Wednesday, January 18, 2017
What Vets Know That Physicians Don't?
Barbara Natterson-Horowitz, M.D., is a cardiologist who has made a name for herself as a thoughtful observer of both veterinarians and the veterinary patients whose heart cases she occasionally consults on. It is not entirely surprising that an M.D. cardiologist (or, as another example, a dental surgeon) might be asked to consult on a complex veterinary case, particularly one involving a mammal. Those who ask her to consult believe that she has something to add to the treatment team.
What makes her a bit more unusual is her observation that the veterinary treatment team may have something to offer the M.D.: insights often drawn from the close study of veterinary patients who demonstrate their physical or psychic pain or disease in ways that require keen observation across a breed and, even sometimes, between breeds. Wondering if certain symptoms or behaviors in humans, closely observed, might allow M.D.'s to tap into veterinary knowledge, Dr. Natterson-Horowitz has joined with a group of veterinarians and M.D.'s to pursue these interests.
Whether or not the "One Health" approach to clinical and veterinary medicine will lead us anywhere beyond the insight that vets and physicians might have somethings to talk about remains to be seen. But the entry of the Oncept canine oral melanoma vaccine into the animal health care market is thought provoking. Oncept is not a true vaccine in that it is not a canine oral melanoma preventive. Rather it is administered post-diagnosis in serial doses that appear to have some substantial success in prolonging canine lifespan post-diagnosis. Interestingly, Oncept is reported to have been, at one point, in joint clinical trials for possible human use. This joint canine-human drug development track is not a common story, though a number of drugs are tested on canines as a precursor to clinical drug trials involving humans.
Oncept is not inexpensive. The Los Angeles Times estimated in June of this past year that a full series of four treatments cost approximately $2,800. Clearly, many pet owners are likely priced out of this market. Pet health insurance is uncommon and, even when present, often excludes pre-existing conditions and the coverage of older dogs. It should be noted that these same pet owning individuals and households are likely also priced out of many of the other new cancer treatments now offered for pets (sometimes offered using medical equipment down-scaled from human cancer treatment clinics).
Just as you might imagine, households with higher incomes and greater wealth will often spend substantially more money than low and moderate income households on a pet nearing the end of life. A new paper by Liran Einav, Amy Finkelstein and Atul Gupta considers the expenditure differential in these situations.
Vets who deal with life-ending or gravely life-threatening illnesses like canine oral melanoma seem to have considerable experience with helping pet owners sort through the complicated issues of cost and benefit, both to pet and to household, in treatment decisions at or near the end of life. Maybe this is what vets really know.
Donald Trump and civil procedure
Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.
For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court. It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.
Tuesday, January 17, 2017
AALS annual meeting: a quick postscript
After reviewing the various posts about the annual meeting generated by Paul H., et al, I stumbled across these related posts, here, here, here, and here, from an anonymous law prof at ATL. There is a lot of interesting stuff there and I encourage you to have a look.
AALS: A Learned Society still Learning!
I am happy to align myself 100% with Paul Horwitz in his magnificent post (a Jerry Maguirean Manifesto, perhaps?). Yes, yes, and again yes, to everything he says.
Having insisted, with Mark Tushnet, that the AALS is a trade ass'n advocating vigorously on behalf of its member schools, Paul (and Orin, too) rightly insist that the organization can and should function as a learned society, this for the benefit of the hard-working law profs whose skills, energies, and commitments are essential to our collective mission. To be sure, "can function" doesn't mean "does function" and the extensive constructive suggestions about to improve both the performance of the AALS and, in particular, the annual meeting, should be welcome by anyone -- especially by the volunteers who after all configure nearly every one of the panels and also the meeting's theme -- who cares about our learned profession. Let's all get to work on making the meeting great . . . nope, I won't go there.
Where I would like to pivot next, in some other posts, is how the association's role as advocate for its member law schools can be reconciled with two important considerations: (1) the welfare of the community of law profs who work within these schools; and (2) the problems that exist and persist within AALS member schools. Paul raises shrewdly just this point when he raises the question -- more of a challenge really -- of how the AALS can advocate energetically for law schools qua law schools while also advocating on behalf of legal education and the values for which our educational endeavors stand. These two complex considerations can reveal tensions in AALS mission, and also its performance. We would do well to unpack, and not elide, these tensions.
Antitrust or corporate speech?
Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?
Besides what better captures the sadness of a franchise relocation?
Monday, January 16, 2017
AALS as Trade Association vs. Learned Society, and Whether or How it Matters
This is my last post, God willing, on the AALS annual meeting. In my first post, I argued, in a nutshell, that the AALS is the American legal academy's learned society; that this is a reason to welcome and defend it against its harsher critics; that the AALS or individual executives, treating the organization more as a kind of trade association than a learned society, "have sometimes been too willing to cast themselves in the role of defenders of and advocates for law schools and legal education, rather than academicizing these questions and treating them as subjects for dispassionate and disinterested study"; and that this reflected itself this year in the annual meeting theme, "Why Law Matters," which a) assumed the answer to a genuine question and b) focused in substantial part not on why law matters, but on why American legal education and law schools matter. I did my best to display some sympathy and understanding and to recognize some of the organizational dynamics that push it in this direction, but I was still critical.
In response, a couple of posters here and elsewhere, and one commenter on my post, pushed back on the assumption that the AALS is a learned society rather than a trade association. Mark Tushnet wrote at Balkinization that unlike most academic learned societies, the AALS is organized by law schools rather than by law professors, and said that "[t]he AALS's structure means that it almost necessarily must be something like a trade association for law schools--perhaps with something like a learned society attached to it once a year." "There is in fact," he said strikingly, "no 'learned society' for legal academics." Given that, Tushnet argued, "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Here at Prawfsblawg, Dan Rodriguez offers a short post worth reading in its entirety. Here's a substantial chunk of the post:
[The AALS] is an association of law schools, not an association of law professors. Always has been. Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS....Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society. Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat. Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools....While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas,...we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group.
Dan and Mark, for those of you who may not know, are both past presidents of the AALS, as well as individuals I know and admire. I have not researched the range of disciplinary associations of whatever kind, and am happy to defer to their description. I did note in my original post that "ours is a learned society related to a regulated profession, and thus faces some distinct issues, as opposed to the questions that face, say, a learned society of historians or literature professors"; if that's not a recognition that the AALS is formally a "trade association" rather than a learned society, it's at least an acknowledgment that there are reasons why it might lean in that direction. (In that sense, it's relevant that Mark points out that when he looked into it during his presidency, "the only other profession that had only an association of schools and not an association of professors was dentistry"--another regulated profession. Without my having canvassed the issue fully, note similarly the existence and function of the Association of American Medical Colleges.) So, okay, let's concede, at least arguendo, that the AALS is a trade association, albeit one that also holds an annual meeting that looks a lot like those of other academic disciplines--with more content on legal education itself, perhaps, but also with substantive programs on particular legal subjects. What then? Does it affect my criticisms, and if so how?
As usual, my friend Orin Kerr asks the questions I would ask, and more economically, in his comments on Dan's post. One might put it simply and sympathetically by noting that, even if (as Dan argues in the comments to his post) there is no "tension" between its functions, they may make for odd bedfellows. One wouldn't expect a trade association based on the membership of individual existing law schools to argue in its official capacity, say, that some 20 or more of them ought to shut down. (I'm not averse to this argument, but neither is it an article of faith for me.) But one might expect an individual legal academic--and most key AALS officers are legal academics--to argue just that upon academic reflection. One wouldn't expect the AALS to argue that law doesn't matter, or matter much; or that whether it matters or not has little to do with whether law schools matter; or that law schools' academic function ought to be such as to exclude various measures--proliferating LL.M. programs, various one-year "certificates" that coincidentally and happily provide much-needed income, and so on--that might be crucial to some schools' survival or well-being. But an individual legal academic might conclude just that. "Tension?" Maybe not, as long as individual speakers are free to press that point at the annual meeting and in the Journal of Legal Education, as they are. (A nice test case might be a proposed "Hot Topic" program like "First, Let's Kill All the Law Schools" or "Law School Monopolies, Public Choice, and the Economic Incentives for Law School 'Innovation.'") "Odd bedfellows?" I don't think that's an especially harsh or implausible description.
Then there is the question of the fact of the annual meeting. Again, I'm a defender of the annual meeting, and, like Dan and Mark, I think it's better than its most convinced critics argue, although obviously it's imperfect (what isn't?) and I suggested some reforms. But we might well ask why, if the AALS is a trade association first and foremost, and one organized around law schools rather than individual law professors, it exists at all. We might treat it as lagniappe. There's a flavor of this in Dan and Mark's posts. They write, respectively, that "what is more surprising to me is that the AALS has maintained such strong attendance and loyalty, warts and all," and that "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Both of them have pushed to make the annual meeting better, however, and I don't think either of them think the reaction of law professors to the notion that an annual meeting is kind of a bonus should be gratitude and silence.
