Wednesday, February 04, 2015
Fewer law schools or fewer students per school?
As legal education shrinks, should we have fewer law schools or fewer students per school? Right now, I think the policies in place favor fewer students per law school: the ABA is a pretty weak filter, both for new schools and existing schools; U.S. News rankings favor smaller class sizes and better scores; and there's no real market for firm control and consolidation, as Stephen Bainbridge discussed. But there are exceptions -- the incentives to pull in transfer students, for example, favor the "fewer schools" approach, as does the growing trend toward a standard, national bar exam. I haven't seen much policy debate specifically on this question, but it comes up all over the place as we're dealing with the downsizing.
With Amici Like These...: A Response to Josh Blackman on Law Professor-Authored Amicus Briefs
Over at his eponymous blog, Josh Blackman wonders out loud about the ethical propriety of a law professor co-authoring an amicus brief when they are one of the listed amici--that is, of being both one of the parties to an amicus brief and one of its authors, hearkening back to the old line about the lawyer who represents himself having a fool for a client. As Josh writes,
The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.
Admittedly, I have a dog in this fight, as I have written a number of amicus briefs over the years, many (but not most) of which have been on behalf of groups of law professors that included me. So folks should take my (negative) reaction with a significant grain of salt. That said, I have two principal critiques of Josh's reaction--one that goes to how he frames the problem, and one that goes to the role of amicus briefs, more generally.
Prosecutors and Police Killings: The Limits to Wisconsin's Innovative Solution
Despite all the attention being paid in recent years to the problems of large-scale incarceration in the United States, no one really focused on the behavior and incentives of prosecutors; even the National Research Council’s giant report on incarceration ignored them. But that all changed with the killings of Michael Brown in Ferguson, Missouri, and Eric Garner on Staten Island, and the failure of the local prosecutors to indict Officers Darren Wilson and Daniel Pantaleo.
So at least one issue involving prosecutors is now receiving national attention: how to properly prosecute police-involved killings.
Tuesday, February 03, 2015
Julian Zelizer, a historian at Princeton, has a new book titled The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society; he did a talk on it at Politics & Prose. Zelizer's thesis is that LBJ was not the all-powerful "Master of the Senate" who could push through whatever legislation he wanted--and that LBJ recognized that fact. His period of great legislative achievement was really just the two-year period from 1964-66, when he had overwhelming majorities in both houses and power had shifted away from conservative Southern Democrats. That ended with the 1966 mid-terms, when Southern Democrats returned to power, Republicans gained seats and were less likely to cooperate with him, making it far more difficult for him to achieve as much in the final two years of his presidency (including appoint a replacement for Warren).
This illustrates the broader point that what we think of as eras of particular legal and political achievements often are a product of a much smaller window within that broader era. So, Zelizer argues, the "Great Society" was created largely in two years of Johnson's five-year presidency, when the numbers and personnel lined up. Much less was happening during the other three years.
This matches Lucas Powe's argument about the small window for what we regard as "The Warren Court" and Justice Brennan's power as the intellectual engine of the Warren Court. While Warren was Chief for 15 years, "The Warren Court" really was a seven-year period from 1962-69, when the appointment of Goldberg provided five solid votes (Warren, Black, Douglas, Brennan, Goldberg) for most liberal or civil libertarian positions on speech, civil rights, and criminal procedure. Or, even more narrowly, it might be limited to only the two-year period beginning with Marshall's appointment in 1967, in which there were six liberal Justices and the bloc could afford one defection (by that point, it often was Black) and still maintain a majority.
Thinking About Prosecutors
Thank you to Prawfs for having me back to guest-blog again this month. I want to use my time here to (publicly) work through some very-early thoughts on what motivates the most important, yet most under-examined, actor in criminal justice: the prosecutor. Prosecutors have certainly been in the news a lot lately, but by and large we have very little empirical information on what motivates them or shapes their decisions—in no small part because we have almost no data on what they are doing.
