Sunday, February 09, 2014
Women and Title VII
From Slate, a brief history of the inclusion of protection for women in Title VII of the Civil Rights Act of 1964. Sen. Howard Smith, a Virginia segregationist, introduced the provision 50 years ago Saturday (Feb. 8, 1964) as a poison pill.
The Lunchtime Law Quiz
The Green Bag attracts curses of riches. Among them are surpluses of legal oddments (interesting facts, jokes, anecdotes, etc.) and of Supreme Court bobbleheads. The streams of oddments flow steadily – from our readers, our collaborators, and our own research. The bobbleheads pop up sporadically. Once in a while an abandoned doll somehow makes its way back to us, or an owner (or a successor in interest) loses (or lacks) interest in the bobbleheads and returns them to us for placement in a loving home, or we find a misplaced box.
We have chronic problems with both of these surpluses: too few outlets for the huge supply of extra oddments and too many claimants for the small supply of extra bobbleheads.
And then along came Twitter. Soon we will begin releasing some of our pent-up oddments via our new Twitter-based “Lunchtime Law Quiz,” with some help from O’Melveny & Myers LLP. At the same time, by giving extra bobbleheads to winners of the quiz, we will relieve ourselves of the agony of deciding which among the many moving petitions for a free bobblehead we should grant. Two birds, one stone. But no end to the twittering. We are @GB2d.
Misusing and misunderstanding the language of law
I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").
First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.
Friday, February 07, 2014
A Series on Funding Legal Scholarship
Next week I'll be running a series on funding legal scholarship. The series stems from my experience as associate dean for research a few years back, along with several trends that are converging to put pressure on the traditional methods of supporting legal scholarship. These trends include: (1) strong incentives to cut the costs of legal education, both from drops in student bodies and cuts in tuition (sticker and post-merit-scholarships), (2) an increasing emphasis on practice-readiness and skills training, (3) a huge drop in entry-level tenure-track hiring, and (4) concerns about the value of legal scholarship to the schools, the profession, and the society as a whole.
These posts will not be about the value of legal scholarship -- at least not directly. Instead, they will focus on the ways in which we fund the production of legal scholarship. This moment of great market flux provides an opportunity to reassess where we are and think about how things will be changing and how they could be changing.
The series will address the following topics:
- Monday: The Traditional Law School Model
- Tuesday: The Grant-Funding Model
- Wednesday: The Sales Model
- Thursday: The School- and Field-Supported Models
- Friday: The Future of Funding Legal Scholarship
I hope you will join us for the series.
Thursday, February 06, 2014
FIU's First Decanal Lecture on Legal Education
I was happy to welcome Dean Daniel Rodriguez (Northwestern) to FIU this week, for our First (hopefully Annual) Decanal Lecture on Legal Education, titled Innovation in legal education. The video of his lecture is after the jump.
Supreme Court Precedent and the Problem of Pluralism
Following up on my previous post, I thought I'd say a bit more about the process of construing Supreme Court precedents, as well as the interplay between that process and the Court's pluralistic approach to legal interpretation.
As I explain at greater (probably too great) length in my paper on the scope of precedent, it seems to me that on certain accounts of Supreme Court adjudication, a narrow view of precedent is quite problematic. To the extent one believes (whether for reasons that are originalist, pragmatic, or otherwise) that the Court should play a significant role in managing the federal judiciary, one might well prefer that Supreme Court pronouncements be construed broadly, at least in the lower courts. Likewise, if one believes that the rule of law and the ideal of an impersonal judiciary are enhanced when the Supreme Court defers to its past pronouncements, a broad view of precedent may be more attractive. And so on.
Wednesday, February 05, 2014
The Difference Between Twitter and Facebook
That is the title of this New Yorker piece. It promises something interesting, but what it delivers is some soporific business-side analysis about how many "users" use or are being used by product X v. product Y, and what "percentage of the world's population" blah blah blah, as if it were truly fascinating and impressive that some arbitrary fraction of the mass of global humanity got it into its head to do anything at all.
Both Twitter and Facebook are about spraying fragments of information at others. What makes Twitter the greatly superior product is that it is candid about this. With Twitter, nobody pretends to have a conversation. There are no "friends" on Twitter. You are either followed or you are ignored. Actually, even if you are followed, you are ignored. I am reminded of this every time I think I have conceived the perfect tweet. As soon as it is posted, my tweet is inundated by a tidal wave of logorrhea; suffocated by the relentlessly incessant thoughts of others. The perfect tweet is the first one on your feed. Everything else is damaged goods and depreciates by the second. No pretend friends, no (or mercifully few) pictures of babies (though I do love babies as much as the next consumer of electronics), no fake conversations and debates, no extended display of cute ungrammatical and unsyntactical ineptitude. Just a few short keystroke bursts of pure business, with no false pretense that anybody will give your mental squirt a reasoned second thought. Just look and move on. Non ragioniam di lor, ma guarda e passa.
The 5th Annual CrimProf Conference--Call for Papers
Here's the text of an email that the incomparable Professor Carissa Hessick and I sent out earlier today to the CrimProf list-serv. Not everyone who is interested in this conference subscribes, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me. Thanks!
Dear Fellow CrimProfs:
Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.
Our friends at Rutgers-Newark have kindly agreed to host. The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd. Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.
Tuesday, February 04, 2014
Rethinking Faculty Compensation
I wanted to bounce off a Faculty Lounge post by my colleague Jeff Redding, and particularly a comment to the post by recent guest prawf Nancy Leong. Jeff had posted about buy-outs, and Nancy "raise[d] the larger question of what faculty compensation should look like more generally." Nancy suggested:
For example, we might imagine an alternative compensation model in which faculty base salaries were much lower and less differentiated by seniority, and a larger percentage of compensation came in the form of merit pay determined by teaching effectiveness, scholarly productivity, and service to the institution. The buy-out incentives would be quite different in that model.
