Friday, November 04, 2016
"Imagining the Legal Landscape: Technology and the Law in 2030"
Curious about robot police, selective procreation, the end of cybersecurity, total life recording devices, or virtual-reality crimes? These are just a few of the fun and interesting topics discussed in a new symposium held by UCLA's Program on Understanding Law, Science, and Evidence, or PULSE.
A Word in Defense of "Ballot Selfie" Laws
I appreciate Andrea's post below about so-called "ballot selfies" and laws restricting them, or more specifically restricting the sharing of photographs of completed ballots. She argues that ballot selfie bans are likely to be both ineffective and unconstitutional. Her arguments on the first point seem reasonable, and as a civil libertarian I am sympathetic to her second point. (Although I think that, despite significant domestication efforts by the courts, it still makes some sense to think of at least some elements of election law as being their own subject, with their own history and vagaries, and not as wholly a creature or subset of First Amendment law. For discussion and citations on the general topic, see, for example, this article by Heather Gerken.) So I am not disagreeing with her conclusion. But I would like to say a word, if not in defense of the bans or of a particular outcome, then in favor of the proposition that there are genuine concerns about photographing and sharing completed ballots: that they are not merely a matter of ancient history, but are of continuing relevance.
This requires some background about the University of Alabama and local Tuscaloosa politics. A problem of long standing here is the existence of "the Machine," an underground or secret society that in effect serves as a coalition and coordinator of some of the older (and, yes, extremely whiter) fraternities and sororities on campus. The Greek life is a big deal on campus here, although last time I checked the numbers it involves only about a third of the students here, and only some of those students belong to Machine houses. Simply because they are coordinated, however, the Machine and its member houses exert an outsized influence on on-campus life and politics. It is all too rare that "independent" candidates for student government leadership, including African-American candidates, can win against the Machine's chosen candidate, although it sometimes happens, including recently. Aside from general tendencies toward bloc voting, various forms of social coercion, and general dirty tricks, one of the ways the Machine enforces its choice of nominee among its members has been the insistence that members of Machine houses show how they voted. Various methods have been employed by the university to cut down on this. But the demand that member students demonstrate that they voted for the Machine candidate has been a major part of its dominance over campus politics. Reforms are ongoing, and they include making clear that no student or student group can demand to see how any individual student voted.
On Teaching, Writing, & Lifelong Learning
As soon as I joked that I was done being someone else’s student (yes, I know, I know—never say never, being a lawyer means lifelong learning, etc.), I found myself sitting in a writing class last night. Being on the brink of finishing teaching 230 students this semester and starting my first ever sabbatical, I decided to take some classes that were on my list.
Last night’s writing class was a lot of fun, and reminded me of the virtues of being a lifelong student (not least of which is no class prep for me). It’s interesting to see how others handle the classroom, and to be reminded of how easy it is to lose a student’s attention.
But, this was no ordinary writing class, it was a creative writing class to get my creative juices flowing. Sure, there are rules to follow in legal writing, as well as genres to fit into if you are doing creative writing. Not following them surprises readers in an unpleasant way, as a colleague rightfully observed to me recently. But, a little creativity goes a long way, especially in the deal-driven subjects that I teach—trusts & estates, family law, and particularly tax (but of course, best not to get too creative in tax!). This class is turning out to be a good reminder.
Thursday, November 03, 2016
10th Circuit: Kansas' Documentary Proof of Citizenship Voter Registration Requirement Will Not Be Enforced
In Kansas, voters cannot simply wake up on election day and decide to vote. There is no spur-of-the moment voting (and no mail-in ballots other than absentees). Voting in Kansas requires forethought and planning through advance registration, and it takes showing up at the polls with a valid ID and having one's photo and signature confirmed to be a match to those on the registration -- but at least, thanks to the 10th Circuit's opinion on October 21st, it will not take documentary evidence of U.S. citizenship.
The terms of Kansas' Secure and Fair Elections (SAFE) Act requires that "an applicant shall not be registered [to vote] until the applicant has provided satisfactory evidence of United States citizenship" according to enumerated documentation, such as a U.S. passport or a birth certificate. Earlier this year, the League of Women Voters of Kansas, with the help of the ACLU, challenged this law as running afoul of the the National Voter Registration Act. The District of Kansas granted a preliminary injunction against enforcement of the policy back in May, and this allowed 18,000 Kansans to vote in the state's presidential primary on August 2nd. On appeal, the 10th Circuit, through Judge Jerome Holmes, held that the Kansas proof of citizenship voter registration law violated the NVRA. The NVRA protects American voters' right to vote with only supplying the "minimum amount of information necessary." The 10th Circuit found that the minimum amount necessary does not include proof of citizenship. The court's opinion, issued on October 21, 2016, addressed the preliminary injunction only, not the merits of the case (although, of course, likelihood of success on the merits is a component of preliminary injunction oversight). (AP story on the case is here).
Whitman on Transferring Negotiable Notes
Property Scholar Dale Whitman has just published an article, entitled "Transferring Nonnegotiable Notes", explaining where the law is and where it needs to go with respect to the transfer of the right to enforce mortgage loans. This issue has been one of the most confused and contested questions of legal interpretation in the aftermath of the Foreclosure Crisis. When the whole housing finance system began to unravel upon the unexpectedly high volume of mortgage defaults, un-tested and unorthodox industry practices regarding loan transfer ran smack into legal uncertainty regarding who held what rights to which loans subject to what defenses. This legal uncertainty stuck like a rod in the gears of the foreclosure system, causing massive delays and, in some cases, loss of the right to enforce the loan.
The question of mortgage negotiability and transfer adequacy has caused a "vast amount of litigation" (as Whitman puts it), and this litigation has "greatly expanded our understanding" regarding how negotiable notes are transferred. But there remains a gap in legal comprehension related to the transfer of nonnegotiable notes. In addition, open questions regarding defenses can destabilize the market and incentivize market player misbehavior. Professor Whitman attempts to bring clarity to the murky legal questions regarding who has (and should have) the right to enforce the loan and what defenses a borrower can (and should be able to) assert against an assignee of a mortgage note.
Professors & the World Series
Other than White Sox fans, I must be the only Chicagoan sober, so I’ll take this opportunity to explore the theme of Professors & the World Series.
If you were watching the game tonight, you would have seen, in a sea of “Go Cubs” signs televised from a Chicago bar, a sign that read “Thank you, Prof Barker.” Who is Professor Barker? And why does he deserve thanks? Twitter has gone crazy asking that very question. Did he not assign homework tonight? Did he excuse absences due to World Series, like this Ohio University professor, or this DePauw University professor? How would I react to this kind of student request?
And, I couldn’t help but to notice the nickname of one of the Cubs pitchers—the professor, on account of his intelligence and Ivy League education. I wonder if he’s going to earn tenure with the Cubs…
Eamus catuli 000000
Of course, I am most happy because of what it (hopefully) portends for the presidential election connection--National League winner means Democratic president. So maybe I can stop panicking about that. (Of course, two of the times it has not held since World War II were 1992 and 1996, when an AL team won the Series but a Democrat named Clinton won the presidency). We will see in less than a week.
Meanwhile, I am going to celebrate and order some World Champions stuff.