There are two question in particular I want to think about here. The first, which is the more high-profile these days but arguably the less important, is about how to resolve the clear agency problem that arises when prosecutors are asked to prosecute members of their local police departments. In the wake of Ferguson and Staten Island, numerous proposals have been floated, from Wisconsin’s policy of referring police-related killings to outside district attorneys to appointing special prosecutors housed inside state attorneys general offices to handle such cases.
Help wanted for a seminar on "Prohibition"
Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call: The Rise and Fall of Prohibition." In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure"). I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.
A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law. It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle. Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law? Any suggestions about how it could be done?
Well, because I am slow and prone to procrastination, I am just now (finally) getting around to thinking about putting together a seminar course on the topic. I continue to think there's a lot of really interesting ways that our experiment with Prohibition could serve as a vehicle for examining, and pulling together, a bunch of interesting questions, including questions about the subjects mentioned in my earlier post.
So, here's a bleg: Does anyone know of any similar courses that are being offered or that have been offered elsewhere? And, does anyone have any ideas for topics that might be covered in such a seminar? Much appreciated! (We will, of course, be home-brewing as part of our coursework.)
Monday, February 02, 2015
Cameras at SCOTUS, again
Lots of new stuff on cameras in SCOTUS. Dahlia Lithwick's Amicus podcast discusses them this week, interviewing Sonja West (Georgia) and RonNell Andersen Jones (BYU), who together do a great job pretty much destroying the anti-cameras arguments. The only thing they did not mention was what I think is the key response to the "people will only hear snippets" argument--people already only hear snippets, but now they read the text and hear it in Nina Totenberg's voice, rather than in Scalia's or Kagan's. John Oliver pretty well demonstrated this in his Supreme Court Dogs segment (after the jump).
Second, Justice Kagan did a Q&A appearance at University of Chicago last weekend, in which she admitted to being "very conflicted" about the issue. The same article indicates that Justice Sotomayor is hardening her position against cameras (despite saying in her confirmation hearing that she had "positive experiences" with cameras while a lower-court judge).
Kagan being "conflicted" about this will not move the needle at all, for a reason that West and Jones discuss in their Amicus interview--the collegiality norms on the Court mean that, as long as one Justice remains strongly opposed to cameras, the rest of the Justices are never going to push the issue.
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
On Not Creating Precedent in Plumley v. Austin
A couple weeks ago, Justice Thomas, joined by Justice Scalia, issued a dissent from denial of cert in Plumley v. Austin, a criminal justice case. In the main, Thomas’s opinion argued that the decision below was wrong on the merits and conflicted with other circuit decisions. But, in a passage that has sparked some debate, Thomas also argued that the Fourth Circuit below had erred in declining to publish its opinion, allegedly in order to “avoid creating binding law for the Circuit.” Thomas's opinion may be a signal about circuit publication practices and, more specifically, about the proper direction of future Fourth Circuit jurisprudence.
Hello, and a Question About Hobby Lobby
Many thanks to the fine folks at Prawfsblawg for the invitation to guest-blog this month. I’ll start my stint by flagging a passage from the Hobby Lobby opinion that I’ve lately been scratching my head about. One of the questions at issue in Hobby Lobby was whether the government had “substantially burdened” the religious beliefs of the plaintiffs by requiring them to offer employer-provided health insurance plans that covered various methods of contraception. (The plaintiffs said “yes,” the government said “no”.) And on this question, several amici for the government advanced an argument that the government itself had not raised: The amici claimed that the plaintiffs could tolerably evade the contraceptive mandate by dropping their employees’ coverage and incurring a financial penalty instead. The argument, in other words, was that the penalty was small enough to make effectively available to the plaintiffs the option of not offering an employer-provided health care plan at all. And therefore, the amici continued, no “substantial burden” could result from rules applicable to plans that the plaintiffs were not in fact required to provide.