Nancy's idea raises a host of interesting issues -- I've broken out a few of them below.
Judgment Calls and Reputation, Part One: Figure Skating
Thanks to Dan and the Prawfs gang for letting me hang out here again for February. Over the course of the month, I hope to explore how impressions of others influence judgments in a variety of litigation settings. With the Winter Olympics approaching, however, it seems appropriate to start outside the courtroom with a different group of high-profile decision-makers: figure skating judges.
Assessing a skater’s performance is a highly challenging cognitive activity. The judge must evaluate both the skater’s technical proficiency and artistic contribution in real time, and convert those assessments into a quantifiable score just minutes after the performance has ended. There is no video replay, no time for careful review and consideration of what was observed. Skating judges must act quickly and decisively. It seems natural that skating judges would therefore rely on mental shortcuts and other strategies to reduce their cognitive load. And indeed, one study out of the University of Ottawa found that one common and influential mental shortcut for judges was the skater’s reputation.
Happy Anniversary, Mirror of Justice (and Facebook)!
It's not just Facebook celebrating today, but also our friends at Mirror of Justice, who are celebrating their 10th anniversary!! (For those keeping score, Prawfs will turn 9 in April.)
Here's a taste of what's happened and what's to come. As Rick says, "In the coming days, the MOJ bloggers will be putting up "anniversary" reflections, so stay tuned. And, in the meantime, thanks to all those -- we have had more than 3 million visits over the years -- who have made MOJ a part of their surfing routines."
The Scope of Precedent
I'm skeptical of the holding/dicta distinction. It's not that I view the distinction as untenable. As I see it, the problem goes a bit deeper. I think the holding/dicta distinction can overshadow more fundamental debates about why some judicial statements deserve deference while others don't. Those debates are bound up with underlying matters of interpretive methodology and constitutional theory. At least that's my claim in a draft article called The Scope of Precedent (available on SSRN).
My argument begins with the proposition that defining the scope of precedent is complex and value-laden. The scope of precedent depends on understandings about the proper roles of superior-court and inferior-court judges. It depends on the Constitution's description of the judicial department and the judicial power. And it depends on broader theories of legal interpretation. If you focus on the benefits of requiring future judges to pay close attention to the statements of their predecessors, you should tend toward a more capacious definition of precedent. If you're concerned about the extent to which judicial pronouncements threaten to displace statutory or constitutional text, you should tend toward a more restrictive definition of precedent. Likewise, if you adopt a particular reading of Article III, or if you endorse an interpretive methodology such as originalism or common-law constitutionalism, you'll create downstream effects for the way in which precedents should be defined.
The problem is that these deeper implications often (though not always) get overlooked or brushed aside in the caselaw. That leads to treatments of precedent that can appear conclusory and results-oriented. Criticisms like these are commonly directed at the U.S. Supreme Court, and they're completely understandable: Precedents are frequently defined broadly but sometimes defined narrowly, and there's no satisfying explanation for how to tell which is which.
The solution, I think, begins with greater analytical transparency in the definition of precedent. Calling something dicta, or dismissing it as merely "descriptive" and thus unworthy of deference, isn't enough. There needs to be a better explanation -- be it pragmatic, historical, or otherwise -- for why a particular type of statement isn't worthy of deference. Only upon making that transition can the caselaw move toward something like internal coherence in defining the scope of precedent.
JOTWELL: Campos on Thomas on Erie and the Federal Rules
The new JOTWELL Courts Law essay comes from Sergio Campos (Miami), reviewing Margaret S. Thomas, Restraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation (NYU J. Legis. & Pub. Pol'y), which argues for using canons of construction to protect the "abridge, enlarge, or modify" limitation in the Rules Enabling Act in a cleaner way than under the "federal-rule-on-point controls" approach of Hanna.
Monday, February 03, 2014
Fed Soc Call for Papers for 2014 Junior Scholars Colloquium
The Federalist Society is pleased to announce a Call for Papers for our second annual Junior Scholars Colloquium, which will take place on June 13-14, 2014 in the Washington, D.C. area. This event builds upon the success we have experienced with the Young Legal Scholars Paper Competition portion of our Annual Faculty Conference. The Junior Scholars Colloquium provides approximately eight junior faculty members (as defined in the submission criteria below) with the opportunity to present competitively selected, unpublished papers and receive comments from more senior faculty members to help improve their scholarship.
The 2014 Junior Scholars Colloquium will take place over the course of two days in an environment conducive to both scholarly reflection and convivial discussion. The days will be divided into four two-hour sessions, during which each junior scholar will have twelve minutes to present his or her paper, followed by ten minutes for comments from an assigned faculty commentator and approximately forty minutes of general group discussion.
Originalism and Precedent
I've been following the excellent discussion of originalism by Eric Posner and Will Baude, and I was particularly interested in Will's post about the relationship between originalism and judicial precedent. I think Will does a great job of making the case for originalism's compatibility with precedent. That said, I'd resist the notion that fidelity to precedent must come at the expense of "substantive theory."
The main reason for my skepticism is the existence of multiple versions of originalism with distinctive normative baselines. There are lots of different value judgments that might persuade someone to adopt the originalist methodology. And at least some of those value judgments also support precedent. So, for example, if you are generally sympathetic to originalism for reasons having to do with the rule of law, you might nevertheless support adherence to precedent (even erroneous precedent) when an overruling seems problematic in rule-of-law terms. To my mind, that type of theory isn't diluted by adherence to precedent. Rather, deference to precedent and deference to original meaning are just different methods of pursuing the theory's underlying aim.