But another way to read the fact of the annual meeting is that the AALS is, functionally if not formally, at least in part a learned society, and that it wants to be and/or holds itself out to be one. The by-laws and membership structure may cut against that, or against viewing it only as a learned society. But law professors have, for lo these past hundred years (or several hundred), often argued that form can be less important than function, that organizations evolve within or despite their formal structures, that we should not elevate process over substance, and so on. So maybe the "trade association" answer is not complete. And that point is enhanced when we reflect that even if the annual meeting itself includes many programs on legal education, the AALS also holds subject-specific midyear meetings, and that many of its annual distinguished speakers end up speaking about law, or legal academic work, not just about law schools and their welfare.
Again, I'm happy to concede that the AALS is at least a trade association, although possibly not only one, or that is a trade association "with a difference." Both Mark and Dan, as I understand them, don't rest absolutely on this point. That is, they still think the annual meeting is important and don't think it should be immune from criticism and reform, including suggestions about how to make the annual meeting itself more academically useful, just because it could dispense with an annual meeting (or midyear meetings) altogether, or limit it to a meeting of law school administrators, or what have you. And it is at least possible that we might think of the AALS in the end as being neither fish nor fowl. The question then would be whether we think of it as being free to be imperfect at both functions, or demand that be excellent at both, or suggest that it divest itself of its "learned society"-type functions, or something else.
I come out somewhere like the following. 1) Okay, it's a trade association. 2) For many intents and purposes, the presence of things like the annual and midyear meetings suggest that it is also, in function and in the understanding of most law professors if not in form, a learned society. As Dan notes, if there has been confusion on the part of law professors about this, it's a more-than-natural confusion. But I think it's more than just confusion; it is now part of the identity of the AALS, membership structure notwithstanding. 3) Insofar as it is a trade association, I have much less (or no) cause to complain when the AALS or its executives speak up in the interest of legal education and law schools themselves. 4) Insofar as it also conducts meetings that conform more closely to the learned society model, it should at least give thought to making sure that its annual themes and programs are fairly academic in nature, broadly understood (I see nothing wrong with programs on teaching better, for instance). The AALS might need to lobby others, but it doesn't need to lobby or convince individual law professors attending the annual meeting. I don't want to attach more importance to it than is warranted, but I still take the general view that "Why Law Matters" is an imperfect theme from that perspective, especially when married to arguments that law mattering is the same as something like current legal education or law schools mattering. In dealing with others, it may take a more emphatic position (which, as it comes from a trade association, individual law professors may critique or take with a grain of salt; the conclusions of individual law professors need not conform to the interests of individual law schools, or existing legal education as a whole). At the annual meeting, it should be very catholic and open-minded about such questions. 5) Law professors are free to push for at least some aspects of the AALS to conform more closely to the model of a learned society. Doing so may create, or enhance, tensions between those different functions that might not otherwise exist. So be it.
Even at this length, this post is just a starting point on this issue, which clearly requires more introspection and discussion from law professors themselves, myself included. Mark and Dan have given us a lot to think about.
Sponsore Post: West Study Aids
The following post is by Anna Lawless-Collins, Associate Director for Systems and Collection Services at Boston University Law School, and is sponsored by West Academic.
The Fineman and Pappas Law Libraries at Boston University added the West Academic Study Aids Subscription in April 2016, just in time to help with end-of-year exams, and it was an immediate hit with our students. We went on a marketing blitz (aided by materials sent by West Academic) and set out table tents, posted flyers, added slides to the law school's slide show, blogged about it, and handed out materials at the circulation desk. We even wore buttons encouraging students to ask us about using the materials. Students told our library director, Ron Wheeler, that they find the online versions infinitely better than the print reserve materials - not least because they can use them anytime and anywhere. They don't have to worry about other students returning the materials late or the print versions going missing.
Friday, January 13, 2017
Procedure returns to SCOTUS docket
SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:
• The scope of general personal jurisdiction over a U.S.-based company in a state.
• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.
• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).
Looks like I will have some stuff to write about late in the Term.
The revolution in law practice was much like this profession's revolution
Ann Marie Marciarille had a very good recent post (here) about Brad Smith's talk at the AALS annual meeting. Smith noted that dentistry lacks diversity nearly as much as law does and off handedly said, "Why, I have no idea." Professor Marciarille used that remark to reflect on a common tendency we have to be, as she said, "uncurious" about things that may be just outside our own world. She then elaborated on some of the causes of dentistry's lack of diversity.
In that same vein, I have been struck by the similarities between the revolutions in the practice of dentistry and the practice of law. The parallels are vivid.
The Blue Inhaler
I carry an albuterol inhaler as my quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler. First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.
Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day. Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still other countries.
Last of its kind?
DOJ has entered into a consent decree with the Baltimore Police Department in a § 14141 action. As with many of the consent decrees we have seen from the Obama DOJ, it requires extensive changes to department policies and practices with respect to use of force, community engagement, and respect for the rights of people to speak and protest in public and to observe and record police activity. It also requires development of new practices with respect to transporting persons in custody and dealing with people with behavioral disabilities.
The question is whether this is the last such consent decree we see for awhile. Jeff Sessions does not appear to see systemic unconstitutionality in state and local police departments, nor does he appear to believe that the federal government and federal courts should oversee the operations of local agencies. It is unlikely that whoever Bush Trump appoints to head the Civil Rights Division will take a much different view of the matter. Extensive use of consent decrees through § 14141 is not in the Republican playbook--the Bush DOJ brought few civil actions and entered few consent decrees, preferring to engage in informal negotiations and letters of agreement, a less-adversarial/more-cooperative approach that does not necessarily produce as comprehensive reforms.
Thursday, January 12, 2017
Can President Trump fire the DOJ inspector general without waiting thirty days after giving Congress a reason?
According to the Washington Post, Michael Horowitz, DOJ inspector general, has just announced that he will be conducting a "wide-ranging" investigation inyo "broad allegations of misconduct involving the FBI’s investigation of Hillary Clinton’s email practices and the bureau’s controversial decision shortly before the election to announce the probe had resumed."
Time, of course, is running out for such an inspection to be completed before Trump becomes President. But federal law seems to give Horowitz a little extra time to investigate even after Trump assumes office. Under the Inspector General Act of 1978, President Trump must "communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer." In theory, therefore, Horowitz has thirty days to investigate, using the substantial powers of his office, after Trump gives his reasons for removing Horowitz. (If President Obama's reason-giving under the IG Act is any precedent, those reasons need not be very detailed: When Obama fired Gerald Walpin, the IG for the Corporation for National and Community Service, Obama simply stated to Congress that he "lacked the fullest confidence" in Walpin). Although those reason-giving requirements seem pretty toothless, the 30-day warning seems to be a hard and fast statutory requirement, meaning that Horowitz gets his month to raise hell.
But is this 30-day advance warning consistent with the President's Article II powers to execute the laws? The OLC offered an opinion back in 1977 that the 30-day limit on the President's removal power was unconstitutional, and I am not sure that OLC was mistaken. In 2008, the House tried to protect the IGs' independence with even greater insulation from presidential control with H.R. 928, a bill that would have required good cause for IGs' removal, but the Senate deleted such insulation from the bill after the OMB argued that the for-cause provision would unconstitutionally intrude on presidential authority.
Given mushy precedents like Morrison v. Olson, the 30-day requirement might be constitutional even if a full-blown for-cause limit would violate Article II. But, looking at the big picture and putting petty doctrinal considerations aside, we can say one thing for sure:
The 30-day limit makes for great constitutional law final exam question.
Third Annual Civil Procedure Workshop
The following is posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
Wednesday, January 11, 2017
Jokes About Dentists
Having just returned from AALS, I have been thinking about all I saw and heard at the conference. I attended some outstanding panels and talks but it is Brad Smith's Plenary Program talk on Preparing a Diverse Profession to Serve a Diverse World that I can't get out of my head. Actually, Brad Smith, President and Chief Legal Officer of Microsoft Corporation, did not really speak on his assigned topic. His talk, though interesting, was really about how disruptive technologies have changed the world and will continue to change the world. (If his remarks in the panel discussion following his formal remarks were more focused on the announced topic, I cannot say as I regret I had to leave the Plenary Program just after the conclusion of his formal remarks.)
Brad Smith did briefly discuss the lack of diversity in the legal profession -- noting that law is the least diverse profession, followed only by dentistry. This last observation about the lack of diversity in the dental profession, earned Mr. Smith his biggest laugh of the speech when he added "why, I have no idea."