Anyway, my question concerns not so much the substance of this claim as it does the Court’s chosen means of addressing it. First and foremost, Justice Alito’s majority opinion observed that the government itself had never raised the claim, which in turn militated against any resolution of the issue by the Court. See id. at 2776 (“We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, and there are strong reasons to adhere to that practice in these cases.” (citations omitted)). Almost immediately thereafter, however, the Court went on to highlight various shortcomings in the argument itself. But how, you may wonder, did the Court manage to reconcile its stated refusal to reach the issue with its subsequent reaching of the issue? It did so by explaining that: “[E]ven if we were to reach this argument, we would find it unpersuasive.”
The Legacy of Ruth Bader Ginsburg
Congratulations to occasional-guest Prawf Scott Dodson (Hastings) on publication of his edited volume, The Legacy of Ruth Bader Ginsburg (Cambridge), featuring a great line-up of contributors. Al Brophy has a full write-up on the book.
Sunday, February 01, 2015
Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores
It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page.
If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good. The incidence of new reported cases is reduced and, unlike the low reported incidence from this past summer, public health officials seem to have more confidence in these reported numbers.
What is even more interesting is that is hard to say exactly what combination of domestic, international, and community efforts is bringing the number of new cases down but it has been observed that, in some places, habits and customs changed faster than in others. Those able to improve health and sanitation as well as health and sanitation literacy faster were able to reduce incidence faster.
Welcome to February. And welcome to our February guest bloggers--Jennifer Bard (Texas Tech), Michael Coenen (LSU), Andrea Freeman (Hawaii), Seema Mohapatra (Barry), and John Pfaff (Fordham).
And thanks to our January guests for some great stuff--Dan Filler, Paul Gowder, Ann Marciarille, and Eugene Mazos. Some of them will be sticking around through the weekend and the early part of the month.
Saturday, January 31, 2015
How to Find and Build a Scholarly Community
So imagine this: You are new to the legal academy, and you are trying to find a scholarly community. Or perhaps you are already part of one but want to make it stronger. Where do you begin? What steps do you take? This past week I spoke to a few of you who are experts in buildings scholarly communities. And I would like to share some of your ideas and advice with our readers here.
Scholarly communities are different from many of the communities that exist in the world. When we think of the word “community,” we often think of something local. A policeman patrols a local community. He knows other policemen in his city, but a policeman who lives in Boston will not necessarily consider a different policeman who works the streets of Seattle to be his colleague. Lawyers tend to be part of local communities too. A few work for large firms with multiples offices and are staffed on deals with colleagues from other offices, but this is an exception, not the norm. More often, legal practice is a local affair, with courts following local rules, firms servicing local clients, and bar associations networking with local lawyers.
But the legal academy is different. The whole point of the enterprise is to seek out companionship and camaraderie beyond the walls of your institution, the confines of your city and state, and the borders of your country. The whole point is for a scholar who might live in Boston to interact and collaborate with other scholars who happen to be working on the same topic, regardless of whether they live in Seattle, in San Francisco, or in Sao Paulo. Still, how should you go about finding these like-minded individuals who may share your same interests but live in far-flung places? And once you find them, how do you become a part of their community or bring them into yours?
If you are new to the legal academy, or aspire to enter it, or have been in it for a long time but simply want to expand your network, here is a short how-to guide for finding and building a genuine scholarly community. This guide is not exhaustive, and additions to it are welcome. Here it goes.
(1) Decide What You Are Interested In: People often claim not to know what they are interested in (or not to know what to do with their lives, which is a version of the same thing). In fact, we all know what our interests are, but sometimes we have a hard time articulating them. A person’s interests come from his or her personal experiences. And since all of us have experienced different things, we all have different interests. It is fine to have multiple interests, but the best advice is to pick one, or two, or three. Then stick with them, develop and refine them, and try to figure out how to explain them to others in a thoughtful elevator pitch.
(2) Publish on Your Areas of Interest: Read what other scholars have written about your areas of interest. You might agree with some of the literature, but hopefully you will disagree with a lot of it too. Here is the key: always read with a critical eye, and be certain to disagree on matters of principle with someone who does not share your views. Next, write up your disagreements in a way that explains why your take is better than the analysis that came before it.