I'd also add that I think the relationship between precedent and originalism has two important dimensions. The first is what happens when precedent conflicts with original meaning. The second is what happens when the original meaning is unclear. An originalist might believe that when a precedent conflicts with original meaning, the precedent must give way. Even so, that same originalist might conclude that when there is no such conflict, the best approach is to give strong deference to precedent in order to promote values such as stability and predictability. Of course, there are other ways that an originalist might plausibly respond to a lack of clear original meaning; deference to precedent is merely one option (albeit an option that I view as promising). But the broader point is that paying attention to situations where the Constitution's original meaning is unclear can help to define the place of precedent in contemporary originalism.
Football and the Infield Fly Rule
My essay, Football and the Infield Fly Rule, is now up on UCLA L. Rev. Discourse. The piece discusses football situations and rules that rely on the same internal logic and cost-benefit analysis as the Infield Fly Rule. And the online format let us embed some audio and video. The editors were good enough to push the schedule so we could publish the day after the Super Bowl.
Diversity and Coke commercials
The "This is America, speak English" reaction to this commercial from yesterday's Super Bowl
is probably far more limited than would seem from the stories aggregating all the absurd Twitter comment. Although I will say that the comments and tweets complaining that the commercial defiled "God Bless America" or "the National Anthem" make me smile.
Decanal Lecture on Legal Education
The idea behind what I hope will become an annual program is to invite a dean to the College of Law for a multi-day visit to talk to the law school community about any part of the past, present, and future of legal education. Rodriguez will do a faculty workshop on Tuesday and the lecture, entitled Innovation in legal education reform, for the FIU community on Wednesday.
Again [TV announcer voice], if you're in the Miami area on Wednesday and can make it over to the law school, the event is open to the public. I hope to post video of the lecture later this week.
Saturday, February 01, 2014
Redyip's return: Angsting Thread Spring 2014 edition
So I understand Redyip is still waking up from his dogmatic winter slumber but the commenters on the prior thread are clamoring for him to brush his teeth and be on his way, so if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Redyip to bring you for Purim, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.
If you're interested in asking Redyip questions, BDG might come out of the woodwork too to conduct an interview. Here's the last installation of back and forth.
Update: link to final page of comments here.
Happy February! I'm delighted to welcome Daria Roithmayr from USC (who will be blogging about her new book I hope!), as well as Randy Kozel from Notre Dame and Jordy Singer from NESL. Welcome (back)!
Many thanks also and as always to Nancy Leong and Ann Marie Marciarille for their contributions to the conversation in January. We look forward to seeing you back soon!
Against (some) slow-motion replay
This Slate story discusses the work of Zach Burns, a psychologist in the business school at Northwestern, who argues against using slow-motion replay to judge intent in sports, such as for fine-worthy hits, flagrant fouls, etc. Slowing something down affects perception, makes it appear that the built-up to the conduct, and makes viewers more likely to find that someone acted with evil intent. He argues this is true not only for sports, but also for law--he points to a Pennsylvania case in which a man was convicted of first-degree murder after the jury watched surveillance video in slow motion.
Burns does say that replay is fine for judging actions, such as whether someone crossed a line, although it seems to me we'll likely see the same skewing of perception by slowing events down.
Gratitude and Farewell
Thanks so much to the Prawfs community for having me as a guest this month, and especially to all the thoughtful folks who commented on my posts. I learned a lot.
Please feel free to find me on my (relatively new) personal website, nancyleong.com. I'll be writing about many of the same topics I've explored this month.
Friday, January 31, 2014
Laptops, redux: Yeah, Science!
Here is a story from HuffPost about two studies by UCLA psychologists concluding that students who take notes by hand learn better than those who take notes by computer, both in short-term and longer-term learning. They found that computer users tend to engage in "mindless transcription," which gives them lots of notes, but did not learn as much, especially when testing focused on concepts rather than facts. In addition, at one point they specifically told laptop users not to simply transcribe what they were hearing, but it didn't work--the computer users were unable to stop themselves from trying to get verbatim notes.
Nomenclature for Change
Those of you who pore over the Federal Register may have noted the nomenclature changes of 77 FR 29002-01 on May 16, 2012, removing the term Medicaid "Recipient" from current CMS regulations and substituting Medicaid "Beneficiary." It took me a little longer to catch on to it but I have been thinking about it ever since because this change means the term "Beneficiary" now refers to all individuals who are eligible for Medicare or Medicaid services.
What's up with that?
The term "Medicaid Recipient" was found to be unflattering, apparently, and the move was to standardize and de-stigmatize the nomenclature. The Affordable Care Act, as written, actually had a number of provisions designed to simplify Medicaid as well as to standardize and federalize it. Most of those provisions survived the ACA's trip to the Supreme Court on the now optional Medicaid expansion.
This means a state near you, whether or not it has chosen to operate its own health insurance exchange, is busy completing its work on computerizing and simplifying Medicaid enrollment for its non-expansion Medicaid Beneficiary population. The dirty secret of Medicaid take up has always been its wide variability. We may be about to see the narrowing of that spread.
Time will tell how much simplifying and de-stigmatizing Medicaid will matter to take up rates. We have only a very little data on the previously eligible now coming forward to claim Medicaid Beneficiary status, but it will be interesting to watch. It is already interesting to watch a non-Medicaid expansion state like South Carolina predict a sixteen percent jump in Medicaid enrollment.
It has been a pleasure and a privilege to guest blog here this month. Thank you.
Follow me, if you like, at my own blog, Missouri State of Mind, found at:
College athletes, unions, and short-term employment
As has been reported, an undisclosed number of Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.
Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?
The Contraceptive Mandate Cases: The Looong View
For those interested in the issues or context of the contraceptive mandate cases, may I recommend the new volume of the Journal of Contemporary Legal Issues, a symposium-centered journal published by the University of San Diego School of Law. The issue is titled "The Freedom of the Church in the Modern Era," and its contributors include critics and supporters (sometimes both in the same article) of the general concept of freedom of the church. The articles cover a range of periods and issues, including many discussions of the mandate cases and/or directly relevant legal questions in those cases. Alas, it's not available in PDF form or some other easily accessible format, but the issue is up on Westlaw.
Thursday, January 30, 2014
More on Jewish names
Here is a follow-up in Slate to the story on the origins of Ashkenazi Jewish last names. Apparently, much to the author's surprise, the story generated a lot of interest and commentary, some of it insisting that he was wrong about some things. The story corrects some errors and discusses the range of sources on the subject, some of which are less accurate than others.
The Hobby Lobby amicus briefs
The Becket Fund for Religious Liberty has collected them all, here. There are a bunch, and lots of profs (and prawfs) are in the mix. (I'm on this one, which is a response to the main argument set out in this one.) We'll see!
Wednesday, January 29, 2014
A decade of wardrobe malfunction
Next month marks the ten-year anniversary of the Janet Jackson/Justin Timberlake "wardrobe malfunction" at halftime of Super Bowl XXXVIII. ESPN The Magazine offers In the Beginning, There Was a Nipple, a retrospective on the "controversy."
There is a lot of interesting stuff on the FCC, then-Chair Michael Powell, and the regulation and punishment of broadcast indecency. CBS' owner was fined a little over $ 500,000, fines that ultimately were successfully challenged in the Second Circuit. The story quotes Powell as saying, essentially, that the commotion over 9/16th of a second is really silly, suggesting his position of public outrage at the time was more for politics and show than any real concern for the health and safety of our children. But he said he felt bound by law and lacking discretion to not pursue this fully. Powell also describes this is as the "last gasp" of the old broadcast regime and "last stand at the wall" for people who believe government can successfully keep objectionable material out of the home.
There also is a nice discussion of the different effects this had on Jackson and Timberlake and the obvious race and gender narrative that presents.
Tuesday, January 28, 2014
Committing to Reducing Inappropriate Antibiotic Prescriptions
A tiny study of physician antibiotic prescribing practices, discussed in a recent issue of JAMA, has set the health blogosphere on fire. "A Simple Way to Slash Unneccessary Drug Prescriptions" trumpets Scientific American. But is it really all that simple? After all, are the forces that shape inappropriate antibiotic prescription practice all that simple?
A small control group of health care providers from five Los Angelas community clinics agreed to make antibiotic prescriptions available only where medically indicated. They sealed the deal with what behavioral economists might call a commitment device -- a signed "Dear Patient" letter outlining the commitment was posted, along with the provider's photograph, in each clinical examination room used by the control group. Lo and behold, the control group brought their antibiotic prescription practices more closely in line with both the commitment and the practice's general standard while the non-control group actually lost ground.
You need to know that inappropriate antibiotic prescription practices used to be thought the low hanging fruit of evidence based medicine, until it turned out to be very difficult to alter clinician antibiotic prescription practices through evidence-based education and outreach. Now inappropriate antibiotic prescription practices are high hanging fruit, I suppose, enticing us with cost and health savings yet tantalizingly out of reach. What makes them hang so high is, in part, that patients have expectations shaped by decades of prescription practice now deemed inappropriate. That is why the letter (posted in both English and Spanish) is a "Dear Patient" letter and written, as I understand it, at a ninth grade level.
What role, then, do the exam room posters play in patient education about appropriate antibiotic prescription practice? Does an advance reading of the poster by patients and their families already begin to re-shape expectations of the clinical encounter even before it begins?
Daniella Meeker, the lead author on the JAMA study, speculates that the commitment device function of the posters made it easier for clinicians to say "no" or served as a reminder on how to respond to patient demands or requests. But, could it also have been that patients dampen their demands when they understand the background story is that antibiotic prescription practices in a given practice are circumscribed and that certain providers endorse the evidence-based approach with enough conviction that they choose to begin the conversation with patients about it during waiting time?
In short, is this a story about just learning to say "no" and mean it ( one take on the clinician's perspective) or is it a story about learning to think before asking (one take on the patient's perspective) or both or neither? As so often occurs when I read articles extolling health care nudges, I can't help but wonder who really got the nudge here?
Is Criticizing "Judicial Engagement" a "Straw Man?"
The Volokh Conspiracy's move to the Washington Post website is a big deal, and I wish it (them?) luck in the new venture. It seems harder to sign up to offer comments, and in some strange way I miss the comment traffic of old; I also hope the page will be revamped to offer more color. That said, the blog gets more traffic on an off-day than we here do in a year, and its bloggers are prolific, unlike some people I could mention. The move is impressive.
One thing I noticed today is that the VCWP blog posts have captions or sub-heds. I noticed it because a post today by Randy Barnett, titled "'Judicial engagement' is not the same as "'judicial activism,'" has the sub-hed "Critics of George Will and Clark Neily's defense of 'judicial engagement' are attacking a straw man." That phrase doesn't appear in the text itself. That's fine, of course. But I can't quite tell if the post itself is arguing this proposition. If it does, it's wrong.
