made in his role as Publius. As Madison discovered in the 1790s, Congress was weak and disorganized compared to a unitary executive; the President needed to be curbed and not bolstered; the voters would not be rallied by state politicians, allegedly closer to the people, as effectively as they were rallied by George Washington's denigrating the Democratic-Republican clubs; and, contrary to Federalist #10, majorities could not control a cabal of financiers masquerading as the People without themselves forming tightly knit partisan organization's that Federalost #10 condemns.
In repudiating his specific institutional predictions, however, Madison did not repudiate Publius' theory of human nature or collective action or values. Madison simply applied these basic premises to the new data he obtained from his struggles during the 1790s over the Bank, the Whiskey Rebellion, Jay's Treaty, the Neutrality Proclamation, and the Alien & Sedition Act. Like any good political scientist, he revised his specific institutional predictions in light of "that best oracle of wisdom, experience" (Federalist #15). The implication, I think, is that Publius would have advised us not to cite Publius -- at least, not to cite Publius as an authority for how Congress or the President or majority factions or courts were likely to behave. Which is the Least Dangerous Branch, from what source does the disease to which republics are most prone arise, and so forth -- all of these questions ought to be worked out by ourselves, through post-enactment experience, not through citations.
None of which is to say that we law profs should not attend conferences about The Federalist -- especially in warmer climates in January.
Is DAPA about "Negative" Refusal to Deport? Or "Affirmative" grant of benefits?
Deep at the heart of Judge Jerre Smith’s opinion for the Fifth Circuit in Texas v. United States is an apparently contradictory interpretation of two different parts of the APA that brings joy to my student-confusing, puzzle-loving, Leg-Reg teaching side but leaves me scratching my head on how Judge Smith got the Fifth Circuit to go along.
On one hand, Part V(A)(1) of Judge Smith’s opinion finds that DAPA is reviewable because it is not merely an exercise of prosecutorial discretion akin to the FDA’s decision not to bring an action against drug makers in Heckler v. Chaney. Instead, DAPA insures that unlawfully present persons will become eligible to receive “benefits” like Social Security, Unemployment Insurance, and Texas drivers’ licenses. Because DAPA “would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens,” it is, according to Judge Smith, “much more than nonenforcement” (page 35). Such an eligibility policy, unlike a bare decision not to prosecute, can, according to Judge Smith, be tested against statutory standards and so is reviewable under APA section 701.
But if DAPA s really a policy about payment of, or eligibility for, benefits, then should it not be exempt from notice-and-comment rule-making under APA section 553(a)(2), because it is “a matter relating to . . . public property, loans, grants,benefits, or contracts”? No, Judge Smith reasons in Part VI(C) of his opinion: “DAPA does not ‘clearly and directly’ relate to public benefits as that term is used in § 553(a)(2).” Why? Because the “USCIS—the agency tasked with evaluating DAPA applications—is not an agency managing benefit programs” such that “[p]ersons who meet the DAPA criteria do not directly receive the kind of public benefit that has been recognized, or was likely to have been included, under this exception” (page 53). It seems that eligibility to receive various benefits is merely collateral consequence of a decision not to prosecute, not a “direct” decision about benefits themselves.
So which is it? Is DAPA an “affirmative” rule defining eligibility for benefits? Then why is DAPA not a “matter relating to . . . public property, loans, grants,benefits, or contracts”? If HHS were defining eligibility of unlawfully present alien's to receive, say, TANF benefits, they would not have to put the question through N&P rule-making, right? Or is such eligibility merely an incidental byproduct of an otherwise unreviewable “negative” exercise of prosecutorial discretion by DHS? Then why is the decision about DAPA not committed to agency discretion and, therefore, unreviewable under APA section 701? After all, if a U.S. Attorney adopted a non-prosecution policy on, say, sale of medical marijuana, we would not say that such policy’s indirect effects on the seller’s power to get the benefits of, say, state property law (because the marijuana proceeds would not be forfeit) invited judicial review review of the exercise of prosecutorial discretion.
Can someone else find a space between the two lemma's above? I admit that I might be blinded by my libertarian support for DAPA’s policy merits to see the legal merits of Judge Smith’s argument as clearly as they deserve.
A Criminal Law class-materials request
Like every third person on the planet, I like Serial. Regardless of what people are saying about the podcast's second season, the show is very good. These are master storytellers at the height of their game. Now that the show is leaking out slower than it used to, I've had more time to think about it. And that's one of the things I like best about it.
Waiting often sucks. My friend is late to pick me up. Sucks. The light has been green for twenty seconds and no one is driving their effing car. Sucks. The professor still hasn't posted grades. Sucks. But the anticipation is wonderful. The waiting is one of the things that makes it great.
Don't get me wrong. I binge with the best of them. I binge-watch shows that beg for a cooling off period, like Sundance Channel's Rectify. It's a beautiful show, to be sure, but the main character's whole Boo Radley thing is straining, especially when you power into the third episode straight. And yet I chug it down like it has the antidote. Perhaps the problem is my lack of self-control, but that's a different post for a different day.
There's a lot of talk out there about the changing nature of entertainment norms and structures. Content is increasingly being dumped at once, and we watchers/listeners/readers have more access to good content than ever before. For the most part, I think this is great. I just worry that we lose the benefit of anticipation. My son is 12. Basically all he knows is streaming content (and he's never looked up something in a phone book, which is messed up.) I like to have stories stick with me. I like the opportunity to speculate. I like being able to set down a show for a bit. And Netflix knows this about me, which is why it just fires up the next episode. Don't let him stop. Keep him watching. Eventually he'll give in and watch Marco Polo or Hemlock Grove.
