Thursday, December 15, 2016
AirBnB as Online Intermediary?
Tuesday I posted about tort law and the sharing economy, and today I want to continue with the sharing economy theme by discussing an AirBnB lawsuit against San Francisco.
A city ordinance was passed requiring short-term rental hosts to register with the city. One of the provisions allows the city to fine AirBnB and similar platforms if unregistered hosts rent places through the site. AirBnB is challenging the law on numerous grounds, including under the First Amendment, Stored Communication Act, and the Communication Decency Act (CDA). It's the CDA issue that some cyberlaw scholars are watching closely.
Section 230 of the CDA creates immunity for online intermediaries against liability for the content others post. This immunity has allowed the internet as we know it to flourish as a marketplace of ideas and haven for free speech. Without it, websites would police content and censor heavily to mitigate their liability risk. But the CDA is over 20 years old and its use has clearly expanded beyond its original purpose, which really contemplated defamatory comments on news sites or similar circumstances.
Now, AirBnB is using CDA immunity to argue that the San Francisco ordinance violates federal law by holding AirBnB accountable for the actions of hosts. Essentially, AirBnB says it's just an online intermediary and it can't be on the hook for its users' illegal activity. While the CDA is meant to immunize online intermediaries for liability for the actions of its users, its provisions are not absolute. Some websites have lost arguments about CDA immunity because they helped create or develop content, rather than merely serve as a passive platform for it.
Wide Area Surveillance - "Google Earth with TiVo Capability"
Reports emerged this fall that the Baltimore Police Department had accepted private funding to secretly retain the services of Persistent Surveillance Systems and its wide area surveillance system to help it investigate crime. Persistent Surveillance Systems owns an airplane. On the belly of the plane is an array of cameras. At first light, a pilot flies the plane up to 10,000 feet and circles the city for hours. While it is circling the city, every second, the cameras take a still image of a 30 square mile area. The photos are instantly processed and downlinked to a command center on the ground. Operators on the ground can pull up the images, and from any specific moment, go backwards or forwards in time, second by second, and watch everything that the plane saw. Operators can follows cars and people fleeing a crime scene, and look backwards to see how they got there. The system's developer, Ross McNutt, has called it "Google Earth with TiVo capability."
The system was developed to determine who was killing American soldiers in Iraq with roadside bombs. Baltimore's use followed shorter, but equally secret, law enforcement stints in Compton (Los Angeles) in 2012 and Ciudad Juarez, Mexico in 2009. There are some pretty amazing success stories: the system was used to track a murderer to a previously unknown cartel headquarters building; it followed a moving van used by a burglar to a parking lot across town, and enabled a show-up to confirm the ID of the burglar in less than an hour; it's tracked purse snatchers and all sorts of other offenders that would otherwise have been much more difficult, if not impossible, for law enforcement to track down.
This is a system that makes law enforcement drool. It also raises a number of legal questions, none more important than whether evidence gathered by law enforcement through a wide are surveillance system operating without a warrant would be considered to violate the 4th amendment's ban against unreasonable searches and seizures and would be subject to exclusion were it offered into evidence in a criminal proceeding.
Wednesday, December 14, 2016
UN Summit on the Movement of Refugees and Migrants
Guest Post by Jill Goldenziel
(cross posted on IntlawGrrrls)
This semester, I had the extraordinary opportunity to consult on the makings of a new international agreement to protect refugees and migrants. Following President Obama’s lead, the UN General Assembly (UNGA) decided to hold a special Summit at its September 2016 session to address “Large Movement of Refugees and Migrants” that have been occurring throughout the globe. The outcome goal of the Summit was to have all UNGA member-states affirm a Political Declaration to express their commitments to refugees and migrants. The Political Declaration would kick off a process that will result in member-states signing a new “Global Compact” on Refugees and Migrants by 2018.
The Academic Council on the UN System (ACUNS) and the American Society of International Law (ASIL) invited me to apply to attend the civil society consultations for the Summit as their representative. I was honored that the UN accepted my application from a highly competitive pool. On July 18, I attended the first “Multi-Stakeholder Hearings for the UN Summit on Refugees and Migrants” at UN Headquarters in NYC. Very few civil society representatives were allowed to speak spontaneously at the hearings. After I expressed my frustration to the Non-Governmental Liaison Office, I was invited back a week later for a Meeting with the Co-Facilitators of the Summit itself, the UN Ambassadors from Jordan and Ireland. By this time, the Co-Facilitators had been meeting with state parties around the clock and were frantically trying to solicit feedback to finalize the Political Declaration to present before UNGA. I was able to share my ideas about what the Political Declaration should contain, based on my own extensive work on refugees and migration. The Ambassador from Jordan also invited me to submit my written comments on the Political Declaration directly to her office. While I will never know for sure if my ideas made an impact, the final document reflected a number of my suggestions.
"Professors or Pundits"
I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena: Professors or Pundits." The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study. Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."
I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?
Motivations For Law Schools To Use Adjuncts to Fill Gaps in the Curriculum or to Reduce Expenses
Before i move out of Prawfsblawg for the holidays i want to thank Howard for the chance to post and also to close with a bit of musing about use of adjuncts in the law schools in 2017 and beyond.
First, though, in response to a comment, here are the results of a survey about nine years ago.
A significant percentage of the courses offered by law schools are taught by adjuncts. The median of the forty-four schools that provided this information is 24%; the range was 5% to 40% with the great bulk of schools between 20% and 30%.
Next, here is a partial list of the advantages adjuncts bring to legal education
- They bring extra brains, vocal cords, eyes, ears, and feet to the curriculum.
- Adjuncts are usually easy on the school's budget (although some schools have cut them or cut down on new adjunct taught courses to save a few dollars and/or since full time faculty may have excess capacity).
- Adjuncts, particularly in metropolitan areas, provide a pool of lawyers with special expertise and interest as well as a comprehensive knowledge of the subject matter and its application.
