Wednesday, March 04, 2015
A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries.
The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults.
But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?
Tuesday, March 03, 2015
Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.
SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.
This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action). The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction.
Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]
Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.
This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.
Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:
Relative Standing in the Arizona Elections Clause Argument
On Monday, relative standing, or the idea that standing sometimes turns on who is the best plaintiff among the available options, made a brief but noteworthy appearance during oral argument at the Supreme Court.
Financing Higher Education
Thanks to Howard and the Prawfsblawg community for hosting me this month! For some time, I have had an interest in (or possibly more accurately, an obsession with) the question of how we fund higher education--and especially the ethical dimensions of that funding issue. I hope to explore some of those questions here this month.
Obviously, funding issues are very much front-and-center in the law school world these days--but many liberal arts colleges are facing even bigger challenges. Today Sweet Briar College announced that it will be closing at the end of this academic year, though it still has an endowment of $94 million. I thought the board chair's explanation of the decision to close raised an interesting point about the priorities of a nonprofit institution:
Paul G. Rice, board chair, said in an interview that he realized some would ask, "Why don't you keep going until the lights go out?"
But he said that doing so would be wrong. "We have moral and legal obligations to our students and faculties and to our staff and to our alumnae. If you take up this decision too late, you won't be able to meet those obligations," he said. "People will carve up what's left -- it will not be orderly, nor fair."
This is a courageous stand for the chair to take; there is a temptation for self-preservation even at the expense of the larger mission of the college. But even though I think that the board made the right decision, my heart goes out to the staff and faculty who will lose their jobs.
President's Policing Task Force Report
The President's Task Force on 21st Century Policing has released its Interim Report. If you are a criminal law scholar, or someone concerned with the way policing affects our society, there is a lot to love in this 115 page trove of recommendations.
The report is dense and there is so much to say about it. For now I'll just lay out the six "Pillars" addressed by the task force: (1) Building Trust & Legitimacy; (2) Policy & Oversight; (3) Technology & Social Media; (4) Community Policing & Crime Reduction; (5) Training & Education; and (6) Officer Wellness & Safety. Each pillar comes with several "Action Items," detailed explanations, and quotes from those who testified before the Task Force.
In future posts, I plan to comment more specifically on some of the most exciting "Action Items," and on what may be missing from the report. I wonder if anyone in the Prawfs community sees a major gap in these six high level proposals?
Some Questions About Randy Barnett's Latest Ref-Working Post
With another big ACA case before the Court, Randy Barnett has a new post returning to the subject of a number of posts, by him and others at the VC, during the NFIB litigation. He charges that "the left" is newly engaged upon a "political lobbying campaign" aimed specifically at Chief Justice Roberts, consisting of a mix of flattery and threats, to secure what it thinks is the right result in King v. Burwell. I have some problems with, and questions about, Randy's post, but I want to offer a couple of caveats up front.
In broad terms, there are aspects of his post that I either agree with or find plausible. I agree that the mandate case was a trendsetter in recent Supreme Court advocacy. Without more knowledge--the behavior of the press and professoriate of the period between the 1930s and the 1960s, not to mention the Justices, does not seem entirely innocent of at least similar activity--I wouldn't call it unprecedented. But it does seem to have been influential in our own time. The mixture of academic work, social and traditional media commentary, amicus briefing, and contact with journalists, generally aimed at advocating for particular results in the case, was striking. The striking element was not the advocacy as such. It was the mixture of different platforms for making the same argument, and the sense that although some of those actors are assumed by many to serve different goals and follow different professional standards depending on the role and the platform (although those standards are much-contested), what we actually got was people like law professors writing in both scholarly and non-scholarly platforms, for uniformly non-academic reasons and in a way that disregarded those goals and standards. It was the sense, in short, that some professional actors, rather than acting as academics (or journalists), were engaged in a multi-platform political campaign.