Part of the problem is that the "critics" referred to in the sub-hed turn out to be one person, Ed Whelan. To paraphrase, Whelan objects to Neily's effort to popularize the phrase "judicial engagement" because he is invested in the idea of objecting to judicial "activism." In this, he is sort of like the New Deal-era Justices who later objected to decisions or reasoning in rights cases that appeared to raise the specter of the Lochner era. I don't know whether Barnett wrote the sub-hed, or whether he had other critics in mind, or what those critics said. But I will take the very minor liberty of treating the sub-hed as putting Barnett's argument more or less as a facial challenge, so to speak. As such, it cannot be right. Clearly there are non-straw-man reason to object to the phrase "judicial engagement" and the effort to popularize it--reasons that apply equally to the phrase "judicial activism" and efforts to popularize it.
"'Judicial activism' was devised to be pejorative," Barnett writes, "but it has little content." (I find the "but" interesting there. Not "and it has little content?") He then goes on to argue that "what 'activism' really means is improperly invalidating a law that is not really unconstitutional." (The first emphasis is mine.) This is to be contrasted with "judicial engagement," which Neily and Barnett supply with a definition. He adds, "Instead of 'judicial conservatism,' which admonishes judges to put their thumbs on the scales to uphold laws, we favor 'constitutional conservatism' in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation."
Is there a difference between "judicial activism" and "judicial engagement," or between "judicial conservatism" and "constitutional conservatism?" Sure. By definition there is--and I mean that phrase literally. Of course, there would be no difference if you defined both phrases to mean the same thing. And there would be a difference if you called one thing "turkey on rye" and the other "Grabthar's hammer." What it "really means" would depend on the content, not the label. Discussing the definitions is useful, kind of; discussing the phrases is not. Action X is good or bad, right or wrong, regardless of whether you call it, say, the "nuclear option" or the "constitutional option" or "the Corbomite Maneuver." Barnett (or Neily) solves the "little content" problem with "judicial activism" by supplying content. If he does not solve it there, then he sure as hell does not solve it for "judicial engagement." It certainly cannot be right in any terribly useful sense to write: "'Judicial engagement' is both a less pejorative and more accurate label for how a constitutionally conservative judge should act." It is not terribly useful to use one placeholder to define and approve another placeholder; and any pejorative qualities will come from factors entirely outside the "real" meaning of any of these phrases.
So, depending on who the "critics" are and what they have to say, it is certainly no straw man to disdain the use of the phrase "judicial engagement," or "constitutional conservatism," any more than it is to disdain the use of the phrase "judicial activism" or "judicial conservatism." All you have to do is prefer things to words, or grappling with problems and ideas to doing public relations.
I suppose I should add a caveat to my post. If you care about public relations, then you may indeed care about these issues. If you are engaged in advocacy, you may care about them. If you want to be a moral entrepreneur, you may care about them. But certainly caring about them is not an academic or truth-seeking function as such, as I understand those roles. (There is no "truth" about the "real" meaning of phrases like "judicial activism" or "judicial engagement.") An academic might be interested in analyzing those phrases, say as a matter of analyzing what moves or manipulates or crystallizes public opinion, or how phrases take on currency or lose it, or things of that sort; but an academic would certainly not, qua academic, be interested in pushing or popularizing a phrase for purposes that could best be characterized as propaganda. Richard Posner is fond of observing that in the intellectual realm, academics are less likely these days to be moral entrepreneurs. But I don't think he's making a value statement when he says that, and it may be a good thing on the whole that academics are less likely or less qualified to serve as moral entrepreneurs, or that the increase in the stringency and specificity of academic standards may hamper them from doing so.
I think people are entitled to argue about whether legal academics are closer to the advocacy side of things than other academics (at least ideally; obviously lots of academics in other fields are propagandists). They may also argue about whether academics can engage in propaganda (or norm entrepreneurship, or whatever you want to call it), or at least whether they should, and if so subject to what limits. Obviously many individuals engage in academic work and propaganda or political activism. I'm speaking only to the academic side. From that side only, it seems clear to me that there are valid reasons to question the intellectual value of the phrase "judicial engagement," or of the very enterprise of coming up with and pushing such phrases.
Evaluating Online Vigilantism Redux
My previous post about online vigilantism attracted a number of thoughtful comments. Rather than respond to the various strands of analysis, I thought I'd write a follow-up post to try to frame with more precision some of the issues my original post raised.
As a threshold matter, one question is whether the examples I discussed -- Jamie Carillo's YouTube posting of a telephone confrontation with a teacher who sexually abused her; the actions of KYAnonymous in relation to the Steubenville rape case -- are even examples of vigilantism. One reason I discussed these examples in a post about vigilantism is simply that at some people seem to think of them as vigilantism, or at least headed in that direction (see here and here).
After some thought, it still seems to me that these are acts of vigilantism, at least based on the facts we currently know. (Several of the commenters disagree with me, and I welcome pushback on this.) But suppose we take the take the Oxford definition of vigilante as "a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate." Jamie Carillo fits this definition: she publicized an event she believed was a crime because she thought legal institutions offered no recourse given that the relevant statute of limitations had run. KYAnonymous fits the definition too: although prosecutors were moving ahead in Steubenville, he believed that the public response was insufficient and wanted to call additional attention to a broader culture of sexual assault; the legal system was inadequate to accomplish these goals.
Monday, January 27, 2014
Stephen Glass and the the California Bar
The California Supreme Court on Monday unanimously denied the bar application of former journalist Stephen Glass (of Shattered Glass infamy), a case I wrote about a couple years ago. David Plotz of Slate, who watched this all up close (Plotz's wife, Hann Rosin, was an editor at TNR at the time) and who admittedly does not like Glass, has a sharp takedown of the decision. I am not surprised by the reversal (the lower panels had recommended admission, so I could not see the court taking the case just to affirm), although I am a bit surprised by the unanimity.