Of course, it was funny in an offhand way. But it was also a marker of how uncurious we can all be about things, how uncurious we can all choose to be, and how even those of us who pride ourselves on promoting innovation can think in remarkably static ways.
That roughly three and a half percent of all American dentists are African American can tell us some things about the legacy of exclusion on the basis of race from dental education and the dental profession in the United States. That African American dentists overwhelmingly serve the African American community (with a reported 62 percent same race patient panel) can also tell us some things about patterns of dental practice.
A story could also be told about how dentistry's move from an apprenticed trade to a profession arguably made the dental profession less diverse. The rise of the university-affiliated licensed dental school in the late nineteen century (first at the University of Maryland) made the roughly 120 apprentice-trained African American dentists anachronisms. Only slowly did African American enrollment in these new style dental schools grow.
Dentistry, for some time, has been a contracting profession. For a considerable period of time, few new dental schools opened and a number of dental schools closed. The profession contracted but not uniformly as African Americans disproportionately disappeared from dental schools and from the ranks of practicing dentists.
Of course, many factors are at play. Dentistry has grayed during this period. Dental education is now overwhelmingly debt financed making the path more challenging for those who will not move into a family-owned or associated practice. Dental services are often uninsured in the United States and more often paid out of pocket. Even Americans with the best known "dental insurance" plans often have a form of coverage that might more accurately be described as pre-paid dental for prophylactic care or limited "dental coverage" for actual low risk, high cost dental events. In short, it is not an easy time to launch a dental practice.
The Bureau of Labor Statistics predicts the demand for dental services will continue to substantially outstrip supply. As most dental students form the intention to enter dental school through exposure to family members and friends in the field, we should all give a thought to how technology and innovation might play a role in opening the world of possibility for a more diverse dental profession.
AALS Addendum I: More On "Taking Attendance"
I'm grateful to those who read and commented on my series of posts on the AALS annual meeting, especially but not limited to Mark Tushnet and Dan Rodriguez, who are both past presidents of the AALS. I hope the posts afforded some food for thought, and a little amusement, for those attending the meeting. Let me say again that the three of us have something important in common: We are all inclined to be supporters, not detractors, of the AALS and its annual meeting. As I wrote in my first post, my series of suggestions was intended neither to praise nor to bury the AALS. On the whole, I find the annual meeting useful, and better than its more fervent critics are wont to suggest. No institution or annual gathering is perfect or exempt from criticism. But I am and hope to remain involved in the AALS, both at the section level and in the central organization itself, and I would rather be a part of it, while sometimes waxing critical or pushing reforms, than deride it altogether, boycott it, or give up on the idea of a central organization and gathering for legal academics. On the other hand, I'm always much more interested in criticizing the things I like or am sympathetic to than the things or people I completely disagree with or disdain. Let me also repeat what I said often during the series: my proposals were in the nature of "modest proposals," with at least something of a Swiftian touch. I understood at the outset that it's highly unlikely that the AALS will take attendance at meetings and send that information to deans, or honor overexposed speakers with a gold watch and a five-year ban on speaking. The extreme nature of the proposals served to place the issues they were raising in high relief and provoke discussion. As it turned out, and I suspect this is often the case with semi-Swiftian satirists, and with all authors who make proposals, by the end I was more attached to the proposals themselves than might have been my original intention, and I am now inclined to think it's actually not a bad idea at all to take attendance or come up with draconian rules to deal with extreme "usual suspects" at the AALS annual meeting. Still, I expected readers to take the particulars of those proposals with a large grain of salt and focus on the issues themselves, even if I am now inclined to take the proposals more seriously than I initially intended.
I was grateful to those readers who pushed back on the "take attendance" proposal, which was meant to deal with "lobby-sitters" and "dinner-with-friends" attendees of the meeting, who rarely darken the door of actual program meetings. The upshot of the pushback was that meeting people outside the meeting rooms is a valuable form of professional networking and should not be knocked too readily or loosely. On the whole, I am happy to agree. One might view differently those social gatherings that have more to do with catching up and hanging out with friends per se, and less or little to do with catching up on each other's work. Setting that aside, I'm quite willing to agree that there is value in professional networking--and in some or many cases, it's not just value to oneself or one's personal advancement, crudely defined, but value to the legal academy, insofar as it involves learning about others' work, exposing others to one's own work, learning about what's taking place at other schools, and so on. But I would like to emphasize in response that my question was not whether this kind of networking is worthwhile--it is--but whether and to what extent it's worth subsidizing. (Remember that some of that subsidy comes from, inter alia, student tuitions and the state fisc.) More particularly, the question was whether it's worth subsidizing all that a trip to the AALS entails, including the registration fee for the meeting itself, the extra fee for the annual luncheon (the one program that those who don't attend many programs are most likely to attend), the travel and accommodation costs, and so on, in cases where the person seeking the subsidy doesn't show up for many or any of the actual meeting events. At the best of times, financially speaking, I would find that a dubious proposition--and these are not the best of times. Defending professional networking is easy. Defending asking your law school to pay a registration fee in order to obtain a conference rate at the hotel and a conference nametag (to facilitate identification for networking purposes), but without actually attending the conference proceedings, seems to me much harder. To me, at least, that holds true even if the programs ought to be better.
Whether the AALS takes attendance at individual programs and sends those data to law school deans or not, I think we can usefully ask what those professors who value professional networking but don't intend to attend many or any actual conference proceedings might do instead of seeking reimbursement for the whole conference package when they are only going to take advantage of part of that package--namely, the "lobby" or hallway and the chance to chat with old and new colleagues. Three possibilities spring to mind. One is that the professor simply pay his or her own way. As long as a law school reasonably expects that this person is actually going to attend conference proceedings and is offering to subsidize him or her on that understanding, this seems like the right thing to do. The second is that the professor "go to the conference" but not register for it, and thus limit him- or herself to networking in the lobby or elsewhere, without access to the nametag, the programs (which he or she didn't plan to attend much if at all anyway) and luncheon, the booths downstairs, or the conference rate at the hotel. (Of course, that person could always stay at cheaper accommodations in the city and then commute to the conference hotel.) If his or her law school were willing to subsidize that, on the view that there is sufficient value in networking itself (or because it believes the professor's use of his or her PDF is discretionary as long as it is related to academic purposes), at least it would save the school the cost of the registration fee itself. Finally, if the professor really wanted the conference rate and the nametag but had no intention of attending any conference programs, he or she could tell the dean clearly and in advance that he or she planned to seek reimbursement for the conference fee, hotel costs, and the rest of it, but without attending any programs. I would be curious to find out what would happen in such cases! But surely there is nothing wrong with being transparent about one's intentions with respect to using institutional funds--and conversely, there is arguably something wrong with not doing so precisely because one wants to "attend" the conference without attending any of the programs and fears that such a request would not be approved if it were made transparently.
Again, none of this is meant to disparage professional networking. (Although some dinners with friends are just dinners with friends.) The question is what law schools ought to pay for, and whether it's fairer, and would conduce to better decision-making and resource allocation by law schools, to know what they are paying for. (And, as I said in the first place, professors could always Skype with each other, or email, or do other things. No, it's not as good. But it's a hell of a lot cheaper. And, of course, there are conferences within one's specific field as well.)
In back of this proposal, to be sure, is a general premise: I value the annual meeting as such, including the program meetings. Professional advancement is nice, and need not be viewed in purely mercenary terms. But the AALS is an annual meeting for professional education, including exposure to ideas and speakers outside of one's usual area of focus, not just for professional advancement. I think such a conference is or ought to be a valuable thing for committed members of an academic field. My views above would hold even if that weren't my background premise. But since it is, my "attendance" proposal is not only about encouraging candor, transparency to funders and stakeholders like law students and state legislators, and better resource allocation by law schools; it's also about making the AALS annual meeting itself better, by encouraging registrants to actually attend the programs--and, where subsidy is dependent on their doing so, incentivizing them to get involved in the sections or communicate with the AALS in order to make the program meetings better.
Whether this second point holds might seem to have something to do with whether the AALS is actually a learned society or not, or whether it's something else. That's the point on which Mark and Dan offer some interesting and useful points, and I'll take it up in my next post.
Goodyear v. Haeger oral argument
Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”
But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?
Tuesday, January 10, 2017
Endrew F. v. Douglas County School District: How vague statutory terms can lead to class bias in special education
Tomorrow SCOTUS will hear arguments in Endrew F v Douglas County on whether disabled students’ entitlement to a “free appropriate public education” (“FAPE”) under the Individuals with Disabilities in Education Act (“IDEA”) entitles them to more than a non-trivial educational benefit. Both the statutory language (“appropriate public education”) and Board of Education v. Rowley (the governing precedent, calling for a plan “reasonably calculated to provide educational benefit”) are opaque. The indeterminacy of precedent and text leave an opening for the federalism canon of Pennhurst to resolve the case in favor of the school district.