It's only a matter of time before the major networks abandon the current method of scheduling programming. And it's a shame. A show like Lost shouldn't be binge-watched. You have to dedicate a certain amount of hours to wondering where that frigging polar bear came from. The struggle is real, and we're losing it, and that's unfortunate.
Wednesday, January 20, 2016
SCOTUS on Wednesday decided Campbell-Ewald v. Gomez, holding that an unaccepted offer of judgment and offer of settlement do not moot a case. Justice Ginsburg wrote for herself and Justices Kennedy, Breyer, Sotomayor, and Kagan, stating that an unaccepted offer is like an unaccepted contract offer, having no legal force or effect and thus insufficient to moot the case. Justice Thomas concurred in the judgment, arguing that Article III should be read to incorporate common law principles of tender. The Chief Justice dissented for Scalia and Alito, with Alito adding a separate dissent.
Interestingly, only Justice Thomas mentioned (although even he did not particularly emphasize) that the plaintiff here sought retroactive legal relief (damages) for a past violation of his rights, whereas the Court's modern mootness cases all involved claims for prospective injunctive or declaratory relief from ongoing or future violations. And this omission reflects the flaw in how mootness is conceptualized, particularly by the Chief. Everyone keeps describing mootness as the point that "it is impossible for a court to grant any effectual relief whatever to the prevailing party." But the reason it becomes impossible for a court to grant any effectual relief is that the plaintiff no longer is injured as a result of the defendant's conduct. Thus, for example, the covenant-not-to-sue could moot Already v. Nike because, having promised not to sue, Nike no longer is harming Already with the threat of trademark infringement litigation; thus no judicial remedy can stop the injury that no longer is occuring. But in an action for retrospective relief for a past injury, the injury remains. The remedy makes the plaintiff whole by offering a substitute thing of value (money), but it does not uninjure him or stop the injury. It thus should be impossible for a claim for retroactive relief ever to become moot.
[Updated in response to comments]: At best, the court might enter judgment for the plaintiff in the appropriate amount when the defendant presents complete relief into an account payable or to the court. Justice Ginsburg leaves open whether that would moot the case what the result would be, while Justice Alito insists that paying the money to some third-party trustee would moot the case, without the need for a judgment. The case should not be moot, because you cannot have both an entry of judgment and a moot case--the entry of judgment ends the case, so there is nothing to be moot. Alito is wrong because payment of the money does not end the injury, it only compensates for it with a substitute good (money).
How Being a Struggling Student of Talmud Made Me a Better Professor of Law
My mother passed away last March. With my dad’s passing six years earlier, my brother and I suddenly found ourselves parentless while still in our 30s. Dealing with the grief has been difficult enough. Equally difficult in many ways has been the challenge of administering my mom’s estate—working through the modern morass of medical forms, bills, taxes, mail and magazine subscriptions, bank accounts, and credit cards is essentially a second full-time job. It turns out that dying in the twenty-first century involves a tremendous amount of paperwork.
The silver lining to all this, I suppose, is that acting as personal representative of my mom’s estate has allowed (forced?) me to employ several long-dormant aspects of my legal education. I have reviewed more contracts, communicated with more federal and state agencies, and spent more time at the probate court clerk’s office in the last year than at any time since I left full-time practice (and maybe ever). Like working an underused muscle for the first time in a long time, doing this kind of legal work is simultaneously invigorating, exhausting, and humbling. I am despondent about the circumstances, but grateful for the experience.
The circumstances have created another unexpected educational benefit: I have been reintroduced to the awesome challenge of Talmud study. In a year when many things have been cloudy and overwhelming, a weekly dip into Talmudic debates has sharpened my mind and changed some of my perspective on teaching.
Symposium on Levy's Rationalism, Pluralism, and Freedom
As Monty Python would say, Jacob T. Levy's recent book, Rationalism, Pluralism, and Freedom, is "triffic. Really triffic." Here's a description:
Intermediate groups-- voluntary associations, churches, ethnocultural groups, universities, and more--can both protect threaten individual liberty. The same is true for centralized state action against such groups. This wide-ranging book argues that, both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state.
The book studies this tension using tools from the history of political thought, normative political philosophy, law, and social theory. . . . It discusses the real threats to freedom posed both by local group life and by state centralization, the ways in which those threats aggravate each other. Though the state and intermediate groups can check and balance each other in ways that protect freedom, they may also aggravate each other's worst tendencies. Likewise, the elements of liberal thought concerned with the threats from each cannot necessarily be combined into a single satisfactory theory of freedom. While the book frequently reconstructs and defends pluralism, it ultimately argues that the tension is irreconcilable and not susceptible of harmonization or synthesis; it must be lived with, not overcome.
