Wednesday, August 26, 2015
Rentboy.com and the Internet's Role in Sex Work
On Tuesday, New York police officers and agents of the Department of Homeland Security raided the Manhattan offices of Rentboy.com (link is to the Wikipedia page). The company's chief executive and other members of the leadership and employment team were also arrested at their homes. According to the Complaint, rentboy.com, a social networking website that connects male sex workers to clients, has been the hub of a multimillion dollar criminal enterprise.
This episode, on the heels of another sex-related internet story at Ashley Madison, raises several questions. The broadest: Should prostitution be criminalized? Reasonable people disagree. The narrowest: Did rentboy.com commit a crime? At this stage, which just requires the government to offer facts that make the case viable, there is factual and legal sufficiency to move forward. I have additional questions: Why is this website a priority for the government? Has the internet made the problem of sexual exploitation worse?
Possible Reasons for Ambivalence to a Large Increase in AALS Dues for "Public Outreach"
On Monday Professor Michael Simkovic proposed a substantial redistribution of AALS resources to "public outreach efforts" aimed at better "explaining [legal education's] value to the press and the public," including such things as feeding individual journalists with "personally tailored content that each journalist is particularly likely to find relevant and interesting based on [his or her] past coverage and the stories they are currently researching." He also proposed that such "efforts could be funded by a 50% to 100% increase in annual [AALS] dues (roughly $5,000 to $10,000 for the smallest law schools and $15,000 to $30,000 for the largest) for the next 3 years."
Someone else will have to speak to how likely the latter proposal is to actually occur. I would have thought "not very," but I could be wrong and I don't have any special information about this. I wish the post had provided some evaluation of the proposal's likelihood of moving forward, since it might be inefficient for me to allocate my time to pondering the issue if it has little chance of happening. But perhaps no basis for an estimate is available.
My assumption based on general experience is that, at least in terms of the legal blogosphere, views of such a proposal will be heavily and perhaps excessively influenced by one's priors concerning law schools and the costs, benefits, and value of legal education. But I suspect that many law professors might be ambivalent about or opposed to such a proposal, even if they share (or are agnostic about) Simkovic's conclusions about those issues.
Here are a few reasons why, even if they agree generally with Simkovic's other arguments about legal education, they might nevertheless hesitate to support his latest proposal or even oppose it. I have made an effort throughout to impose an important constraint on this post: I have avoided any reasons that require one to take issue with Simkovic's prior conclusions about the benefits of legal education and the state of the legal/legal education economy. I will relax that constraint a little at the end of the post, and we will see that once we do so, professors may have many other reasons to disagree with the proposal to have the AALS launch an expanded "public outreach program." That is true even if they agree with the basics of his conclusions elsewhere but take issue with particular aspects of his argument and its implications. At least initially, however, I want to remove the possibility (given what I see in the legal blogosphere, the certainty) of motivated reasoning based on readers' thoughts about whether legal education is worth it for prospective law students. The list follows after the jump.
Tuesday, August 25, 2015
Rankings Rancor, a contribution from Scofflaw
I've decided to give an opportunity for a couple of my students to speak to Prawfs and any others listening. They chose to talk about rankings. As many of you know, as far as employment numbers for law schools, a JD-required job receives more points than a non-JD required job. So, in turn, law schools often push their students to accept JD-required jobs. My students make an insightful point about the rankings value of a JD required job versus a non-JD required job. I understand that we don't want to equate a job at a prosecutor's office with a job at Applebee's, but surely there are great jobs in the corporate, nonprofit, or public policy world that we would be proud that our students are able to get after obtaining a JD. There are plenty of business jobs or policy and think tank jobs that lawyers can do just as well as MBAs or MPAs or other generally smart people. Why do we (through the U.S. news rankings) disincentivize law schools in helping students get non-JD required jobs? Particularly as the legal market has not fully recovered as compared to other fields. I would be interested to hear from others on this topic. (Obviously there is more than just this to criticize as far as U.S. News goes...)
Harper, "Too Many Law Students, Too Few Legal Jobs"
In this NYT piece ("Too Many Law Students, Too Few Legal Jobs"), Steven Harper (author of The Lawyer Bubble: A Profession in Crisis) contends (among other things) that:
The crisis in legal education is real. Magical thinking and superficial rhetoric about declining enrollments, better debt counseling for students, and law schools’ experimenting with curriculum changes will not create more jobs. . . .Until student loans bear a rational relationship to individual law school outcomes, law schools will exploit their lack of accountability, the legal education market will remain dysfunctional, and equilibrium between supply and demand will remain elusive.
I'm not sure -- to put it mildly -- what "the answer" is or "the answers" are to concerns and questions about the cost of legal education, the debt-loads incurred by law students, and, for that matter, the future of higher education generally. But, I do know (I think!) this (channeling Phil Hartman): Harper is right that "curricular changes" do not "create more jobs" (although it certainly could be that some - not all - well-conceived and carefully thought out changes would help prepare some students better for the jobs that do exist and that are being created). I continue to think that law schools actually do what they purport to do, and are able to do, pretty well. This is not standpattism, but a sense -- as I wrote in response to another New York Times piece, about five years ago -- that many (not all!) of the media complaints about legal education are off-base.
Poor Lives Matter Too
Implicit within the rallying cry "Black Lives Matter" is the word "too." In the debate about the slogan, that sometimes gets lost. Some politicians and public figures seeking to be inclusive about the value of lives have responded "All lives matter" sometimes missing the implicit "too". And perhaps the movement seeking to provoke has intentionally obscured the "too" in order to elicit a reaction that feels tone deaf when you understand the implicit "too" is there. For me, the rallying cry is much more powerful with the "too" explicit. The perception that we need reminding that those lives historically treated as having lesser value through the Constitution, slavery, and Jim Crow should matter too in our supposedly "post racial" world is a damning critique of where we are as a society. The Black Lives Matter movement is critical for keeping the light brightly shining on racial injustice as the news media and the public mind shifts its attention away from Ferguson, Staten Island, and North Charleston.