Federalism, however, serves a purpose here deeper than acting as a tie-breaking canon. Pennhurst gives to elected school district leaders some power to temper the middle-class bias inherent in special education. By contrast, the mushy statutory standard of “substantial” educational benefits sought by the petitioners opens up a quagmire of litigation that only the middle class will be able to traverse. By defining "FAPE" to mean "substantially equal educational opportunity," the petitioner invite litigation over an unworkably vague standard. Inviting litigation, however, can only exacerbate the class bias of a statutory scheme already notorious for favoring wealthier and litigation-savvy parents through its litigation-oriented focus.
The AALS is a Trade Association. There, I said it.
Paul Horwitz has a series of very thoughtful posts, each raising some important issues about the AALS and constructive suggestions for reforming the annual meeting. There are some great ideas in here and as someone who has been (1) very involved in the work of the ass'n over many years, and (2) styles himself as a reformer of sorts (if only a "moderate" one), I find these criticisms and recommendations highly valuable, and some spot on. Let's make the annual meeting great (again? once and for all?)
But let me tackle here an issue that undergirds at least a couple of these posts, as well as other AALS conversations in the past, and that is what exactly the association is.
It is an association of law schools, not an association of law professors. Always has been. Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS. (No need to take my word for it; you can get the skinny from the charter up on the AALS website). Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society. Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat. Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools. To be sure, it needs to be ever careful about ensuring that it effectively represents the interests of a very diverse group and, moreover, that its governance structures and institutions provide for adequate input so as to make it more likely that this trade association is advocating for causes and issues that are in the collective interest (as democratically determined) of its member law schools. That all said, it ought not to shy away from its fundamental mission of advancing the interests of its member law schools. (Where, of course, there are collective interests to be advanced and where the AALS has a comparative advantage in responsibly advancing them).
While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas, and to develop mechanisms for improving the welfare of faculty members -- and in that sense Tushnet, Horwitz, et al, are quite right to push it hard to improve the meetings and meeting content -- we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group. The real question to me is how to develop a strategy so that, in its functioning on behalf of law schools, it is rigorously professional, data-driven, articulate, and not manifestly self-serving. Therein lies the challenge; and a challenge built into the very purpose of the association.
Silence in the classroom
As we all start spring classes, I want to share an observation about the value of silence in the classroom. I am interactive with my students, even in my large class (Business Entities). One of the most fruitful questions I ask myself as I do my class prep is, "What questions would make a bright student who has done the reading think a bit before replying?" Those questions add particular value to the class experience because they're not something the students will get just by a careful reading of the assignment. They actually have to go to class to get that value. In turn, I feel an obligation to make the class time valuable to the students by asking questions that do more than reinforce a basic understanding of the reading.
But a necessary consequence of asking questions of that kind is that students pause before replying. Frequently they start a sentence then stop. All of that involves what can seem like considerable silence in the classroom. While the students are wrestling with a question, they are also dealing with the dynamic of silence.
Monday, January 09, 2017
AALS Annual Meeting Reform Proposals, Part IV: Visit the (Remainder of the) United States of America
This is the last of my posts on the AALS annual meeting, post-dating the meeting itself. Mercifully, it's also the shortest. My last, and probably most logistically difficult reform suggestion, is to rethink locations.
I know there is a history here, and also that the AALS needs to lock in its commitments years in advance. But I suspect I'm not the only one who is tired of shuttling between New York (great city, expensive, tiny overpriced rooms), DC (good city, lots of friends in town, expensive, unattractive hotel, exhaustion occasioned by too many trips to the Lebanese Taverna), and San Francisco (wicked expensive). It's a big country and, even keeping in mind all the needs that have to be balanced, surely there are other possibilities. I think it's time for other cities: Dallas, Atlanta, Chicago, Philly, Tampa, Birmingham, Charlotte, Salt Lake City, Memphis, Nashville, Pittsburgh....Some are expensive but many on this list are both accessible and much cheaper than the Big Three that the AALS has relied on for several years. (The last non-big three locale I remember was New Orleans; I'm not sure when that was, but a few years at least.) The AALS annual meeting is already something of a bubble, but there's something to be said for moving that bubble outside the usual bubbles of NY, SF, and DC. It is possible that some attendees might prefer to visit, say New York, than Pittsburgh, or San Francisco to Salt Lake City. But since the programs (or lobby, if you prefer) would be the same, I can't imagine why.
I'll round things out with a further comment about the "take attendance" post, and a post about AALS as learned society vs. trade association, although both will have to wait a bit.
Shorter White v. Pauly
Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.
Dialysis Care's Tangled Web
Thank you to PrawfsBlawg for the opportunity to guest blog this month.
Christmas Day was the perfect day for the New York Times to publish its article on interesting goings on at The American Kidney Fund, one of the largest charities in the United States. Why? Well, Christmas Day is usually a slow news day and even trying to understand how dialysis care is funded for Americans is a slow read. It may be that all health insurance topics that span government-funded insurance as well as commercial insurance in the U.S. are a slow read. This is because our health insurance systems are complex but also because our health insurance systems are under-discussed.
Renal failure patients have been a special disease group under Medicare since 1972, when Congress extended Medicare coverage to people of any age with kidney failure. The "kidney entitlement" (as it is sometimes known) is distinctive in this regard. The story of the movement of dialysis from experimental to medical treatment, the rise of the dialysis industry, and the sympathetic face of end stage renal failure patients all played a role in the dance of this legislation. Indeed, a dialysis machine was reportedly brought to a Congressional hearing, though the account that a patient was actually dialyzed before members of Congress may be the stuff of urban legend. The early 1970's was also a time of hope for comprehensive national health care reform, with the kidney entitlement seen by some as a stop-gap measure, not as an exercise in exceptionalism. For all these reasons -- and more -- we saw the development of the extension of Medicare coverage for dialysis to a disease group that included many who would formerly have been outside of the Medicare tent.
Less Hollow Hope on the defensive side
Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*
[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.
At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*
[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.
Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).
Sunday, January 08, 2017
One more round with Heather Gerken: Why federalism can still promote pluralism in our polarized times
Heather Gerken has written a typically smart and pithy response to my response to her response to my argument that federalism makes a great insurance policy against political defeat at the national level. I argued that, by limiting national power with formal rules, the Constitution can reassure Red and Blue voters that the other side will not impose their policies nationally. This allows Blue and Red states to go their separate ways on issues where disagreement is intractable.
Heather responds that federalism cannot promote pluralism in hyper-polarized times, because hyper-polarized politicians and/or voters just cannot stomach the idea of their opponents' imposing their views even subnationally. According to Heather,"[i]f you really think that what the other side is doing is monstrous, you aren’t going to allow for an exception to the national norm – which is precisely what is necessary for federalism to get up and running -- no matter what tradition or institutional practice holds." With her usual gift for a phrase, she declares that you cannot play cards in a hurricane.
In principle, I do not disagree: It might be that federalism could never contain fundamental moral disagreements like the fight in the 1850s over slavery. That was indeed a hurricane force wind that blew away any constitutional accommodation. After the jump, however, I will suggest that the sort of polarization afflicting us Americans today is more a tropical storm than a hurricane. It is nothing like the fight over slavery. Following Morris Fiorina's lead, I will suggest that the views of Red and Blue voters actually have not change that much over the last thirty years. We the People actually are not really that intensely polarized over issues. We are just intensely distrustful of each other. I suggest that firm, formal constitutional rules of federalism are actually ideal for containing this sort of polarization.
Saturday, January 07, 2017
Elevating judges during recess
Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.
It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.
The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.
But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.
Does the Holman Rule authorize unconstitutional bills of attainder?
House Republicans have reinstated "the Holman Rule,"a 19th century procedural rule allowing individual congresspersons to propose appropriations cuts targeting very narrow categories -- for instance, the pay of a single civil servant. House Democrats, led by Steny Hoyer, have complained that such surgical strikes on individual federal employee's pay could undermine civil service protection.
Is it an adequate response to Hoyer that any retaliatory appropriations rider directed at a specific civil servant would be barred by the prohibition on bills of attainder contained Article I, section 9? United States v. Lovett (1946) is the most relevant precedent, holding that Congress cannot amend a 1943 spending bill to bar federal funds from being spent on the salaries of three named civil servants. The Lovett majority acknowledged that the spending limit was not literally a criminal penalty but nevertheless found that "[t]he effect was to inflict punishment without the safeguards of a judicial trial and 'determined by no previous law or fixed rule.'"
Of course, the victim of a targeted cut would always have to prove that Congress's motive was retaliatory -- but they would have to do so in an ordinary proceeding before the Merit Systems Protection Board. The civil service laws, after all, do not protect against a mere reduction in force brought on by budget cuts.