I don't do PR and I generally question many of the character-and-fitness rules as irrelevant to the practice of law, so I do not have a lot to say about whether the decision is right or wrong. There is a damned-if-you-do-and-damned-if-you-don't quality to the decision--the court dismisses many of Glass' efforts at rehabilitation and restitution as selfish, motivated by a desire to improve himself and taking place while he had pending applications to the New York or California Bars. As I said previously, lawyers and journalists do very similar jobs, so I understand the particular apprehension with this candidate. But Plotz has a good response, grounded in the adversariness of the legal system--what judge and what opposing lawyer is not going to keep the sharpest of watch when Glass is involved in a case, scrutiny sure to catch any efforts by Glass to repeat his sins.
RIP Randy Bezanson
Brian Leiter's Law School Reports brings news of the passing of Randall Bezanson, a longtime professor at the University of Iowa College of Law; I'm writing this in transit and don't have the link, but Brian's item provides a link to the statement from the dean at Iowa. I just wanted to add a quick word of tribute. My first, temporary job was as a visitor teaching constitutional law at Iowa. It was a great experience for many reasons, but Randy's presence was high among them. As a colleague he was very helpful in giving me tips and materials for my first time teaching the class. As a colleague he was generous in his time reading a draft paper on our mutual love, the First Amendment, and more than happy to recommend major surgery on the piece. And, as the Dean's message notes, he was always a fun, provocative presence at the lunch table, ready to start things off with a topic or question of the day. I still draw heavily on his writings, especially those on freedom of the press; my latest piece cites him repeatedly and I very much enjoyed his recent print debate with Eugene Volokh on freedom of the press. He was and is an influence, and a friend. He suffered through a long and difficult illness, and doubtless things looked different from close up; but from far away, it seemed as if he managed to do so with his vitality much undimmed. I will miss him.
Sunday, January 26, 2014
Six million Jews (or six million Jewish people)
Sunday's New York Times reports on a new book titled And Every Single One Was Somone, which consists of the word "Jew" repeated six million times in 5.5-point type. From normal distance, it is impossible to see each word, but only a patterned mass; you have to look more closely to see each "Jew." But even then, are you still seeing something de-humanized and reduced to that particular word? Is this a context in which the word is offensive, because we know how it was being thought of by the people (the Nazis) using it?
Navigating the ACA With the Newly Insurable
Lat week, Judge Ortrie Smith( in St. Louis Effort For AIDS v. John Huff) granted a preliminary injunction against the enforcement of Missouri's Health Insurance Marketplace Innovation Act as inconsistent with the Affordable Care Act. The HIMIA prohibits federally qualified health insurance navigators from discussing the full range of insurance products and programs available to Missourians unless these individuals also become qualified as licensed insurance brokers in the state. Holding that "the state law obstructs the federal purpose," Judge Smith noted that HIMIA put ACA qualified navigators between a rock and a hard place, unable to comply fully with the HIMIA unless failing in compliance with the ACA and its implementing regulations.
Roughly nineteen states have taken advantage of the ACA's invitation to impose additional requirements on ACA qualified navigators but only a few have gone so far as to require insurance broker licensing, something specifically called out as unnecessary under the statute and its implementing regulations. It is possible that the state's insurance brokers played some role in shaping of Missouri's statute. The revenge of the disintermediated can be a fearsome thing.
Tennessee has a similar statute that met a similar fate in October of last year (League of Women Voters vs. McPeak). But there are lots of other state specific navigator requirements short of full broker licensure requirements that appear to correlate with lowered insurance counseling and application assistance for the newly insured in some states.
Sara Robsenbaum and others at GW have just released a study comparing health center outreach and enrollment activities. Categorizing states into full implementation and restrictive states and studying the range of assistance from information provision to application assistance to guidance on how to seek legal help for an appeal, it turns out that the health centers in restrictive states do less for the newly eligible as they navigate the health insurance application process and follow up less on what they do.
Why does this matter? We are, as a group, weak in health insurance literacy and the newer we are to insured status, the weaker our knowledge. The exchanges offer products of considerable complexity. Those new to health insurance selection (and even some of those who are not) may be, for example, weak in understanding the implications of geographically limited provider networks, one of the hallmarks of exchange products.
Those who are newly eligible from among historically uninsured populations are most likely to seek the clinical encounter at federally-qualified community health centers, precisely where the variance in degrees of health insurance application assistance and follow up is so striking.
One of the great ironies of health law is in considering how health as well as health insurance is unevenly distributed in our society. Now we need to add health insurance counseling to that list.
Saturday, January 25, 2014
Evaluating Online Vigilantism
Last week, Jamie Carillo posted a video to YouTube titled "A call to my childhood rapist teacher." The remarkable video includes a three-minute phone call to Andrea Cardosa, then an assistant principal at Alhambra High School, who Carillo accused of sexually abusing her beginning when Carillo was twelve and continuing for several years. During the phone call, Carillo asks: "Do you realize that you brainwashed me and that you manipulated me and that what you did was wrong?" "Yes, and I regret it," Cardosa says, later adding, "I was just trying to help you."
Carillo explained in the video that it took her years to gather the courage to confront Cardosa, and by that time the statute of limitations had expired. (Or so she thought -- see here for one explanation of why that may not be the case.) Carillo decided to record the call and post the video when she realized that Cardosa was now an assistant principal because she wanted to keep her away from other children. Carillo's YouTube video went viral, and a second alleged victim, "Brianna," has since come forward with allegations that Cardosa abused her in a similar way. Cardosa resigned from her position hours after Carillo's video was posted. As I'm writing this Cardosa has not been charged with a crime, but law enforcement has stated that an investigation is underway. (Ongoing coverage is here.)