But I am also frustrated with the movement as it seems to have revived the unfortunate class versus race competition. Its almost as if some of the movement's actors have forgotten the implicit "too" in their calls for the prioritization of race over other forms of inequality like class. And maybe that's right given America's original sin of racism and racial subordination. But for me, race and class are fundamentally intertwined. Michael Brown, Eric Garner, and Walter Scott obviously had in common the color of their skin, but they also were among the most economically vulnerable. Perhaps it is a coincidence that they shared this class characteristic, but I suspect it is not. I suspect that we have forgotten or perhaps never learned that poor lives matter too.
Autonomy Rhetoric in Supreme Court Opinions
Obergefell has spawned an interesting discussion about the use and abuse of rhetoric in Supreme Court opinions. (E.g., here, here, and here.) One especially salient charge is that the Court’s opinions in Casey, Lawrence, and now Obergefell all rely on “showy profundities,” as Justice Scalia has put it. But the rhetoric at issue may simply reflect a certain kind of philosophical writing, as evidenced by a forthcoming paper by Vincent Phillip Muñoz. (By way of disclaimer, I clerked for Justice Kennedy several years ago.)
Monday, August 24, 2015
Clerkship hiring and changing clerkships
Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.
I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.
But I believe this is an unfortunate trend.
Co-Deans Are All the Rage!
Congratulations to my colleagues Jessica Berg and Michael Scharf, whose interim co-deanship was just made permanent!
Apparently, at least a couple of other schools have jumped on the co-dean bandwagon--according to TaxProf, LSU and New Mexico have adopted this model, which was also utilized (pioneered?) at the University of Minnesota Law School.
Having observed co-deans in action since November of 2013, most recently from my post as Associate Dean for Academic Affairs, I can say that it works, or can work, fabulously.
Saturday, August 22, 2015
The hole in Mireles v. Waco
One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).
That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.
Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.
[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.
By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.
Thursday, August 20, 2015
Infield Fly Double Play
On Wednesday night, the Royals turned a double play on an Infield Fly (video in link). With bases loaded and one out, a fly ball was hit near the first-base line, even with the mound; the rule was put in effect, the ball was not caught, and the runner on third made the instinctual move of running when the ball hit the ground and was tagged out at home. This is about the third or fourth time I have seen a double play on an I/F/R call in the six seasons I have been tracking.
Although the non-catch here was unintentional (the pitcher and first baseman had a miscommunication), a play such as this shows why the I/F/R does not entirely eliminate the perverse incentive for infielders to intentionally not catch the ball. There is always a chance an infielder could con the runner into taking off when the ball hits the ground and the runner's instinct takes over. And because not catching the ball is costless to the defense (since the batter is out anyway), it could be worth a shot. But this possibility does not undermine the I/F/R. The rule exists because base runners would be helpless if forced to run on a non-catch; it does not exist to save the runners from the consequences of running without thinking. And, of course, had the catcher forgotten to tag the runner (i.e., had the catcher been the one to have the brain cramp), the runner would have scored. In any event, I have only seen two instances of intentional non-catches in six seasons, so clearly the likelihood of success is not high enough to convince infielders to try this on a regular basis.
What the Ashley Madison Hack Teaches Us About Digital Privacy Invasions
Hackers just published a massive amount of data about the roughly 36 million members of the website, Ashley Madison, a social network that markets itself to those in relationships who may want to explore, shall we say, "what else is out there." Along with the 36 million emails, 33 million first and last names, street addresses, and phone numbers, and 9.6 million documented credit card transactions were released. The data also tell us about subscribers' sexual preferences.
There has been some fanfare about a few of the names on the list: Josh Duggar, the conservative star of TLC's "19 Kids and Counting," had two accounts. The Associated Press notes that "subscribers included at least two assistant U.S. attorneys, an IT administrator in the Executive Office of the President, a division chief, an investigator and a trial attorney in the Justice Department, a government hacker at the Homeland Security Department and another DHS employee who indicated he worked on a U.S. counterterrorism response team."
Number of FAR Forms in First Distribution Over Time - 2015
The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.
(All information obtained from various blog posts, blog comments, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)
The Poor: Twice the Victims of Lochner
The build up until now: The poor are politically powerless and unable to defend themselves in politics against laws harmful to their interests that might be motivated by antipathy toward them. Yet the Court does not consider the poor a discrete and insular minority entitled to special judicial protection from democratic politics. What gives? I think the explanation for this anomaly can be found in Lochner. The case for which several tomes have been written involved a challenge to a regulation that limited the number of hours bakers could work. The Supreme Court struck down the regulation explaining that it infringed on the Due Process liberty of contract. An underlying assumption seemed to be that employees had the market power to negotiate contracts that protected their health and well-being thus rendering regulations of work conditions arbitrary and unnecessary. Over the next thirty years, courts struck down many laws designed to protect mostly poor workers and other vulnerable participants in the capitalist market economy - these groups were the victims of the Lochner era.
Then came the political reaction and judicial repudiation of the Due Process liberty of contract. After the supposed "switch in time that saved nine," the Court in a series of opinions in the late 1930s and early 1940s determined that it was not consistent with the judicial role for it to intervene into economic and social welfare legislation. Rather than closely scrutinizing such laws to see if they violated the Due Process Clause, the Court held that it would only apply rational basis review to such democratic actions. Most of the focus has been on the Court's repudiation, at least for the moment, of the notion that the Due Process Clause protected a substantive right against arbitrary interference. But another part of the Lochner repudiation was the Court's rejection of heavy handed judicial intervention into the democratic process through the close scrutiny and usual invalidation of democratically enacted laws. More (including an Alanis Morisette shout out) below the fold ...
