Monday, May 29, 2017

If Silicon Valley Re-Invented the Law School 

What would a Silicon Valley-inspired law school look like?  I ask because I have been spending the last few years studying disruptive technologies, and, I wondered – as a thought experiment – how Silicon Valley entrepreneurs might rethink how to teach law for the digital age.

Law schools are tradition-bound institutions. For decades, law school classes have been taught in a way that would at least be familiar to the students who went to law school in earlier generations.  Obviously, numerous innovations have occurred with the advent of clinical education, experiential opportunities, and clear advances in diversity, teaching methods, and some classroom technology.  But, at some basic core, the process of legal teaching and learning has remained relatively unchanged.  The books from which I teach look a lot like the textbooks I learned from, and the ones my parents, and grandfather learned from.

In other industries, disruption has occurred.  If you brought the highest tech worker from 1960 and brought them to a successful San Francisco tech office, with open spaces, pods, laptops, ping pong tables, free goodies, and a corporate mission to sell digital widgets globally, via the internet or the Internet of Things, it would not look at all familiar. Workspaces, work, and how we think about work has changed.

The San Francisco tech scene remains an outlier, of course, but that is my point.  I am not seeking to redesign all law schools, but to re-imagine one for the future.

And, I know there have been experiments around the edges.  Cornell Law School launched a new program on information and technology law in New York City.  Georgetown Law School teaches a joint practicum class with MIT on cutting edge issues in law and technology.  Stanford being Stanford has various projects and programs about legal technology.  And Harvard, Yale, Berkeley, NYU, and GW, among others have institutes devoted to new digital technologies.  But, I mean what if instead of adding to the existing curriculum, we completely disrupted it.

Imagine if we started from scratch, with Google/Apple/Facebook/Microsoft/Intel etc. each donating $100 million for this experiment in legal education.  The sky is the limit and all we need is the design.  What would you do?

I have some ideas, but thought I would open the areas of debate rather than narrowing them with my views.

  • How would we design the space? Would classrooms make sense?  Would labs, teams, or distance learning be a better model?  Should law teaching be designed to match a more collaborative process – problem solving, practical, creative, disruptive?
  • How much of the existing curriculum would remain? Obviously, students need to pass the Bar Exam, but what part of contracts, torts, criminal law, etc., could be changed?  Is it a change in emphasis or an entire rethinking of the curriculum? What other subjects or types of learning should be added to the core curriculum?  Do you add technological design elements? Practical engineering or computer/data science or coding classes?   
  • What kind of students would this law school attract? Engineers, computer scientists, data scientists, hackers, cybersecurity professionals, data theorists, entreprenuers etc.?  Would such a school expand the possible pool of potential lawyers?
  • Who would teach? How many law professors would be qualified to join this faculty?  How would hiring be different?
  • Would the goal be to teach lawyers for a new legal economy (which would include a disruption of the legal profession) or teach lawyers to be useful to tech companies and to shape technology policy and law?
  • Does the legal market need a Cal Tech or MIT of legal education?

These are some initial questions.  I welcome other questions, and any answers if anyone has thoughts on the subject.

Posted by Andrew Guthrie Ferguson on May 29, 2017 at 09:14 PM | Permalink | Comments (17)

Symposium Introduction: SCOTUS OT 2016

Welcome to the first (hopefully annual) PrawfsBlawg Symposium on the end of the SCOTUS Term. Our guests and regular Prawfs will be exchanging posts and talking to our readers and to one another about the final cases of the Term, as well as other issues relating to the Court.

I will get the conversation started with a few questions for consideration and discussion before the final month begins and we get into the flood of cases:

• By my count, there are 34 cases left to be decided. Which one(s) are you anticipating and why?

• Fourteen of those cases are from the April sitting, the only one in which Justice Gorsuch participated. Besides the obvious--no 4-4 splits--how do you anticipate Justice Gorsuch affecting the outcomes in these cases, compared with how they might have come out were the Court still short-handed? How does Gorsuch appear to have affected the Court's dynamics?

• What pending cert petitions are you watching and why? Which do you expect the Court to grant?

• Is Justice Kennedy going to retire at the end of this Term?

Feel free to start the month by discussing these and other issues not presented here.

Posted by Howard Wasserman on May 29, 2017 at 07:17 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Rotations

Thanks to Ben and Andrew for visiting in May; they will be around for a couple final days.

For June, we are going to run a symposium on the end of the October 2016 SCOTUS Term. This will be a month-long exchange of posts,  in a conversational and interactive manner; we will be discussing final decisions of the Term as they are released, as well as other issues surrounding the Court, such as new cert grants, the influence of Justice Gorsuch on the Court's dynamics, and the rumors of Justice Kennedy's retirement. We will be talking with you and with one another.