- Adjuncts give students supplemental perspectives and insights into legal reasoning, critical thinking, and crafting legal arguments, as well as into the subject matter of the particular course.
- Practicing lawyers and judges are often uniquely situated to teach practical skills courses, such as trial and appellate advocacy.
- It is perception, and perhaps reality, that adjuncts provide networking opportunities for employment during law school and after graduation.
- Finally, if a school works to create a working and communicative faculty community, which includes both full-time faculty members and adjuncts, and successfully encourages meaningful interaction among them, both the full-time faculty and the adjuncts will benefit as will the law students. This interaction can also dilute any resentment or disrespect that may exist from full-time faculty members to adjuncts or from adjuncts to full-time faculty members.
Now for a partial list of the risks that adjuncts bring to legal education.
- Although many law schools require that adjuncts have “office hours” and be accessible by email and by phone, adjuncts generally are less available than full-time faculty members to students to address their questions about the course and other concerns the students may have.
- Although some adjuncts do write articles, nearly all of the true legal scholarship is done by full-time faculty and very little is done by adjuncts.
- Adjuncts regularly have “emergencies,” which interfere with class and with preparation for class. As the pace of practice picks up, adjuncts will likely sacrifice their preparation or even their class time. If the drowning adjunct fails to develop effective additional or alternative resources and the law school is unaware of this situation, it is likely the course will be a dismal failure.
- Just as adjuncts may be better teachers than full-time faculty, they may also be worse teachers. More often than not, adjuncts are ignorant of the benefits of various alternative teaching methods and either lecture or fall back on a harassing use of the Socratic method.In addition, they often underestimate the importance of grading and violate school grading and median scoring policies.
- Finally, a greater percentage of adjunct means there is less “there” there in the core of the law school.
The current pressure on law schools to be more practical would likely push law schools to find additional ways to make use of adjuncts in the curriculum. The recent reduction in revenue to many law school seems, anecdotally, to be pushing law schools in opposite directions. On the one hand, since adjuncts are much less expensive than full time faculty this should push law schools to use more adjuncts. On the other hand, deans looking for short term ways to reduce costs and constrained by salaries of tenured faculty might reduce or freeze adjunct-taught courses and push full time faculty who are less busy with fewer students to teach the courses formerly taught by adjuncts. Fascinating to watch all of this.
Tuesday, December 13, 2016
Pennsylvania recount rejected
On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final). The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.
Tort Law and the Sharing Economy
Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.
The downside of Bartnicki
In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.
Time-constrained, In-Class Final Exam Essays
Having spent the last week reading a bunch of final exam essay answers, I'm questioning the assessment value of having my Evidence students answer an essay-type question during their three-and-a-half hour final exam. The essay portion (35% of the final score) involved a single fact pattern and directed them to analyze the admissibility of 5 specific pieces of evidence/testimony. I do essay and multiple choice because Evidence is tested on the bar exam in both the multiple choice and essay format, and because I believe in using multiple forms of assessment.
Yet I'm doubting the value of the essay portion because, once again this year, the students' performance on the essay portion of the exam, as a general rule, does not significantly vary from their performance on the multiple choice portion of the exam. Rarely does a student exhibit a difference of greater than 8% between the two (that is, if a student gets 85% of the multiple choice questions right, that student's score on the essay portion is likely to be somewhere between 77 and 93%). I don't have the numbers in front of me now, but I'm pretty sure that not a single student who scored in the 70s on one portion scored in the 90s on the other.
This suggests to me that the 2 different sections are not assessing different skills or knowledge, but are instead asking students to demonstrate the same skills/knowledge in different formats. Since my students write a graded motion in limine halfway through the semester, which allows me to see and assess their written legal analysis, I've minimized the weight of the essay portion of the final (and reduced its length) over time. And some reading about psychometrics, best practices for writing multiple choice questions, and trial and error, has allowed me to compile a library of multiple choice questions that appear to produce reliable results that successfully distinguish amongst the students. All of which leads me to doubt the value of the essay portion of my time-constrained final exam.
I'm curious what others think about assessing students with a time-constrained essay (assume that you must, as I must, give a final exam in the class that cannot be a take home exam).
Monday, December 12, 2016
Advice for the Academic Resume
Picking up on an earlier discussion on PrawfsBlawg found here, I thought I would start a thread to solicit advice from Prawfs on how to put together an academic resume. For the general legal job search (i.e. law firm, government), I think it is better to be inclusive and detailed as opposed to merely sticking with a single page at the expense of your experience and accomplishments. But, what about tailoring your resume in pursuit of a position with the Academy. Does it make a difference if you are applying for a tenure track or adjunct? While publications should naturally be in there, what about citations from other works? How do you handle presentations?
Defining terms and talkng past one another
A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.
It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.
What's good for Exxon
Reports that Donald Trump wants to make ExxonMobil Chairman/CEO Rex Tillerson Secretary of State have many concerned that Tillerson is going to put the company's business interests ahead of those of the United States, particularly with respect to Russian incursions in Crimea, Ukraine, and perhaps ultimately, the Balkans.
In 1953, President Eisenhower nominated General Motors President Charles Wilson as Secretary of Defense. During his confirmation hearing, Wilson insisted that while he would put the interests of the United States above those of GM, he rejected the premise "because for years I thought what was good for our country was good for General Motors, and vice versa." In that less-globalized era, Wilson may have been correct--a thriving GM meant good jobs for its workers and cheap cars for Americans. The question is whether that remains remotely true in a globalized economy (as Daniel Gross notes in the Slate piece linked above, Exxon's presence in the U.S. is minimal and functions more as a corporate citizen of the world). Exxon's need/desire to do business in and with Russia likely conflicts with U.S. needs to stand up to Russian expansionism. And Exxon certainly would prefer that Russia not remain under U.S. sanctions.