Standing doctrine has been in flux in recent decades, and one aspect of that change has to do with the rise of the tripartite constitutional standing test that is now most closely associated with Lujan v. Defenders of Wildlife (1992). This post outlines the rise of the tripartite test over the last half-century and begins to explore its implications.
Friday, January 30, 2015
LBJ and the Supreme Court
This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).
Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.
In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error
This is probably my last non-game theory post, and I haven’t picked any really good fights all month! That clearly won’t do.
Jon Hanson, my beloved former torts professor at HLS, has this big project that he calls “situationism,” which is essentially about highlighting the ways that people’s behavior is less caused by their individual dispositions and more about the circumstances they find themselves in. Many psychologists call the opposite tendency the “fundamental attribution error"---the tendency to make, essentially, self-serving attributions of agency. (My successes are all about how awesome I am and how hard I work, and my failures are all about the environment! Your successes are all about the environment, and your failures are about your personal deficiencies!)
Last month, there was a long discussion on this blog about the way in which students allegedly have “become worse” since the economic collapse, essentially because so few jobs = so few people wanting to go to law school = lowered admissions standards across the board = prawfessors at every level observing dumber or lazier or less well-prepared (the most charitable claim in that thread!) students. I confess, that post and the comment thread that followed really cheeved me off. Even though many of us are skeptical of the worth of standardized testing, can highlight all kinds of biases in things like the LSAT, we still seem to think that lowered LSAT scores equals a meaningful drop in competence, and that we can observe this with classroom results.
Thursday, January 29, 2015
Open Thread: How do we Stop the Madness?
By "the madness," I mean this. Opaque "submission seasons" and letterhead biases and footnote fetishes and massively multiple submissions (I kinda want to start an MMORPG called "World of Lawcraft," all about getting law review articles published) and all the other crazy pathologies of law review publishing.
As Your GameTheoryBlogger, this seems to me like a classic strategic problem: nobody likes the system, it means huge amounts of work for the students, work that (time for Real Talk(TM)) probably impairs their educations, and most of the real benefit to them is just victory in an insane status arms race in which law review membership is a signal of smartness that law firms respond to; it also undermines the scholarly enterprise to have (Real Talk(TM)) scholarly reputations and their associated benefits depend (yeah yeah only in part post-publication review sure ok) on the judgment of 2Ls with like three minutes to read a paper. Yet we are unlikely to be able to just replace the system whole-hog with peer review, because the individual costs of doing so are so high. (I confess I kinda miss the early days of Prawfs, where Kate Litvak was around and leading the mighty charge for peer review in the comments. Yes, I remember those days, back in like 2005---I think I even remember the first e-mail Dan sent around announcing this blog's existence!)
More broadly, we seem to have lots of collective action problems like this in legal education. Think of the pitiful death of the law clerk hiring plan. And of the way that we all bow and scrape to the almighty, but universally loathed, gods of U.S. News. Can we get better at it? How do we improve our institutional capacity for collective action? All ideas, no matter how crazy, welcomed in the comments.
Game theory post 6 of N: the anxiety of rationality
The first five posts have pretty much laid out the basics of functional day-to-day game theory. (Well, I still need to do an information sets post. Don't let me leave without doing one!) Together, they amount to sort of the “street law” of the game theory world---the stuff a non-specialist actually tends to use on a regular basis. Now it’s time to delve into some worries that have been tabled for a while, plus a little bit of the fancier stuff. Howard has kindly allowed me to linger a little bit past my designated month in order to finish this series, so more to follow soon.
One of the big issues left lingering is the question of rationality. Most game theoretic research is built on the much-loathed “rational actor model,” according to which, roughly, people are treated as if they have stuff they want to achieve, which they weigh up together in some fashion and then pursue in the most direct way, by taking the acts that yield them the best expected goal-satisfaction. Yet there are many people who worry---sometimes rightly, sometimes not---that actual human decision-makers don’t act that way.