So is Representative Hoyer's claim just an alarmist parade of horribles that will never get a marching permit under the Constitution? Or have I over-read Lovett -- an entirely likely possibility, since it has been awhile since I have taught this stuff? (Now that the Holman Rule is back, however, I see a potentially tricky exam question, a silver lining -- at least for law profs --around the cloud of partisan polarization in which we now live).
Friday, January 06, 2017
Elevating judges and creating vacancies
On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit. After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.
A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s] . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.
But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that elevation means resignation and creates that new vacancy.
If anyone knows a basis for this that I am missing, please share in the comments.
Why Exit Needs Voice: Foot-Voting in America and China as an Inadequate Substitute for Local Democracy
Suppose that you had no power to elect a new set of local officials. Could you choose better ones simply by moving to a new jurisdiction and thereby improve your life? Ilya Somin has written an elegant defense of foot-voting as a substitute for ballot-voting. As Ilya notes (and as the last election highlights), ballot-voting is marred by rational voter ignorance. Why invest a lot of time and effort in researching local politics when your ballot has a minuscule chance of deciding the election? Households who vote with their feet, by contrast, always cast the decisive vote to be governed by a new set of officials. Such households, therefore, have greater incentives to make a well-informed migratory decision. (For Ilya’s outstanding short-form discussions of the problem of political ignorance and how foot-voting can help, see this link)
Qiao Shitong and I offer a slightly skeptical rejoinder to this happy story about foot-voting. Unless there is a feedback mechanism inducing local officials to care about attracting migrants, we argue that interjurisdictional migration will be nothing more than a trip from the frying pan to fire. Foot-voters would either over-crowd the “good” jurisdictions or not bother moving at all, because they would have no guarantee that well-governed destinations would stay well-governed. This does not mean that foot-voting is pointless: It just means that migration should be regarded as a complement to ballot-voting, not a substitute. Ilya’s argument for foot-voting, in other words, becomes much more powerful if one recognizes that foot-voting actually improves local ballot-voters’ incentives to cast an intelligent vote. One such incentive is the prospect of foot-voters’ buying their houses. Our criticism is offered, therefore, more as a friendly amendment than a refutation to Ilya’s outstanding book.
After the jump, I use the example of Chinese cities in the decidedly undemocratic regime of the PRC to explain why foot-voting unaccompanied by ballot-voting or its equivalent cannot insure a real choice to Chinese citizens. The argument, drawn from that article by Shitong and me, also explains how the Communist system, with a few “communistically correct” reforms to China’s bureaucratic promotion system, could mimic the benefits of ballot-voting in America. [UPDATE: Ilya has a response to my post here].
Thursday, January 05, 2017
JOTWELL: Steinman on Delaney on avoidance
The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective (Duke L.J.), which explores ways that judges on different courts avoid difficult decisions.
What next on the Scalia vacancy?
Merrick Garland's nomination to fill Justice Scalia's seat on SCOTUS lapsed at noon Tuesday and President Obama did not (as some hoped, but I doubted) push through a recess appointment that would have been short-lived and symbolic. And would have given Donald Trump another D.C. Circuit appointment. In the overall scheme, this seems the smart move politically.
The question is what next. Incoming Senate Minority Leader Chuck Schumer said that Democrats will filibuster any nominee unless the President presents a compromise nominee that both sides can support. Of course, I cannot for the life of me imagine who that would be or what that nominee looks like ex ante. It was not obvious that David Souter would be David Souter when he was nominated in 1990.
AALS Annual Meeting Reform Proposals, Part III: Cut Back on the "Frequent Flyers"
The AALS annual meeting continues, and so does my series of posts offering some modest proposals for reform. I should add as a side note that readers may be interested in this post by Mark Tushnet at Balkinization discussing whether the AALS is a learned society or something else--specifically, something more like the trade organization for law schools that I pushed against in my first post. (I'm thankful to Brian Tamanaha for making a similar point in the comments to the last post.) It's an interesting point, and I'll write a separate post responding to it after I'm through with this series.
My next suggestion for reform concerns the overuse of a few, generally well-known or "celebrity," generally elite law professors as speakers at the AALS. This, too, is something that I think is widely perceived as a problem. At the same time, there are reasons both to defend the practice, or at least to acknowledge sympathetically how and why it occurs and how difficult it is to remedy. Let me be clear that there is clearly a touch of "modest proposal," in the Swiftian sense, to the modest proposals I make below.
I know from past experience as a section head and as a program planner that the AALS encourages planners of section programs to take into account the need to include junior as well as established law professors as speakers, to seek at least some forms of diversity in panel composition, and so on. I also acknowledge that in planning section programs, I too have turned to some of those well-known profs (always for a reason, but it's never hard to come up with reasons, or excuses, to do so) as invited speakers. One reason they're invited is that they often actually have something valuable to say. Another is that they're demonstrably willing to come and speak. Finally, it's worth noting in fairness that the list of people who actually end up speaking doesn't show all the invitees who declined or canceled. Sometimes section meeting programmers try harder to avoid the list of overused speakers than the results suggest.
But although the AALS urges its program planners not just to turn to the same celebrity talking-heads time and again, it's also clear that not every planner takes that advice. Among other things, program planners have a strong incentive to invite famous names, in order to get better attendance and thus secure better time slots in future years. (It's also possible, as a commenter on the last post suggested, that they may do so for reasons of personal advancement.) Between those incentives, the sheer number of sections, the willingness or eagerness of some celebrity speakers to talk frequently (perhaps too frequently) on a wide (perhaps too wide) range of topics, and the general collective action problems involved, the result is that a small number of speakers, many of them from elite schools or with individual "celebrity" status regardless of where they teach, serve repeatedly, year after year, as speakers on multiple programs. Many attendees are at least a little tired of this phenomenon. Even those who see good reasons for it think it runs to excess. And most of us could come up with the names of the same half-dozen to dozen-and-a-half "frequent flyers" or "repeat offenders," if I may lightly and respectfully call them that.
Again, I acknowledge that these celebrity speakers may have plenty to say. (But not necessarily. I have seen some phoned-in appearances, as have we all. And who knows what interesting things a newbie or less-famous law professor might have said in their place, given both his or her actual expertise in the subject and the extra effort that might result from gratitude at being invited to speak?) I also know there is real interest in hearing them speak. Nevertheless, precisely because of all the collective action problems and the difficulty of keeping things to a reasonable level of repetition, I would suggest that the AALS, and all of us, would be better off with a fairly rigid rule-based approach here. That might consist of a limit on the number of speaking appearances any individual person can make per year at AALS, a limit on the number of times they can speak in a three-year period, or some combination or variant of the two.
To those reasonably plausible proposals, I would add a brace of less likely suggestions, acknowledging their somewhat Swiftian character, although I also admit to finding them intriguing. First: Once someone has made a certain total number of AALS appearances--25, say--they should be singled out for public recognition and applause at the annual meeting or in the program, given the equivalent of a gold watch or membership in an AALS Hall of Fame, and banned entirely from speaking at AALS for a period of, say, five years. Second, as a way to counter the incentive of individual section meeting planners to invite overexposed celebrity profs to speak, in order to secure attendance and improve the section's scheduled slot in the following year, while balancing that against the possibility that a section planner might think it's really vital to have that overused speaker, we could go with something like this: The AALS will compile a list of overexposed speakers. (Plenty of people would be willing to help with that effort.) Section planners will not be forbidden to invite one of them to serve as a speaker. But if they do, that section is automatically assigned an unattractive slot on the last day of the conference the following year. That way, a section planner who thinks it is absolutely necessary to invite Overexposed Speaker X to participate can do so--but he or she had better decide it's really worth it, because the section will suffer for it the year after.
These measures are obviously draconian. Like most rules, they are over-and under-inclusive, but may be necessary where standards won't suffice to solve the problem and it's better to have a firm rule. It may be worth it here; a "drive sensibly"-type standard is clearly not working. Such an approach would do a world of good, I think, especially for younger and less famous law professors from the more plebeian schools. Although it's not a principle reason for my suggestion, I would note that a policy along these lines would also be good for minority professors, both senior and junior, and in some cases would remedy the slight, perhaps only seeming, absurdity of some majority-group, elite celebrity professor being invited repeatedly to take the spotlight, and accept the plaudits, to pronounce on the virtues of diversity or the equal importance of all law schools, while junior professors, denizens of lower-ranked schools, and minorities are effectively frozen out of that speaking slot.
A few counterpoints and concluding observations after the jump.
Wednesday, January 04, 2017
Thank You Very Much
I want to thank Howard Wasserman and the other PrawfsBlawg editors for having me back this month. While we are past Christmas, the following song from Scrooge: The Musical reflects my sentiments. Happy New Year to everyone!