The Privacy of Criminal Records
Criminal records in the United States are more widely accessible than anywhere else in the world. Congress allows various industries, organizations and businesses access to the criminal histories of job applicants, employees, and volunteers. Inmate locators allow members of the public to find the location, crime of conviction, custody status and sentencing terms of detainees. Anyone can also look up in online registries the name, address, photograph and offense history of sex offenders and, in some states, those convicted of violent crimes. The public and media have daily access to arrest blotters, docket sheets and court case indexes. A few states even make publicly available documents within court records, like pre-sentence reports, that can contain mental and physical health information, and intimate personal and family history.
All this accessibility enables entrepreneurial secondary aggregation and distribution of criminal history information. Private information vendors market and sell lucrative criminal background check services, populating their databases with information downloaded from publicly-accessible sources and purchased from state and local governments. Particularly troubling are those companies that collect publicly available information about arrestees and offenders, including names and photographs, post them to their website, and then offer to remove the embarrassing information for a fee (it's not all that far from blackmail).
Are criminal records public information infused with public interest to which others should (or even must) have access, or are they personal information entitled to privacy protection?
Sunday, December 11, 2016
For Those About to "Take Exams," I Salute You
As we are now in the heart of final exams, I thought I would post this song to honor hard working students everywhere. Tim Blais is a scientist and musician who runs the A Capella Science youtube channel. Below is his hilarious (and somewhat accurate) satire of the Taylor Swift song "Shake It Off" entitled "Take Exams."
Saturday, December 10, 2016
I want to thank Howard and the other Prawfs for having me back this month. I'm really excited to be blawging again. This is a wonderful community, and, as a longtime PrawfsBlawg reader, the highlight of my year (no jokes in the comments, please).
It seems like no time at all has passed since I was here last year. There's even a new Star Wars movie to write about. Perhaps, I'll get to return next December for the release of Star Wars Episode VIII: The Force Gets Out of Bed.
I will be writing about topics like sports law, career advice, and other legal topics. Looking forward to it.
Friday, December 09, 2016
Comparison of law school adjuncts to adjuncts in other parts of the university
Surveys have confirmed the perception that adjuncts play a major and important role in US legal education. The most recent surveys which were conducted in 2007 and 2010 have demonstrated the extensive use of adjuncts at most U.S law schools. They have also pointed out the courses most often taught by full time faculty members and the courses that are taught by adjuncts, most of whom are judges and lawyers with other full time jobs. The sparse literature about law school adjuncts and their role in the pedagogy ASSUMES that they have little in common with adjuncts in other parts of the university. This assumption is based on the notion that most law school adjuncts have other lucrative jobs and are more in the nature of volunteers rather than folks trying to earn a living with their teaching.
Adjuncts in other parts of the university have been organizing and unionizing to provide better conditions and protections. Compare the lot of the English PhD in Boston, who is qualified for a full time job but has to make do with several adjunct positions in order to pay the bills with that of the lawyer or judge who has a full time gig but is teaching a trial practice or copyrights or sports law course. It is eye opening to consider the following: "Although teaching remains the province of tenured and tenure-track professors in some elite colleges and universities in the United States, this arrangement is increasingly anomalous in many other institutions of higher learning. “Contingent professors” (here used interchangeably with the term “adjuncts”) refers to anyone teaching at the tertiary level who is not in the tenure stream. This entry refers principally to those with higher degrees who are paid by the course. The shift away from the tenure system may not have been as rapid as is often thought (it dates back at least some decades), but it is a sweeping change. Contingents now constitute a significant majority of academics. In 1969, over 78 percent of faculty were tenured or tenure-track; by 2009, that figure had declined to about 33 percent. Research faculty, graduate students, and postdoctoral fellows are not included in those figures; if they were, the overall representation of adjunct or contingent faculty in higher education would be considerably higher. Adjuncts in Higher Education in the United States Tobias Hecht, Isabel Balseiro, Daniel Maxey http://www.oxfordbibliographies.com/view/document/obo-9780199756810/obo-9780199756810-0136.xml
As 90% of the law schools have been reacting to a significant reduction in revenues and customers perhaps it is time to look deeper and see what we can learn from similarities between use of adjuncts in other parts of the academy. For example, tenure and tenure track. "Thoughtful Clinicians point out that increased and expanded use of adjuncts is just another way for the schools to increase the percentage of “faculty” off the tenure track where they have far fewer protections." See: Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market. 59 J. Legal Educ. 598 (2010). Also interesting to note that the most recent article on this topic was written by a law student. He is now in practice and a member of the ABA Section of Legal Education Accreditation Committee.
Among the topics that require further study in this area:
- H0w does use of adjuncts in law schools compare with their use in business schools and med schools?
- How carefully do law schools watch and "supervise" the teaching by adjuncts?
- Has the extent of teaching by adjuncts changed in view of the reduction in revenue and number of students during the past few years; and if so what does the signify?
Professor Michael L. Rich
Michael L. Rich of Elon law passed away Wednesday, after a several-years illness. Michael was a guest prawf in April of this year and wrote movingly about his experiences and challenges balancing his prawf life with a terminal illness.
Our thoughts and prayers go to his family, friends (in and out of the legal academy), and Elon colleagues.
(Thanks to Eric Chaffee (Toledo) for sharing the news).
Thursday, December 08, 2016
JOTWELL: Effron on Gardner on Forum Non Conveniens
The Ethics of Talking Politics Online
Several years ago I did a short ABA piece with ten tips for maintaining professionalism online. Tip eight used to be a simple one: Steer clear of politics. Based on how we use social media these days, however, tip eight seems antiquated. "Politics" now casts a wide net and has staked its claim, front and center, on social media.