How I Voted in Washington State
Every election, we hear stories about the crazy complications facing both voters and election administrators. Long lines. Voter intimidation. Poll-worker confusion. Ballot selfies. Here’s a story that’s much less exciting. It’s the story of how I voted in Washington State.
Around October 24, I received my ballot in the mail. It’s like an absentee ballot. But I didn’t receive this ballot because I had requested one; to the contrary, vote-by-mail is the default here in Washington. My own voting process began with a hunt for that most precious of spaces in my home (that is, a space prominent enough to be helpful, but sufficiently out-of-the-way for the kids not to have commandeered it), where I set the ballot aside until I had an evening free. Then, with a touch of dramatic flair, I spread my tools of democracy across the dining room table—my ballot, my voting guide, my laptop, and my chocolate—and I filled out the ballot as best I could, making notes on where I needed more information. (People voting in similarly initiative-happy states will understand.) Over the next few days, I took the time I needed to gather the missing information—including through civic-minded discussion with family and friends—and eventually completed the ballot. I signed it, sealed it, and by the end of last week, found a stamp for it and put it in the mail. That was the end of the matter until yesterday, when I decided to confirm that everything was fine. To that end, I Googled “confirm vote received washington state.” This slapdash search brought me to a website where I was able to type in my basic information and immediately receive an update on my ballot. Here’s the message I received:
- We have received your ballot, your signature has been verified, and your ballot will be counted.
- Thank you for voting.
You’re welcome! All done, so pleasant and straightforward, a week before the election. I encountered no lines, no intimidation, no poll-worker confusion, and no selfies. (Notwithstanding the fact that our Secretary of State has assured us that, in Washington, ballot selfies are “not directly prohibited.”)
Are there potential problems with voting in this way? Of course; no system is perfect. Whenever a jurisdiction creates the possibility that its voters won’t vote in private (i.e., whenever voting isn’t necessarily done in secret), there’s an increased chance of both vote buying and vote coercion. (To understand why, imagine what you’d need in order to effectively buy or coerce a vote. At the top of the list: some way of verifying that your co-conspirators/victims actually voted the way you wanted them to.) Moreover, while voter fraud is exceedingly rare in this country, the voter fraud that does exist is more likely to occur via absentee ballot than by in-person voting. So all else being equal, mail-in states would seem to have an increased susceptibility to fraudulent voting. An additional problem with mail-in ballots relates to voters (for example, people who are homeless) who have difficulty voting by mail—though this is less of a structural concern, given that there are ways for a mail-in jurisdiction to accommodate such individuals. The more intractable issues relate to the potential for voter fraud, vote coercion, and vote buying.
Yet Washington State does not suffer from widespread problems relating to fraud, coercion, or vote buying. (Before anyone posts a link purporting to contradict this assertion, please confirm that the link in question directs to a reliable source actually supporting a different conclusion; there’s a lot of misdirection out there.) And what Washington definitely does not suffer from is all the problems associated with trying to get millions of people to go to the same limited number of locations to do the same thing at more-or-less the same time—i.e., all the problems associated with in-person voting. From my perspective, mail-in ballots are great for voters. Unless or until I learn that the problems theoretically associated with this form of voting (including the aforementioned buying, coercing, and defrauding) actually materialize, I will continue to support the practice, and be grateful that my state has adopted it.
Wednesday, November 02, 2016
Hi, everyone! I am thrilled to be guest blogging here this month. My warmest thanks to the whole Prawfs team and, in particular, Howard Wasserman, a wise mentor, good friend, and overall champion of junior faculty. PrawfsBlawg has been an amazing resource for me since my early days of wandering around the Marriott Wardman Park with a weirdly large lanyard nametag around my neck.
I am an associate professor at Texas Tech University where I teach torts, criminal law, criminal procedure, and environmental law, and where I co-direct our criminal law and innocence concentration program with Dr. Brie Sherwin. This month, I plan to post about my latest line of research and writing, the (mis)regulation of driverless cars, as well as about some of the teaching issues that I’ve been thinking about as of late.
Thanks for having me!
Our Friend and Colleague, Norman Singer
Here at the University of Alabama, we are mourning the loss of our friend Norman Singer, who taught in the Law School and the anthropology department. Norman died on Monday at the age of 78. His obituary in the local paper provides some biographical details:
He was Professor Emeritus of Law and Anthropology at the University of Alabama, and for 40 years held full tenured professorships in both departments, though he was proud that he never took salary or benefits from Arts and Sciences.
Professor Singer had a wide-ranging international career as well. After graduating from the Wharton School at the University of Pennsylvania, he worked for a year in Stockholm. A trip through Russia and into Iran introduced him to the Middle East. He returned to the States, graduated summa cum laude from Boston University Law School and in 1964 and joined the Peace Corps with his wife, the former Bethany Wasserman. They spent four years in Addis Ababa, Ethiopia where Professor Singer was a member of the first law faculty in Ethiopia and where two sons were born.
Prof. Singer joined the University of Alabama Law School in 1971 and in 1975 received the SJD from Harvard, with an anthropological/legal dissertation on traditional legal systems in Ethiopia.
While teaching full time at the University of Alabama, Professor Singer also fitted in numerous projects in countries as diverse as Albania, Cambodia, Croatia, Egypt, Fiji, Iraq, Trinidad, and Zanzibar. He became known as a major expert in restructuring land tenure in countries with poorly-organized or non-existent private land systems. He also took leave from the University to spend 1980-82 as the Ford Foundation Res. Rep. in the Sudan.
Professor Singer may be best known in the legal world as the author of a treatise, Sutherland, Statutory Construction. In recent years, he has shared authorship with his eldest son, Shambie J.D. Singer.
He was born in Boston, Mass. to the late Morris and Anna C. Singer. His first marriage ended in divorce.
He is survived by his wife, Anna Jacobs Singer; sons, Shambie, Jeremy (Nicole) and Micah (Ali); stepdaughters, Joanna Jacobs and Stephanie Jacobs; special children, Ejvis Lamani, and Anil and Aron Mujumdar; grandchildren, Sofia, Avery and Zeke Singer; and sister, Helen Silverstein.
"Some" details, I said. I would add a few more. Norman was a blast. He was boisterous and humorous. He had decades-long friendships with many of his students. His office door was always open and he was usually shouting out of it from inside to someone or other. (In a lively, not an angry, way.) And just as he was a big part of the life of the Law School, his wife, Anna, was and is a major part of the Tuscaloosa community and especially of our local synagogue; his stepdaughters, Stephanie and Joanna, were and are a big part of the local community as well.
When talking to hiring candidates about the strengths and distinctive qualities of UA and Tuscaloosa--and particularly given the difficulties of convincing hiring candidates, some of whom have lived in only a few and fairly standard places, that it is possible to move somewhere quite different (in some respects; all college towns have many shared traits) and have a good and fulfilling life--I generally focus on the strong, supportive sense of community I have found here, both at the Law School and across and beyond the university. Especially as a parent, and given all the medical issues I've faced in the past decade, it's been an extraordinarily important and rewarding aspect of life here. When I think of that, I am often reminded of one of the first visits my wife and I made here with our daughter, then about a year old, while we were still figuring out where to live and so on. Norman and Anna had us over to their house, a few blocks from where we live now, to welcome us and offer their advice. Their children had long since reached adulthood, but they found some old wooden toys for our daughter to play with while we talked. It's a little thing, I know, but a sense of community is built up from many such little things. It was a warm and welcoming visit and, between life in the Law School building itself, life in Tuscaloosa more generally, and our involvement with the temple, one of countless numbers of occasions when we were grateful for the warmth and friendship of both Norm and Anna. We will miss him, and extend our love and condolences to his family.