Friday, January 24, 2014
Steven Smith's "The Rise and Decline of American Religious Freedom"
Oh, happy day . . . my actual copy of Prof. Steven Smith's latest book, The Rise and Decline of American Religious Freedom arrived yesterday. I read it in draft, before, and -- entirely apart from the wonderfully engaging prose -- I think it's a must read for anyone interested in the law-politics-society-faith-religion thing. Here's a bit from the Amazon blurb:
Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
As Andy Koppelman puts it, on the back cover, this is "one of the most important books on religious liberty in years." (No doubt this was one of the others he had in mind!)
Stanley Fish and the Meaning of Academic Freedom
[TV announcer's voice]:
If you're in the Miami area today, stop by for the FIU Law Review Symposium, Stanley Fish and the Meaning of Academic Freedom. The event runs from 4-6 p.m. at the College of Law. Speakers include Fish, Robert Post, Fred Schauer, and Larry Alexander; the focus is on Fish's new book, Academic Freedom: From Professionalism to Revolution.
Thursday, January 23, 2014
A random nomenclature question:
Is it offensive to call someone "a Jew"simply in referring factually to that person's religious/ethnic background (in other words, not saying it with a sneer or to further an anti-Semitic remark). The alternative would be to say "He's Jewish." Is one OK and the other not? If so, how is it different than saying "He's a Republican" or "He's a liberal" or "He's an Elk." Is there a difference when talking about political categories as opposed to racial/ethnic/religious categories.
I grant that it would be jarring to hear someone say it that way, but that is because it is uncommon--we generally say "he's Jewish". But is it uncommon because of its offensiveness?
Wednesday, January 22, 2014
As the FOIA Turns: Access to Physician Specific Medicare Payment Data
A lot has happened in health care since 1979 but one thing has been constant: Freedom of Information Act requests to the Centers for Medicare & Medicaid Services for individual physician identified Medicare payment data have been denied. A 1979 United States Middle District of Florida injunction prohibiting the release of Medicare data that would identify specific physicians in the name of protection of physician privacy interests (under the Privacy Act of 1974 and in response to Florida Medical Association, Inc. v. Dep't of HEW) was lifted in May of last year by Judge Marcia Morales Howard. As the Department of Health and Human Services' (and its predecessor agencies') position had always been that the departmental policy was in response to the FMA decision, a very longstanding injunction was ripe to be lifted.
The Dow Jones Company, parent of the Wall Street Journal, along with the Center for Public Interest had fought for this access for years as part of a campaign to promote the use of the data to expose fraud and abuse.
The Centers for Medicare & Medicaid Services then sought public comment on the scope of data release, receiving numerous comments. The American Medical Association, perhaps bowing to the now inevitable, focused on the "reliable and effective use of this information." This appears to have meant that the data should not be posted on healthdata.gov along with other newly transparent health system data for for the public and the media to view via the internet.
On January 15 of this year came the news that CMS will, in a few months, begin to respond to FOIA requests for Medicare physican payment data on an ad hoc basis using a balancing test focused on Medicare beneficiary privacy interests. Aggregated data will also begin to be made available.
Let the FOIA requests commence. We won't know what CMS has in mind until the Medicare payment data requests of long-gone journalists are renewed and the newly ad hoc responses are received.
SCOTUS on Declaratory Judgments
SCOTUS today decided Medtronic, Inc. v. Mirowski Family Ventures, a unanimous decision through Justice Breyer. The Court held that in a declaratory judgment action brought by a would-be patent infringer seeking a declaration of non-infringement, the patentee bears the burden of persuasion of infringement, just as it would if it had brought a coercive action for infringement. There also is a brief discussion on Skelly Oil and how to define a when a declaratory judgment action arises under federal law (in this case, federal patent law).
Monday, January 20, 2014
Recognizing Race on Martin Luther King Day
Over at Constitutional Law Prof Blog, Ruthann Robson has an interesting post about the way judges quote Martin Luther King, Jr. The claim -- relying on a fascinating article by Jeremiah Goulka -- is that when judges quote MLK, they are usually doing so in the course of reaching a result that MLK would not support.
This discussion brought to mind a topic that I've discussed during my previous visit to Prawfs. In my article Racial Capitalism, which came out last June, I defined racial capitalism as the process of deriving value from racial identity. My article focused, in particular, on white people and predominantly white institutions deriving value from non-white racial identity. An easy example is a school that photoshops a black student into its admissions brochure, or -- as a less extreme measure -- overrepresents the percentage of non-white students in its promotional materials.
Maryland Goes Global
On January 10, 2014, the state of Maryland and the federal Centers for Medicare and Medicaid Services announced the re-invention of Maryland's all payer hospital rate-setting system. Maryland's 36 year experiment with operating our only all-payer hospital rate regulation system where third parties pay the same for hospital services is about to enter a new phase.
Maryland is staying with an all-payer model but it is moving from fee-for-service reimbursement to a global payment model. The biggest difference is that Maryland's hospital price setting system will continue to operate while adding a cap on all hospital spending. Hospital spending growth, linked to projected overall growth in the state economy, should not exceed 3.58 percent for the next five years.
Maryland's all payer hospital rate-setting system, as originally configured, has been a remarkable example of innovation and experimentation these last several decades. It has also been an important reminder that health care payment system innovation may actually rise from below. Robert Murray offers a good description of its origins and operation here.
But Maryland's all payer hospital rate-setting system has struggled in recent years to deliver on its cost-containment goals. Over time, even one of the boldest examples of payment system innovation struggled with the weight of a procedurally driven health care system. In short, there were still few incentives for keeping individuals healthy outside of the hospital and too many rewards for treating problems in the most expensive venue. And so Maryland's hospitals begin their great migration to wellness centers.