But political statements on social media are not just a matter of professionalism. They may give rise to ethics issues. For practitioners, taking a stance online on specific issues could create a conflict of interest, at least according to a November legal ethics opinion by the Washington, D.C. Bar. Model Rule 1.7 states that a lawyer has a positional conflict when the lawyer's professional judgment may be adversely affected by the lawyer's personal interest. According to the D.C. Bar, when using social media, "[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict." This opinion suggests that online political statements could be used to show a lawyer's conflicting personal interest, an issue that becomes particularly relevant as political posts dominate social media.
Potential pitfalls also exist for judges and professors.
A Bargaining Zone for Miranda Waivers
There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.
Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.
This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.
Tuesday, December 06, 2016
Facebook News Feed Tips
Facebook frustrations have seemed to reach new heights lately. NPR's All Tech Considered did a story yesterday with tips on how to spot fake news, which spreads rapidly on social media and seems to add to the angst. But our general discontent can be reduced with the following settings for taming out-of-control news feeds (links go to Facebook's help page for instructions).
- Unfollow. You will no longer see that person's updates in your news feed but you can still view their profile and remain friends. What the unfollowed friend sees of your stuff remains unchanged, however. Added bonus: friends don't know you unfollowed them.
- Use news feed preferences. You can tell Facebook what people and pages you want prioritized in your news feed. You can also hide posts from a certain source (say, for example, whenever anyone shares a story from a specific dubious news site). If you want to prevent the echo chamber effect, prioritize legit sources that offer perspectives different than your own.
- Set as restricted. Restricted friends only see your public profile. This is useful when you're friends with someone only to facilitate group or event invitations, or if you really don't want them seeing (and commenting) on any private content at all. But don't confuse setting someone as restricted with blocking, the feature that unfriends the person and prevents all future contact via Facebook.
- Limit your audience. Consider using inline audience selectors for individual posts, like marking some friends as "acquaintances" and then posting select items to just "friends except acquaintances" as the audience.
- Review tags. Turn on Timeline review to pre-approve tagged content before it appears on your Timeline. Unfortunately, Facebook does not have Timeline review for things people post directly to your Timeline, as opposed to tagged content. So the only option to curtail unwanted direct Timeline posts is to change your settings to prevent people from posting to your Timeline at all (just be sure to change it back to "friends" before your birthday, or you'll feel very unpopular).
- Use groups. Consider discussing things in subject-matter specific groups rather than posting to the potentially broad and disparate audience for your personal profile. Public groups are visible by anyone and can be joined by anyone. Closed groups appear in a Facebook search, but posts themselves are private and new members must be invited to join. Secret groups go a step further: they are also private but can't be found in a Facebook search at all.
With some of these settings, I've been able to restore my news feed to a healthy mix of current events, cat memes, and baby pictures. Of course, limiting your audience and moving some conversations to groups doesn't give free license to be unprofessional or unethical. I'll discuss ethics specifically in my next post.
Clemency and Collateral Consequences
Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.
That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.
Malcolm Feeley famously wrote three decades ago that, when it comes to criminal justice, the process is the punishment. In today’s increasingly efficient, assembly-line criminal justice system, the process may no longer extract such a damaging toll (though it certainly inflicts unnecessary harm). Rather, as James Jacobs has written in his recent book on criminal records, The Eternal Criminal Record, today “the basic punishment meted out in criminal cases is a conviction record that exposes the record-subject to discrimination, disabilities, and disqualifications.”
I ignored the advice of wise colleagues and prawfsblawg commenters about writing a book review pre-tenure and reviewed Jacobs' important book. [I loved doing so, and would do it again, whatever tenure points it was or wasn't worth.] In it, I noted three aspects of American Criminal Record Exceptionalism: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. The mixed feelings I have on behalf of my clemency client are most related to the exceptional permanence of his criminal record. As he sets out as a 52-year-old man, whose days of offending should be long behind him, to find work and housing, to access public benefits and vote for representatives and on legislation that will govern his community, he will too often find that his punishment continues because his criminal record decides his fate.
A commutation is not forgiveness in the way that a pardon is. As the DoJ FAQ on clemency makes clear, a commutation "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." Yet a commutation suggests that a sufficient amount of punishment has already been inflicted on the offender. For reasons explored briefly in my book review and more fully in other articles I've written about criminal convictions and access to citizenship and the criminal records of youth, I think it is worth serious consideration whether there should be a statutory sunset on the collateral consequences of criminal records. Decarceration and penal moderation deserve the policy momentum they have today, and they should be joined by further efforts to minimize the unjustifiably long shadow of criminal convictions.
Monday, December 05, 2016
Must Read: Tristin Green's new book - Discrimination Laundering
I am excited to report that the much anticipated book of law professor Tristin Green is out. Here is the description from Cambridge Press:
While discrimination in the workplace is often perceived to be undertaken at the hands of individual or ‘rogue’ employees acting against the better interest of their employers, the truth is often the opposite: organizations are inciting discrimination through the work environments they create. Worse, the law increasingly ignores this reality and exacerbates the problem. In this groundbreaking book, Tristin K. Green describes the process of discrimination laundering, showing how judges are changing the law to protect employers, and why. By bringing organizations back into the discussion of discrimination, with real-world stories and extensive social science research, Green shows how organizational and legal efforts to minimize discrimination – usually by policing individuals over broader organizational change – are taking us in the wrong direction, and how the law can do better by creating incentives for organizational efforts that are likely to minimize discrimination, instead of inciting it.
I was lucky enough to receive an advance copy of the book to review and here is what I wrote for the back-cover blurb:
Tristin Green, one of the nation’s leading employment discrimination scholars, has written a book that will change the way we understand the processes of workplace inequality and what should be done to prevent ongoing biases and discrimination. With compelling storytelling and sophisticated analysis, Discrimination Laundering provocatively shows that, perversely, the law increasingly shields organizations from responsibility for patterned institutional discrimination. Green skillfully weaves together developments in law, legal scholarship, and social science in a way that deepens and furthers the debate about workplace equality. The book is important, imaginative, and a must-read for anyone who cares about next generation anti-discrimination policies.