Although it is a work of (somewhat stylized) history and political theory, Levy's book is also very timely, given recent conflicts over the status and (constitutional or statutory) rights of religious groups, the relationship between LGBTQ rights and religious liberty, and more generally the relative priority or balance of liberty and equality, on and off campus. The Bleeding Hearts Libertarians site has a symposium on the book; links start here. The contributors include political theorists and legal academics, including Prawfs friend Will Baude and two Prawfs members, Rick Garnett and me. Mine is titled "Levy for Dummies Lawyers." The intro is a touch snarkier than I intended, but the idea is that, given that the symposium already includes contributions from distinguished and expert political theorists, it might be useful to ask what the book offers to lawyers and legal academics, whose role (even for most law professors doing what they call "theory") tends to be closer to the immediate problem-solving end of things than the high theory end, and who thus often draw on resources like this as resources and for more short-term ends. My short verdict is that Rationalism, Pluralism, and Freedom has a lot to offer to this readership. Here are some snippets:
[The] legal audience ought to read Rationalism, Pluralism, and Freedom. They will find in it, both despite and because of its timelessness, an invaluable resource—a store of ideas that will provide useful tools for the kinds of cases, conflicts, and debates that have recently reappeared and sprung to the top of the legal and political problem-solving agenda. . . Levy has supplied arguments, a history, and most of all a usable vocabulary that is missing from current debates over law and religion. . . .
It is especially valuable that Levy’s account of pluralism is a specifically liberal account—that it retrieves a long historical tradition within liberalism that worries about the state’s centralizing, atomizing tendencies and values intermediate groups as an important element in a healthy liberal society. Levy is not the first or only writer in recent years to attempt to balance the rationalist liberal worldview with a reminder of the value and importance of intermediate groups, like churches and universities. But those of us who have written in this vein have often treated this view as arising from a critique of liberalism generally, thus placing us outside the usual terms of debate—especially within the courts, which generally speak in the language of rationalist liberalism—and imposing on ourselves a much greater burden of persuasion. One of the signal virtues of Levy’s book is that it places us within the conversation more directly, in a way that is capable of reaching and persuading a wider audience that would tremble at the thought of any set of ideas labeled as non-liberal, and with forbears—Constant, Montesquieu, Tocqueville, and others—whose ideas are less likely to be dismissed out of hand as irrelevant to our history and traditions.
Like Levy, I think the pluralist tradition has been too much ignored. Our current debate would be much enriched if room was made within it for a more robust pluralism that recognizes the value and importance of intermediate groups. We should treat pluralism as a good in itself, not necessarily as an intrinsic or “natural” matter but because of its value in actually existing liberal societies. We ought to resist the view that however the conflict between liberty and equality plays out, it should ultimately be resolved by uniform and universal laws imposed by the centralized state, as if nothing else is there, or as if whatever is left is a mere residue to be managed and rationalized.
But to this I would add one last important contribution made by Levy’s book. He reminds us that the conflict between rationalist and pluralist liberalism is not a matter of right versus wrong, of a true versus a false vision of social ordering. Rather, both forms of liberalism recognize the potential threat posed by different power centers: for pluralists, the centralized state, and for rationalists the welter of intermediate, often illiberal, groups. Each of them is susceptible to abuse, to capture, to inequalities and power dynamics that threaten the rights or well-being of the individuals within them. . . .
[O]ne value of Levy’s book is that it recognizes those groups’ value even as it describes their dangers, and does not assume that the best solution to the problems these groups present is simply to level them. And another is that it provides us with a vocabulary—still liberal, but in a very different liberal voice than the rationalist strand we are accustomed to—with which to do so. Rationalist liberalism, speaking to these groups de haut en bas and treating them as existing on sufferance, provided they do not depart from congruence with the liberal norms and procedures that apply to the state, is unlikely to reach or persuade those groups—likely, if anything, only to create more illiberal groups and greater polarization. Pluralist liberalism offers a chance, albeit only a chance, of speaking productively to and within the many intermediate groups that dot, and benefit, our society.
Divergent Paths, the "Posnerian Clone Wars," and Two Takes on Legal Education
In the New Rambler Review, which incidentally is a great resource, today's example notwithstanding, I have a review of Richard Posner's new book, Divergent Paths: The Academy and the Judiciary. Here's my summary of the book's thesis:
The federal judiciary suffers from many flaws, not least “a certain staleness in the current judicial culture.” Some flaws are structural; others involve poor management of the judiciary as a whole and of individual courts and judges; a third set concerns “deficiencies in how federal judges decide cases and justify their decisions in judicial opinions,” including a mechanical formalism and an unwillingness to confront openly the task of solving complex problems. Some of those flaws are fixable. The legal academy could do a lot to help. But it hasn’t, and won’t, unless it fixes some flaws of its own. Its central shortcomings are its increasingly academic nature and its lack of interest in understanding or communicating with judges. “There really is a gulf between these two branches of the legal profession, and the gulf has been growing.” A “focus on practical instruction” in legal education would “create a greater faculty interest in judges,” especially those beyond the Supreme Court, and narrow the gap.
And here is my basic assessment:
In Divergent Paths, [readers] will find much that repays their time, but I’m not sure they will find a rewarding book as such. They will find “too much”—a “gallimaufry,” as he says (wonderfully) of a quote by Laurence Tribe—and also not enough: several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies. . . .
Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.
After the jump, I offer more substantial excerpts. One suggestion I make toward the end of the review is that instead of making recommendations for the future of law schools based, by his own admission, only on his knowledge of the elite law schools, Posner should have considered the possibility of "more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools." [For what it's worth, I have taught at five law schools, and in a week will begin a visit at a sixth, representing all "tiers."] I also write:
In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, [Posner] ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.
These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.