"Protecting the Right to Vote in Missouri"
All 50 state constitutions explicitly confer the right to vote. This is in contrast to the U.S. Constitution, which protects the right to vote merely implicitly through the Equal Protection Clause as well as through passive language in various amendments ("The right of citizens of the United States to vote shall not be denied or abridged..."). Moreover, in Article I, Section 2 and the Seventeenth Amendment, the U.S. Constitution contemplates that federal voter qualifications are subject to state control, saying that those who may vote for Congress are those who may vote for the state legislature (subject, of course, to the constitutional floor within the various voting amendments). Thus, our constitutional structure recognizes a broad role for states to determine the scope of the constitutional right to vote.
Understanding this broader state constitutional grant of voting rights, several state supreme courts, including the Missouri Supreme Court in 2006, have held that strict voter ID laws infringe on that right by, in essence, adding an additional "qualification" to vote that goes beyond what the state constitution allows. Given that the U.S. Supreme Court refused to strike down Indiana's voter ID law under the Equal Protection Clause in Crawford v. Marion County Election Board in 2008, this state constitutional protection is significant.
But Missouri voters will decide next week whether to overrule this precedent and amend the state constitution to allow the legislature to adopt a restrictive voter ID requirement. This is a bad idea, and voters should reject Amendment 6. I explain why in a new Op-Ed for the St. Louis Post-Dispatch:
As the nation debates so-called election rigging and voter fraud, one bright spot in our democracy is the robust protection for the right to vote in the Missouri Constitution.
Missouri was among the first states on the right side of history in the debate over voter ID laws. In 2006, the Missouri Supreme Court ruled that the state constitution vigorously protects the right to vote and that the state’s photo ID law infringed that fundamental right.
Yet this year Missouri will decide whether to amend the state constitution to allow voter ID requirements. Voters in Missouri, and elsewhere, should continue to allow the state constitution to provide robust protection for voting rights and reject Amendment 6, the proposed state constitutional amendment that would denigrate the right to vote.
By amending the state constitution, then, Missouri would be courting significant harms. It would disenfranchise valid voters for no good reason. It would turn back 10 years of admirable jurisprudence on robust protection for the right to vote under the state constitution. It would invite additional federal court litigation on the potential discriminatory aspect of the new rule. And it would — dangerously — greatly weaken a recognized fundamental right within the state constitution.
Missouri elections do not suffer from in-person voter fraud — the only kind of fraud that a photo ID provision would prevent. Missouri elections do, however, enjoy a positive attribute: a state constitution that vigorously protects the right to vote and a state Supreme Court that recognizes the significance of this state constitutional safeguard. Amending the state constitution to overrule this precedent will only harm the state’s elections.
If there has been a positive story of the right to vote over the past several years, it is that state courts, at least in some places, have gone beyond the U.S. Constitution to protect the right to vote under state constitutions. We should continue that tradition.
But first, let me take a ballot selfie!
Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.
Purported Risk of "Vote Buying" Schemes
Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote. I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless). Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.
Tuesday, November 01, 2016
I am thrilled to be back, joining Andrea and the others this month. I teach and write in tax, trusts & estates, and family law at Indiana University McKinney School of Law.
Although this is my third November PrawfsBlawg guest stint, this is my first November in an election year. But, I’m much too tired of it to blog about the election, so I’ll leave that part to the superb October PrawfsBlawg guests. Besides, November is a big conference month, so there is plenty to distract me from the usual election news cycle. Tomorrow, Joshua Blank is giving a tax paper at Northwestern Law School’s tax colloquium and this weekend is the delightful annual constitutional law colloquium at Loyola University Chicago School of Law. It's fun to be in Chicago with the Cubs in the World Series--will they pull it off tonight and stay alive?
I look forward to spending this month blogging in my areas of specialty and other (non-election) news, as well as seeing many of you at this month’s conferences.
Hello out there, blogosphere! I'm very happy to be back for a brief stint at Prawfsblawg. I'll have a "real" post later today, but in the meantime, I thought I'd quickly introduce myself:
I'm a newly-tenured prof at Washburn Law School in Topeka, Kansas - that's the law school conveniently located smack in the middle of the default screen of googlemaps (just keep zooming in!). I originally hail from Northern VA and still feel connected to the DC area. I teach 1Ls all the time (seriously - I haven't had a 1L-free semester EVER), either Property or Contracts. I also am the co-director of our school's Business and Transactional Law Center and I teach several business/transactional upper-division courses, including Real Estate Transactions, Debtor-Creditor Relations, and classes on housing law and leasing. I write in the area of housing law and consumer finance and financial markets. Current projects include: (a) a piece on rebuilding Detroit while addressing segregation (in edits), (b) a piece on rental affordability while expanding GSE and other government-channelled supply-side support (also in edits), (c) a piece about revitalizing urban cores while affirmatively furthering fair housing (in draft), and (d) early drafts of a piece about access to consumer bankruptcy, a piece about housing law and policy, and a piece about the future rule of Fannie/Freddie. And, yes, I feel like I "write like I'm running out of time" (as an avowed Hamilton junky), mostly because I really am running out of time (deadlines loom!)
Thank you for inviting me to participate this month! Looking forward to it.
Only Republican justices need apply?
With comments from Sen. Richard Burr about doing everything to prevent President Clinton from making any SCOTUS appointments, the question of the Republican endgame with respect to the Court is coming into stark relief. First it was "the next President should appoint." Now it is "the next President should appoint, unless it is a Democrat replacing a conservative such as Justice Scalia." None of this was ever a principled stand. But the absence of a meaningful principle now means that this is a moving line that Republicans are moving (and likely will continue to move) with impunity and without political repercussion and without logical (beyond pure politics) end.
So imagining that we have President Clinton/Republican Senate:
RonNell Anderson Jones (Utah) and Aaron Nielson (BYU) have posted on SSRN Clarence Thomas the Questioner, (forthcoming in Northwestern Law Review), which analyzes a collection of questions Thomas has asked from the bench over the years, concluding that he is a "model questioner." Highly recommended, as the saying goes.
The conclusion is consistent with stories I have heard from former SCOTUS clerks, who tell about the (rare) questions from Thomas being significant to the argument.
Welcome to November and either the end of the republican experiment or just another election.
Our October election symposium will continue at least through Election Day and perhaps through November. Meanwhile, we welcome new November guests to the mix--Andrea Boyack (Washburn), Dave Fagundes (Houston), Tracy Pearl (Texas Tech), and Margaret Ryznar (Indiana-Indianapolis).
Enjoy the month.
"Neither of the Above"
In case anyone's interested: I wrote for Commonweal a few months ago an admittedly hand-wringing, opportunistically laden with "Hamilton" references, non-expert (HT: Paul Horwitz!) "conservative's lament" about the upcoming presidential election. The events of the intervening weeks haven't really changed, but seem instead to have confirmed, my gloomy views.