Buy it while its hot - assign it to your students - get it as gifts. Especially now - we need this book and its smart insights!
What is a Law School Professor of Practice?
Over the past decade or so, more and more law schools have jumped on the"professor of practice" bandwagon. This may have been driven by progeny of the Macrate Report or by the need to develop still another term for the untenured faculty member who is different from an adjunct and may or may not be different from a faculty member connected with the law school clinic. Anecdotally, it may characterize the year-to-year contractors who now oversee externs or who populated the clinic.
In other schools it is similar to the AAUP designation and identifies a well thought of person who has practiced outside the academy and who now spends most of her time doing something at the law school as a sabbatical from that practice or after such a career. It is definitely caught up in the tension related to the perceived growth of the percentage of faculty in the untenured and untenurable category. The AAUP has looked a bit at professors of practice in the academy. https://www.aaup.org/report/professors-practice Here is part of what they have to say. “While appointments to these positions and similarly titled positions such as "practice professors," "professors of the practice," and "professors of professional practice" have commonly been reserved for practitioners who are appointed because of skills and expertise acquired in nonacademic careers, such appointments are also being offered to individuals with academic backgrounds.“
What seems to be an increase in the number of professors of practice comes at the time when all but the top twenty or so law schools are rearranging themselves in response to a rapid decrease in revenue. Perhaps this means that the increased use at schools with stable income is different from the increase at schools that are adjusting to a decrease in customers as well as a decrease in revenue. One thing that is clear is that the category has not been examined outside individual law schools or perhaps not much within. In one way that makes sense since we are in the very early stage of development and perhaps too early for insights other than noticing and understanding the various categories subsumed within the term.
The author is a professor of practice who started my career as a full time law prof for two years and continued as an adjunct, but spent most of my career in legal services and private practice, then retired and came back to the law school. Last year i wrote and did not teach at all and spent about 12 hours a week at the school. This semester i am writing and co teaching a lawyering practice/extern course. Next semester i will fill in for an overload and teach commercial transactions and will hopefully continue to write and raise the number of hours i am at the law school. I may spend some time thinking and writing about professors of practice and welcome examples of the way the term is being employed at other law schools.
"Crazy Ex-Girlfriend" does Erie
One of the characters on Crazy Ex-Girlfriend just started law school (in the middle of the year, but whatever). Last week, she was studying with a classmate and reminds him that "We have to remember that federal courts in diversity actions apply the substantive law of the state . . ."
Of course, she was supposed to be studying for Torts, but whatever.
Jews, race, ethnicity, and religion
A good read in The Atlantic on whether Jews are "white" or whether we constitute a distinct racial or ethnic group, and what that means for our place in American society. It is a question that may be more relevant in the coming years, on both sides of the political spectrum.
Sunday, December 04, 2016
Football rules question
I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.
Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."
It seems to apply here--the holding fouls produced a safety (because the punter was in the end zone) on the last play of the game. And the officials announced that the safety was a result of the holds, not the punter stepping out of bounds.
So why wasn't that rule invoked to give the Bengals a chance at a free kick? Why wasn't that rule applicable here?
Friday, December 02, 2016
Pedagogy and the Election
With my last post this election cycle, I wanted to do two things: first, to say thank you to Howard for the invitation and to my fellow contributors for their insights; and, second, to describe one important step that my colleagues at the University of Washington have taken in response to the presidential election and the questions it has raised.
My colleagues have designed a new course, entitled “Executive Power and Its Limits.” This course explores the boundaries of the presidency and the regulatory state. As designed by two of our administrative law experts, Sanne Knudsen and Kathryn Watts, the course is part overview, with discussions of the President’s relationship with the three branches of government, and part case study, with days devoted to a range of substantive areas, including immigration, health care, and the environment. Each of these areas of study will draw on expertise here at the law school, with most class sessions run not by Sanne or Kathryn, but rather by others on the faculty. One of the most innovative and important aspects of this course involves the way the students will be assessed. Rather take a final exam, each must draft one of the following: a regulatory comment in an ongoing rulemaking; a citizen petition for rulemaking; or an amicus brief in a pending case. The students decide on their own what position to take in their projects and whether, ultimately, to file the documents they have composed.
The creation of this class makes me proud to be a member of this faculty, and it helps me better to understand the wide range of roles that we can play as professors and members of the legal community. My colleagues’ response to the election has been to design a forward thinking, practically empowering, substantively rich, and ideologically neutral course that will benefit the students—and by extension, the wider community—enormously. It’s a course that, in my mind, should be taught every year, and one that is particularly important during times of presidential transition. I hope others are also finding ways to commit creativity and energy to figure out how best to respond to what we are, in all likelihood, now facing: an extended period of significant legal change.
Facebook’s Fake News Crisis and Social Media Echo Chambers
This week I wrapped up my Torts course with a discussion of products liability and the McDonald’s hot coffee case. We watched this clip, which noted that Stella Liebeck’s case became one of the most misreported tort stories of all time: news of the $2.9 million verdict went viral, facts were skewed, and Ms. Liebeck was villainized.
The hot coffee case happened in the 1990s, and I can only imagine the memes and fake headlines we would have seen on Facebook had the case happened today. This brings me to the 2016 election – the results of which left many people stunned by the seemingly unpredictable outcome. Social media may be to blame, at least in part, for two reasons. First, “fake news" has blurred the lines between entertainment, advertising, and real journalism. Second, our news feeds keep us from hearing diverse perspectives.