It's not clear that this approach worked. But the possibility that it did has made it more likely that the behavior will recur. That's especially true when we combine its potential effectiveness with a number of other factors: the (perceived) high stakes involved; the number of people with at least temporarily strong views on the issues and cases; the lack of clear standards of ethical conduct for both legal academics and a widening swath of news and opinion media; the potential personal gains involved (in reputation, influence, professional advancement, and ego-boosting effects of feeling like a player); and the belief that the other side is engaging in this conduct, leading to fears of being outgunned. I think some of this same cross-platform advocacy happened in Hobby Lobby too, and is happening or will happen again in King v. Burwell.
I personally find this sort of behavior--the mixture of fierce advocacy across different platforms, including academic and journalistic work that ought to be motivated by different goals and to follow distinct professional and ethical standards--distasteful, particularly where legal academics are involved. My reasons vary, but not least among them is that I have the luxury of prizing academic virtues and standards more than I do the results of particular cases. (Of course, all legal academics enjoy the same luxury.) I'm not sure whether Randy thinks any of the same conduct occurred on the right; I also don't know whether he thinks anything other than "working the ref" is ethically problematic. I know that my answer to both questions would be "yes": it did happen on both sides, and that it (arguably, assertedly) involved "working the ref" was not its only ethical shortcoming.
That said, Randy's post raises a number of questions. (After the jump. I apologize for the length, but I didn't have enough time to write a shorter post.)
Monday, March 02, 2015
Stuntz’s Presence In Yates
Last week, the Court decided Yates v. United States, the red grouper case, by a 5-4 vote in favor of the defendant. I’ve blogged about Yates and its oddities before (here and here). In this post I’d like to focus on a connection between Yates and the scholarly work of the late Professor William Stuntz, particularly his work on checking the "pathological" politics of criminal justice. Though he is nowhere cited, the opinions in Yates call to mind Stuntz’s critique of overcriminalization and prosecutorial discretion as well as his suggested solutions, including expanded due process protections.
Entry Level Hiring: The 2015 Report - Call for Information
Time once again for the entry level hiring report.
I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.
Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
This report follows in the tradition of Larry Solum's excellent work over many years.
All PrawfsBlawg entry level hiring report tagged posts.
[Originally posted 3/2/15]
The Dress, Justice Holmes & Erie
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Observing Veteran Teaching
First - thanks to prawfsblawg for the invitation. This site was instrumental in my learning of many ropes when I first began teaching. It helped me through "the market" and my first submission season. More importantly than that, it was a place to find people talking about all manner of things that interested me, including professional development as teachers.
That's where I'm going to start. At Loyola (Los Angeles), where I teach, I have the pleasure at least twice each semester of tenured faculty members visiting my class. Each time, they write up a report about what they saw, share it with me, and then we'll have a discussion about the class. Each time, I've received very helpful feedback. This is, I understand, a standard practice.
But another good way to learn about teaching is to watch other teachers teach. So that's what I'm doing this semester. I've asked around for permission to attend different classes, and every single colleague has said "whenever you want." By semester's end, I will have sat in on about 10 classes. The vast majority will be taught by tenured professors. They'll be lecture classes, clinical seminars, and doctrinal classes with an experiential bent. It's already been valuable to see veterans run a classroom discussion in ways that I have and ways that I haven't, in ways that I might, and in ways that I probably won't ever. It's also been illuminating to experience the classroom from the back of the room and see how things like writing on the board or pacing the front of the room (or not pacing) look and feel to the students, and to see how students react to different techniques.
So it occurred to me that in addition to being observed by tenured faculty each semester, new teachers (doctrinal, clinical, skills, fellows, VAPs, etc.) should probably observe tenured/veteran teachers each semester, at least once. But I don't know that I've ever heard anyone say that this happens, at least not as a requirement. Does anyone's school require such a thing? If so, how does it work?
Sunday, March 01, 2015
Recommending Highly The Black Box Society by Professor Frank Pasquale
This is my last post for this stint (my third) on Prawfsblawg and I want to thank again for inviting me Howard Wasserman and the others who are doing the work of keeping going what Dan Markel, ZT”L started.