If this works, physician office visits and nursing homes get the treatment next. If it fails, Maryland reverts to the default administered pricing system. If this works, we might see some version of this (combined with aspects of payment system reform from Massachusetts and Vermont) on a much larger scale.
Sunday, January 19, 2014
Preparing for Volcanic Activity in New Orleans
On December 27, 2013, the Centers for Medicare & Medicaid Services released a proposed rule that would add emergency preparedness requirements to the conditions of participation for various program participants, particularly hospitals, long term care facilities, and ambulatory surgical centers.
One requirement of the disaster planning described in the proposed rule particularly caught my eye: risk assessment and planning. It sounds almost self-evident that, first, each facility should assess its risk and identify the most likely threats to operational integrity.
After Katrina, the failure of a number of health care facilities to assess the risk of a flood whose high water mark would likely render ill-situated basement emergency generators inoperable has been made manifest. In hindsight, the story of New Orleans' Memorial Medical Center's 101 page bioterrorism plan and 11 page hurricane plan is being told all over our nation via Sheri Fink's Five Days at Memorial.
Interestingly, Fink's book probed the disaster preparedness committee at New Orleans' Memorial Medical Center about its work. From what she recounts, it seems likely they misunderstood their assignment unless, of course, they understood it all too well. They measured present preparedness against recent past performance, apparently unconcerned with looking at the likelihood of floods at or near historic levels or, even, at or near levels outside the living memory of anyone currently on staff. Instead, they dutifully prepared for a bio-terrorism attack and checked off their self-assessed very highest level of readiness for a major hurricane.
Fink does a reasonably good job of considering why the disaster preparedness work at Memorial and elsewhere could be both so strangely truncated and oddly self-re-enforcing. Along the way she teaches the reader a few things about hospital accreditation in the United States.
Hospitals are licensed by the government but such licensing regimes are typically an exercise in governmental deferrence to what was then called the Joint Commission on Accreditation of Healthcare Organizations (now known simply as the Joint Commission). JCAHO's new to the time emergency standards emphasized just what the Memorial disaster preparedness committee did.
Hospital accreditation is a story of regulatory capture writ large. CMS's current attempt to use the conditions of participation requirements to turn the tide in this one way should be interesting to watch.
Oh, and the disaster preparedness committee also indicated they were completely ready for volcanic activity at Memorial. Good to know.
Friday, January 17, 2014
JOTWELL: Mullenix on Landsman-Roos on precertification duties
The latest essay from JOTWELL's Courts Law is from Linda Mullenix (Texas) reviewing a student note by Nick Landsman-Roos', Front-End Fiduciaries: Precertification Duties and Class Conflict.
Settlement in § 1983 colonoscopy case
(Sorry, I couldn't figure out a better title). David Eckert, who was subjected to an escalating series of medical procedures by police officers searching (unsuccessfully) for drugs, has settled his § 1983 action for $ 1.6 million. I previously wrote about the case and have been using the complaint in my Civ Pro class. I must admit to being slightly disappointed that we never got to hear the officers trying to argue that the law prohibting state-imposed colonscopies without probable cause was not clearly established.
Thursday, January 16, 2014
Gender Diversity and Same-Sex Marriage
The recent district court decisions regarding same-sex marriage in Utah and Oklahoma have drawn a great deal of attention in the past few days. The Tenth Circuit is a particularly interesting venue for adjudication given what we might infer about the ideological composition of the court. Currently the court has five Republican appointees and five Democratic appointees, but just today nominees Carolyn McHugh and Nancy Moritz were voted out of the Senate Judiciary Committee, which would make the court seven-to-five in favor of Democratic appointees. While I don't want to overstate the importance of a nominee's political background -- which I think has sometimes been exaggerated in the same-sex marriage cases -- the potential new additions to the court would create a particularly engaging scenario were the Tenth Circuit to take the case en banc.
Rather than retread ground others have covered, I want to focus on a particularly odd argument that the state of Utah recently raised in its brief to the Supreme Court requesting a stay of the district court's judgment pending appeal. Utah makes three arguments. The first two are familiar to everyone who has followed the same-sex marriage cases: that "traditional marriage marriage reinforces responsible procreation" and that "children generally fare best when reared by their two biological parents in a loving, low-conflict marriage." Others have addressed -- and in my view, pretty thoroughly debunked -- these arguments.
The third argument might charitably be described as more creative. The state argues that "society has long recognized that diversity in education brings a host of benefits to students," and "[i]f that is true in education, why not in parenting?" If I read the brief correctly, the idea is that having one male and one female parent will provide children with benefits that surpass those provided by having either two male or two female parents. As the state puts it: "the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children" (emphasis theirs).
"Alta is for skiers" . . . unconstitutional?
So claim "four snowboarders and a Utah nonprofit" in a recently filed lawsuit.
“Because of Alta’s relationship with the government, Alta’s actions must comply with the Constitution’s Equal Protection Clause,” says attorney Jonathan Schofield in the press release. “Alta’s prohibition against snowboarders excludes a particular class of individuals from use and enjoyment of public land based on irrational discrimination against snowboarders, which denies them equal protection under the law as guaranteed by the Fourteenth Amendment.”
Like the man said, I guess: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."
SCOTUSBlog: Opinion in Ray Haluch Gravel
I have a recap at SCOTUSBlog of yesterday's opinion in Ray Haluch Gravel v. Central Pension Fund, which held that a district court decision that resolves the merits but not a petition for attorney's fees is a final and appealable order, triggering the 30 day clock for filing an appeal. The Court continues to do procedure, even getting it right sometimes.