Today, I’m going defend the rational actor model a little bit, by talking about how sometimes, when we criticize it, we misunderstand what “rationality” means.* Onward:
Pictures are powerful tools. As Ivan Turgenev observed in his 1862 novel Fathers and Sons, “[a] picture shows me at a glance what it takes dozens of pages of a book to expound.” Learning theorists have long understood the pedagogical value of images. Thus, Neil Fleming’s Visual Auditory Kinesthetic learning style model posits that all students benefit from the use of pictures, either because they are predominantly visual learners or because visual learning supplements their dominant learning styles.
When I began teaching property over two decades ago, I was drawn to the Dukeminier & Krier casebook, which included black-and-white photos and other images that related to some of the cases. Over time, I concluded that this approach was too narrow. I wanted high-quality photos and other images for every case, in color, which students could access easily, and which I could display in class. But such photos did not exist.
Wednesday, January 28, 2015
Primed for Change
It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can happen in twelve months, especially when you are on an acquisition binge.
Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.
I write today about Prime's proposed acquisition of six hospitals in the Bay Area, a subject that has produced both considerable heat and light. If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.
The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq. continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here.
I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and closings.
The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital -- apparently their view on the likely outcome if the sale to Prime is derailed -- costs lives. The interesting thing about this approach is more isn't necessarily better. The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.
If you say so
Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.
On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).
Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*
* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.
(H/T for all of this: Josh Blackman and Howard Bashman)
Alternative Paradigms for Regulating Campaign Finance
Many Americans believe that there is too much money in politics. But what should be done about it? As far as the Supreme Court is concerned, not much. Currently, the Court accepts only one justification for placing limits on campaign contributions, and that is to prevent corruption or the appearance of corruption. However, the Court defines corruption narrowly, telling us that limits on contributions are only justified when they are enacted to prevent quid quo pro corruption. That is when a campaign contribution is given in direct exchange for the official’s vote, like a bribe. Other kinds of influence that donors have on politicians have not been recognized as corrupting.
Limits on campaign expenditures, meanwhile, including the funds that candidates themselves spend when they run for office, or the so-called “independent expenditures” that outside groups spend without coordinating with the candidate, are subject to strict scrutiny. The Roberts Court has been extremely hostile to campaign finance regulation. Just about every single campaign finance law that has come before it has been struck down.
This is probably not the place to get into a doctrinal debate about campaign finance, a complex and intricate area of the law. Suffice is to say that Congress no longer has the stomach to regulate in this important arena. Thus champions of campaign finance reform—a group that includes many prominent legal academics—need to find a new way forward.
#Not all convictions
Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.
Tuesday, January 27, 2015
Extending Unequal Second Amendment Rights
Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens. We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen. But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm.
We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites. (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.) Then there's Driving While Black. I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.
And that's a sticky problem. Under current law, there isn't much you can do except to change police conduct from within. Courts don't have a lot of sway. Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search. That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.
With the expansion of the Second Amendment, we have a chance to think more about the problem early on. Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights. But it seems likely that these new rights will not be extended equally. First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will embed historical racial disparities in arrest, prosecution, and conviction. Theres more, however. In my mind, the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include the right to carry a gun and not get stopped and searched for doing so. In that respect, I fear we won't deliver equal rights.
Dispatch from the Eastern Seaboard: we're not all dead.
As many of you know, I am a Californian who teaches at the University of Iowa and is spending this year in Princeton. This has, as you might expect, given me an odd perspective on weather disasters (other than just hating 'em), and the people who suffer them.
Monday, January 26, 2015
Nursing Homes as Guardians of Their Debtor Patients
If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.
Section 81.19 of the Mental Hygiene Law specifies (emphasis added):
(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.
If a corporate entity may petition or threaten to obtain guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?
Game theory post 5 of N: the joy and madness of repeated games
One thing about strategic interactions is that humans tend to repeat them. For example, participants in a market may engage in trades over and over, neighbors may make the same decisions with respect to borders, common resources, etc. over and over, even some litigants in a particularly litigious industry may find themselves facing one another in court over and over (ahem, cough, cough, AppleandGoogleandSamsungandMicrosoftandAllTheRest). Unsurprisingly, game theorists have developed a body of knowledge for dealing with repeated games—that is, games that can be divided into subgames which are played over and over.