I thought, in light of my recommendations, that it would be nice to close this post with a "But see": Rebecca Roiphe's new article, Tilting at Stratification: Against a Divide in Legal Education. The abstract states, in part: "Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. . . . The article draws on [ ] history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers--not just those who graduate from elite schools--ought to be trained in the complex nature of the law and its relation to society, culture, and politics."
Individual right or government wrong?
I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument.
It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech
Tuesday, January 19, 2016
Terry Moe Triumphant? Do Collective Action Problems Plague Judicial as Well as Political Safeguards Against Presidential Power?
One can view the controversy over President Obama’s DAPA policy, now elevated to the major case of the term by SCOTUS’s cert grant today in Texas v. United States, as an illustration of one fundamental truth: Partisan politics trumps institutional loyalty. Liberals who denounced Bush’s allegedly imperial signing statements now predictably embrace Obama’s allegedly imperial guidance documents. Conservatives who were devoted to the unitary executive under Bush II now predictably denounce Obama’s imperial presidency. Both Democratic and Republican pots and kettles predictably accuse the other of blackest hypocrisy about their constitutional principles – and, of course, both are correct. Partisan disloyalty to abstract constitutional arrangements is a matter of bipartisan consensus.
According to Terry Moe, all Presidents, regardless of their political party or campaign promises, will always stretch presidential prerogatives to the limit, because their high visibility impels them to satisfy their constituents’ demands for action. (For Moe's own summary of the institutional literature on the Presidency, see here). Congress’ push-back will be flabby and ineffective, because Congress suffers from collective action problems. Hog-tied by bicameralism and lacking a leader capable of rallying a united rank-and-file (Speaker Ryan’s bully pulpit is surely as lowly as Speaker Pelosi’s), Congress will always be less popular, less energetic, and less unified than the executive branch. The result is, for better or worse, relentless expansion of presidential prerogatives.
Moe’s theory undermines theories about the political safeguards of separation of powers. But does it follow that SCOTUS’s active review is an effective antidote to the imperial presidency? The obvious problem is that SCOTUS is plagued by collective action problems as well. A particular partisan majority on a collegial bench might, in abstract, embrace a principle like the unitary executive or the Color-Blind Constitution -- but will they stick with that abstract theory when their party's ox is being gored? Only if the other side can make a credible commitment to return the compliment when the partisan tables are turned. Stare decisis and crisp constitutional doctrine might be the foundation of such commitments -- but can the doctrine ever be crisp and credible enough to constitute a pact capable of surmounting the hyper-partisan passions of our times? As I noted with respect to the Color-Blind Constitution, liberal and conservative justices seem rationally to trim their sails based on partisan considerations, because the flabbiness of the relevant doctrines does not give either side assurance that the other side will stick to the doctrine when it disfavors that side's party loyalties. Scalia’s dissent in Zivitofsky v. Kerry suggests (et tu, Nino?) that his loyalty to the unitary presidency might be GOP deep -- and rationally so, if he believes that liberal justices will not protect a conservative president's conservative foreign policy prerogatives. The same distrust, of course, applies to the opposite side of the bench. Moreover, even if one side can muster a 5-4 majority to spank the president in this case, will such a precedent last – or will it dissolve, limited to its facts, when the partisan tables are turned and a judicial majority shares the President’s Party? Stare decisis, after all, is the sort of abstract institutional principle that partisan bile dissolves just as effectively as the unitary presidency.
But maybe I am unduly pessimistic about the power of constitutional abstractions to unite a court across cases? (I should tip my own ideological hand by noting that, on the merits of this particular assertion of Presidential power, I share Ilya's support for DAPA as a justified assertion of presidential enforcement discretion. But that might just be because, like Ilya, I am an immigration libertarian).
Vermont's All-Payer Claims Database: What Hangs in the Balance.
I have been following Vermont's all-payer claims database litigation, Gobeille v. Liberty Mutual Insurance Co. -- argued at the U.S. Supreme Court on December 2, 2015. Perhaps you have as well. There is absolutely nothing like a good ERISA preemption dispute to to remind me of the force of Bill Sage's observation that is a case like this that reminds you why you must explain "to every class of Health Law students... that ERISA [is] the most important law affecting private health insurance in the United States."
Strictly as an ERISA preemption case, Gobeille is interesting for how it may force the Court to parse yet again and yet further whether the collection of health care data by a state interferes with a core ERISA function belonging to the U.S. Secretary of Labor or whether state by state variable all-payer claims database reporting requirements are arguably unduly burdensome on the reporting entities and firms. If you've read this far, I know you are fascinated by preemption, but even more importantly, such a decision would test whether or not the gradual movement of the states to mandating reporting of all-payer claims data has legs.
JOTWELL: Tidmarsh on Hill on financing class actions
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing a student note by Tyler Hill (Yale), Financing the Class; Strengthening Class Action Through Third-Party Investment (Yale L.J.).
Monday, January 18, 2016
Corruption Match Game!
Sunday, January 17, 2016
What's a Hospitalist?
Thank you for the opportunity to guest blog here for the remainder of the month. I hope to blog here on all things health law, health care regulation, and health policy related.
Last week, I participated in a discussion of primary care provider supply on KCUR, Kansas City's local public radio affiliate. I was pleased to participate and enjoyed the conversation with my fellow panelist, Dr. Michael Munger and with our host Gina Kaufman. I suppose I was invited to participate because I just won't be quiet about primary care provider supply, medical school education, Kaiser Permanente's recent announcement of its decision to fix the broken pipeline of primary care providers representative of and responsive to communities with the greatest shortages by opening a proprietary medical school in southern California and on and on.