Wednesday, August 19, 2015
Some Law and Religion Book Recommendations
As promised, and despite the slight detour. I'll start with a few. For the most part, these are descriptions, relying heavily on the usual sources (introductions, jacket copy, etc.), not reviews, although I'll have occasional observations. Nor, of course, should I be taken to agree with all these books' premises and arguments.
The first is one I'm delighted to commend to all readers. It doesn't meet all the criteria I mentioned that lead to the risk of neglect, and I very much hope it will be widely read and discussed. The book comes from Kathleen Brady, a fellow at Emory's Center for the Study of Law and Religion and a wonderful friend to many in the law and religion community. Her new book, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, has been some time in the making, and I have been anticipating it with enthusiasm and impatience. It is well worth the wait, and has benefited from the extra time by being able to include recent developments, including extensive discussion of the Hobby Lobby decision. As Brady observes, the past two decades or so have seen "[t]he rapid ascent of equality as a central norm in religion clause jurisprudence." "In this view, the central value served by the religion clauses is equality, not only among different religious denominations, ... but also and most significantly between religion and nonreligion." She continues, "[W]e have been unable to move beyond our preoccupation with equality because we have been unable to articulate a convincing account of why religion should be treated differently than nonreligion under the First Amendment." That is the project of her book: "to provide a convincing account of religion's distinctiveness" and examine its implications for Religion Clause jurisprudence. I look forward to reading the whole thing and hope many others will take a look.
Recent events are also at the center of another new-ish book, The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought, released in late December. Edited by Stephen M. Krason, it comprises a series of essays reflecting on "significant challenges to the freedom of religious conscience and expression in the United States today." The chapters "explore the nature and basis of religious freedom in terms of Catholic social thought"; I found particularly interesting Gerard Bradley's discussion of Dignitatis Humanae, Vatican II's Declaration on Religious Liberty, which marks its half-century anniversary this year. Other contributors include Robert George, Randy Lee, Robert Destro, and Kenneth Grasso. Not that it matters, but despite my great affinity for Catholic legal scholars, this doesn't happen to be my tradition or, in the case of many arguments in the book, my own perspective. (Nor, of course, would every Catholic agree with everything here.) But so what? I found much of the discussion interesting, enlightening, informative, and provocative, and given the sweeping claims that are often made about Catholic doctrine and/or authority elsewhere, it's good to turn to these thoughtful CST-centered accounts. Agree with it or not, this book has received too little attention. It deserves more.
I mentioned the 50th anniversary of the Declaration of Religious Liberty, which will be the subject of much discussion this year, if for no other reason than that it offers a dignity-centered account of religious liberty and dignity talk is all the rage these days. Those interested in the topic might want to turn to a new book written and edited by David L. Schindler and Nicholas J. Healy Jr., Freedom, Truth, and Human Dignity: The Second Vatican Council's Declaration on Religious Freedom: A New Translation, Redaction History, and Interpretation of Dignitatis Humanae. I suppose I can't describe its contents any more succinctly than that second subtitle. In addition to the official text, in side-by-side Latin and English and a lengthy appendix providing the conciliar interventions of Karol Wojtyla, later Pope John Paul II, the book also features an extensive interpretive essay by Schindler on the Declaration and the right to religious freedom.
Finally for now, I was intrigued the other day to discover a new collection titled Religion as a Category of Governance and Sovereignty. Edited by Trevor Stack, Naomi R. Goldenberg, and Timothy Fitzgerald, it is challenging but fascinating. The book jacket summarizes: "Religious-secular distinctions have been crucial to the way in which modern governments have rationalised their governance and marked out their sovereignty--as crucial as the territorial boundaries that they have drawn around nations. The authors of this volume provide a multi-dimensional picture of how the category of religion has served the ends of modern government. They draw on perspectives from history, anthropology, moral philosophy, theology and religious studies, as well as empirical analysis" from a number of countries. An essay by Tisa Wenger, for instance, uses a history of Pueblo Indian groups to discuss the ways in which "[g]overnment reserves the right to police what goes on in the 'religious' sphere, but also what is considered 'religion' in the first place and by extension who can claim 'religious freedom,' as well as what precisely they are 'free' to do with it."
This is a wonderful book for those of us in the field who are interested in thinking about the nature and limits of state sovereignty in relation to religion. Of course it cannot and does not tell a simple story about any of these concepts: "religion," sovereignty, the state. And that is its attraction. The book relies heavily on critical theory, and (if it matters) much of the politics in the book is what one might expect from scholars drawing on that toolkit. As I've observed elsewhere, however, in the United States at this moment, critical theory may be particularly useful for those advancing positions outside of the mainstream liberal consensus on contemporary American church-state disputes such as the contraceptive mandate litigation, and in any event it can lead in surprising and unusual directions. It's striking to me that so much recent public discussion has focused on arguing that something or other is or isn't "religious freedom" or "religious liberty" and rejecting any competing definition by putting scare quotes around the phrase, as if punctuation is enough to settle such a question. Meanwhile, a raft of other concepts and assumptions--about the state, state power, state sovereignty, third-party "costs" or "harms," the "rule of law," what constitutes an exception, and so on--have been used by many mainstream authors without serious discussion or interrogation at all. In law, at least, you can tell a great deal about an argument based on what the author chooses to see as a complex or contestable term, one that raises "baseline questions," and so on--and what the author chooses to treat as clear, simple, and uncontestable, all evidence to the contrary. This book can help enrich and complicate all such discussions.