Bryan Garner on Book Reviews, Plus Irony Alert
I am no particular fan of the ABA Journal, whose quality seems to have declined over the years. That said, I'm happy, or happy-sad, to note that this month's issue includes a column by Bryan Garner on a favorite hobby-horse topic of mine: the lamentable disappearance of book reviews from many law reviews, bar journals, and other general legal-reading sources.
Note that the ABA Journal used to run book reviews, but for quite a few years now has stopped doing so--although it does seem to find the time and space to let us know about "lawyers in film" and "the top legal movies" at least once a year, and about "Legal Rebels" more or less ceaselessly.
Final Reminder: Tonight: MarkelFest! at 9 pm
A final reminder that MarkelFest! Happy Hour for AALS 2017 is at 9 p.m. tonight at Romper Room, 25 Maidein Lane. Grab a drink at the bar and head tothe private room upstairs, called the Leopard Lounge. The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
Book Recommendations: Alafair Burke's The Ex & Elizabeth Strout's My Name is Lucy Barton
Happy New Year! I spent the winter break reading lots and lots of fiction, among other things, and thought I'd mention two good ones.
Alafair Burke, the most prolific contemporary prawf-novelist I am aware of (another full time law prof, and now dean, who is a super talented fiction writer is my former army commander Yuval Elbashan, but his books are all in Hebrew), has published over a dozen crime novels, including two best-selling series. She also co-authors with Mary Higgins Clark. I just finished her newest novel The Ex. Its in the suspense genre of Gone Girl and The Girl on a Train, told by first person narrator Olivia Randall, a criminal defense attorney (As Gillian Flynn writes, “Burke’s female characters are always very involving, with big, strong voices.”). The Ex is a great fast read -- the attorney's perspective, knowing and not knowing her client and wondering whether or not he is guilty, is sharp. I liked the realistic feel of the court proceedings, the dynamics between the opposing attorneys, and the intensity of the trial preparation. If any of you ever wondered about a murder case and considered whether and how is it possible for seemingly normal, normative, people to plan monstrous crimes, there is a part in Burke's novel that I found particularly interesting. Olivia the protagonist visits a psychiatrist who has specialized in criminology. The psychiatrist tell her: "Because I've testified in numerous homicide trials, (I've been asked about) my insight about how a quote-unquote normal person can come to commit cold-blooded, premeditated murder." "And?," Olivia asks her. The psychiatrist continues:"I've spent a good number of hours of my career talking to people who admit to being murderers. These seemingly normal people tell me how it starts small. They get fired from their job, or dumped by their husband, and they begin to wish some kind of bad upon the person responsible - typically, that the world will come to see the person for what they really are. And when karma or fate or whatever doesn't come through, the seemingly normal person starts to think, 'what if they died?' And that turns into 'What if I killed them?' And eventually, 'How would I do it?' and 'Would I get away with it?'" The thoughts become a training ground until the person is conditioned to the idea of killing and it's no longer shocking to them, she explains.
Pulitzer winning Elizabeth Strout does it again with My Name is Lucy Barton. Strout is a minimalist, understated, heartbreakingly honest writer and this book is unforgettable. It happens mostly in a hospital and mostly through a conversation, and extended moments of silence, between a daughter and her mother. It is a book of our times, telling the stories of Midwestern poverty, fear and contempt toward those who go away and aspire to other (better?) lives, childhood abuse, forgiveness and love. Lucy's dad walked her brother down the street yelling at him a "f*cking fagg*t" in front of everyone when he was caught trying on Mom's high heels; Lucy's parents locked multiple times in the truck including during the winter. She survived her terrifying physically and mentally cold conditions by staying late at school where it was warm and she could read. Her parents basically disowned her when she got into college with a full scholarship. And yet she loves them, understands them even. And maybe they too can understand her as time goes by. We need more books like this as we move into 2017.
Happy New Year, may it be full of good fiction and non-fiction. Hope to see many of you here at AALS! Don't forget the MarkelFest happening tonight.
AALS Annual Meeting Reform Suggestions, Part II: Take Attendance
Following up on yesterday's post on the AALS annual meeting, there are three more specific suggestions I would like to make in the remaining posts. The first has to do with attendance at the AALS annual meeting, and specifically the question whether a number of attendees are "lobby sitters" who do not actually attend much if any of the meeting programs; whether law schools, especially in a time of budget shortages, really ought to be paying for that activity; and what might be done about it.
It is impossible for any person attending to figure out how many law professors at AALS attend many of the programs, some of them, very few of them (or the annual AALS luncheon only), or none at all. It is true, and I think anyone who has ever been to AALS will agree, that it seems as if many people attending AALS just hang out in the main hotel lobby, stirring only to sign up for random prize drawings at the publishers' booths and go out to dinner with friends, without attending many or any actual programs. It's impossible to say: the faces in the lobby change, and of course they may leave to attend many programs and then return to the lobby. But it is at least a possibility that some professors attend the annual meeting largely, if not entirely, to get a (law-school-subsidized) trip to sit in a hotel lobby in SF, NY, or DC, a (subsidized) chance to see far-flung friends, and a nice (subsidized) dinner with them. That's not what the annual meeting is for. Nor is it what law school budgets, including discretionary faculty "research" or "professional development" funds, are for.
I would recommend the following modest proposal: Require people to sign in at every program meeting, and carefully compile and record the attendance data. Requiring everyone to sign in before entering a program meeting, and compiling the data, will require some greater expenditure of resources, but it's not immense or impossible. It may not stop people from leaving the room shortly after signing in, but so be it.
Follow up on this by sending to the deans, and only to the deans, data about their own professors' attendance, noting the name of each faculty member from that school and the number of programs for which he or she actually signed in. Leave it to individual deans, in consultation with their faculty or not depending on individual school policies, to decide how to respond. Maybe it will turn out that all the seeming lobby-sitters actually do attend various programs, and maybe not. Maybe the dean and/or faculty at a given law school will decide that it is a waste of that school's budget to subsidize a trip that consists largely or exclusively of dinner with friends in some distant metropolis. Maybe they will decide that the law school can and should refuse to subsidize any AALS trip where the attendee fails to attend fewer than three, five, or more programs. Maybe they will decide to leave the use of such funds purely within the discretion of individual faculty, even if the funds are used unwisely. The students at those schools, or the central administrations of those universities, or state legislators where public universities are involved, may be also curious about those data and ask to see them, and react accordingly depending on the answers (or the refusal to give any answers).
The results might be unpleasant, but they don't strike me as unreasonable. In particular, it doesn't seem unreasonable to me for deans to question whether their budget is best spent subsidizing dinner-with-friends junkets. Nor does it seem unreasonable for students and other law school funders to ask the same questions. At the least, such a policy would certainly help us to learn more about actual attendance practices by individual law professors at the annual meeting.
A couple of anticipatory responses to questions or objections after the jump.
Mentors’ fulsome menting of mentees: When should we try to preserve words’ original understanding?
At the urging of my daughters who try to keep my jowl-quivering pedantry within reasonable bounds, I have resisted blogging about usage and grammar. My repeated encounters with the “mentee” and “fulsome,” however, have aggravated me into asking a simple yet general question about English usage: When should we try to preserve the original understanding of words?
Consider the evolution of the word “mentee” from the Greek name “Mentor.” “Mentee,” of course, is barely a word at all. (My 1987 edition of the OED haughtily does not recognize its existence). First used in 1965 according to Merriman-Webster, it is an extension of the metaphor “Mentor,” the name of Telemachus’ elderly friend and guide in the Odyssey. Like other proper nouns in Homeric epics (for instance, Stentor, Myrmidons, Meander, etc.), “Mentor” is frequently used as a metaphor by people eager to show off their Classical learning. It means any older person who uses their greater experience to guide a younger protégé in a profession, politics, or life more generally. As anyone knows who can walk the walk and talk the talk, nouns easily switch to verbs in English, so it is a small and legitimate step to speak of “mentoring” someone.
“Mentee” arises from a misunderstanding about the second syllable of “Mentor.” The metaphorical origins of old man Mentor being long forgotten, it is easy to infer that the second syllable is a suffix converting a verb into a noun that signifies the performer of the verb, much as “er” in “employer” signifies “one who employs.”. This invites the coining of the term “mentee” to signify someone who is assisted by a mentor. Of course, the next logical step is to invent a new verb, “to ment,” which would presumably signify the act of serving as a mentor for a mentee. But no one (to my knowledge) has taken this step: Ordinary usage treats “to mentor” as the complete verb while simultaneously and illogically also referring to “mentees” rather than “mentorees.”