Today, I want to focus on a point made later in the radio program when listener call-in questions were fielded. One self-described "older" caller disparaged the rise of hospitalists and the use of hospitalists in places where they were previously unknown, including rural settings. Forgive me KCUR host Gina Kaufman, but the most interesting thing about the whole exchange with the call-in listener was that you did not seem to know who or what a hospitalist is until, apparently, you were guided to some understanding by someone in the studio. I note this without dismay for two reasons. First, unless and until you have experienced a hospitalization for something other than scheduled elective surgery or a planned normal birth, you may not have been introduced to the new normal: acute in-patient care delivered by a physician typically previously unknown to you, a provider often employed by the hospital itself, and a provider you are unlikely to ever encounter again outside of an acute care in-patient setting. Or, it could have been that the use of hospitalists in America's acute care in-patient facilities is so widespread that the term has become obsolete to lay people, though recognized inside baseball as the fastest growing medical specialty. Either way, the caller's point was that quality care should not be based on a system of strangers treating strangers. The easy answer to that is that electronic medical records will make us all strangers no more and that care by strangers is cost effective.
Another Cold/flu - Is there something about teaching v. practice?
I have heard it said that teachers, particularly those who teach small children, are more likely to be exposed to viruses and to get sick. Until recently, I did not count myself among the “more likely to catch a virus” group. I felt completely fine when classes started on Monday, and I was excited about the next set of classes, but by Wednesday it was clear that I managed to pick up a rather nasty flu of some kind. Again.
I am starting to think that there is something about working as a law professor that requires me to more actively guard against getting sick. I enjoy teaching and writing about the law, and I like interacting with students. However, it seems I have caught my fair share of minor illnesses since I started teaching full time. Before teaching, I practiced law, went back to school, did some international work, practiced some more and moved around a fair amount. Even with all that, getting sick was not part of my vocabulary. I have been thinking about what has changed.
I interact with far more people now than I did in practice. Even though it is often said that academia is isolating, when I was in practice, I spent quite a bit of time working independently on legal memos. Aside from lunch or client meetings, I dedicated my time to legal research and analysis for client files. As a law professor, I still work alone a lot, but I also encounter many more people. Perhaps the less formal atmosphere of the academic setting also makes a difference. I suspect people will go to school when they have cold and flu symptoms whereas they might not go to a business meeting sniffling, coughing, or sneezing. I have also contemplated the effects of an irregular schedule (night teaching), publish or perish, the wonderful flexibility (easy to work all the time if you are not inclined to perish), conference travel, and other factors, including too much sugary coffee! Whatever the reason for the increase in minor illnesses, I have decided it is time to actively avoid catching another one.
Friday, January 15, 2016
A symposium on Levy's "Rationalism, Pluralism, and Religious Freedom"
Here's my contribution to a symposium (there are a half-dozen others, too), hosted by the Bleeding Heart Libertarians site, on Jacob Levy's wonderful new book, Rationalism, Pluralism & Freedom (buy your copy here). A bit:
. . . Jacob is right, it seems to me, to highlight, within the “liberal understanding of freedom,” the “pluralist emphasis on the freedom found within and protected by group life against the power of the state.” He is on firm ground when he insists that “[t]here is no social world without loss” and that “[s]ometimes we will not be able to have the morally best degree of freedom of association and the morally best degree of protection against local tyranny.” And, he correctly reminds us that “[w]e cannot . . . simply point to the moral loss suffered by some relatively powerless or disadvantaged person within an association, religion, or cultural group and conclude that the group constitutes a local tyranny that must be dissolved or overruled by the state.”
He is right about all this, I think, not because religious institutions (or other non-state associations) never act wrongly or never inflict hurt and harm. They do (sometimes), just as liberal states do (sometimes). As I see it—and Jacob’s book is helping me to think harder and, I hope, better about the matter—the liberal practice of respecting the rights of religious and other associations’ distinct, even if non-liberal, practices is not merely a matter of “governance best practices” or a strategy about how to allocate scarce enforcement or litigation resources. Instead, the practice reflects the fact that a (good) liberal, constitutional government accepts—and not grudgingly—as given the fact that reasonable people, associations, institutions, and communities disagree reasonably about things that matter. Such a government is not merely resigned, but resigned comfortably, to the “crooked timber of free society.” . . .
The Inifinte Loop (Returning to AALS)
Last Friday, I moderated the panel session Impossible Realities, Infinite Loops and Movable Staircases: The Impact of Institutional Marginalization on the Tricky, Unpredictable, and Inconsistent Trajectory of the Non-Tenured Track Career Professor, on behalf of the AALS Task Force on Professional Development, which sponsored a five-session program on the “Arc of the Career.”
By way of background, the Task Force requested proposals that addressed: How can AALS better help legal education professionals with professional development over the course of their careers? In reviewing the list of topic areas contemplated for in the request for proposals, we noticed that the concept of the professional development of the non-tenure track, non-tenure eligible, contract, and non-contract faculty member was omitted from consideration. Our panel, composed of me, Mel Weresh, Anna Hemingway, Alyson Carrel, and Dean Susan Duncan shared our professional experiences, explained our challenges, and together with the contributions of numerous attendees, offered ideas to the AALS on how to support the non-tenure track professor with professional career development.