U.S. Supreme Court’s Latest On Police Conduct During Traffic Stops: It's Complicated
Despite numerous cases in which the U.S. Supreme Court initially analogized Terry v. Ohio (1968) to traffic stops (as explained earlier), which contributed to numerous state courts imposing search and seizure restrictions upon police during traffic stops, in 2009 the Court appeared to dramatically back off the implications of that analogy in favor of protecting police discretion rather than constraining it. However, just last term the Court somewhat incoherently embraced half of the Terry analogy. As a consequence, currently the Fourth Amendment does technically constrain police discretion during traffic stops, though how meaningful that constraint is remains unclear and disputed.
Religious institutions and the "implied consent" theory
I have recently posted "Change, Dissent, and the Problem of Consent in Religious Organizations" on SSRN. The link is here. It's set to appear in the forthcoming book The Rise of Corporate Religious Liberty (Chad Flanders, Zoë Robinson, and Micah Schwartzman eds., 2015).
Here's the abstract:
According autonomy to religious institutions sometimes means granting them sovereignty over religious insiders. Specifically, religious institutions often claim, and are granted, the right to be shielded from antidiscrimination or other norms that apply in the broader society. Proponents of church autonomy largely justify the trumping of individuals’ rights by claiming that the individuals consented to the jurisdiction of the religious institution, and that they can always choose to exit their religious affiliation if they are unhappy with the decisions or beliefs of the institution. The consent justification is thus an important one, because it mediates individual rights claims and claims of church sovereignty.
However, the consent justification is not a sufficient foundation for the wide scope of sovereignty that religious organizations often claim under the doctrine of church autonomy. Either the implied consent rationale is a fiction, which is based on a misconception about the nature of religious communities, or it is a broad, talismanic invocation that allows religious institutions to assert authority over any matter that they wish to designate as “internal” or as involving religious insiders. Rather than allowing religious organizations to determine the scope of their own jurisdiction, courts should recognize that they cannot help taking sides in religious disputes, and they should play a role in delimiting the boundaries of church sovereignty.
Tuesday, August 18, 2015
Reminder: Hiring Committees 2015-2016
The post listing hiring committees for 2015-2016 is available here. If your school and its committee is not yet listed, please consider either emailing me or posting information the comments at that post.
Coming: A "Tilted" List of Recommended New Titles in Law and Religion [WITH UPDATE]
I've been laid up for a good deal of the summer and it's been a good time to read in my field---or browse, anyway, although some of my reading gets done properly. There is no question that law and religion scholarship has exploded in quantity and interest lately, for obvious reasons. I may not agree with all the directions that the literature has taken, but these have certainly been interesting times for it, with a lot of new writers whose primary interests have come to overlap with law and religion. Over the next few months I'll be mentioning some new titles of particular interest. They will primarily be books, not articles. The recent profusion of published monographs and collections in and around the field has been just as impressive as that of journal articles, and with the usual gains in thoughtfulness and expertise--particularly on religion itself, whose treatment in the new legal literature is weaker--that books bring compared to law journal articles. [NOTE: A slight update is offered at the bottom of the post.]
Although I certainly welcome and have been reading "all comers," my list of notices and recommendations will be tilted. In this post, I wanted to say something about how and why. The list will have something of a religious and/or conservative tilt. (The "and/or" definitely applies here.) This has little or nothing to do with my own religious views or politics, and a lot to do with academic diversity and pluralism.
Successful academics in the fields I read in most tend to be heavily networked, and fairly conventionalist in their views. They do a good job of discussing and promoting decent books in their field that come from roughly within their circles and are not too heterodox for that circle, including political heterodoxy of a generally liberal or left-of-center kind. At least in my academic/cultural milieu, if a book meets those qualifications I can rest assured that I will see discussions of the book, generally positive and supportive, everywhere--if one defines "everywhere" in the way that Pauline Kael once defined the universe of anti-Nixon voters. They will be noted on my Facebook feed, given substantial attention on the blogs I read, and, despite being academic books, will receive a number of reviews in those mainstream liberal publications that still review books. Amazon's algorithms will recommend a dozen other books of roughly similar views--and their authors, I notice, are often the same ones conducting the favorable discussions online.
To take an example, I'm currently working on a review (for a print magazine reaching a sub-sector of the same liberal audience, thus underscoring my point above) of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars. Since I'm still reading it, I won't comment on its merits. But it's fair to say that it's within the political mainstream of the academic milieu I'm talking about--my milieu--and that, for an academic title, it has gotten an enviable amount of attention from the usual academic and journalistic sources; it picked up another review, for an intellectual but general audience, just yesterday. It's not especially surprising that I read the U.S. Intellectual History Blog, or that it has gotten plenty of discussion there, or that Hartman writes on that blog, or that, from my perspective, the blog's community largely shares the same priors. Given that they share some basic assumptions, it's also unsurprising that the reviewers have generally been positive and supportive, despite some disagreements on particulars.
All that is to be expected. It's the way things--our limited attention spans, online algorithms, the current politically polarized culture, the culture and politics of the mainstream academy, elites, and/or the "symbolic analyst" class--work. As Miss Brodie said, "For those who like that sort of thing, that is the sort of thing they like." Although I'm happy to acknowledge it's natural, however, I won't say it's fine, especially for academics. It's lazy, contrary to academic values, and perpetuates an unhealthy form of elitism. It hides from view large numbers of ideas, arguments, and information that ought to be a part of the "standard" conversation and are not--are, indeed, in some sense treated as both beneath notice and below the salt.