Guest-bloggers are Will Baude (Chicago), Daniel Epps (Wash U), Leah Litman (Irvine), Andra Robertson (Case), Stephen Sachs (Duke), Ian Samuel (Harvard),  and Chris Walker (OSU) [ed: and late additions Joseph Miller (Georgia) and David Fontana (GW)]. In addition, the regular Prawfs who write on SCOTUS issues will be joining in the mix. This is something a little different for us. I think it will be fun and interesting.

Because there may be opinions released on Tuesday, we are going to start a couple days early.

 

Posted by Howard Wasserman on May 29, 2017 at 07:13 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Summer Reading Suggestions

With the summer starting, it's time to think about the books to read over the summer.  If you're looking for engrossing and informative reads, here are a couple I really enjoyed: 

  • Black Edge by Sheelah Kolhatkar tells the tale of insider trading investigations into Steve Cohen's SAC Capital.  Fans of Showtime's Billions might find some similarities between Black Edge and the show.  If you've ever had to deal with a student honor code proceeding, you will also probably love the coverage of Mathew Martoma's forged transcripts and clerkship applications.
  • The Undoing Project by Michael Lewis explores the relationship between Daniel Kahneman and Amos Tversky.  If you've read Daniel Kahneman's book Thinking Fast and Slow, this puts that giant body of work into context.

What else should I put on my list?   I've got Norm Champ's Going Public on deck right now and need to pick up more material.

Posted by Benjamin P. Edwards on May 29, 2017 at 03:23 PM | Permalink | Comments (1)

Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, May 27, 2017

A Benefit of Magnanimity

Our opinions sometimes inform our personal identities.  Changing your opinion on some subjects may also require you to change how you self-identify.  Changing an opinion on these issues may also cause you to lose your membership in a group.  On some issues, changing your opinion might cause your social group to ostracize you.   It isn't easy to change a position you took publicly.

When many people hold the same opinion, they will not all abandon it at once. Some people may hold an opinion more because they belong to a group that holds the opinion than because of any particularly well thought out rationale.  Some people will switch on an issue before others.  

We can treat people changing their beliefs in different ways.  One approach may be to hector them for taking so long to come around.  While they might be done holding the opinion, we might not be ready to stop bashing them for holding it in the first place.  This sends a terrible message to persons thinking about making the jump.  It tells them that they may lose standing in their current community of belief and not be welcomed into another.  Publicly criticizing others for taking too long to change their opinion seems likely to make it harder for others to take the jump.

Magnanimity seems a better approach.  It keeps the focus on the beliefs at issue instead of on the person holding the belief.  It also gives others an incentive to move to your side.

With that said, I'd like to announce that I've changed my mind:  I will now use the Oxford comma.  I'm still evolving on one or two spaces after a period.

Posted by Benjamin P. Edwards on May 27, 2017 at 09:01 PM | Permalink | Comments (2)

Friday, May 26, 2017

“Bright Data”  

At the core of the rise of data-driven policing is the ability to predict risk.  Predictive policing does not actually predict crime, but instead provides a mathematical assessment of heightened risk at certain places or with certain people.  The technology analyzes risk, and the inputs are generally identifiable factors that can be replicated across jurisdictions.

For example, certain environmental factors encourage crime in certain places.  These risks may involve fixed structures (abandoned property, empty lots), poor lighting (to avoid detection), escape routes (to avoid capture), access to legitimate businesses (to hide one’s intention), etc., with the growing number of risk factors adding up to a heighten likelihood of criminal activity.  Crunch the numbers, study crime patterns, and you can forecast where crime is most likely to occur.   

Similarly, certain socio-economic factors and lifestyle choices can heighten risk.  If you are involved in gang activities, drug activities, and live in poor areas in certain cities, your likelihood of being involved in a shooting is significantly greater than others without those risk factors.  Add in proximity to past violence, arrests, and past acts of gun violence, and particular people can be targeted as more likely to continue along that path.

At a very simple level (hidden by a lot of complex math) real world inputs get fed into an algorithm to create predicted levels of heightened risk.

In the policing context, this can be helpful to guide police to patrol areas predicted to be of higher risk, or to target individuals identified to be at a higher risk of crime. 

But, notice that the prediction of risk does not determine the remedy of a policing response.  All of the fancy risk assessment only goes to identify the places or people who might be at risk of being involved in crime.  The technology does not speak to how one might remedy that risk.  More after the break.

Continue reading "“Bright Data”  "

Posted by Andrew Guthrie Ferguson on May 26, 2017 at 11:49 AM | Permalink | Comments (1)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

Continue reading "Scope of injunction in the 4th Circuit travel ban decision"

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Allure of Big Data Policing

As I mentioned in my initial post, the goal of my book project on “The Rise of Big Data Policing” is to examine how technology is changing the “who,” “where,” “when,” and “how” we police – especially in large urban cities.  As I write in the introduction:

"New technologies threaten to impact all aspects of policing, and studying the resulting distortions provides a framework to evaluate all future surveillance technologies. A race is on to transform policing. New developments in consumer data collection have merged with law enforcement’s desire to embrace “smart policing” principles in an effort to increase efficiency amid decreasing budgets. Data-driven technology offers a double win—do more with less resources, and do so in a seemingly objective and neutral manner."