Thursday, January 14, 2016
Final CFP Announcement: 2d Annual Civil Procedure Workshop
Here. Paper proposals are due on Friday, January 15.
Narrowing Second Amendment Precedent From Below
Last month, Justice Thomas wrote (another) dissent from denial of certiorari in a Second Amendment case, Friedman v. City of Highland Park. This time, Thomas expressly warned of lower court “noncompliance” with the Court’s case law. Friedman raises a question taken up in my new draft paper: do lower courts have some authority to narrow Supreme Court precedent?
Wednesday, January 13, 2016
Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?
I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth. Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances. Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen. (See also classic Charles Gordon article here). In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original).
There is a catch, though, that has apparently not been addressed. Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen. However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28. In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision. Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement. But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence.
The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas. Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen. But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this. Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him. Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so. I would love to hear what other people think.
Tuesday, January 12, 2016
SCOTUS Preview: Political patronage and misperceived association
I have a case preview at SCOTUSBlog for Heffernan v. City of Paterson, to be argued next Tuesday, January 19. The case concerns whether a public employee can state a First Amendment retaliation claim where the government demoted him explicitly because of his supposed political activity, but where he actually was not engaged in any activity. The most recent We the People Podcast features Burt Neuborne (NYU) and John Inazu (Wash. U.) discussing the Assembly Clause and they touch on this case.
We could be us, just for one day
Monday, January 11, 2016
When I was first starting out in the gig, one of my mentors gave me a piece of advice that has stuck with me. Don't write replies. Even if your paper is essentially a response to someone, don't frame it that way. Build the response into a larger claim.
But there was more to it: definitely respond. Engagement is key. The conversation is what matters. Disagree, amplify, make subtle distinctions. Just don't frame the paper around the reply.
I've followed this advice and given it myself. Yet I've never really considered. Why not reply?
My sense--and I'm fine being wrong about this--is that the advice is driven by the submission process. By pitching the paper as a response to someone, we give the appearance of a limited contribution. The law review submission process is a black box on its best days. So it makes sense for scholars, especially junior scholars in search of tenure, to avoid submission formats that won't play well with the acquisition editors. Maybe that's always good advice, whether in a law journal or peer review situation. Or maybe the "no reply" rule isn't widespread. Frankly, I don't know.
But I welcome thoughts. Please and thank you.
Sunday, January 10, 2016
Sunday Soderbergh Blog
Steven Soderbergh is a productive guy. Like really productive. In the last few days, I've stumbled upon some interesting pieces about the man, the myth, the auteur . Those familiar with my writing already know that Soderbergh has been a huge influence on me and my thinking about New York hospital culture in the early years of the 20th century. So please enjoy:
The first is his own list of stuff he watched, read, and listened to in 2015. Yes, it's weird he keeps a list. And weirder that he publicizes it. But I'm really struck by the range of his interests. Dude loves him some news magazine shows. Which makes sense, because Lester Holt is awesome.
The second is a Vulture piece by Matt Zoller Seitz about how The Knick, Soderbergh's show on Cinemax, is made. It's a crazy schedule. I found it riveting--more so than the show it covers.
I'm glad no one has decided to write one of these stories about me ("He writes slowly and infrequently, breaking for podcasts, donuts, and naps.")
Fashion & Design Law
Many thanks to Prawfs, for having me back. I just returned from a terrific Association of American Law Schools meeting, and I am gearing up for class tomorrow!
My blog posts will be primarily about Fashion & Design Law, which I will be teaching for the first time this semester. In the introductory chapter to their book Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys, Guillermo C. Jimenez and Barbara Kolsun write: “At the heart of both fashion law and entertainment law is IP law. However, fashion-related IP calls into play a number of specific principles not encountered in the entertainment context.” (p.25) They point out that copyright issues arise more in the entertainment context, while trademark issues are more prevalent in the fashion industry. In addition to the intellectual property issues, Jimenez & Kolsun cover commercial law, advertising, licensing, customs, employment law, and other fashion-related topics.
Fashion Law, which is considered a fairly new subject, is not a commonly offered law school course. Susan Scafidi at Fordham Law in New York is apparently the first faculty member to have offered this course at an American law school. Like Entertainment Law, Fashion & Design Law is an intellectual property-related course, and I think is a good addition to our growing intellectual property curriculum. The course also makes sense, given our location in Miami. Our students seem to have some interest and expertise in fashion issues. For instance, I learned that one of my former students from my International Intellectual Property course is the CEO of a fashion company (he had a lot of cross-border transaction questions and comments in class!), and another former student is involved in his family’s shoe business. We also have a fashion-loving student who blogs and tweets about fashion and who has started to connect with the fashion community in Miami.
Even though this is another new course to prepare and I am pre-tenure, I am excited to teach it. The course involves a number of different areas of the law, including lots of contract and intellectual property law, which is fun because I teach both these subjects. Fashion & Design Law also raises a variety of interesting issues that I will discuss in other posts.
In addition to the Jimenez and Kolsun book, I will draw on a variety of materials for the class (i.e. Navigating Fashion Law from Aspatore, Trademark, Unfair Competition, and Business Torts by Barton Beebe, and Trademark & Unfair Competition Law by Dinwoodie & Janis, as well as their book on Trade Dress & Design Law). I have also seen some helpful resources from the American Bar Association. If anyone knows of any additional fashion law teaching resources that could be helpful, I welcome your suggestions.
Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
Friday, January 08, 2016
Vehicle Problems vs. Unusual Vehicles: The Supreme Court's Bizarre Cert. Grant in Welch
This afternoon, the Supreme Court granted certiorari in Welch v. United States, a case that raises a question I've written about previously ad nauseam--whether the Court's June 2015 decision in Johnson v. United States may be retroactively enforced by federal prisoners in both original and second-or-successive petitions for post-conviction relief. The headline is straightforward; Welch means the Court will almost certainly resolve the 6-2-1 circuit split on that issue before AEDPA's one-year statute of limitations runs in June, which is, in my view, a Very Good Thing. And given that the Solicitor General agrees with Welch on the merits (it recommended a GVR at the cert. stage), the odds of the Court siding with the six circuits that have held that Johnson is substantive, and thus retroactively enforceable, seem high.
All that said, the fact that the Justices chose Welch as the vehicle through which to reach this question is bizarre in at least two respects:
Conference Announcement: New England Regional Junior Faculty Scholarship Workshop
Details here. There is still space available , but note that the deadline to express interest is fast approaching.
Okay, so it is pretty apparent that this season is not setting up as a big legal mystery. Fans of the first season are likely to be a little let down. After the breakout debut album, maybe we can write this off as the sophomore slump. Even more, there is a new band in town (Making a Murderer on Netflix) that is getting all of the attention. The third album is always the best, anyway, so we’ll see what the next season has in store. (Steve Vladeck shares some of his angst about this season here.)
This week’s episode focuses on the conditions of Bergdahl’s confinement and while pretty interesting, it is pretty straightforward. We hear a little bit about what I discussed in the last blog (can we use his mental health to explain his crime when it doesn’t seem like his mental health was an issue while he was in captivity). At one point in this episode, Bergdahl says that while he was in captivity he didn’t revert to his normal fantastical thinking as a coping mechanism. That might be a clue that his diagnosis includes something on the schizo-spectrum. I still hope we’ll learn more about that in a future episode.
Koenig introduces some new themes, including the impact of GTMO and Abu Ghraib on our strategic goals in the region and on Bergdahl’s captivity in particular. She also brings up some about some of the strategic issues in the region and how they contribute to the existence of ungoverned spaces in Pakistan (ungoverned by Western standards) where Bergdahl was kept. It turns out that one of these issues – Pakistan’s relationship with India – helps to explain why Afghanistan is still unstable and will likely be unstable for years to come.
No one gets it
I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.
And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.
Thursday, January 07, 2016
Thanks to Howard and rest of the Prawfs crew for having me.
Starting this semester, I'm transitioning into a administrative position. As of this month, I hold the very sexy title "Acting Associate Dean for Faculty." Fitting for a Skakespearean trained associate dean like myself.
One of the eggs in my administrative basket is our junior faculty mentoring program. Program is a heavy word. Like a lot of schools, much of our mentoring happens on the fly. Don't get me wrong, we mentor hard; it's one of the things our faculty does best. But I'm wondering if we can improve things. When things are going well, tinker with them, right?
For me, the guiding principle of mentoring is always to remember that it's not my career. Too often mentors try to recreate themselves. Which is, of course, not surprising: if it worked for me, surely it will work for you. The problem is that being law professor is an individual sport. While there is collective wisdom to build on, ultimately we have to be ourselves in our teaching and writing. And that's often the most daunting part when you're just starting out in the gig.
But I'm eager to hear thoughts, concerns, suggestions. Please, thank you, or sorry, as the case may be.
"Buy my book" – Justice Stephen Breyer
"I am in a profession in which I am not the only participant." Justice Breyer, noting collaborative circle of the law between judges > law profs > practitioners.
Speaking of judicial selection...
Feminist Scholarship & Collaboration Pre-AALS
Greetings from the AALS Annual Meeting in NYC.
I had the opportunity to participate in a unique pre-AALS event yesterday: the Joint Scholars & Scholarship Workshop on Feminist Jurisprudence at Fordham Law Sponsored by a combination of the Association of Legal Writing Directors (ALWD), Legal Writing Institute (LWI), and the AALS Legal Writing, Reasoning, and Research Section, this Workshop focused on scholarly writing and teaching in the field of feminist jurisprudence, with the goal to encourage and support the work of scholars, including jurists and practitioners who write to challenge patriarchy and other hierarchical structures and critique existing jurisprudence from multicultural feminist perspectives. About 70 participants shared strategies and techniques for bringing a feminist perspective into the classroom and into the body of our laws.
The workshop was designed to extend the conversation of 50+ scholars involved in the creation of Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Kathryn Stanchi, Linda Berger & Bridget Crawford, eds., Cambridge University Press (forthcoming 2016)), an ambitious project inspired by the British publication of a similar project, Feminist Judgments: From Theory to Practice, by Rosemary Hunter, Clare McGlynn, and Erika Rackley. In the U.S. version, the collaborators worked to re-write 25 significant US Supreme Court opinions, providing introductory commentary to explain the issues in the cases and context of the decision.