Not all of this is ideological, by any means. There are both conservatives and traditionalist religious believers who are given attention within the conventional milieu, although they are exceptional, and these individuals are usually well-networked members of the elite who share some of its conventions. But it is certainly true that given the academy's conventionalism and given the politics of my sector of the academy, a lot of conservative and/or religious writers and books end up hidden from notice, out of the loop, out of the algorithms, not part of "the discussion." (There is an additional and, I think, related problem. A lot of good books that fall within mainstream liberal or progressive thought, or that are more radically leftist or "critical," and that do receive reviews and attention from conventional academics, have potential payoffs and benefits for conservative or religiously traditionalist arguments and groups. Those possibilities are generally neglected. I suspect that wouldn't be as likely if the reviewers gave more thought to books, ideas, and groups outside their usual political and intellectual milieu.)
Doubtless these authors, neglected within what I would consider the mainstream academic milieu, have milieux of their own, although I doubt they have an equal tendency to ignore conventional academic works in their field. But whether they do or not does not excuse anyone else from the general duty to read more widely and give appropriate attention and publicity to a wider range of books and views. Of course, many of the books and articles I read fall within the mainstream of what "everyone" else is reading, and my recommendations will often reflect that. But it seems to me that many heavily discussed books that fit the usual, not-to-be-spoken of qualifications receive too much attention, while many other books get none at all, and for the wrong reasons. I hope to even out the balance a bit, and to tilt a lance or two in doing so.
UPDATE: Elsewhere, a friend writes in with this observation: "I'm not sure whether the category is politically or theologically conservative, or both -- and how these relate to 'traditionalist.' One may be theologically conservative, traditionalist, and yet also quite left on critical issues, in a narrow-political sense." Fair point. I was assuming two categories: politically conservative, especially on social issues--at least in the legal academy, fiscal conservatism does not necessarily lead to one being ejected from the club or ignored by the conversation--and religious in a traditionalist way, since it's obviously possible to belong to the milieu I'm discussing here while privately holding religious beliefs, or to be religious in a milquetoast mainline way, or to be religious in a way that affects one's desire for justice but still make arguments in essentially a secular or secularist way. Deep attachment to a traditionalist religious community with thick beliefs and practices and the desire to witness those commitments in one's arguments, on the other hand, is I suspect not going to be characteristic of most people who make it into the conversation. I suspect that is even true for some whose views are left but still deeply traditionalist--I am guessing, to borrow a Catholic term, that it depends on how much of your seamless garment you let show--but admittedly I had traditionalist religious conservatives primarily in mind. Although this may help clarify--a little--what I meant by the terms I used, I agree that the terms raise a number of questions, and I'm not sure I chose the best descriptors.
How Should the Supreme Court Determine Whether a Group Has Political Power?
The starting point for this post is my view (not original to me) that the Supreme Court should step in to provide special protection from democratic politics to groups that lack political power. These politically powerless groups are the discrete and insular minorities that the Court in Carolene Products footnote four expressed concern about being the target of harmful laws animated by antipathy. These groups are unable to protect themselves from such laws because they cannot vote, they are unable to build coalitions with other groups, or they otherwise lack representation in the democratic process. The familiar mode of judicial protection for such groups is the application of strict scrutiny to laws that classify on the basis of the group's status and are harmful to the group.
A key for the Court in determining which groups are eligible for such special judicial protection is whether the group has political power to defend itself in politics. As I suggested in the last post, one of the Court's primary measures of political power is whether that group has been the beneficiary of favorable democratic actions. For the Court, such favorable democratic actions suggest the group is able to attract the attention of lawmakers. If the Court applied this measure to the poor, it might determine that the group has political power because it has been the beneficiary of favorable democratic actions in the past. But this determination would be in tension with social science findings that legislators and legislatures are not at all responsive to the preferences of the poor; findings that suggest the poor lack political power.
In a forthcoming article, Su Li and I sought to resolve this puzzle by testing the reliability of the Supreme Court's measure of political power as favorable democratic actions and the results were somewhat surprising. Details below the fold ...
Settlement in Hood County, TX
On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.
Sorry I'm late....
I'm delighted to be invited back to Prawfs and sorry to be arriving halfway through the month. I am planning to somehow cram lots of excellent posts into the precious little time that remains, which is basically also a metaphor for how my entire summer has gone. Anyone else feeling, to quote this absolutely spot-on essay from last weekend's NYT, "regret roll[ing] in like a pea soup fog" at this point in the summer?
Monday, August 17, 2015
Baby Mama Esq.
By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children.
Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm). One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.
Snowden Revelations: Another Major Disclosure, This Time Against AT&T
The Edward Snowden revelations have shaken the United States and the world, having an impact domestically such as with the passage of the 2015 USA Freedom Act, in foreign affairs, and influencing other nation's laws both through their reaction to U.S. surveillance (such as Germany) and their own surveillance efforts (read about France here and here). The first revelation in The Guardian socked it to Verizon. Yesterday's revelation in the New York Times socked it to AT&T and provides further important information about how the surveillance operated and the degree of private cooperation with governmental surveillance efforts.
It is not widely understood that Snowden leaked his trove to select journalists, entrusting them with judgments about the scope of disclosures and their timing. So stay tuned. There is every reason to believe that more and similarly important disclosures will occur.
NLRB declines jurisdiction in Northwestern football case
The National Labor Relations Board finally ruled on the efforts of Northwestern football players to unionize, declining to exercise jurisdiction without deciding whether college athletes are statutory employees. The Board determined that "it would not promote stability in labor relations" for it to get involved. It emphasized the unique circumstances of the case and the problem of ruling on union efforts by players in one sport at one school. Professional athlete-unions were sport- or league-wide, not team-wide. FBS schools, including all other Big Ten schools, are public and thus not subject to Board jurisdiction, meaning Northwestern (and 16 other FBS schools) might be able to unionize but not any of its competitors. This also would undermine the NCAA and the Big Ten Conference, which member schools formed to create the uniformity and level playing field that a Northwestern-only union would undermine.