First, fake news is becoming harder to spot and control. Until two weeks ago, Facebook allowed fake news stories as sponsored content. These stories consist of made-up clickbait, dressed up to look like legit news. Fake-news generators would pay to have their content appear on Facebook because it brought more clicks and ad revenue. Rolling Stone reported this week about a comedian and fake-news creator who intended to troll Trump while making some cash in the process, thinking his stories were too ridiculous to fool anyone. New York Times interviewed a fake news creator in Tbilisi, Georgia who focused on anti-Clinton news, as it produced the most clicks. He also considered his work satire and not fake news. Certainly we as readers should use good judgment and be at least somewhat skeptical about what we read. But one recent study shows a disturbing inability to differentiate between real news and fake news, especially among younger people. The truth is, we are not sorting out fact from fiction very well online.
Second, news feed bias may have led us further astray.
Thursday, December 01, 2016
The academic calendar and law review submissions
Excited to be back at Prawfsblawg again for another month, musing mostly about youth and the law and law enforcement surveillance. Thank you to Howard for making it possible.
I'll start things off with an observation about the upcoming winter break and it's relation to what most seem to believe is the increasingly unitary Feb-March submission cycle for law review articles (though I submitted an article this past fall, and ended up with a placement I was thrilled to get).
The Benefits of Closer Connections Among Law School Adjuncts and Full Time Law Faculty
Surveys have confirmed the perception that adjuncts play a major and important role in U.S. legal education. The most recent surveys which were conducted in 2007 and 2010 have demonstrated the extensive use of adjuncts at most U.S. law schools. They have also pointed out the courses most often taught by full-time faculty members and the courses that are taught by adjuncts, most of whom are judges and lawyers with other full time jobs. It is past time for an updated comprehensive survey to determine whether the reduction in revenue in the face of continuing pressure for a more “practical;” curriculum have resulted in any change in the use of adjuncts so that any such changes can be thoughtfully evaluated.
The 2011 Best Practices Report of the Committee on Adjunct Faculty of the ABA Section of Legal Education and Admissions to the Bar stated:
“In addition to the teaching contributions of adjunct faculty, however, there exists another and slightly different kind of contribution that adjuncts may make. There is a largely untapped potential for collaboration where full-time faculty and adjunct faculty could work together in ways that truly enhance the students’ experience while at the same time maximizing the contributions that the full-time and adjunct faculty may make to the study and improvement of the law. “
If a school creates a community among full time-faculty and adjunct faculty and successfully encourages meaningful interaction among them, the full-time faculty and the adjuncts will both benefit and and the law students will be the major beneficiaries. This interaction can also dilute any resentment, lack of respect and disrespect that may exist from the full-time faculty to the adjuncts or from the adjuncts to the full-time faculty.
There are many specific examples of how that might be done. Full time faculty members regularly make presentations of drafts of articles and other types of work to the faculty. It would be simple enough to invite adjuncts who teach in the subject area of those presentations to participate. The result would be not only the improvement of the articles, but an interchange across full-time-adjunct lines which might build mutual respect and enhanced understanding.
Another example is the work of the curriculum committee. Whenever that committee is considering issues in a particular subject matter area it would be an easy matter to invite input from adjuncts who teach in that or related subject matter areas. Once again the interchange would not only improve the decision making but would also increase the respect in both directions. A third possibility is including the adjuncts in the vetting of new faculty who would be teaching in an area related to that of the adjunct.
In order to identify the efforts that make the most sense at any particular law school and in order to lay the foundation for a successful effort, first steps might be:
Identify an initial core group of adjuncts who might be willing to spend a few extra hours a month and who have something to contribute to the law school in addition to the specific courses they teach; and develop an small,active and strategic committee including an administrator who works with adjuncts, full time faculty and adjuncts.
Perhaps the current crises in cost of legal education and in enrollment and revenue provide the opportunity for such innovation. There are lots of other practical opportunities for such collaboration.
Greetings from a First-Time GuestPrawf
This is my blogging debut – thanks for having me as a guest this month! I’m an assistant professor at University of Toledo College of Law, where I teach Torts, Legal Ethics, a seminar on social media discovery, and, as of next semester, Privacy & Data Security Law. I mainly write on social media & the law (which is basically the law of the horse but with emojis). I thought December would be a great month for my guest stint, as post-election analysis would die down and we once again would be interested in seemingly trivial things, like social media. So much for that!
But I still intend to blog about social media topics, including social media’s post-election angst. Other topics will include top social networks your students use (spoiler alert: it’s Snapchat), Facebook tools to tame your out-of-control news feed, social media issues in legal ethics, and Twitter tips for academics. I’ll also write a bit about the sharing economy & tort law, my other area of interest.
So thanks again for having me and I look forward to a great month!
After the jump are all the posts on Election 2016 (in reverse chronological order). Thanks again to Josh Douglas, Ned Foley, Lisa Mannheim, Michael Morley, Bertrall Ross, and Franita Tolson for participating, along with our regular Prawfs who weighed in.
One note: I posted the links in chronological order and it is fascinating to read posts from early October, amidst the debates and "locker room talk," discussing Republicans looking to replace Trump, whether early voters could/should be able to change their votes, and whether Democrats would eliminate the filibuster to get Clinton justices confirmed. It is a stark reminder of how suddenly and completely everything flipped and how wrong many of us were.
Happy December, everyone. Thanks to all of our November guests, as well as our election bloggers (I will post a single post with all the election-related writings later today).
And please welcome our December guests: David Lander (Saint Louis), Kevin Lapp (Loyola-LA), Scott Maravilla (ALJ), and Agnieszka McPeak (Toledo).
It's past midnight on December 1 and forget turning into a pumpkin, I'm quickly turning into a lean & mean exam-writing and grading machine. I’ve had a great time blogging—thanks for reading and commenting. Enjoy the holiday season and until next time, Margaret
Wednesday, November 30, 2016
Political parties and constitutional mechanisms
Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):
1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.
This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.
Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)
Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.
First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.
By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)
What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.
Sponsored Post: Learning Criminal Procedure
The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law. The goal of complete practice-readiness might be something of a tall order. True competence in even one area of the law may take five or even ten years to develop. We have our students for just three. But, there is certainly much more we can be doing to make our students what we will call “practice-primed.” There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers. There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum. This is a large part of the reason we came together to write the Learning Criminal Procedure.