Should we try to arrest the evolution of “mentor” away from its roots by campaigning for the English-speaking world to think anew about Mentor’s kindliness towards Telemachus? Or should we encourage a happy trend and lobby for the new verb “to ment”? After the jump, I lobby for the latter position, using the word “fulsome” to illustrate the following anti-originalist principle of English usage: Preserving the original meaning of a word is important only insofar as doing so increases the granularity of the language.
Tuesday, January 03, 2017
A response to Heather Gerken: Why the politics of tolerant pluralism need the legal institutions of federalism
Heather Gerken has a characteristically thoughtful response to my post on the “federalism insurance premium.” Heather agrees with me that willingness of the party in power decentralize controversial issues is weakened by each side’s intolerance toward ideological disagreement. She also agrees that more tolerance would be a good thing: When Democrats hold the Presidency, they should allow Red states more latitude to adopt conservative policies, and vice versa.
Heather disagrees with me, however, about whether constitutional conventions and institutions of federalism are relevant solutions to this problem. In her words,
“… the give-and-take has more to do with politics than institutions. Put differently, it’s not federalism that matters here, but pluralism. And a pluralist system only flourishes when both sides are willing to live and let live…”
The core of our disagreement is, in short, about whether and how legal institutions promote pluralist politics. After the jump, I will explain why I think that Heather is mistaken to contrast institutions and politics as if they are distinct mechanisms for promoting pluralism. As I have argued in yet another post, politics depends on – indeed, are defined by – legal institutions. Saying that achieving pluralism is rooted in politics, not institutions is like saying that scoring touchdowns is rooted in athletic ability, not the rules of football. Of course, the sort of athletic ability needed to score a touchdown depends on the rules of football. Likewise, the particular sort of politics needed to entrench a convention of decentralization depends on legal institutions. Even tolerant voters and politicians need some assurance that their tolerance will be reciprocated by their rivals before surrendering their cherished policy priorities for the sake of allowing the rivals to impose dissenting subnational policies. Without some credible commitment of reciprocity, such tolerance brands the politician who practices it as a chump, not a pluralist.
Legal institutions allow such politicians to make such credible commitments such that they can be assured that their forbearing to centralize power when they control the presidency will later be rewarded by their rival's similar forbearance. To see this relationship between legal institutions and political pluralism, however, it helps to focus on a specific example.
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
How Gilbert & Sullivan’s Mikado can survive and thrive in our era of ethnic grievances
Is Gilbert & Sullivan’s Mikado a racist “yellow face” caricature of Japanese culture? A spate of recent criticisms of Mikado productions have denounced the operetta in these terms, resulting the cancellation of a NYC production in 2015.
There is, however, a delicious irony to these attacks on Mikado: In criticizing the comedy as an illicit British appropriation of Japanese culture, the criticism overlooks the fact that William Gilbert was actually making fun of Victorian England’s appropriation of Japanese culture. After the jump, my defense of Gilbert’s masterpiece (and, in particular, an especially outstanding current NYC production thereof). More generally, I offer a few thoughts on how Gilbert’s jibe at Victorian England’s “Japonism” illustrates a certain similarity between conservative criticisms of “political correctness” and Left attacks on “cultural appropriation.”
Goodyear v. Haeger argument preview
At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.
The AALS Annual Meeting: A Partial Defense and Some Mild Reform Proposals--Part I: "Why Law Matters?!?"
The AALS annual meeting starts today in San Francisco. You can find a full program here. That makes it an ideal time to propose some changes or reforms to that meeting. I have several suggestions and will make them in several posts. The second suggestion, which will follow in a subsequent post today or tomorrow, is my personal favorite. But I start with both a general defense of the AALS annual meeting and a general critique of the tendency of the AALS to defend law schools, which I think moves it too close to a trade association or lobby (more on lobbies, of a different sort, in my next post) and too far away from what ought to be its role: that of a learned society.
I expand on this point at my usual painstaking and/or tedious length below. But I will summarize it here, both for tl;dr purposes and in case you're hurrying into a program meeting. The long and short of it is this: The AALS, as a learned society, should discuss and examine, but not defend or (possibly) take a position on the status quo in legal education. That job is outside its proper role. And it should certainly have avoided or rephrased its conference theme this year, "Why Law Matters." That is not really a question at all, and at best is not the right question. And it goes too far toward assuming the answer.
At the outset, to place this and the following posts in context, let me say that I am not generally hostile to the AALS and that I am generally inclined to defend it. I know that a large number of non-law-prof Internet commenters are ill-disposed to the AALS and its annual meeting. Those commenters may be unaware that a fair number of law professors are themselves hostile to the AALS, the annual meeting, or both. Other law profs are not opposed to the organization or its annual meeting but, for various reasons, make a point of skipping it every year. I am not attending this year, but it has to do with my own schedule, not with any judgment of the event itself, this year or in general. My credentials for criticizing without scorning the AALS, and my general views on the organization and its annual meeting, are something like the following. I have attended the annual conference almost every year since I began law teaching. I have been the section head or co-head of at least two sections and served on section executives almost every year, and hope to continue doing so. I serve on an AALS Standing Committee, though I must confess, with sincere apologies and the usual pathetic nod to my various surgeries and so on, that I was a poor committee member this year. As with my involvement in individual sections, I hope to remain involved in the central organization itself. I come neither to praise the AALS nor to bury it.
Learned societies are common features of the academy and its individual disciplines, and should be. As I've written here before, I have doubts about the direction those societies are taking. Specifically, I am concerned about their increasing tendency to take explicitly political stands, justified by dubious arguments about the relationship between some academic discipline and political duty or change, or about the supposed insight that membership in some academic discipline gives one on various issues. I tend to believe that academics who share my doubts should not boycott their respective learned societies, but remain actively involved in them while opposing those tendencies. Similarly, those who question the value of a particular learned society ought to remain inside it and strive to make it better, rather than dismissing it altogether. As for the AALS annual meeting itself, I understand the arguments that the meeting is too varied and its section programs too weak, and that one is better off attending a subject-specific conference than a general gathering like this one. But I still find sufficient value in various section meetings, workshops, and so on, as well as the general value of participating in the overall affairs of legal education and its learned society, to justify attending. And I think the criticisms of the quality of the section programs, while not ungrounded, are exaggerated. In any event, if you think the programs are not good enough, you should stay involved and work to improve them. It's true that, in general, I'm not a joiner. But in this case, any criticisms or suggestions I offer here are of the "inside-the-tent" variety. I will also note respectfully that one of our perma-Prawfs, Dan Rodriguez, is a past president of the AALS. He did an excellent job of discharging his duties, and has been an effective defender of the AALS. He, better than I, can speak both to its virtues and to the challenges and tensions it faces and, perhaps, the difficulty of making some of the changes I suggest in this and subsequent posts.
Although I am happy to defend the AALS and its annual meeting in general, there are some changes I would love to see. In this first post, after the jump, I make a general point about the role of learned societies, which I apply specifically and critically to this year's questionable conference theme, "Why Law Matters."
Monday, January 02, 2017
Why We Need to Talk about Trump & Press Freedom
On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.
RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration.
First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated Saturday Night Live, the New York Times, and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him. Shortly after the election, he called television news anchors and executives to Trump Tower to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December. Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one.
Sunday, January 01, 2017
Ode to a District Judge
The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.
[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.
A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.
Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.
Rotations and 2017
Happy New Year and welcome to 2017 and a new slate of Prawfs visitors. This month, we welcome (back) Eric Chiappinelli (Texas Tech), Ann Marie Marciarille (UMKC), and Seema Mohapatra (Barry). And thanks to our December visitors.
We were pleased that Prawfs made the most recent ABA Blawg 100. For 2017, we are going to try some new things on the blog, including some month-long symposia on scholarship, real-world events, and whatever else strikes us. And we will continue with our slate of regular and guest bloggers. As always, we are looking for new and returning voices, so please email me if you would like to spend a month (or months) in the conversation here during the coming year.
Finally, reminder about the continuation of a Prawfs tradition with a MarkelFest! Happy Hour at AALS at 9 p.m. this Wednesday, January 4, at Romper Room; they were nice enough to give us the private Leopard Lounge (I report, I don't name), so please help us make it a good showing.
Political Decentralization versus Libertarianism: Should libertarian federalists try to preempt Seattle's collective bargaining law?
Last week, the City of Seattle released its rules implementing a controversial local law enacted last June by City Council protecting the right of drivers working with ride-sharing apps like Uber and Lyft to unionize. The Seattle measure protects the right of for-hire drivers who enter into contracts with ride-sharing mobile apps to organize collective bargaining units and negotiate collective bargaining agreements with the apps. Seattle’s law, however, by its terms covers only those drivers who are exempt from the NLRB’s jurisdiction because they are “independent contractors” (“ICs”) under federal labor law. The local law, in short, applies only where the federal law does not apply: It is precisely this absence of federal oversight that has inspired local labor activists to press for passage of the local laws.