At Workplace Prof, Jeff Hirsch briefly discusses the opinion, arguing that the NLRB's conclusion about instability is understandable, but ignores the way that unionization might have pressured the NCAA to make needed changes. I would make that point even more specifically--unionization is the only way to ensure student-athletes have real power in creating new policies for the NCAA, as opposed to being given a voice that can be easily overridden or ignored by other interests. For example, under the proposed revised governance structure for Division I athletics, student-athletes would hold one vote on a 21-person Board of Directors and two votes on a 38-person Council (the legislative body), a body on which 60 % of the Council must be athletics directors. The NLRB identified some changes that have been made since the filing of the petition, perhaps suggesting its view that things are improving for student-athletes and even a small number of unions is unnecessary to further NLRA policies.
Matt and I have been waiting for this decision for a year-and-a-half and had planned on writing a short essay on the decision and the underlying normative issues. Given this resolution, I doubt there is much to say.
Call for Papers: CSLSA Annual Conference Oct 9 & 10
Conference registration is open now at http://www.cslsa.us/register/.
Show Me a Hero
If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.
Based on the first two hours, this is definitely worth the viewing time.
Sunday, August 16, 2015
On a lonely island with my two spaces
My perception, based on anecdotal but wide-ranging instances over the last few years, is that most folks use one space after a sentence. Moreover, those who speak on the subject dismiss the two-space crowd as fuddy-duddies with little or no aesthetic sense. I must confess--or, I guess it's obvious from this post--that I am a two-spacer, and I really do not want to change. I *like* the two spaces -- it signals a break, a pause in the action appropriate to the end of the sentence. Do sentences not matter? Why should they just get one space like every other word?
Anyway, my questions are these: are there any other two-spacers out there? If so, why are you still a two-spacer? And if you are a one-spacer, do you view us two-spacers as relics of some ancient world? More pragmatically, do law review editors hold two-spacing in poor regard? Or is it just something they sigh about when they have to do a "find and replace?"
Submission angsting: Fall 2015
Here is the Fall 2015 "Submission angsting" post (and comments).
Friday, August 14, 2015
Lien Priority Rules!
Property law luminaries R. Wilson Freyermuth and Dale A. Whitman have published a concise and powerful article in the July/August edition of the ABA’s Probate & Property magazine that is both clarifying and compelling with respect to the continuingly contentious issue of residential real estate lien priority.
The priority contest between first mortgage lenders and homeowner’s associations was a dormant (or even non-existent) issue until the Foreclosure Crisis of 2008. But the Foreclosure Crisis changed the context of residential real estate lien priority questions in two ways:
Why marriage licenses?
A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:
What is so special about issuing marriage licenses?
Thursday, August 13, 2015
But the Poor ARE Politically Powerful ...
For this blog post, I am going to take Supreme Court doctrine seriously. I know, I know ... naive, laughable, but bear with me. In the prior post, I described the four criteria for determining which classes are suspect and thus entitled to special judicial protection through the heightened scrutiny of state actions that classify on the basis of the group's status. The four are: (1) whether members of the class "exhibit obvious, immutable, or distinguishable characteristics that define them as a discrete group;" (the Court adopted this standard in the 1986 case of Lyng v. Castillo) (2) whether members of the class has suffered a history of discrimination; (3) whether the defining characteristic is relevant to an individual's ability to contribute to society; and (4) whether the class has sufficient political power to command the attention of lawmakers. A quick aside - lower courts and litigants have relied on this standard in determining and litigating whether gays and lesbians are a suspect class. So the standard does seem to be relevant in actual judicial controversies.
I am going to take for granted that the poor meet the second and third criteria. And while some might dispute whether being poor is an obvious or distinguishable characteristic, I'm also going to assume that to be true. The key criteria that has emerged in judicial suspect class determinations is whether members of the class have political power. In prior comments, some noted that it has been a long time since the Court has declared a class suspect. In fact, the Court has never declared a class suspect under the above standard. Non-citizens were the last class to be declared suspect back in 1971 with the Court merely reasoning that "[a]liens as a class are a prime example of a 'discrete and insular' minority ... for whom such heightened judicial solicitude is appropriate." In other words, non-citizens were declared a suspect class by judicial fiat. Two years later in Frontiero v. Richardson, a plurality of the Court determined that women were a suspect class on the basis of the four criteria described above, but the plurality could not secure a fifth vote. In a later case, a majority ultimately settled on gender being a quasi-suspect classification instead of women being a suspect class.
So why hasn't a single class been declared suspect under the standard? Why haven't the poor been declared a suspect class? The answer can be found in one of the measures of political power that the Court uses. According to that measure, nearly every group I can think of would be considered sufficiently politically powerful to attract the attention of lawmakers. Yes, even the poor!
A first take on recalcitrant county clerks
Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.
Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).
Thoughts after the jump.
Wednesday, August 12, 2015
Benforado on cameras and perspective
Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.
The Process of Marriage Equality
The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.
The abstract is after the jump.
Introduction and Dedication
Hello Prawfs! It is already August 12, and I am posting my first post to Prawfs this month. For that, I apologize. But I will make up for it in the coming weeks.
First, some introductions. My name is Ari Ezra Waldman. I'm on the faculty at New York Law School, where, in addition to teaching intellectual property, internet law, privacy, and torts, I run our academic center focused on law, technology, and society. My research and writing focus on privacy, the bridge between privacy and intellectual property, and cyberharassment. You can find some of my publications on SSRN, although I have a handful in the works or under submission at the moment. More on that later. My partner and I are the human parents to a wonderful dog named Scholar. She's a dachshund-beagle mix.