I also wanted to share a very interesting, well-written and important book that I’ve been reading this month by PrawfsBlawg alumni @frankpasquale called The Black Box Society: The Secret Algorithms that Control Money and Information. (Amazon). Professor Pasquale is a professor at the University of Maryland Francis King Carey School of Law School of Law. In this book, Frank explains in clear, non-technical English what exactly is going on behind the internet technology we use every day. He explains how the sites we access on the internet are not just collecting information from us, but are selling it to others who are using that information in shaping the information we get back. So, and this among the more benign points, what you get when you run a Google (or other) search is probably very different than what I would. Google is not an automated index nor is a database like Lexis or Westlaw. Moreover, the information collected isn’t just shaping the advertisements we see on the screen, it’s controlling our access to jobs, credit, insurance, security clearances, and housing. As he explains, “you can’t form a trusting relationship with a black box.”
What makes the book of special interest to law professors is that it doesn’t just present the issue, it addresses the lack of legal restraints in the United States to regulate (or even monitor) the information private companies collect and the ways they use it. Frank makes a strong case, as he has in his scholarship, for the role of regulation not just in promoting transparency, but in regulating behavior. As he explains, “If credit scores can be regulated, why not the scoring systems used by digital advertisers and employers?”
Whether we directly use the internet to apply for credit, insurance or jobs, those offering these things to us have full access to extensive data about what we like, what we do, and how we are likely to behave. For example, they know whether we are willing to pay above market price for convenience. We are, he tells us, voluntarily opening our entire lives to commercial organizations who not only lack any obligation to keep our confidences, whose business model is to package and sell them.
While we were worrying about the government listening to our phone calls, we didn’t notice that “the state’s immense powers of compulsion and enforcement can now be enlisted in support of the black box technologies of the search, reputation, and finance sectors.”
I commend the book to you highly, as well as his NY Times Op-Ed overview but in the event you need more convincing, please see what others have said in Science, The New Republic, Slate, and The New York Times.
Thanks, and Happy March!
Happy March, everyone. It’s one of only two months that are also verbs, plus we get March Madness, spring break, and maybe even spring itself. I’ll believe that last part when I see it—we had snow here in Alabama a few days ago, and there’s more in the forecast this week.
With this first post, I mostly wanted to thank Howard, Paul, and everyone else in the PrawfsBlawg family for the invitation to guest blog. But I also had a quick question for my hosts about the Prawfs slogan/tagline: “Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit In A Kind Of Boring Way Until Recently -- Since 2005.” It’s one of the better ones out there (though for pure poetry it may run a close second to “The Internet’s largest image depository of crappy and awesome taxidermy”). I’m a big Prawfs fan, so I’ve never found it boring. I’ve often wondered, though: was there some particular event or creative decision during the blog’s illustrious first decade that allowed it to escape the bonds of its “Kind Of Boring” early history? A new font, maybe? Or more cat GIFs? The end of the writers’ strike?
Anyway, I’m looking forward to spending some time in this delightful, purple-tinted corner of the internet. And I’ll try my best not to drag the blog back to whatever “Kind Of Boring” past existed before “Recently.” Thanks again!
[Updated to reflect that May is also a verb.]
Why Do Peer Review?
A recent post by Steve Bainbridge raises a nice issue: how should we think about peer review? Traditional peer-edited legal journals have established procedures (JELS pays honoraria and blinds; JLS pays but doesn’t; JLEO has fantastic peer comments, etc). But in the last five years, most of the top student-edited journals have moved to some kind of peer system – and many of us are now routinely asked, after a student-led process, to review for publication. That peer review is never paid, and very often professors are asked to review for journals that have never accepted them. *cough. Yale Law Journal I love and hate you. cough* That can frustrate even non-curmudgeons. Why do it?
- For institutional credit. I’m aware of no school that gives formal credit for these student-edited peer reviews. Are you? If so, what does it look like?