There are two categories of repeated games: finitely repeated, and indefinitely or infinitely repeated games. And as it turns out, they behave very differently. Generally speaking, finitely repeated games tend to behave (at least formally) sorta more-or-less like one-short games; and we would intuitively expect that to be true, for a finitely repeated strategic form game is just the same thing as a longer game written in extensive form. But things go really wild when you move to the indefinite/infinite category.
Epilogue: Moral Panics and Body Cameras
Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.
Submission angsting: Spring 2015
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. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Why Study Athenian Law?
Sunday, January 25, 2015
The process of marriage equality, once again
This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.
Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.
With all that, calling everyone a bigot in a legal document is not particularly helpful.
Saturday, January 24, 2015
Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown
I teach at a law school that does not have any centers. When I arrived, I noticed this and tried to change it. There is currently a large sign on my door that says “Future Home of the Wake Forest Constitutional Law Center.” Last spring, while I was out of the office one day, someone took a piece of paper, wrote the letters “U” and “N” on it in large type, and taped it in front of the word “Constitutional” on my sign. To be clear, I am not the director of any center. But someone out there thinks that the Wake Forest Unconstitutional Law Center exists, or at least thinks that it exists in my office.
Whenever I have visitors, they see my sign and invariably ask me about this non-existent entity. For example, last spring our dean’s office sent a prospective student to speak with me. The student told me that she was interested in election law and that she wanted to attend our law school to work with the Constitutional Law Center. I explained that this “center” was nothing more than a sign on my door. However, my honesty did not do much to sway the young woman, who later sent a thank-you letter to the dean, copying me, in which she explained how much she was looking forward to the opportunity of "participating in the life of the new Constitutional Law Center.”
That’s the power of ideas for you—or, at least, of signs.
So why do law school centers exist? Should law schools continue to have them? Do centers matter for purposes of ranking and perception? How are these centers run? Do the directors of the centers receive a reprieve from teaching? What is the budget of the typical center? And what do centers do for law schools that law schools cannot do all by themselves?
Game theory post 4 of N: extensive form games, a deep dive
How about some Saturday game theory over brunch?
The one-round strategic form games of the previous post are the simplest possible presentation of some actual game theory. Now I want to put on my political scientist hat and dig into a slightly less simple, but much beloved, game.
We might call this the “punishment game.” It imagines a boss or a dictator or a parent giving commands to a subordinate or a subject or a child, where the boss prefers her commands be obeyed, and the subordinate prefers not to obey; if the subordinate defies the command, the boss has the power to inflict punishment at a personal cost. The following illustration (now with actual numbers, for clarity!) captures the situation, with the subordinate’s payoffs listed first; discussion is after the fold. (Sorry for the ugliness; remember how I said that I’m horrible at graphics?)
Friday, January 23, 2015
JOTWELL: Leong on Rush on geographic diversity
The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.
Game theory post 3 of N: some classic (one-shot, strategic form) games
There are a number of classic textbook games that are highly useful, primarily because if you know them well, you can often see real-world situations that have similar payoff structures; doing so, you have a pretty good initial guess at what will happen in those situations. Accordingly, I'll collect some here. (Behind the fold.)
Thursday, January 22, 2015
Sutter Health vs. Blue Shield: War of the Gargantuas
When I think about calls for increased consumer activation in health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets.
But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.
When Agencies Don’t Appear on the SG’s Briefs
When the Solicitor General files briefs in the Supreme Court, the briefs always bear the names of other lawyers from the Department of Justice. In special cases, however, officials from other agencies sometimes sign on, too. For instance, in cases bearing on commerce, national security or foreign affairs, the SG’s briefs might respectively bear the names of officials from the Commerce Department, the Department of Defense or the State Department. The point of this unusual gesture, it seems, is to show the Court that other relevant agencies have been consulted for their expert views and are standing by the Department of Justice in what must be an important case.