Yes, You Can Change Your Vote (in some places); But It's a Bad Idea
Call it buyer's remorse: a person voted early and then regrets their choice, perhaps because of new information that is revealed about the candidates. Maybe new evidence supposedly emerges about emails or about a candidate's apparent ties to Russia. Can the voter change their vote?
It turns out, surprisingly, that the answer is yes in at least a few places. Voters who have already submitted ballots in a few states may cancel those ballots to change their votes. It's not the same as voting twice, as Donald Trump has been accused of advocating in Colorado; but it does give voters another bite at the apple.
This issue has gained salience over the past few days. A image that had appeared on Fox News was circulating on Twitter over the weekend, in light of the James Comey letter re-elevating the issue of Hillary Clinton's emails, suggesting that voters in some states can change their early votes:
The Louisiana Secretary of State tweeted that the map is wrong with respect to Louisiana election law, which does not allow this practice.
But in the other states, how does this process work? And is it a good idea? I provide some thoughts after the jump.
Friday, October 28, 2016
WARNING: THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE
In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”
After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”
In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today.
Thursday, October 27, 2016
Levine on the "Hands-Off Approach to Religious Doctrine"
Prof. Samuel Levine (Touro) returns, here, to an issue that he has addressed thoughtfully and thoroughly in other work, namely, what he calls the Supreme Court's "Hands-Off Approach to Religious Doctrine," in light of the Court's recent religious-freedom cases (Hosanna-Tabor, Hobby Lobby, Holt, and Zubik). Here's the paper's abstract:
In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed — and seemed to resolve — a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically — though anticlimactically — in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter.
This article suggests that the Supreme Court’s inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court’s continuing, and arguably expanding, hands-off approach to religious doctrine. Courts and scholars have offered sound justifications for the Supreme Court’s hands-off approach to questions of religious doctrine grounded in constitutional principles of religious freedom as well as more general concerns over judicial competence and the role of judges. Nevertheless, as recent cases have illustrated, the hands-off approach raises concerns of its own, at times serving as a source of contention and confusion. The ongoing tensions and divisions among Justices and judges revolving around these issues may suggest a need for the Supreme Court to revisit and perhaps rethink the contours of the hands-off approach to achieve clarity for the future.
At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”
This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal churches in Virginia, on the one hand, and the Episcopal Diocese of Virginia, on the other; by the Supreme Court of Canada’s recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; by a federal judge’s ruling that the Georgia Institute of Technology had unconstitutionally taken on the task of instructing students about the merits of various traditions’ positions on sexual morality; and perhaps even by the Speaker of the House’s controversial pronouncements, on “Meet the Press,” about Roman Catholic teaching with respect to abortion. In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving the meaning or content of religious teaching.
But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,” why is the Court doing, and should it be doing, what it is doing?
More SCOTUS Repeaters
Regular Prawfsblawg readers may be interested in my recent essay on SCOTUS Repeaters, or cases that the US Supreme Court hears more than once. Here's how the essay starts:
It’s every academic blogger’s dream to prompt an empirical study. Well, maybe not. But it was my dream, and Jason Iuliano and Ya Sheng Lin have made it a reality.
Wednesday, October 26, 2016
DNC motion to enforce and the rigged election
The DNC has filed a motion to enforce the consent decree against the RNC for supporting and collaborating in Donald Trump's "ballot security" measures that sound like intimidation of minority voters in places such as Philadelphia. The motion seeks enforcement, sanctions, and further preliminary injunctive relief prohibiting RNC funds and personnel from being used in such efforts in concert with the Trump Campaign. The motion does not go all the way to pinning the Trump Campaign's activities on the RNC because Trump is the party's nominee, but it does highlight its "coordination, encouragement, and support" of such activities.
Random items (Updated)
• Last term in Heffernan v. City of Patterson, SCOTUS held that a public employee can state a First Amendment retaliation claim where he suffers adverse job action because the employer believes he engaged in protected expression, even if he did not actually do so. Heffernan now has settled the action for $ 1.6 million, including attorney's fees.
• Senate Republicans are beginning to make noise about not confirming any Hillary Clinton nominees to SCOTUS, apparently for the whole of her Term. Clearly, no one is even pretending anymore that this is some principled stand in the name of democratic values (it never was, but at least some pretended). In pushing this position in a radio interview on Wednesday, Ted Cruz pointed for support to comments by Justice Breyer that the Court is doing just fine with eight Justices. It is impossible to know whether Breyer believes that or whether, as Dahlia Lithwick has argued, this is the Justices putting on a brave face to keep themselves out of the political thicket. If the latter, it is ironic that Cruz is using those efforts to pull the Justices even more into the mire.
Perhaps this is all posturing, in light of recent polls. It does hint that a lame-duck confirmation of Merrick Garland is not in the offing.
Update: I agree with several points Dahlia Lithwick makes here: 1) The Chief must play a role as an advocate for the institution, something Taft did well and which is entirely appropriate where the Court's structure is implicated; 2) This should play as FDR's court-packing plan redux--one party trying to manipulate the size of the Court for partisan gain. That it is not says much about the current partisan divide--FDR's plan failed because Democrats (who held the Senate majority) bailed on it; 3) Justice Breyer is at odds with others who have spoken out about this stonewalling. And that ups the irony of Cruz seizing on Breyer's attempts at optimism to draw out the dispute.
Lowering the Voting Age to 16 for San Francisco's Elections
A few years ago, the Maryland towns Takoma Park and Hyattsville lowered the voting age to 16 for their city elections. When I first heard about this, I was intrigued, but I did not have a strong view one way or the other on whether it was a good idea. The more I've researched, the more convinced I've become that lowering the voting age makes sense and is good for our democracy. This November San Francisco voters will decide whether to lower the voting age for their own elections. A recent poll suggests that the vote may be close. Whatever happens, there is a growing movement to lower the voting age in local elections.
- The current voting age of 18 is largely a historical accident. At the Founding, we adopted 21 simply because that was what the British common law provided. That was the British rule likely because that was the age at which men could wear the armor required to battle. The U.S. lowered the voting age to 18 in the 26th Amendment because of the Vietnam War, but that was only because we lowered the draft age during World War II to 18. There has never been a sustained conversation or debate about what age makes the most sense to begin voting.
- There are no legal impediments to lowering the voting age, at least in states that provide robust home rule powers to localities (like California). The U.S. Constitution says that states cannot deny the right to vote to those 18 and older, but it says nothing about whether states or localities can go lower. Some state laws do impose impediments to local election rules, but California does not (as I show in my new article, The Right to Vote Under Local Law).
- Lowering the voting age will improve turnout. Eighteen is an odd age to begin voting, as most people are leaving home for college or the workforce. They are less likely to jump through the administrative hurdles of registering and voting via absentee ballot. At age 16, by contrast, it will be easier to capture young individuals to begin participating in democracy. Most 16-year-olds are invested in their communities. Studies show that voting is habit-forming, so once people start voting they are more likely to continue doing so in future years. Turnout among 16- and 17-year olds in Takoma Park and Hyattsville has been about double that of all other age groups. It remains to be seen whether this high turnout is sustainable. If it is, then lowering the voting age will provide a significant boost to turnout among young people for years to come.