- For Law Review credit. One explanation I’ve heard for doing a review for, say, Harvard Law Review, is to motivate them to feel that they owe you at least a rejection on your own work, instead of a magnificent silence. In my experience, there’s some truth in this: doing peer review gives you the email of an AE, and credit with that person. I routinely have succeeded at being at least read by a journal I’d just done peer review with. I haven't yet moved from a read to an acceptance. But I did get a personalized email from HLR once. It mentioned that they had an unusual number of great articles that cycle, which meant that they couldn't publish even good work like mine. I thought that was nifty! Of course, the credit isn't merely transactional: being a peer reviewer means you are an “expert” in the field, which should provide your article some kind of halo effect. Of course, this feeling is a quickly depreciating asset, and never rolls over from year-to-year. Use it or lose it!
- For the love of the game: For those of us who think that student journals should move exclusively to double-blind review, with faculty participation is a veto, participating is a price we should gladly pay. The problem is that the system isn’t perfectly constructed. Law journals should insist that peer comments will be conveyed to authors – this makes the comments much less likely to be petty (“cite me!”) and more likely to be constructive.
Bainbridge argues against mixed peer review systems, but none of his objections strike me as particularly relevant if the process is "student-screen, peer-veto." That is how I understand the system to work at SLR, YLJ and HLR. I don’t know about Chicago – I would’ve thought their selection involves a maximizing formula and ended with a number.
Welcome to March and to our March visitors, some of whom have already begun posting. It is very exciting to welcome several first-time guests: Kevin Lapp (Loyola-LA), Kate Levine (NYU's Institute of Judicial Administration), Cassandra Burke Robertson (Case Western), Adam Steinman (Alabama), and my FIU colleague Eric Carpenter. We also welcome the return of David Hoffman (Temple), one of the original Prawfs.
Thanks to our February visitors, some of whom will be sticking around for another month.
Friday, February 27, 2015
It's white, no blue . . . aaaah
Doesn't this illustrate everything that Dan Kahan, current GuestPrawf Dave Hoffman, and others (including me) have been saying about video evidence? If no one can agree on the color of the dress,* how can anyone agree on whether the force used was excessive or whether the protesters were peacefully gathered and marching?
* It's light blue and gold.
Fr. Theodore M. Hesburgh, R.I.P.
Not just my own University of Notre Dame, but also American higher education and, in many ways, the country has lost a truly great and really good man, "Fr. Ted" Hesburgh. You can learn a lot more about his work and life here. And, the Washington Post's obituary is here.
Fr. Hesburgh was retired by the time I arrived at Notre Dame, but I did have the chance to meet and talk with him several times, including in connection with the University's education-reform efforts. I remember him expressing surprise, and a bit of irritation, when I told him back in 2000 that vouchers and school-choice were still controversial and politically challenging. "I thought L.B.J. and I took care of that back in 1965!", he said. "There are a few details still being worked out," I assured him. God bless Fr. Ted.
Teeth Whitening for Lawyers
Thanks to prawfsblawg for having me and to Dan Markel for having been such a welcoming presence when I first entered academia a few years ago. Most of my posts will focus on areas of criminal law/procedure, but today I want to look at Unauthorized Practice of Law (UPL) rules (proscribing who can practice law, usually defined incredibly broadly, and enforced mainly by bar associations) in the context of a recent Supreme Court decision.
In North Carolina State Board of Dental Examiners v. FTC, decided on this past Wednesday, the Supreme Court ruled that North Carolina's dental board could not restrict non-licensed teeth-whiteners from beautifying North Carolinians' smiles. This case may have more impact on lawyers, and particularly bar associations, than you might think. The Court relied heavily on an earlier ruling holding that bar associations, who used their UPL rules to prevent nonlawyers from providing "legal" services, came under the ambit of the Sherman Act.