What’s Going On?
While it has been fun for me to check news headlines against my data (of 109 divorce cases involving children from Marion County filed over 3 months in 2008), my law review articles resulting from this data look at how closely the Indiana courts follow legislative mandates and national trends on property division and child-related matters in divorce.
First in regards to property-related issues, Indiana has moved toward limiting spousal support, like other states. According to the Indiana family law code, rehabilitative maintenance can be awarded for up to 3 years, or as long as the spouse can’t work due to a health issue or a child’s health issue. Indeed, in my sample of divorce cases, only in 3 cases did a spouse receive spousal support. This may be in contrast to many people’s expectations regarding alimony. The Marion County courts also seemed inclined toward approximately a 50/50 property division, as the rebuttable presumption in the Indiana family law code requires.
Second, in regards to child-related matters, while the mother received primary custody in a bit more than half of the cases, there seems to be an effort to closely involve both parents no matter the custody arrangement. In my data, visitation was very liberally awarded, as can be seen by the fact that many parents had a parenting time credit applied toward their child support, which aims to offset the child’s daily living costs during extensive visitation. About 1/3 of cases had child support arrears, which is in line with difficulties in child support collection around the globe.
It’s been really interesting to see all this data to check against family law theories and headlines. While it’s just one set of data, it’s been a useful glimpse into what’s going on today.
Tuesday, November 29, 2016
Tools of the Trade
We don’t have many “tools of the trade” as law professors. Last year, my daughter had to take “something mommy or daddy uses at work” to preschool for show-and-tell. Given that my husband and I are both law professors, we were in a bit of a pickle: putting a 10-pound casebook in her tiny backpack seemed like a recipe for a back injury, and handing her a single piece of chalk seemed like a cop out. We finally settled on a copy of the Constitution which was almost certainly underwhelming for the 4-year-olds in her class, particularly compared to what the other kids (with significantly cooler parents) brought in. In my next life, remind me to be a paleontologist.
Her assignment made me reflect on the few tools that I do use and whether they are the best available for the job. I’m currently working on the fifth article that I’ve written with Scrivener, the word-processing program and “project management tool” designed for long-form writing. I made the switch from Microsoft Word about three years ago, and I haven’t looked back. My sense (solely from reading Scrivener’s online discussion boards and talking to colleagues) is that the program is fairly popular with our counterparts in the social sciences and humanities, but that only a small – but extremely devoted – cadre of law professors has adopted it.
My writing process hasn’t changed much in recent years and Word always seemed completely sufficient for my purposes, so I was skeptical about whether learning a newer and more complicated program was worth the effort. Within a month of switching, though, I had become somewhat of a Scrivener zealot among my friends and colleagues. It has increased my efficiency and almost eliminated the typical shuffling of papers that writing a scholarly article entails. Having the ability to organize and access my sources, outlines, drafts, and data all within one interface has been a game changer for me.
The Scrivener experience has made me wonder what other workplace tools I’ve been missing. What’s been working for you?
Law, Social Activism, and Political Change
Since a few weeks ago I have been thinking more and more about social movements and the law. A few years ago, I published an article called The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, published in the Harvard Law Review. I wrote it because I wanted to sound the alarm that progressive lawyers and activists were criticizing the law and the power of governmental institutions to bring change in counter-productive ways and at the same time, conservative social movements were in fact using the courts, the legislature and the executive branches in more effective ways. Here is the abstract. I might have written the article differently today but the core of it is still very much relevant to 2016:
The limits of law in bringing about social change have long preoccupied legal thinkers. A recent development, however, is that new schools of thought build upon the critical understanding of these limits to produce a body of literature that privileges in a variety of ways extra-legal activism. These writings present themselves as alternatives to the path of legal reform, avoiding the risks of cooptation and deradicalization which have been the fate of earlier legalistic activism. Three extra-legal focal points emerge in this literature: (1) a move away from professionalism to "lay lawyering"; (2) a move from the legal arena to an "autonomous sphere" of action; and (3) a departure from formal legal norms to softer, "informal" normativities. The article demonstrates how these recent developments are misdirected, as they draw erroneous conclusions from critical understandings about the cooptative risks of legal strategies. In particular, contemporary proposals of extra-legal reform strategies fail to recognize ways in which such alternatives are frequently subject to the same shortcomings they seek to evade by opting out of the legal arena. Linking historical examples of critical analysis of the labor and the civil rights movements to contemporary public interest literature, the article charts a more nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding out effects, institutional limitations, and legitimation. The article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extra-legal truism, which rejects law reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist - that the state is no longer able to ensure socially responsible practices in the 21st century economy.
The return of flag burning? (Updated)
Donald Trump tweeted this morning (after the sun was up, so no 3 a.m. jokes to be had) "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" Jonathan Chait suggests this is misdirection to cover Trump's pending kleptocracy and the (from Democrats' perspective) extreme policy ideas of his cabinet members, a red-meat issue to rile up both his critics and supporters
But it raises the question whether a flag-burning amendment is coming in the new Congress and whether it might, finally, pass. The last time it moved to a vote was 2006, the last time Republicans controlled both houses and the White House; it passed the House and fell one vote short in the Senate. And that was without an unpopular Republican President making it into a thing. With a very different, more conservative Senate and a Republican president willing to making it an issue that appeals directly to his base, might the amendment finally get out of Congress? Plus, Republicans control both chambers in 30 states and Nebraska's unicameral legislature seems likely to go for it, given the state's politics. Are there seven more states to be had in a new political environment?
Update: A number of Republican Senators and Representatives, including Mitch McConnell, reminded Trump that the First Amendment protects flag burning and the right to "disgrace" the flag. Of course, one could see many people pivoting from such "is" statements about flag burning to support an amendment that creates a new "ought." To his credit, McConnell seems more categorically opposed to messing with the First Amendment.