In the book, I make the argument that in addition to the strong lure of new technology and cost efficiencies, there is an openness to new “data-driven technologies” as a result of the recent upheaval arising from a heightened awareness about police violence in America. 

Over the last few years – and again last week – the death of African Americans at the hands of police officers has generated protest, anger, and dissent. In addition, policing systems like the NYPD’s stop and frisk program created fear, resentment, and frustration about how citizens should be treated by law enforcement.  My argument is that out of this tragedy and frustration, the idea of policing strategies being guided by data-driven objectivity has become quite alluring.  Replacing human discretion with algorithmic precision – at least in theory – seems like a move toward progress.  Following data and not hunches seems (again in theory) like an improvement.  More after the break.

Continue reading "The Allure of Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 25, 2017 at 10:42 AM | Permalink | Comments (0)

Wednesday, May 24, 2017

Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

Continue reading "Doctrine trumps party loyalty (sort of) in two race districting decisions"

Posted by Rick Hills on May 24, 2017 at 12:00 AM | Permalink | Comments (7)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

An Updated Fiduciary Forecast

As the clock ticks down, the fiduciary rule seems increasingly likely to go into effect.  This morning, Secretary Acosta dropped a surprising op-ed in the Wall Street Journal announcing that he would not delay the fiduciary rule's implementation because Labor's review has "found no principled legal basis" to delay the rule's effective date.   The op-ed reads almost as a civics lesson.  Acosta pledges "respect for the rule of law" and explains how the notice and comment procedure limits the ability of administrative agencies to regulate on whims.  

This does not mean that the fiduciary fight is finished.  The op-ed promises to reopen public comment on the rule and consider the issue yet again.  Acosta explains that the administration has "respect for the individual" and "presumes that Americans can be trusted to decide for themselves what is best for them."  In the financial advice context, the argument makes little sense.  If a retirement saver knew what was best for him, he would not need a financial adviser.  We seek out advice when we do not know how to act in our own best interest.  A paean to freedom of contract here amounts to a defense of the freedom to fleece and to be fleeced.   

In a way, this development looks like a blown play from the administration.  The Trump team may have assumed that its initial sixty-day delay opened a sufficient window for Congress to kill the rule, leaving the President's hands cleaner.  This outcome seems particularly surprising given the Trump team's general opposition.  Anthony Scaramucci compared the fiduciary rule to Dred Scott--contending that the rule discriminated against financial advisers. Gary Cohn argued that the rule should be scrapped because it was "like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger."

In any event, the rule does not prevent retirement savers from making unwise investments.  It simply limits the ability of financial advisers to steer clients toward poor choices that generate more profits for the financial adviser.

Posted by Benjamin P. Edwards on May 23, 2017 at 04:30 PM | Permalink | Comments (0)

Big Data Policing

I wanted to spend a bit of time this week discussing my forthcoming book “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” (NYU Press, release date Oct. 2017).

The book describes how new predictive technologies and surveillance capabilities are changing the “who,” “where,” “when,” and “how” law enforcement does its job.  As I write in the introduction (available here):

"Roll call. Monday morning. Patrol officers receive digital maps of today’s “crime forecast.” Small red boxes signify areas of predicted crime. These boxes represent algorithmic forecasts of heightened criminal activity: years of accumulated crime data crunched by powerful computers to target precise city blocks. Informed by the data, “predictive policing” patrols will give additional attention to these “hot” areas during the shift. Every day, police wait in the predicted locations looking for the forecast crime. The theory: put police in the box at the right time and stop a crime. The goal: to deter the criminal actors from victimizing that location."

More after the break.

Continue reading "Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 23, 2017 at 11:11 AM | Permalink | Comments (1)

Monday, May 22, 2017

The Ticking Fiduciary Clock

Despite an initial 60-day delay from the Trump administration, the Department of Labor's fiduciary rule now nears its June 9th effective date. The rule requires financial advisers to give advice in the best interests of their clients when giving advice about retirement accounts.  With just eighteen days to go, it seems increasingly likely that the rule may actually go into effect.

Some legislative and administrative risks remain for the rule. The U.S. House of Representatives seems likely to pass the Financial CHOICE Act of 2017 in the near future.  It spans about six hundred pages and seeks to unwind many of Dodd-Frank's reforms and, among other things, repeal Labor's fiduciary rule. The legislation has been widely criticized and may fare poorly in the Senate.  Earlier today, John Coffee memorably described it as something "drafted by the staff of a libertarian think tank . . .  after they had all smoked something very strong."   Given the strong opposition to the CHOICE Act, a legislative repeal appears unlikely before June 9th.