Despite that ruling, bar associations continue to apply UPL rules to inhibit competition not only from nonlawyers who wish to appear in court (traditional lawyer activity) but to those who wish to fill out simple contract forms (to purchase a home for instance), or advise a friend on her will. I, and other more prominent scholars, have argued that these rules are not only anticompetitive but also do a great disservice to the 3/5 of American plaintiffs who appear pro se because they cannot afford an attorney, not to mention the millions more who forgo advice on transactional arrangements for the very same reason. The mantra from bar associations is that these rules protect the public interest, but, as in the N.C. dentist case, it is often hard to see whose interest is protected other than the professional degree-holders.
I am curious to see whether this recent case will revive challenges to UPL rules. I am also curious to hear arguments from those who believe UPL rules actually do serve the American public.
It's Been a While
Hi folks. It's a bittersweet pleasure to come back to Prawfs, which was my first blogging home as an academic. I joined the academy in 2004 and blogged here for my first year. I last was on the site as an author in 2005 - October 31 to be precise - the day I left for CoOp. 2005! Remember? When applications were up, SSRN was new, and blogging wasn't stagnant?
Actually, I'm not sure that last bit is true. Yes, law professor blogging has come to taken on an increasingly navel-gazing tone - more posts about socks, rankings, rankings of socks, and sometimes lateral moves. But at the same time, contrary to my predictions, blogs haven't by-and-large consolidated; most of the blogs around in 2005 are still chugging along, and one blog - Volokh - has clearly made a serious, sustained, and substantial contribution to the world in its role in motivating ACA litigation.
Dan Markel believed in this medium. Among other things, he was the first to see that junior law professors would want a place to anonymously gripe about submissions and hiring. I argued often -online and off-that Prawfs fora are almost entirely bad for the profession. I still think I'm correct, but Danny was right to see an unmet demand for community across our various, isolated, schools and subject matter specialities. Danny was a connector. Like so many of you, I feel his loss still in missed connections, phone calls, sometimes presumptuous stories, and scholarship. And like so many of you, I remain astonished by the lack of action in his case. Danny's scholarship was, in some way, about the social costs of crime. It's ironic that his death provides such a clear example of theory in action. Law professors spend so much time on innocents in jail that they sometimes forget to account for the human costs of crime unsolved.
In any event, this month I'll try to engage with these topics, as well as those more evergreen: JD/PhDs (good, bad, scam?); skills education (and its relationship with employment); the problem with p-values; and, of course, promoting an article I've out for submission.
Thursday, February 26, 2015
At CoOp, Ron Collins discusses the ACLU's new 2015 Workplan: An Urgent Plan to Protect Our Rights, which listed 11 "major civil liberties battles" that the organization plans to focus on--none of which have anything directly to do with the freedom of speech or of the press. Ron wonders why, given the ACLU's history and founding purpose. He emailed ACLU Executive Director Anthony Romero about this and was told Romero intends to respond.
I look forward to hearing Collins report on Romero's response. But let me offer one possible (if not entirely accurate) answer: We won. There are no "major civil liberties battles" to be fought or won with respect to the freedom of speech. Yes, we still have situations in which government passes laws or does other things that violate the First Amendment and those must be fought in court. But the First Amendment claimant wins most of those cases and much of the doctrine seems pretty stable at this point; it simply is a matter of having to litigate. Importantly, these do not (or at least do not appear to) reflect a systematic assault on free speech rights across wide areas of the country on a particular matter. There is no overwhelmingly adverse legal precedent that must be changed (compare surveillance), no overwhelming series of incidents highlighting the problems (compare police misconduct), and no systematic assault on a right by political branches or other majoritiarian institutions (compare Hobby Lobby; reproductive rights; voter ID).
The only "major battle" arguably to be fought on the First Amendment is over campaign finance. But the ACLU is famously divided over that issue, with past leaders fighting among themselves and divisions within the current leadership. The rules governing public protest have evolved to overvalue security at the expense of the right to assemble and speak in public spaces, especially at singularly important events (political conventions, meetings, etc.). But there are so many variables at work there, it is hard to see how to create a battle plan on that.