It did not take long for the U.S. Chamber of Commerce to file a lawsuit seeking to enjoin the new law on the ground that Seattle’s law was preempted by either federal labor law or antitrust law. That lawsuit presents a tough dilemma for law profs like myself who are fond of both libertarian policies and regulatory decentralization. If we stand up for city power, then we also potentially undermine the new ride-sharing platforms that have beneficially deregulated the for-hire market. So which are we, really? Political decentralizers? Or libertarians?
After the jump, I will explain why I opt for federalism over deregulation in this case. As with the conflict between local home rule and market freedom, the conflict between federalism and free-markets is best resolved by preferring policy-making options for subnational governments, because those governments provide the best opportunity for each faction, Left and Right, to have a fair opportunity to lobby for their preferred outcome. Only a decision by an elected body open to all comers can achieve that buy-in. Rather than launch a semi-coup using preemption and federal courts, we libertarians need to slow-cook a consensus, using the tools of local democracy and accepting halfway measures, compromises, and (hopefully temporary) defeats that those tools require.
Saturday, December 31, 2016
Will SCOTUS Finally Pick Up the PACER?
"At a time when almost every other federal court has a readily accessible electronic database, why can’t the Supreme Court?"
That was how I ended a post from August 2014. By then, it was already long past time for the Supreme Court to develop something like the PACER electronic docket system that has operated for many years in the lower federal courts.
Friday, December 30, 2016
Two Cheers for old Hickory: How Trump’s revival of Andrew Jackson’s patriarchal politics protects us from white nationalism
Numerous commentators have noted the psychological parallels between the individual personalities and collective followers of Donald Trump and Andrew Jackson. As individuals, both Trump and Jackson shared grandiose narcissism, unhinged anger at personal slights, and love of violence. Trump’s supporters likewise strongly resemble Jackson’s base in their geography and apparent motivation. Both groups hailed from more rural areas of the West and South and seemed motivated by resentment toward bankers and cultural elites perceived to dominate in the nation’s Eastern seaboard centers of education (Boston) and finance (New York City and Philadelphia). The authoritarian beliefs of Trump’s supporters matches the authoritarian personality of their standard bearer. As Herrington and Weiler show, Trumpistas favor “Daddy style” politics – “spanking” rather than “time out” in their memorable phrase – in which a macho leader protects the nation from treasonous insiders (“Crooked Hilary”) and dangerous outsiders. Likewise, Rebecca Edwards has shown how nineteenth century Democrats favored a politics of patriarchy, scorning Whigs and Republicans as effeminate meddlers bent on interfering with the father’s prerogatives to run his household as he pleased.
Should Trump’s opponents be sanguine or scared about the parallels between Old Hickory and Trump? Guided only by the Whigs’ predictions about Jackson’s likely behavior in office, the Jacksonian precedent should give Trump’s opponents plenty to worry about: The Whigs’ alarm sounds almost identical to today’s anxiety about the impending Trump Presidency. Like Trump, Jackson was branded by his enemies as an illiterate, impulsive, thin-skinned would-be tyrant. Jackson did not merely issue authoritarian tweets but actually acted on his authoritarian impulses, arresting a federal judge in New Orleans during his self-proclaimed regime of martial law and hanging British nationals during the Seminole War against the recommendations of his own officers. Henry Clay named his party the "Whigs" precisely to highlight "King Andrew's" allegedly despotic tendencies.
If one looks at the track record of Jacksonian democracy, however, there is reason for Trump’s opponents to take just a little heart. While embracing the same sort of macho rhetoric shared by Trump’s supporters, Jacksonian Democrats actually practiced a libertarian politics extremely friendly to Irish Catholics, the most despised of immigrant groups in the 1840s. Indeed, Jackson’s followers made rejection of Whig and American Party nativism a central plank of the Democratic Party. Moreover, nineteenth century Democrats made protection of personal liberty their Party’s slogan, fighting off efforts to abolish Catholic schools, prohibit the consumption of alcohol, or ban the teaching of the German language.
After the jump, I will suggest that the libertarian and immigrant-friendly tendencies of the Jacksonians were not mere coincidences but had a paradoxical connection to their patriarchal and authoritarian ideology. To summarize, macho patriarchy in America tends to be self-defeating, at least as a path to authoritarian domination. That self-defeating tendency was a boon to nineteenth century democracy, and it might also save us today from any European-style fascism rooted in white identity.
Sponsored Post: Experiencing Trusts and Estates
We’re delighted to have the chance to talk about a casebook that we have forthcoming from West Academic in its Experiencing Series. The key idea behind the books in the Experiencing Series is to incorporate more experiential lessons than the typical casebook. While seemingly all casebooks are making that move these days, trusts and estates lends itself to this approach in particular. We are building on the really terrific teaching materials that have been out for decades now in trusts and estates by keeping many of the well-known cases and building out more documents and some of the key issues that students who will be in small firms will likely face on a regular basis.
We start Experiencing Trusts and Estates with planning for the physical act of death -- that is, planning for durable powers for attorney for health care and for financial matters. We introduce right up front those very basic documents, and the statutes that govern them, to give students a sense of what those documents look like, how they can prepare them using statutory precedents, and some of the problems that attend (particularly) durable powers of attorney for financial matters. Then we introduce the basics of the estate and gift tax regime and the basics of the probate process. All this material gives students a 360-degree view of the field and gets them ready for lessons in the drafting and execution of wills and trusts. Our focus is to introduce students to planning documents and to see how those documents (like spendthrift trusts) are written and interpreted. One of our hopes is that this approach prepares students with the vocabulary and the basic understanding of how documents relate to the more esoteric wills and trust doctrines that they’re learning about. And to make things a little more entertaining, we draw a lot of examples from “wills of the stars” -- from George Washington to Elvis, Michael Jackson, Katherine Hepburn, and Whitney Houston. Experiencing Trusts and Estates will be published this spring and available for fall 2017 classes.
Thursday, December 29, 2016
Streamlining Your Twitter Routine
Twitter can be an epic timesuck, but it doesn't need to be. Here are some tips to make the most of it, for both creating content and consuming it.
For creating content and tracking activity, consider these suggestions:
- Use a scheduling tool. This is my single biggest trick for keeping active on Twitter: I use Buffer. Buffer, like Hootsuite and others, is a scheduling tool that lets you schedule tweets to post at a later date and time (and on multiple social media platforms and profiles). You can also use Buffer plugins that work directly in the apps or websites you are using. My routine includes reading relevant stories on Feedly (which aggregates multiple legal news sources and tech blogs), composing tweets with links to interesting content, and using Buffer to schedule tweets throughout the day rather than tweeting them all at once.
- Tweet a lot at once. If you have a lot to say on one topic, it's okay to occasionally do a series of tweets in short succession (called a tweetstorm, because why not). This article helps explain the mechanics of tweetstorming, and has links to apps that help. Using tweetstorms too often may be spammy, but it can be a good way to focus your energy on tweeting more detailed content in one big burst.
- Set up alerts. You should pay attention to retweets and replies to your tweets, but it can be distracting to always have Twitter open. Instead, set up email notifications or push notifications on your phone. That way, you can respond to replies and monitor activity as needed without being lured to your always-open Twitter tab. Conversely, if you get a lot of activity on Twitter and it's a distraction, disable alerts and instead set aside specific time frames to check your account.
- Don't obsess about follower counts. I don't have a ton of followers, but it's the quality not quantity that matters to me. It takes consistent tweeting and interacting with others to create a meaningful base of followers. You'll frequently gain and lose random followers who have nothing to do with your subject areas -- it may just be someone looking to get followed back (because they, unlike me, are focused on quantity). And occasionally a tweet will make your follower count dip a little immediately afterwards (leaving you to wonder if it was something you said?). For sanity's sake, tune out and pay less attention to the real-time ups and downs of your follower count.
- Check Twitter analytics. It can be frustrating to feel like no one reads your stuff, which seems like a common lament for law professors generally. But Twitter gives you analytics to help gauge the impact of your tweets (such as total impressions, mentions, retweets, and changes to your follower count over time). You can get a lot of info from Twitter analytics from the web version and more limited tweet activity stats in the mobile app. Social media management tools like Buffer also give you analytics. Of course, focusing too much on these metrics can be a timesuck of its own, but it's fun and, if you notice some content always falls flat, you can readjust.
- Accept that your activity will ebb and flow. Resolve to tweet more but certainly prioritize other work and scale back as needed. Consistency may be important but going silent for a stretch of time won't necessarily torpedo your efforts. Don't give up just because you took a hiatus.
For consuming content, Twitter moves fast and you will always miss some updates. Accepting this fact is the key to avoiding frustration, but there are ways to tailor what you see and decrease clutter. Twitter "lists" are the main tool, along with using special apps.