- Psychological studies all support lowering the voting age. Psychologists have identified two kinds of cognition: "hot" cognition and "cold" cognition. Hot cognition activities entail high stress, emotion, impulse, and peer pressure. Cold cognition, by contrast, requires deliberation and reasoned judgment. Voting is a cold cognition activity. Studies of cognitive development show that individuals gain the capacity for cold cognition by at least age 16. (By contrast, we are not really good at hot cognition capabilities until at least age 21, and maybe even 24 or 25.) Nothing magical happens at age 18 to make individuals cognitively ready to vote; but something magical does happen, neurologically, by age 16. A 16-year-old is as good as an 18-year-old, 28-year-old, or 58-year-old at having the cognitive capacity to make reasoned decisions required of voting.
- We already treat 16-year-olds like adults in many settings: allowing them to obtain drivers' licenses, work in part-time jobs, consent to sexual activity, and drop out of school (in many states -- [update - but not in California]), and we expect them to follow the driving laws and pay taxes on their wages. Fairness suggests that they should be allowed to participate in our democracy (so long as they are cognitively capable of doing so -- see #4). True, 18 is the age of legal majority in many other areas, but this fact does not obscure the reality that our society treats 16-year-olds like "adults" in many situations.
- By allowing cities to experiment with this innovation in voting rules, they can serve as "test tubes of democracy" to see if it works. The idea can then "trickle across" to other cities and eventually "trickle up" to state and national policy. In this way, incremental change can occur through local laws.
There is more detail in the Penn Law Review Online Essay and the San Francisco Op-Ed, which I hope you will read. In sum, although I was neutral at first, I'm convinced by the strong legal, psychological, and policy arguments to support Prop F to lower the voting age to 16 in San Francisco this November.
Tuesday, October 25, 2016
White House Non-Compete Announcement
Today is an important day for labor market mobility, as well as a very exciting day for me and others who research non-compete policy. Over the summer I was invited to the White House to present my research (for example here and here and here) and the arguments against non-competes I developed in my book Talent Wants to be Free. Since then, we've formed a White House working group and today the White House issued a call for action to push back against the over-expansion of non-competes and other practices, such as collusive agreements to not poach employees and anti-competitive wage fixing. As Vice President Biden writes "no one should have to sit on the sidelines" because of an unnecessary non-compete clause. In the next few days, I will post some more about the various aspects of the call for action that was announced today but for now let me just say - how great that my call to set talent free has now been given an official hashtag by the President's team!
Hashtag: #LetUsCompete @WhiteHouse @POTUS @VP
Monday, October 24, 2016
Superbosses Want Their Talent to be Free
As an employment law scholar, I regularly read books on management and leadership to see how industry and business school scholars are thinking about work. I was happy to read Sidney Finkelstein's newest bestseller, Superbosses: How Exceptional Leaders Manage the Flow of Talent. Finkelstein is a Management and Director of the Leadership Center at the Tuck School of Business at Dartmouth College and he studies the behaviors of the world's most successful business leadership across many different industries, ranging from tech to entertainment. One of the top insights he finds in the patterns of superbosses is they Say Good-Bye on Good Terms: "Nobody likes it when great employees quit, but superbosses don’t respond with anger or resentment. They know that former direct reports can become highly valuable members of their network, especially as they rise to major new roles elsewhere. Julian Robertson, the billionaire hedge fund manager, continued to work with and invest in his former employees who started their own funds."
As many of you know, I have argued that setting one's talent free, in the sense of allowing employees to leave their jobs without fear of being sued for a breach of non-compete, is something that benefits not only workers but also employers and regional growth more broadly. It's great to see that the best bosses intuitively understand that they can in fact benefit and celebrate their employees' mobility. This is an important moment for non-compete policy and the more we learn about the win-win benefits of talent flows the better our human capital law will be.
Biskupic on Garland
At CNN, Joan Biskupic offers some reasons that Hillary Clinton may renominate Merrick Garland if she wins the presidency and the lame-duck Congress does not confirm him. These include the connection Garland already has to the Clintons and to top Clinton allies, the desire to preserve political capital, and the assumption that she will have other appointment opportunities before 2021.
JOTWELL: Vladeck on Thomas on the loss of the jury
The new Courts Law essay comes from permaprawf Steve Vladeck (Texas), reviewing Suja Thomas's book The Missing American Jury: Restoring the Fundamental Constitutional Role of the Civil, Criminal, and Grand Juries.
The Story of Voting Rights is not All Doom and Gloom
It is easy to think, with numerous media reports of voter suppression, the adoption of strict voter ID laws, and talk of election rigging, that voting rights are in a perilous state in this country. But there is another side of the story too -- one of optimism. Various states and localities are experimenting with ways to make voting easier, more convenient, and more accessible.
As I explain in a new column for USA Today, "[l]ocal experiments in election rules are helping offset trends toward voting restrictions and floods of money."
Importantly, several of these democracy-enhancing measures are on the ballot in November. Maine is considering whether to adopt ranked choice voting. San Francisco will vote on whether to lower the voting age to 16 (more on that later this week). Various localities are looking to reform their campaign finance rules for local elections. Thus, even if you think your vote "won't matter" for the presidential election, there are likely important down-ballot races and issues that will make a difference for our democracy.
Here is the intro of the USA Today piece:
All politics is local, as the saying goes, and the same is true of election law. Although the U.S. Constitution protects the right to vote, local laws can expand its scope and influence democratic representation. Voters across the country are making choices this fall that will not only affect state and local elections, they will also serve as the catalysts for nationwide reforms.
Read the whole thing here.
Sunday, October 23, 2016
Five outs to go
I always have liked symmetry and patterns in events, not necessarily for signs but for fun coincidences. One under-reported thing over the years and at the time is that in 2003, the Cubs and Red Sox were each five outs away from meeting in the World Series. The Sox lead the Yankees with one out in eighth inning of Game 7, at which point manager Grady Little left a tiring Pedro Martinez in the game, the Yankees scored three runs to tie the game, and won the game and series in extra inning. The Cubs lead the Marlins with one out in the eighth inning of Game 6 (leading 3-2 in the series), before Bartman, an error on a possible double-play grounder by usually reliable shortstop Alex Gonzalez, and the collapse of pitching cost them that game. They never got closer to the Series than five outs. They then completed the collapse in Game 7, blowing a 5-3 lead. At the time, I though Five Outs to Go would be a great title for a book detailing both games in alternate chapters. The point became moot the following year, when the Red Sox won the World Series for the first time since World War I. Hopefully, it becomes more moot over the next ten days.
Still, I was most nervous last night came when Cub starter Kyle Hendricks got the first out in the eighth, then allowed his second hit of the game. Fortunately, the Cubs brought in closer Aroldis Chapman, who got a double play to end the inning, (finally) getting the Cubs closer than five outs from the Series. It was at that point I turned to my wife and said "Now I can relax."
Saturday, October 22, 2016
Cubs win! Cubs win! Cubs win! Holy Cow!
That is all.
Friday, October 21, 2016
Tradition Project Conference: Tradition in Law and Politics
I'm in New York today for a conference called Tradition in Law and Politics. It's the kick-off conference for the Tradition Project, an intellectual enterprise under the auspices of the Center for Law and Religion at St. John's Law School, which is directed by my friends Mark Movsesian and Marc DeGirolami. Although there are obvious strong links to the study of law and religion, both the conference and the project are broader in their concerns and topics. The sessions over the next couple of days will cover the definition of tradition, the American religious tradition, the American political tradition, the common law tradition, and the constitutional law tradition.