Second, I would like to dedicate all my posts this month to Dan. I didn't know Dan as well as some others, but in the short time I knew him, he was a friend and mentor.
Now on to substance. In my short time at Prawfs, I would like to use several posts to talk about teaching and some other posts to tell one story, hoping to flesh out ideas about an ongoing project about information diffusion, privacy, and intellectual property. I start with identifying a theoretical problem.
Tuesday, August 11, 2015
Following Obergefell in the lower courts
Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.
* Which is not located in the Eighth Circuit.
Some comments after the jump.
A contribution from my students at Scofflaw
So the University of Utah (where I teach) has a group called Scofflaw and they take humor very seriously. They distribute newsletters that roast the faculty and administration and do Onion-style articles that they distribute to lighten the mood around the law school. I asked them to draft something just for you all at Prawfsblawg and here it is. Hope you enjoy it (as a new textbook coauthor...I'm trying to not take it personally . . . and hope none of you do either).
JOTWELL: Malveaux on Porter on Rules interpretation
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.
Kids Today (or "I don't know about you, but I'm feeling 22")
Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself. In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month. For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.
- World/National Events Context:
- Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV. RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”). RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7. RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time. Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
- Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16. Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
State Court Search & Seizure Protections & Police Constraints, Especially During Traffic Stops
As briefly mentioned in my last post, state courts have sometimes held that search and seizure law should impose meaningful constraints on police during traffic stops, in a manner analogous to U.S. Supreme Court invocations of Terry v. Ohio in traffic stop contexts. An exemplary instance recently occurred when the Oregon Supreme Court ruled in State v. Jimenez (2015) that the Oregon Constitution prohibits police from asking about weapons during a traffic stop absent “reasonable, circumstance-specific concerns for the officer’s safety or the safety of other persons who are present.”
Middle ground on departmentalism
Michael Dorf discusses Mike Huckabee's (unwitting? incomplete?) endorsement of departmentalism during last week's GOP presidential debate. Huckabee explained that he considers fetuses "persons" for Fifth and Fourteenth Amendment purposes and, as Dorf understands him, would act on that constitutional understanding. And Huckabee spoke not just of pushing a personhood constitutional amendment, but of a "bolder" approach." But, Dorf argues, Huckabee did not seem to realize that "his 'bolder' option--acting to protect the rights of the unborn (rights the Supreme Court has never recognized), even when that abridges the rights of women (rights that the Court has recognized repeatedly)--was, in effect, advocacy of "uncivil disobedience by a president," bringing him into direct conflict with the Supreme Court.
But is it necessarily a conflict? And is any conflict problematic? And how might the conflict arise and play out?
Monday, August 10, 2015
The Curious Case of the Suspect De-Classification of Wealth
The last episode left off with a cliff hanger of sorts: a foreign LLM student in my Con Law class asked me why we never discussed economic class and the poor? I followed up with a question in the last blog asking why we as legal scholars do not engage class and the poor more than we do now. One response is that legal scholarship tends to follow what the Supreme Court does. Since the Supreme Court rarely engages economic class and the poor, neither do most legal scholars. But why doesn't the Supreme Court address controversies involving economic class and the poor? Focusing more narrowly on equal protection doctrine, I explained to my student that we do not engage economic class and the poor because wealth is not a suspect classification and the poor are not a suspect class. The Court only applies a very deferential rational basis review to laws that classify on the basis of wealth and there just isn't much interesting to say about rational basis review unless, of course, the review has some bite to it. This is where I show my students the famous Val Kilmer bite in Top Gun, if you don't know the scene involving Maverick and Iceman you need to check it out ... that, my friends, is the bite of rational basis review with bite. So my answer to the student was a very simple, unsophisticated hornbook one, but one that I thought was right.
But then the student asked: why aren't the poor treated as a suspect class? She went through the criteria for determining a suspect class established in case law and argued that they all would be satisfied. (1) The poor arguably share obvious or distinguishable characteristics based on where they live and what they possess (I teach that immutability has faded as a relevant criteria in light of the alienage cases and subsequent judicial broadening of the criteria to include the obvious or distinguishable nature of the trait); (2) the poor have suffered a history of discrimination; (3) being poor is not relevant to a person's ability to contribute to society (a criteria the Court used to reject claims that the disabled and the aged made for suspect class status); and (4) the poor are politically powerless. I pushed back on each of these points, but I ultimately agreed with the student. I then explained that the Court in San Antonio Independent School Districts v. Rodriguez declared that wealth was not a suspect classification and I encouraged her to read the case for herself as the reasoning for this determination would be provided there. I then decided read the case for myself and discovered something quite curious.
History of satire
I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).
I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).
U.S. Supreme Court’s Early Direction on Police Conduct During Traffic Stops
In my initial post on this topic I raised the issue of how the Fourth Amendment applies to police use of force, particularly deadly force in the traffic stop context. Maybe the Fourth Amendment should provide protection in a way that some of the recent tragedies in the news—particularly instances in which police have shot and killed someone as a result of an initial traffic stop—could have been avoided?
The U.S. Supreme Court has repeatedly implied that the Fourth Amendment restricts police conduct during traffic stops. It did so by analogizing traffic stops to Terry stops, as it did in Pennsylvania v. Mimms (1977) and in Berkemer v. McCarty (1984), in which it wrote that “the usual traffic stop is more analogous to a so-called ‘Terry stop,’ than to a formal arrest.” The Court later reaffirmed this Terry analogy in Knowles v. Iowa (1998) and Illinois v. Caballes (2005).