The fiduciary rule still faces administrative risks.  President Trump issued a memorandum directing Labor to review the fiduciary regulation. In response, Labor delayed the rule by 60 days to conduct its review.  The "review" may be mere pretext for rescinding the regulation.  According to one report, the new Secretary of Labor Alexander Acosta has begun casting about for a way to "freeze" the fiduciary rule in a way that will "stick" as his top priority.  These reports have drawn harsh criticism from Democratic Senators questioning whether Secretary Acosta "prejudged the outcome of the review."  If Labor moves to delay the rule again, consumer protection groups seem likely to challenge the decision in court.  

As the clock ticks down, it will be interesting to see what justification Labor might trot out to block its own rule or whether it will allow the rule to go into effect.

 

Posted by Benjamin P. Edwards on May 22, 2017 at 08:29 PM | Permalink | Comments (0)

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Baseball rules--collect them all, trade them with your friends

For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."

It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.

Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Police in changing communities

Some good stuff in this lengthy Buzzfeed piece on the tensions between the (overwhelmingly white) police and the increasing Black and minority communities in Troy, New York. Two items to pull out that are common in these types of stories, but illustrate some things I have been thinking about:

1) Describing the cycle that multiple incidents followed: "a stop for a low-level infraction; an interaction that escalates; use of force by officers; a charge of resisting arrest, dismissed by prosecutors or acquitted at trial; and then a lawsuit settlement with the city that allows officers to deny the allegations of misconduct." And four officers involved in multiple incidents remain on the police force. And the city works these (relatively small) settlements into the cost of doing business, so civil damages litigation produces no political or accountability pressure to change its policies or the behavior of its officers.

2) Among the reforms the chief of police proposed were dashcams, which were opposed by the union and ultimately rejected. Again, a common reaction--police unions are the one stakeholder not enamored of cameras and many unions are going in the opposite direction of moving away from initial support.

Posted by Howard Wasserman on May 22, 2017 at 08:06 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 21, 2017

Are esports sport?

It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.

My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills.  I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.

The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.

Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, May 19, 2017

Questioning DOJ Independence

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

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

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

Continue reading "Questioning DOJ Independence"

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

1L Fear

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 18, 2017

How other law schools do things

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

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

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

Please respond in comments.

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

The "Fellowship Track": A Plea for Second Thoughts

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

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

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

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

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

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

Joining the Prawfs Community

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

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

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

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

Wednesday, May 17, 2017

Welcome Carissa Byrne Hessick as perma blogger

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

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

Tuesday, May 16, 2017

Conspiracy theory of the day

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

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

Connecting the Law Review Dots

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

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

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

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

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

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

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

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

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

Parlor Games and the FBI Directorship

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

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

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

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

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

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

Spencer appointed to Civil Rules Committee

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

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

Game-Changing Articles

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

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

Self-nominations welcome.

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

Monday, May 15, 2017

The Under-Theorization Paradox

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

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

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

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

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

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

Algorithms in Blue

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

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

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

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

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

Continue reading "Algorithms in Blue"

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

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

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

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

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

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

UPDATE: Rick Bales made the same point here.

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

Friday, May 12, 2017

Happy Family Day Weekend

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

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

Shifting Ground in the Battle for a Fiduciary Standard

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

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

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

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

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

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

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

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

“Smart” Snitches

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 10, 2017

Trump Judicial Nominees

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

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

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

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

Author’s Corner

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

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

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

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

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

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

Comments on the attorney disciplinary hearing on Better Call Saul

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

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

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

Tuesday, May 09, 2017

The 2017 Texas Regional Legal Scholars Workshop

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

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

A new definition of chutzpah?

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

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

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

National Impact/Expertise via Articles or Books

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

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

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

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

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

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

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

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

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

Posted by Andrew Guthrie Ferguson on May 9, 2017 at 03:19 PM | Permalink | Comments (7)

Northwestern Law Review exclusive summer submissions

From July 1-July 21. Details here.

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

Monday, May 08, 2017

JOTWELL: Mulligan on Subrin & Main on state procedural rules

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

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

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

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

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

Sunday, May 07, 2017

Opening up broadcast indecency

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

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

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

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

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

Saturday, May 06, 2017

Announcement: Prospective Law Teachers Workshop at SEALS

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

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

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

Thursday, May 04, 2017

Should we explain bicameralism to President Trump?

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

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

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

Call for Exclusive Submissions: Penn State Law Review

The following is from Penn State Law Review:

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

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

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

Sport and speech, part 766

Two news stories, submitted largely without comment:

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

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

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

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

Let Us Compete

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

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

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