This is a great and timely project and topic. One assumption on hearing about this conference might be that it's timely in a rear-guard sense, in that the regnant culture and moment are antipathetic toward tradition, and the rejection of tradition as a basis or reason for doing (or not doing) something is achieving important victories in, say, decisions on substantive due process and equality and arguments about religion. (My equipment here doesn't allow me to hyperlink very easily, but one might want to take a look at Neil Siegel's Balkinization post and piece on Justice Alito's role on the Supreme Court. Although I assume Siegel is unlikely to agree very often with Alito, there are commendably scholarly and sympathetic strains, in Siegel's linked piece, of interest in and acknowledgment of the kinds of people for whom Alito may be said to be writing.)
In a different register, however, at least some of the current bewailing of the state of our political culture also involves a form of traditionalism. This time it comes from a broader leadership class, caste, or establishment that includes both establishment conservatives and establishment liberals--including the same regnant liberals who may well reject tradition in many areas. Here, although they might not talk in terms of tradition, there is a strong ongoing lament for the radical loss or disruption of a settlement, or set of customs and practices, that enabled some degree of civil and productive political discourse, compromise, fellowship within the political class and beyond, and so on. Abstracting away from the rather egregious current figurehead for challenges to that tradition, recent populist movements here and elsewhere, on both left and right, and their sometimes destructive power, have both emphasized the value of our traditions and served as a reminder of the way that those traditions can be hollowed out, or left isolated by changes in the broader culture, or be rendered vulnerable by the failure to include and involve larger communities of people: people of color, members of the working class, denizens of regions suffering from economic and/or cultural dislocation, etc. In that sense, although there's no doubt that many readers of this post, or for that matter people here at the conference table, might associate a "Tradition Project" with mourners or rear-guard fighters on the traditionalist conservative side, and have little sympathy for such a project, there are broader reasons why such a project is timely, and those reasons ought to make more people, including many who would tend to label themselves as anti-traditionalist, more sympathetic to this project than they might be inclined to be at first blush.
Unsurprisingly, there are plenty of representatives in the room of, as a speaker put it, people who are "disposed to respect tradition," many of them religious, politically and culturally conservative, or both. As I've written above, there are at least two reasons the appeal of the project and the subject should not be limited to those people: 1) if the "traditionalists" are a minority voice today, that fact can itself be interesting and worthy of study; and 2) people who see themselves as non- or anti-traditionalist may discover, upon reflection or in response to emergencies and other exigencies, that they are more traditionalist than they think. I certainly hope the makeup of the room widens, and that one of the reasons for this is that a more catholic group of scholars knock on the door and express their interest in participating. The prerequisite, such as it is, is not that one be a traditionalist, but that one be someone who takes tradition seriously.
As per usual, I find myself in the middle. I'm convinced that there is value in tradition itself and in tradition as a subject, and concerned about any approach to law, politics, or culture that sees it as irrelevant or negative or illegitimate as a source of practice or authority. To my mind, one of the potential long-term goals or values of this project should be to explore the ways in which soi-disant rationalist liberals or progressives, or indeed anyone of whatever political stripe who sees himself or herself as operating purely rationally or empirically, end up believing in and relying on tradition, and react hostilely to challenges to those traditions they hold dear--and the ways in which they suppress or deny their own traditionalism and their own reliance on tradition as an authority. But I am also in some sense a tradition skeptic, and think it's possible both to take tradition seriously and be somewhat sympathetic to it, and to be interested in finding ways of defying it, subverting it, or introducing viruses into it. All of thes activities, of course, have a tradition of their own and are part of tradition itself.
In any event, great topic and great conference and I'm delighted to be here. I may have more to say, but there are other bloggers here and no doubt they'll have some reactions and posts of their own.
Thursday, October 20, 2016
Peaceful transition of power
The big takeaway from last night's debate is Donald Trump's refusal to say that he would concede if he loses the election, stating that he would "look at it at the time" and that he would keep everyone "in suspense." Trumps's minions are spinning this roughly as follows: 1) He meant he would have to see if there is voter fraud about which something could be done and 2) Al Gore did not concede until December, with the implication from some now being that Gore was wrong to contest the result in Florida. (Update: An emailer reminds me that the recount was automatic under Florida law, given the closeness of the vote. So Gore was even more within his rights to argue that, as long as we were doing a recount, it should be done what he believed was the right way).
As to the second, we have laws in place to contest close elections for a reason, so there is nothing wrong with a candidate availing himself of those processes (especially when the state itself, not the candidate, triggers those processes). But the question last night clearly worked from the premise that the outcome was clear, either because it was not close or there were no more legal challenges to bring. As to the first, the problem with the argument is that for Trump, his losing the election is proof of voter fraud and a just basis not to accept the result, Q.E.D.
I do want to separate the effect of Trump's rhetoric and possible refusal along two lines-- democracy as an institution and the peaceful transition of power. I do not believe he threatens the peaceful transition of power. And that is because Trump does not currently possess political power or the resources that go with it (e.g., military or paramilitary forces). And most of the people who do possess that power would not back him up in refusing to recognize the results of the election. John Roberts is not going to refuse to swear-in Hillary Clinton on January 20. Barack Obama is not going to stand on a tank outside the White House and refuse to let Hillary Clinton in. Officials of states totaling 270 electors are not going to refuse to certify the slate of electors. And Congress, even if both houses are Republican-controlled, are not going to refuse to accept the electoral votes showing Clinton as the winner. Perhaps if they would, this might get more dangerous, but that does not appear to be likely. If anything, that the current President is a Clinton supporter weakens that rhetoric even more. Trump may provoke some violence among his supporters, which would be tragic, but it would remain on a small scale and still subject to legal control.
But Trump's words and actions do pose a danger for democracy as an institution, given democracy's dependence on the consent of the losers. A Trump concession would be symbolically important for the ability of the next President to govern and to be seen as legitimate by all The People, even those who did not vote for her. And that is ultimately what Trump's talk over the past month has been about--not to stop Clinton from gaining the presidency, but to undermine the legitimacy of her presidency.
I think it is important that we speak about this in those specific, and more accurate, terms.
Wednesday, October 19, 2016
Designated Survivor, The End
I just got around to watching Episode 4, which will be my final one (and this my final post). The idea seems so good, but the execution is horrible, even allowing for the relatively low bar on these things. Nothing changed from my assessment of Episode 2--It is just too simplistic, craven, and heavy-handed.
The show returned to the controversy with the governor of Michigan and mass arrests of Muslim citizens, culminating in the federal arrest of the governor, although I could not figure out what the charges were. Nor could I figure out why it was necessary to fraudulently induce the governor to fly to Washington to arrest him, rather than arresting him in Michigan--were there no FBI agents anywhere in the state? There were more comparisons of Kennedy and sending people to "watch" what was going on, without any discussion of the civil lawsuits in functioning courts*that gave the Kennedy watchers (and the calling of the National Guard) its force and that would have been the obvious solution here.
[*] One whopper I forgot to mention from Episode 2 was the governor, in explaining why he was free to do what he was doing, pointing out that there was no longer a Supreme Court. Of course, there is a Sixth Circuit and there is still an Eastern and Western District of Michigan, all of which are fully capable of issuing injunctions and bringing the governor and state police of Michigan to heel.