Wednesday, February 25, 2015
Crime, Policing, and CompStat: An OVB/Endogeneity Exacta
Continuing my examination of the Brennan Center report on crime and incarceration, I want to turn my attention now to its treatment of CompStat and policing. The report finds, based primarily on Steve Levitt’s prior work, that policing is responsible for about 0% to 10% of the crime drop in the 1990s and very little in the 2000s; conversely, using city-level data, the report suggests that CompStat contributed to 5% to 15% of the drop in city-level crime. The report quite likely understates the effectiveness of policing and overstates the effectiveness of CompStat.
JOTWELL: Erbsen on Klerman & Reilly on forum selling
The new Courts Law essay comes from Allen Erbsen (Minnesota), reviewing Daniel Klerman & Greg Reilly's Forum Selling, which discusses how particular courts make themselves attractive places for parties to forum shop. The article and the review essay are worth a read.
Tuesday, February 24, 2015
Another twist in the march to marriage equality
Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).
First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.
Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.
Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.
Yale's proposed faculty-conduct code
Inside Higher Ed has the story, here, about what at least some faculty at Yale University are calling "a 'curious' and 'confusing' proposed faculty conduct code threatening undefined sanctions for a mishmash of transgressions." (It strikes me that "mishmash of transgressions" could be the title of a David Lodge book, or maybe a sequel to Lucky Jim.) Here's just a bit from the piece:
The draft, which is not publicly available but which was obtained by Inside Higher Ed, says it seeks to summarize those principles and “provide examples of conduct that falls short of the professional behavior they require.” It continues: “The examples of conduct listed here are not exhaustive, and if a faculty member’s behavior violates the faculty’s shared principles, he or she may be subject to sanction whether or not the behavior is specifically described below.”
Examples of sanctionable behaviors include “arbitrary and capricious denial” of access to instruction or academic resources, failure to contribute to the “teaching mission” of the university “reasonably required” by a faculty member’s program and the failure to meet “reasonable deadlines” in evaluating a trainee’s work or providing career support, such as letters of recommendation. The document does not specify what kinds of sanctions might be meted out. . . .
Do Law School Exams Encourage Bad Legal Writing?
Do law school exams teach lousy legal writing? I am thinking of the “issue-spotting” exam in which the student is expected (or thinks that he or she is expected) to touch on as many issues as possible to demonstrate that he or she did her time in the course, taking notes, briefing cases, and soaking up information. Typically, such exam answers consist of lots of points hurriedly raised and rarely resolved or argued effectively. Such answers often adopt an indecisive “one-hand-other-hand” style of a bad bench memo, noting that there are opposing arguments on a point but not making any effort to evaluate whether and how one argument is better than another.
These symptoms of a certain type of exam answer writing also seem to be characteristics of bad legal writing by young attorneys starting out as associates, at least according to senior partners that I canvassed a couple of summers ago, in an effort to learn how to improve NYU’s legal writing program. The most common complaint was that new hires’ emails, memos, and draft briefs did not make an argument for a particular position. Instead, the novices summarized too much at too great length without arriving at any plain bottom line. “Don’t they know they we’re paid to be advocates?” one lawyer complained. “Clients pay for answers, not encyclopedias,” said another.
Law students, however, pay to take issue-spotting exams. And sometimes I think that this genre corrupts their legal writing later, by causing them to slight the ranking and evaluation of arguments in favor of the spotting of issues and the quick summarizing of arguments without really evaluating them.
I’ve tried to move away from the sort of exam that induces this response from students, and I am inclined to think that, at least with the right sort of exam question, the following piece of advice from Howard Bashman on writing effective appellate briefs should apply to exam-writing as well:
Experienced appellate advocates agree that raising too many issues on appeal hurts, rather than helps, the appealing party. Raising one to four issues on appeal is best; raising a few more issues than that is acceptable when absolutely necessary. In United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982), the Third Circuit endorsed Circuit Judge Ruggero J. Aldisert's statement that "when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them." It does not suffice merely to raise an issue; be sure also to include argument on the point in the argument section of your brief.