Second Update: What would the vote be if flag burning came anew before the current Court? The only current justice I could see ruling against flag burning being protected, based on recent First Amendment cases, is Justice Alito.
Third Update: I should add that, under the theory of departmentalism I have been espousing here and elsewhere, Trump's threats are constitutionally permissible and appropriate. If he believes flag-burning can constitutionally be punished, he is free to seek to prosecute, jail, or strip citizenship from those who burn flags. He will lose when he tries. But his actions are consistent with his oath and his Take Care obligations.
Five lessons on body cams
Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.
Friday, November 25, 2016
JOTWELL: Walsh on Bray on national injunctions
The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.
And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.
What the what? Ben Carson to head HUD!
(And the real story of segregation, Detroit, AFFH, and busing)
Far be it for me to try to make rhyme or reason of Trump's cabinet picks(!), but while I wondered and worried last week about who he'd tag for HUD, Ben Carson's name didn't even come to mind. I hoped for someone like Pamela Patenaude or even former Senator Scott Brown, who instead now seems headed to be secretary of Veterans Affairs. And I worried that Trump would, instead, name someone like Robert Astorino, Westchester County Executive who has been long been fighting HUD on fair housing issues in suburban NY. Instead, we have Dr. Ben Carson, whose only experience with fair/affordable housing issues seems to be that he grew up in center-city Detroit. Carson is not a housing expert, but he has made a few discouraging (and fairly incomprehensible) statements on housing policy, for example in his 2015 op-ed in the Washington Times.
In his Washington Times op-ed, Carson calls HUD's AFFH rule "another failed socialist experiment" and draws parallels with mandated busing to de-segregate schools. In his op-ed, Carson says that busing was a failure because (1) it did not improve school integration (the percentage of blacks attending majority black schools stayed essentially the same), and (2) was "unpopular among both blacks and whites." Carson then states that mandated busing led to white flight because anyone with the means to do so moved to the suburbs "to escape mandated busing" which "contributed to a blighted inner cities in which poverty and school segregation became even more concentrated."
What the what?
Thursday, November 24, 2016
And still more restrictions on student-athlete speech
So the Harvard soccer and Columbia wrestling teams were suspended over the speech--private schools all, dealing with arguably "official team" speech. Then four ULL football players were suspended over a "fuck Trump" video--justified by some as occurring in the locker room and thus in the team context.
Now we have four Kansas cheerleaders suspended over a snapchat photo in which three male cheerleaders were photographed standing side-by-side in what appear to be intentionally-ugly Christmas sweaters with the Kansas "K," over the message "Kkk go Trump." (Photo after the jump). The female cheerleader/photographer insists someone took her phone and posted the picture; the mother of one of the men insists they were old sweaters.
The photo apparently was taken at a dorm party. It was not in the locker room, not part of an official team or university function, and not made in any team-wide forum or context. Moreover, the photo cannot be squeezed into any category of unprotected expression and reflects, albeit in a snarky way, a political message. So we now have a clear case of treating student-athletes differently than their non-athlete classmates for First Amendment purposes even when they are speaking as students and not as athletes.
The only justification is if student-athletes are employees who speak for and represent the university--a tough sell, given the rest of the NCAA's agenda (as a commenter on a prior post noted). And even employees (including university employees) do not speak in their employment positions at all times and enjoy something closer to ordinary First Amendment protection when speaking as citizens on matters of public concern. We long ago rejected the Holmesian idea that "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman," at least as the First Amendment limit. We would similarly reject the idea that "There may be a constitutional right to speak, but there is no constitutional right to be a Kansas Jayhawk cheerleader." Somewhere there must be a point at which a student-athlete speaks for herself and not as the university, and thus cannot be stripped of her university position because of her private speech.
Housing Bubble (Toil & Trouble)
The 2008 Foreclosure Crisis seems like only yesterday. Surely we must still remember the lessons learned from the crash and will not again allow real estate prices to inflate above a sustainable level... right? But here's a little chart that sort of scares me - note that we're at the top of the second peak in this roller coaster ride called the housing market:
Yesterday the FHFA announced an increase to the loan limit for prime loans, with the new maximum home mortgage loan for one-unit properties set at $424,100 for 2017 (more in higher-priced markets). This is the first maximum loan dollar increase since 2006. Unless you follow real estate or are in the market for a large mortgage loan, you may not have recognized the significance of this increase. The Housing and Economic Recovery Act of 2008 prohibited any increase in the loan limit above $417,000 unless and until the average U.S. home price returned to its pre-decline level. That hasn't happened until this year. The FHFA just announced that "that average home prices are now above their level in the third quarter of 2007." I guess we're back, baby.
Wednesday, November 23, 2016
Another random predictor: Ending sports droughts
Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:
1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.
1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.
2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.
2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.
2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.
This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.
Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?
(Last) Fact or Fiction: Is It Really Over?
Almost exactly two years ago, I posted to this blog a tearjerker shampoo commercial in China that ended with the statistic that approximately 100,000 couples reconciled in the previous year out of 3 million divorces, or 3.33%.
Indeed, there are a lot of songs about this. For example, the Sugar Ray lyrics go something like, “When it’s over / That’s the time I fall in love again.”
So, is it really true? What chance does Brangelina have? These questions burned in my mind, and so I looked into my data from 109 divorce cases involving children that were filed in Marion County in 2008.
Is there hope for reconciliation?
Don’t hold your breath. Only 4 couples in my sample of 109 divorcing couples reconciled at some point, or, 3.67%. This is very similar to that Chinese statistic. Coincidence, or the universality of human nature?
Tuesday, November 22, 2016
And good luck dealing at dinner with your sober liberal nieces and nephews who voted for Clinton (or, more likely, Jill Stein, which is partly why we're in this mess).