If anyone keeps watching and it gets better, please let me know.
End of the Filibuster?
In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.
If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.
This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?
I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?
A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.
By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works.
Tuesday, October 18, 2016
The Claim that the Media is Rigging the Election--and Citizens United
This post floats a tentative thought, welcoming reaction to it (but isn't that in part what blogging is for?):
Elsewhere, I've addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing. Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming.
My first reaction to this claim was straightforward: the freedom of speech being exercised by the media couldn't possible "rig" an election, because freedom of speech is essential to the functioning of a democracy. Free speech, far from rigging an election, promotes the fairness of elections by monitoring the voting and counting process to assure its accuracy and its compliance with the relevant rules.
While my follow-up thoughts are fully consistent with this initial reaction, I now think there is more that is worth considering on this point--and it relates to the public debate over the propriety of the Citizens United decision.
As I understand it, the Trump-Pence argument that the media could be rigging the election depends on the proposition that the media is improperly distorting the electoral process by persuading voters of the pernicious ideas that the media is disseminating. Persuasion must be the mechanism of the alleged "rigging" because the media is not paying voters to cast their ballots for a particular candidate (which would be a different type of mechanism for "rigging" the election). Perhaps part of the claim is that major media outlets (like CNN?) have some kind of monopoly position in the marketplace idea, which gives them an unfair advantage in the effort to persuade voters of what to think; but this kind of monopolization claim seems increasingly untenable given the diversity of media sources available to voters, who can choose whatever outlets they wish in an effort to gather information and develop their opinions.
Insofar as the media-rigging claim depends on the media's being effective in persuading voters, it is indeed a claim that is antithetical to the very premises of the First Amendment and the role that free expression plays in a democracy. Voters are entitled to be persuaded by whatever expression convinces them. If you disagree with the message that the media is sending to voters, then send the voters a different message of your own: the remedy for "bad" speech is counter-speech, and it is up to the voters to decide what to believe. And in this regard, of course, the media is not monolithic. If CNN is "slanted" in its particular point of view, then watch Fox for a different perspective. Likewise, read the Wall Street Journal and not the New York Times, if you think the Times is unduly liberal.
Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media's capacity to influence what voters think. To be sure, there might be different types of arguments for attacking Citizens United--that corporate money, for some reason, should be off-limits in the process of persuading voters what to think. But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters.
Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates. The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue.
One final thought: it seems to me that a well-functioning democracy requires some shared premises among the competing political parties about the nature of the democratic process itself. While the parties compete to win, they agree upon some basic ground rules. One of those basic ground rules, it seems to me, used to be the background condition of free expression as the basis upon which competing parties and groups will attempt to convince the electorate of the correctness of their respective positions. Perhaps, however, like so much else about the electoral process in this strangest of election years, the shared understanding of the role that free speech plays in a democracy is being frayed. If so, then let's hope that after this election we can begin a process of civic renewal that will enable restoration of the shared premises that are essential to a well-functioning democracy.
A lawyer's unexpected 15 minutes
Disenfranchisement and electoral losers
A quick thought in response to this piece arguing democracy depends on the consent of the losers and this Gerard Magliocca post arguing that Trump's rhetoric is not historically unprecedented: Immediately after Obama's inauguration in 2009, non-Obama voters began protesting, and the press began reporting, that they were "disenfranchised." They apparently used the term not to mean they were denied the right to vote,* but that they were "unrepresented" by a president who did not share their policy preferences and thus lacked any voice in government. And, again, the press reported it as a reasonable argument.
[*] Which would have been beyond ironic, given the political focus of recent attempts to limit the franchise.
This gets at another fundamental aspect of republican government that was ignored/misunderstood in the discussion: Being represented and being a full member of the polity does not mean you get all, some, or even any policies that you favor enacted by the candidate you favor. It means you get the opportunity to elect and try to influence people in office to your preferences. If your preferred candidates (and thus your preferred policies) lose, it does not mean you somehow are denied the rights of a full member of the society. It means you have a new opportunity at the next election to try to pick your preferred candidates who will enact your preferred policies. And in the meantime, public policy might go in a direction you do not like. But that is what we consent to.
"McConnell, denounce Trump's 'rigged election' comments"
I have written this Op-Ed for CNN, which debunks Donald Trump's "election rigging" comments and calls on Senator Mitch McConnell to denounce this dangerous and unfounded rhetoric. Here is the intro:
Mitch McConnell must end this nonsense.
The fact is that voter fraud occurs at such a minuscule level that it hardly ever affects a race. Moreover, it does not happen in the way that Trump and other Republicans seem to think: through in-person impersonation or individuals voting multiple times. The only proven fraud that exists, infrequent as it is, entails absentee balloting or paying off poll workers, typically to sway a local election. Voter ID laws, which Trump and others champion as a cure for our elections, would do nothing to solve that kind of fraud.
Read the full column here.
Whither the Trump Coalition?
Thanks Howard for the invitation to join this election symposium and apologies for my late arrival. I've been spending all this time trying to figure out who Billy Bush is.
So things are not looking great for Mr. Trump. The New York Times has put Secretary Clinton's odds for winning the election at 91 percent while Nate Silver has it at 88 percent in his polls only forecast and 85 percent in his polls plus forecast. Trump has resorted to claims that the election will be rigged and along with "America's mayor," Rudi Guiliani, he appears to be encouraging minority voter suppression. And the final days of the campaign leading up to the election has devolved into a battle of the headlines: Clinton emails versus Trump accusers. It would be kind of comical if it weren't happening in real time.
But while there is much to criticize about the Trump campaign, one thing that he successfully exploited to secure the Republican nomination was an obvious incompatibility in the Republican coalition between business republicans and the core Trump supporters of white, mostly male, working class voters with less than college education. President Reagan successfully aligned these two interests with an agenda focused in part on trickle down economics that justified tax cuts for the wealthy and anti-minority rhetoric that provided an excuse for white working class stagnation that trickle down economics would redress. Republican nominees since have campaigned on some version of the Reagan agenda ... hence the invocation of his name during every Republican primary debate.
But Trump decided in the primary to abandon the Reagan agenda and campaign on an anti-trade, anti-immigration agenda that appeals to white working class voters but is contrary to the interest of the business republicans who prefer fewer trade regulations and immigration. And rather than moving toward the middle in the general election through a renewed embrace of a version of the Reagan agenda, Trump has, as he has with many things, doubled down. Assuming Trump loses in 22 days, this Reagan coalition is not going to be easy to put back together. Republican business interests will find a home and that will likely be in the Republican party. But if the Republicans decide during their inevitable reset after the election to try to reclaim the Reagan agenda, while finding some other set of compatible voters to appeal to, whither the Trump coalition?
How a non-infield fly shows the need for the Infield Fly Rule
During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.
Monday, October 17, 2016
Law School Hiring, 2016-2017, Thread Two
Please leave comments on this thread regarding whether you have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter email@example.com or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments.
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. If you would like to enter the information on a spreadsheet, the spreadsheet is available here:
You can also add your information to the spreadsheet via this Google form, which was created by someone on the market this year.
Here is a link to the last page of comments.
Originally posted October 17, 2016.