Saturday, August 08, 2015
Garnett et al. on Tax-Exempt Status and Religious (and Other) Organizations
Should government insist that all private organizations comply with its own sense of the good? Most people, I think, still agree that the answer to this question is no. However strongly they feel that those public values are the right values, and however devoutly they may hope that all people and all groups come to share them and to act accordingly, they still believe for various reasons--not least a sense that the public-private distinction, however imperfect and vulnerable to critique, represents an important value of its own--that government should not and perhaps cannot rigorously or ruthlessly enforce what Nancy Rosenblum has called a "logic of congruence" between public and private organizations. To quote Robert Post, they reject the view, one that is nonetheless attractive to many more stringent liberal egalitarians, that "cultural conflict about essential moral values should be suppressed" by bringing private groups in line with public values. For many pluralists, to quote Post again, it is particularly important that the First Amendment--and in the view of some, not only that amendment but broader constitutional values and limits--"establish antihegemonic domains in ways that liberal egalitarian values never can."
Currently, this issue is again something of a flashpoint in law and politics. That is not surprising to those who think there is something to the idea that we are living through something of a revival of the disputes of the 1990s. Although I think most people still reject the logic of congruence--many more, if we step outside of the usual elite, privileged province of the professional/managerial class, including academics--I dare say that within that province, the momentum right now is on the other side. And for most if not all of us, there are limits. Some of the most difficult cases involve those in which private organizations receive governmental aid. Still further out on the edge are cases in which private groups do not receive direct subsidies or participate directly in government programs, but simply receive the same tax-exempt status that many groups do. This is one area that has become more contested of late, most obviously but not exclusively in the area of sexual orientation equality.
Our friend and fellow Prawfs writer Rick Garnett discusses that question in a new editorial co-written with John Inazu and Michael McConnell. The title, which I gather its writers did not choose and might not be completely comfortable with, is "How to Protect Endangered Religious Groups You Admire." They argue, in brief, that we should, at a minimum, be willing to protect religious non-profits that provide significant contributions to the public good despite their now heterodox views.
Read the whole thing. Feel free to disagree. I will add two points. I agree, in sensibility at least, with a point made by Marc DeGirolami in a recent post about the editorial: "We use the language of 'exemption' when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax." Reasonable disagreement is available about whether "power" is an apt word here, but for those who believe that whatever the extent of state power, it ought not lightly be exercised in a way that circumscribes civil society and a vibrant pluralism, the sensibility is right. Second, it ought not be only pluralists, and certainly not only social conservatives, who support these arguments. This is an argument that liberals ought to be taking seriously now, especially as progressive thought continues to drift in a more illiberal direction.
Thursday, August 06, 2015
Prof. Robert A. Burt
I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3. Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):
"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."
Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."
Bo was a gentle, thoughtful, caring, generous, and deeply good man. He was also my teacher, mentor, and friend. I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted. He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge. Like many others, I learned so much from him. He shaped profoundly (but don't blame him!) what I think of as my academic vocation. He set, and lived, a standard for teacher-scholars that I wish I could meet.
The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt. May the memory of this righteous one be a blessing.
Police shootings, traffic stops, & the Fourth Amendment.
The recent surge in media attention to police of use violence, catalyzed by increasing video footage of shootings and other police uses of force, invites consideration of a host of complex issues. One of those issues is how, if at all, the Fourth Amendment applies to these events.
Perhaps surprisingly, when the shootings are connected to a traffic stop the answer to that question is quite complicated. The United States Supreme Court has not provided a clear answer. Though it has repeatedly analogized traffic stops to the Terry v. Ohio stop-and-frisk model, it has also taken a largely hands-off approach that increases police discretion during traffic stops and minimizes Fourth Amendment constraints, an approach that in itself is in theoretical tension with Terry. State courts, by contrast, have often pursued the Terry analogy to create varying state limits on police discretion during traffic stops. These state limits can sometimes be quite strong, even dictating what words police can and cannot utter during a traffic stop.
I’ll provide an overview as I blog this month.
Narrowing the Third-Party Doctrine From Below
The Fourth Circuit made headlines yesterday in United States v. Graham, which holds in part that “warrantless procurement of [cell site location information] was an unreasonable search” in violation of the Fourth Amendment. There’s a lot going on in the Graham majority and dissent, and I recommend Orin’s ongoing posts on the merits. But it’s also interesting to consider Graham’s treatment of Supreme Court precedent regarding the “third-party doctrine.”
In my view, much of the disagreement between the majority and dissent in Graham is about whether to adopt the best reading of the Supreme Court’s third-party precedents or, instead, to narrowly read those precedents in light of new factual developments, other Supreme Court precedents, and the lower-court judges’ own first-principles views of the law. In this respect, Graham is hardly anomalous. When doctrines become out of date, the Court sometimes encourages lower courts to engage in narrowing from below, thereby facilitating the Court’s own reconsideration of precedent. The third-party doctrine is properly viewed as such an area.
Wednesday, August 05, 2015
Whither class, whither the poor in legal scholarship?
In 2004, the American Political Science Association Task Force on Inequality and American Democracy issued a report on American Democracy in an Age of Rising Inequality. It started with a damning critique of American Democracy:
"Today ... the voices of American citizens are raised and heard unequally. The privileged participate more than others and are increasingly well organized to press their demands on government. Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent. Citizens with lower or moderate incomes speak with a whisper that is lost to the ears of inattentive government officials, while the advantaged roar with clarity and consistency that policy-makers readily hear and routinely follow."
Submission angsting: Fall 2015
Well, given that the Christmas and Chanukah decorations and the Winter Starbucks flavors now kick in just after Halloween, I suppose it's no surprise that early August is already a bit late for the traditional Prawfs Fall submissions angsting thread.
So let the angsting commence.
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.