During the plenary session, panelists discussed patriarchy in the U.S. legal system, and how preliminary anecdotal research on human behavior influenced scholarship, theory, and subsequent changes in both laws and law education. Lucinda Finley discussed the transition of the "reasonable man "to the "reasonable person" in Tort law. David Cruz framed the discussion in the form of "multiple feminisms," taking into account transgender and the imbalance in medical care. Terry McMurtry- Chubb divided the feminist's goals into breaking down four structures: patriarchy, heteronormativity, classism, and white supremacy. The panelists observed that despite great strides in out legal system, in our current political climate, progressive laws (for example, reproductive rights) are in the one-step-back phase of the two-steps-forward concept. How do we all work to ensure the next generation of social justice attorneys?
Returning to the subject of collaboration, a selection of 10 participants had the opportunity to vet draft papers in a productive and supportive workshop setting during the afternoon. The genesis of the workshop was to receive supportive feedback on draft papers, and supportive it was indeed. Scholars came away from the afternoon sessions with many ideas to further develop theses, and a strong sense of support from the academic community. A closing session of more than half of the contributors to the Feminist Scholars project also described collaboration as writers and reviewers of the re-writes and the research and collaboration methods of the original Justices who drafted the opinions.
This original Workshop was a great way to kick off the annual meeting. The book and forthcoming variety of scholarship should prove to be interesting and thought-provoking reading. Keep a watch out for publication of this book and the articles that generated out of this Workshop.
I would be remiss if I didn't help you navigate this city a little while you are here. I tried to tell you where to go when you came to SF for AALS. Here is where to spend your money eating if you have to stay in Manhattan:
Lowlife: Get your Alsatian Pinot flowing here and try a borscht that will surprise you. Welcome.
Rebelle: There is no better place to have your leek ash in town.
Cocoron: You deserve soba. Even though it is cold outside, don't ruin the consistency of this perfect soba in some kind of soup application. Go basic or go home.
Mission Cantina: No, Mexican is not good in NY. But this place started in SF -- and really the only thing you should eat here is a ma po tofu burrito. Please share it with someone. It will blow your mind. But a whole burrito will also blow your colon.
Consider going to Brooklyn for these:
Roberta's: Move over Sally's and Pepe's. There is a new king.
Maison Premiere: Oysters and absinthe. Leave your panels early, for there is no better happy hour anywhere on earth.
The Four Horsemen: Drink the funkiest most natural wines in town with small plates of vegetables and good music as companions.
And here is where to get your cocktails:
Little Branch: It is annoying to stand on that line. But just wait. Then put yourself in their hands.
Evening Bar: Intimacy is hard to come by in this town (though, sadly $16-18 cocktails are not). But fireplaces are blazing.
Cosme: In the end, $60 duck carnitas are only justifiable on an expense account (hmmm). The drinks are something to write home about.
Amor y Amargo: There are about 7 seats in this bar. So you won't get one unless you are willing to drink at a weird hour. Be weird. Everything is stirred. Nothing is shaken. FYI.
SEE YOU AT THE HAPPY HOUR TONIGHT AT 8:30!
Wednesday, January 06, 2016
Alabama (still) does not go gentle . . .
Chief Justice Roy Moore of the Supreme Court of Alabama is back. Today, he issued an order requiring Alabama probate judges to continue to refrain from issuing marriage licenses to same-sex couples, pending resolution of the mandamus action that has been pending in the Court since March. (H/T: Religion Clause Blog). Once again, Moore is sort of right, sort of wrong, and very short-sighted. A few thoughts after the jump..
Schwartzman, Flanders, & Robinson, eds., The Rise of Corporate Religious Liberty
New from Oxford University Press and more-or-less reasonably priced: The Rise of Corporate Religious Liberty, edited by Micah Schwartzman (UVa), Chad Flanders (SLU), and Zoë Robinson (DePaul). Notwithstanding my cameo appearance in the book, it's a superb collection. It's unusual for an edited collection in its timeliness (a substantial section on Hobby Lobby, for instance), and in managing to combine a diversity of views and approaches with a close focus on the subject, rather than just throwing a miscellany between two covers with a conveniently broad title. Much has happened in law, politics, and culture since the conference that started off the book project, and the shape and contents of the collection have changed a lot in responding to and keeping abreast of events. It's really a very good book and a great job by the editors. Here's a description:
What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this "corporate" turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of "freedom of the church," the rights of for-profit corporations, and the implications of the Supreme Court's landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom.
And, after the jump, the table of contents:
AALS: Scholarly Engagement Post Tenure
Deborah mentioned the AALS's Arc of Career Program at the annual meeting. I will be on a different panel for that program, Scholarly Engagement Post Tenure, exploring the life of midlevel professors (tenured-but-not-quite senior). It was organized and moderated by Scott Dodson (Hastings); panelists in addition to me are Steve, Bennett Capers (Brooklyn), Sam Jordan (SLU), L. Song Richardson (UC-Irvine), and Usha Rodriguez (Georgia). The panel is 1:30-3:15 Thursday in Gramercy East, 2d Floor in the Hilton.
And don't forget about the MarkelFest! Happy Hour at 8:30 Thursday evening.
Tuesday, January 05, 2016
MarkelFest! at AALS Thursday Night
For those of you attending AALS in New York this week, we will have a MarkelFest! Happy Hour from 8:30 p.m.-?? on Thursday (Jan. 7) at Bridges in the Hilton (entrance on the 54th Street side). This will be on the public side of the bar. Please come join us to meet our readers, remember Dan, and carry on the social tradition that he enjoyed so much. Hope to see everyone there.