Monday, February 23, 2015
John Oliver on electing judges
Obviously, I would disagree with the part that suggests Roy Moore is defying federal courts or federal orders. But the rest, as it highlights the ridiculousness of electing judges and the perverse incentives that creates, just sings.
Sunday, February 22, 2015
Real-Life Exam Questions: Do They Require a "Flipped" Class?
For the last few years, I have given a set of "real-life" exam questions to my students in NYU's required Legislation & Regulatory State course. My basic method is to check the NPRMs pending in the Federal Register for tough questions of statutory interpretation. I also call up my friends working in city, state, or federal agencies to ask for help identifying some tangle of statutory ambiguity -- ideally one with a term that, if taken literally, would defeat the obvious purpose of the law. Faster than you can say King v. Burwell, I can generally get a genuinely impossible statutory mess cooked up by Congress. (For some truly impossible problems arising out of some statutes on energy conservation, you can download my 2014 LRS exam question) The "real-life" context poses some challenges for the exam question writer. Realism requires a completely open universe of materials -- all of the relevant precedents (and they have to decide what's relevant), all of the relevant rules and statutes (ditto), all of the relevant and important comments on an NPRM at regulation.gov. (As an act of mercy, I boil down the key comments in a cover memo). These conditions require me to come up with problems on which there are no publicly available briefs or judicial opinions. Hence, my recourse to NPRMs and pals at agencies.
The open universe presents two big challenges for my students: relevance and reading comprehension. Based on years of training, students sometimes waste space spotting (but not resolving) issues and displaying gratuitous erudition, larding up their answers with recitals of law that, despite their accuracy, are unnecessary for solving the specific problem. Likewise, the complex, nested clauses of multiple statutes can induce basic reading errors (overlooking a "not," for instance), causing large sections of some answers to be nonsense. Figuring out which knowledge is relevant and which, gratuitous is an important skill (especially in a world of stricter pages limits on briefs and limited judicial attention span. So is careful parsing of complex statutes. But neither of these basic skills have much to do with understanding foundational principles that stand in the background of any interpretative problem -- federalism, Presidential versus congressional authority (sources of various substantive canons like Gregory v. Ashcroft or Chevron), the adjustment of powers between past and present Congresses (canon against implied repeal), and so forth.
So I am wondering whether I need to flip my class -- pre-record the lecture on the foundational question (say, textualism's relationship to the enforcement of legislative deals) and spend class time having teams of students work on some real-life practice problems with tangled statutes and oral arguments from volunteers, just to help them read more accurately and write and speak more to the point. Despite plugs from distinguished teachers like Deborah Merritt, I am a bit worried about taking the plunge. In particular, I cannot help but think that "flipping" creates tensions between the teaching of micro-skills (e.g., how to parse ten nested clauses of two different statutes or come up with a a pithy, telling phrase to capture why an apparently relevant canon adverse to one's client is inapplicable to a specific set of facts) and foundational principles. After the jump, a bit more on this challenge of "flipping" and a plea for advice.
The 2016 U.S.News Rankings Are Still Not Out Yet--Getting Ahead on the Methodology of the Law (and Business) rankings
We are fast approaching the date that U.S. News issues it’s graduate school rankings. According to Robert Morse, chief data strategist for U.S. News & World Report, the official date is March 10th but they usually leak faster. Paul Caron at Taxprof blog is, of course, already on this and will probably be first out of the box with the analysis when the time comes, so I thought it might be helpful for those who want to prepare to interpret and explain them to read ahead on the methodology the magazine will use. (this could also be a good time to learn how to set a Google Alert or some other automatic notification method ) There have been some substantial changes in the law methodology over the past several years—so if you haven’t checked this out recently you might be surprised. I also had a look at the methodology for ranking business schools because those seem to have much greater fluctuations than law schools—and indeed found some interesting information I don't know how to evaluate. Out of the 435 programs U.S.News contacted for information, 285 responded but only “127 provided enough data needed to calculate the full-time MBA rankings.” I leave the interpretation to others, but if my math checks out, they’re only ranking about 30% of the accredited programs.