Sunday, October 16, 2016
Substantive Due Process Within Sunday Night's Florida Election Law Decision
Tonight a Florida district court issued an opinion enjoining a state law that does not allow voters to "cure" a signature mismatch in a vote-by-mail ballot. If a Florida voter mails in their ballot without a signature, the state notifies the voter and allows that person to submit an affidavit with a signature. But if the county election workers determine that the signature that is on the envelope does not match the signature on file from when the voter registered, then the vote is deemed "illegal" and is not counted. Tonight the court ruled that refusing to allow a voter to cure this signature mismatch violates the Equal Protection Clause of the U.S. Constitution.
Most people (at least on Twitter) are focusing on the last line of the opinion, which is a doozy: "Justice Stewart once quipped, in reference to pornography, 'I know it when I see it . . .' Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Likewise, this Court knows disenfranchisement when it sees it and it is obscene."
But another line caught my eye, this one in a footnote:
Friday, October 14, 2016
If Trump Never Concedes ...
Chris Cillizza of the Washington Post's Fix observes that the escalation of Trump's rhetoric suggests that he's unlikely to concede defeat no matter what the results of the election show.
I've been thinking about this possibility over the last several days, beyond what I wrote a a couple of weeks ago for Politico.
It's important to recognize a few points:
- Election Night returns are not official certified results. No matter how much of a blowout in favor of Clinton, both in terms of the national popular vote and the Electoral College, that Election Night returns show, our system does not require that a candidate--or a political party--accept them as a definitive statement of the outcome. While we certainly have come to expect the tradition of the Election Night concession in the television era, especially when the results appear conclusive, it bears repeating that there is no official status to preliminary returns--and certainly none to the APs numbers. In short, we don't have a constitutional crisis on our hands if we don't have a gracious concession on Election Night even if the result appears a blow out.
- Our nation has withstood previous presidential elections in which the results were not known, and a concession was not forthcoming, until the canvassing of the returns were complete and the results officially certified. The election of 1884 took two weeks for the canvass in New York to be complete, and with it the official verdict that Grover Cleveland had defeated James Blaine. A similar situation occurred in 1916 as Charles Evans Hughes waited for completion of the canvass in California to confirm that he had lost to Woodrow Wilson. Neither of these examples, moreover, were ones that stressed the system in the way that 1876 and 2000 did. In other words, waiting for official results by itself does not constitute any serious threat to our democracy, which is far stronger than that.
- The key is the absence of violence. In both 1884 and 1916 there was no civil disorder as the nation peaceably waited completion of the official counting process. Whatever Trump does or does not say--assuming preliminary returns do show him to be losing decisively--the country will not be in crisis as long as his supporters do not engage in violent protests.
- To my mind, what will be key is the conduct and statements of Paul Ryan and Mitch McConnell as the leaders of the Republican party in Congress. If they publicly concede that Trump has lost, and the media appropriately reports the significance of their concession, the nation's democratic system can take that as the requisite sign of closure, whatever antics Trump might engage in. Remember, it is a joint session of Congress that constitutionally receives the Electoral College votes from the states under the Twelfth Amendment, and thus Ryan and McConnell have an official, constitutional role in congressional declaration of a president-elect. If and when Ryan and McConnell make clear to the public their intention to exercise this role in service of the Republic, the media should report that as the functional equivalent of the election being over.
- Mike Pence could also help in this process. If he acknowledges defeat, that will go a long way to helping those who voted for the Trump-Pence ticket to achieve closure, even if Trump is steadfastly refusing to acknowledge what would then be the reality of the situation.
- How much time should lapse before Ryan, McConnell, and Pence play this important role? Obviously, there will be intense media pressure for them to make concession-like statements on Election Night, especially if the results point to a Clinton landslide. But it seems to me that it would not be inappropriate for them to wait to give Trump a chance to do the right thing. Of course, the more belligerent Trump's rhetoric, the more important it becomes for Ryan, McConnell, and Pence to come forward quickly with responsible statements of their own.
- In sum, we have the capacity to navigate the situation even if Trump is inappropriately reckless after being defeated. Given our constitutional system, one aberrational individual cannot destroy our country--particularly if that individual has lost the election. (Finally, I'm obviously just assuming now that the Election Night returns may show a resounding victory for Hillary Clinton. Until we see what results the election actually brings, all these thought are simply by way of preparation.)
Former guest Prawfs Shima Baughman and her co-authors have a piece on TNR (originally published in The Conversation) calling for making police reports race-blind as a way to reduce implicit bias in prosecutors. Interesting read.
Number of Schools at FRC Over Time - 2016
In 2012, there were 142 AALS member or approved schools at the FRC.
In 2013, 94 schools.
In 2014, 81 schools.
In 2015, 89 schools.
In 2016, 86 U.S. law schools (the list provided by AALS was categorized differently this year but this is roughly equivalent to AALS member or approved schools).
(Say +/- 2 for each year due to vagaries of counting.)
More locking her up
To the extent there was any sense that Trump's explicit theme of prosecution/jailing Clinton was a one-off for the debate (or a quip, as campaign official Kellyanne Conway tried to argue on Monday), the last week has proven otherwise. Trump has referenced this in multiple rallies the past several days, including the specific detail about asking for a special prosecutor.
Charles Krauthammer (with whom I likely have not agreed about anything) argues that such rhetoric is dangerous and inconsistent with a mature, functioning democracy. A relevant excerpt:
Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation only works if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest.
The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.
One doesn’t even talk like this. It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.
Thursday, October 13, 2016
NYT to Trump: Go ahead and sue (Updated)
When I went to law school, one of my dream jobs was to be general counsel to The New York Times. So I have great respect for this letter responding to Trump's lawyer's retraction demand. The final paragraph is the meat, subtly arguing both the accuracy of the statements, their public import (and thus reminding that Trump is a public figure), and the absence of malice. The second paragraph is a bit more gratuitous, in essentially suggesting that Trump has made himself such a sleaze with his own public statements and actions that he is libel-proof. All-in-all, nice work (and the kind of ballsy, "let-me-tell-you-how-things-are, son" stand that I do not believe I have it in me to take with another lawyer--a conversation I was having with several people during break-fast yesterday).
It is interesting that one of the (many) political norms Trump has obliterated this election is that high-level government officials do not bring defamation actions, not only because Sullivan sets such a high hurdle, but also because it looks weak politically. But because Trump has made both the press and the First Amendment some of his punching bags, that weakness is gone.
The full letter:
Update: From the National Constitution Center Blog comes this essay on Barry Goldwater's successful suit against Ralph Ginzburg over something he published during the 1964 election about Goldwater's fitness. Goldwater managed to show actual malice and win a $ 1 million+, upheld on appeal. A few points: 1) It is telling that Goldwater waited until after the election, when he was (temporarily) out of office; 2) This was in the early days of the Sullivan regime and I wonder whether it would come out the same way today; and 3) Everyone hated Ralph Ginzburg, so he lost cases other people would win.
The Hurricane Canon for Election Law
I have written this post for the American Constitution Society blog, republished with permission:
When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.
That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.
Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)
The federal court’s ruling in Florida, then, follows similar decisions to favor voters who face an unexpected disaster that makes it harder for them to participate in the election. Call it the “Hurricane Canon”: election officials and courts should favor voter access when disaster strikes. Voting, as the most fundamental right to our democracy, must be as open as possible to all.