But what if a case seems to involve issues pertinent to agencies besides the DOJ, and yet those other agencies don’t appear on the SG's brief? Does that surprising absence mean that officials from the other agency disagree with the position of the Solicitor General? Has there perhaps been an intense debate within the executive branch—an exchange of views wherein a purportedly expert agency has dissented from the litigation position ultimately taken by the United States? These kinds of thoughts can lead jurists to discount or even discredit the position that the Solicitor General has taken. The practice of including extra agency names on the SG's briefs is thus a two-edged sword--and one that seems to have been cutting the SG increasingly frequently in recent years.
Game theory post #2 of ????: Basic Concepts
This is the second post in an indefinite series of game theory for law professors. In this one, I'll describe some basic concepts---the rudimentary language of game theory as a vocabulary list. This page, incidentally, has even simpler definitions of some of the concepts described here, as well as a few concrete examples.
Let us begin, however, by fixing an idea of our task in mind. We have at least two players (where a player can be any entity that makes choices and receives payoffs---depending on the level of analysis, this can be individuals, firms, governments, or a combination of them), each player can make moves, actions that, in conjunction with other players' moves, affect the state of the world (the outcomes experienced by that player as well as others), and each player has a utility function mapping probability-weighted states of the world to a preference ordering. And our goal is to say something intelligent about what the players have incentives to do---often, although not always, with the assumption that they are sufficiently rational that they will do what their incentives will point toward, but let us bracket that issue for the time being. That saying of something intelligent is also known as "solving" the game. Also, I only will be discussing non-cooperative game theory; there's a branch of game theory called cooperative game theory too, but I know it less well and never use it. (Those of you who study things like constitution-making and contracts might look into it though.)
Wednesday, January 21, 2015
MDL consolidation and appealability
SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.
The Leaker Whistleblower
Today, the Supreme Court in a 7-2 decision by Chief Justice Roberts affirmed a Federal Circuit decision that government whistleblowers are protected under the Federal Whistleblowe Act unless their disclosures are explicitly prohibited by another statute. Robert MacLean, an air marshal who flew undercover, leaked to MSNBC that the Transportation Security Administration decided to reduce overnight flights for air marshals. His report congressional criticism and led to TSA reversing itself on its budgetary cuts. The disclosure also led to the firing of MacLean disclosing "sensitive security information," which violated TSA rules.
This is an important ruling for public accountability and disclosure. In my collaborative studies on whistleblowing, Yuval Feldman and I find that protections against anti-retaliation and firing can be more effective than monetary rewards for disclosure and that such protections are meaningful given the default silence of most employees (The Incentives Matrix: The Comparative Effectiveness of Reward, Liabilities, Duties and Protection for Reporting Illegality, Texas Law Review 2010). In another article, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations. California Law Review, 2009, I describe the deep ambivalence of the law on the role of individual dissent in public and private organizations. I argued post-Garcetti that recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct, especially in the public sector. The decision today is an important step in strengthening disclosure protections. As Neal Katyal, MacLean's lawyer, said during the oral arguments, the whistle-blower law was enacted to restrict government agencies, rather than empower them. Retroactively classifying a previously unclassified text message to fire a whistleblower is the kind of secrecy and agency empowerment we should worry about.
Acoustic Separation and Immigration Reform
In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions. For example, we believe that in some cases, a person committing a crime under duress is not legally culpable - and her conduct may be excused. But we don't want people running around factoring in this possibility of legal excuse into their decisions at the moments they are actually under duress. We want them to experience the full legal risk of their conduct at that moment so that we can conclude they really were acting under the most extreme pressure.
I give this background only by way of explaining the concept. My rumination today has a first cousin relationship to Dan-Cohen's framework.
I was struck by the decision of Republicans to take two approaches to immigration in their response to the President's State of the Union. To English speakers, Joni Ernst made no mention of immigration at all. That is the story the GOP wants to tell to its English language base. But the party also needs support from the Spanish speaking community as well. So to this pool of voters, Rep. Carlos Curbello stated in his Spanish language response, "We should also work through the appropriate channels to create permanent solutions for our immigration system, to secure our borders, modernize legal immigration, and strengthen our economy."
I imagine that this separation will be reasonably effective - if, perhaps, not deeply consequential. Acoustic separation is never complete, but most people don't dig that deeply into law or policy. While the policy wonks who read Politico now know that the GOP has two slightly approaches to immigration reform - one being silence and the other marking immigration as a priority - most voters will not. I'm not sure that Curbello's comments would have deeply alienated the GOP base - though I'm guessing that GOP speechwriters thought immigration wouldn't be a galvanizing issue for her English language listeners. Maybe they imagined it might even drive a few voters away. (Indeed, the GOP later flipped on whether Curbello's statement was the Spanish language response - though that flip itself was presumably largely invisible.)
I know that candidates and parties commonly frame issues differently in media outlets targeted to divergent demographic groups. Perhaps this was just a case of my own naïveté in thinking that was was such a thing as "the Republican response to the State of the Union". In any case, it foreshadows and highlights a fundamental challenge for the GOP over the next two years.
Experimental Game Theory Series #1 of ???
I'd like to try an experiment: methodological propaganda/skillsharing in a series of blog posts. I had originally planned a fairly large number of these and essentially an internet course in basic game theory, but then the 20th of the month snuck up on me, and there's very little chance the whole thing gets out before my blogging residency (such as it is) runs out. So let's get as far as we can, and see how people like these posts; if they prove popular, perhaps they can continue somewhere else. (I'm also totally hijacking the "games" category" on the blog for this. Because, obvs.)
With no further ado: an introduction to game theory for lawyers/law professors, post 1 of N: why?
Tuesday, January 20, 2015
Some thoughts on Holt v. Hobbs
First, it seems to me that the opinion by Justice Alito is exceptionally well crafted. It should win a Green Bag award or something. It touches the necessary bases and stops. The language is clear and functional. (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.) One knows, at every point in the analysis, where one is.
Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions. Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.
Decision in Holt v. Hobbs
The result in this RLUIPA case was unsurprising: The petitioner won unanimously. Justice Alito wrote (again) for the Court, in an opinion holding that "The Department [of Prisons]’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs." Justices Ginsburg and Sotomayor filed short concurrences, solo in Sotomayor's case. The opinions are here. Mazel tov to Professor Doug Laycock, who argued on behalf of petitioner Gregory Holt in the Supreme Court.
Henry Manne, R.I.P.
Henry Manne passed away over the weekend. Thoughts and condolences to Geoff and the rest of his family. I expect you will be hearing much more about Manne's contributions to law, law & economics, the market for corporate control, insider trading, and legal education. We here at SLU Law, where he began his academic career, are happy to claim some small association with his legacy. Here's an intellectual history by Manne discussing the law & economics movement and his transformational role as dean of GMU Law.
Joachim Prinz, American Jews, and the Civil Rights Movement
This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.
The Sleeper Case of the Supreme Court's October 2014 Term?
Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v. Exceptional Child Center, a case I've blogged about before (and in which I've filed an amicus brief on behalf of former HHS officials and in support of the Respondents--the Medicaid providers). Rather than rehashing the arguments made by the parties or amici (or my prior posts), I wanted to use this post to make a different claim. Specifically, as I aim to demonstrate below the fold, in a Supreme Court Term the headlines from which will almost certainly be dominated by some combination of same-sex marriage, ACA subsidies, and passports for Jerusalem-born U.S. citizens, Armstrong could well be the biggest sleeper--the case that flies under the radar of all but the most ardent Court-watchers (or federal courts nerds), but produces the most significant long-term consequences for the American legal system.
Monday, January 19, 2015
Thurgood Marshall and the limits of the judicial role
Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.
I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.
Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other, Marshall spent the last half of a sixty-year career playing to less than his stengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (and admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.
Bedside Collections Visits in the Emergency Room
Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?
There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.
Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees. We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room. Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them?