Back to the law school rankings—
There a few things of note—a change I didn’t hear much about last year is that “for the first time” the “the lawyer and judge survey” which is weighted by .15 comes from names that “were provided to U.S. News by the law schools themselves. This change resulted in a much higher lawyer and judge survey response rate than in previous years.” This should be of considerable benefit to schools whose reputations don’t extend far beyond their regions.
Another thing of note is that placement success, weighted by .20, was adapted to reflect “enhanced American Bar Association reporting rules on new J.D. graduates' jobs data” so that , “Full weight was given for graduates who had a full-time job lasting at least a year where bar passage was required or a J.D. degree was an advantage. Many experts in legal education consider these the real law jobs.”
However, “less weight went to full-time, long-term jobs that were professional or nonprofessional and did not require bar passage; to pursuit of an additional advanced degree; and to positions whose start dates were deferred. The lowest weight applied to jobs categorized as both part-time and short-term and those jobs that a law school was unable to determine length of employment or if they were full time or part time.”
It’s also interesting to hear about how the specialty rankings are put together:
I knew that the “specialty rankings are based solely on votes by legal educators, who nominated up to 15 schools in each field. Legal educators chosen were a selection of those listed in the Association of American Law Schools' Directory of Law Teachers 2010-2011 as currently teaching in that field. In the case of clinical and legal writing, the nominations were made by directors or members of the clinical and legal writing programs at each law school.”
Giving Authoritarianism Its Due: Teaching "Western Values" (Like Hobbes' Unlimited Executive Sovereignty) in Shanghai
I am spending the Spring Term teaching U.S. Constitutional Law at NYU's Shanghai campus, a product of a partnership between NYU, East China Normal University (ECNU), and the Shanghai municipal government. One common and completely natural reaction to this program is suspicion that, by dealing so closely with a government not famed for its protection of academic freedom, NYU is somehow selling out its values in order to get a foothold in the Chinese market for higher education.
This February, Yaxue Cao posted one such expression of suspicion on her "China Change" blog: Boiled down to its essentials, her post asked whether Chinese money and oversight caused faculty members to self-censor ourselves or otherwise change what we teach to suit Chinese authorities. In response, I shared my syllabus with Yaxue and, in our ensuing email exchange, I explained that, while I could not speak for anyone else at NYY-Shanghai, I myself am teaching exactly what I want with the usual lack of oversight enjoyed by any prof teaching at NYU in Washington Square. AS an example of my unhindered freedom, my course requires the students to compare U.S. and Chinese constitutional rules and concepts, and, as background for this comparison, I assign "sensitive" documents like the infamous "Document Number 9," an internal Chinese Communist Party document urging careful controls on the infiltration of "western" ideas like constitutionalism, freedom of speech, and civil society into universities and newspapers. Very 敏感, as CCP officials are prone to say.
I am not, however, taking my freedom as an opportunity to preach "western" ideas of constitutionalism (whatever they might be) to my students. Instead, I am inclined to take the CCP's principles about constitutional government seriously and remain agnostic about whether their authoritarian system is better or worse than the American system of speech libertarianism, competitive political parties, and separation of powers. As part of this agnosticism, I have divided my students into two teams, the "Maoist Leftists" (mascots: Mao and Lenin) and "Western Liberals" (mascots: Locke and Madison) who are assigned the job of trying to persuade the Central Political and Legal Affairs Commission of the CCP either (depending on their team) to adopt or reject American-style judicial review, limits on executive power, and limits on subnational discrimination against non-residents (the so-called hukou system). The Maoist Leftists' task of making the case against "western" constitutionalism is just as important as the Western Liberals' job of defending this congeries of concepts. I take Hobbes, Filmer, Fisher Ames (telling Jefferson to mind his own business on the Alien & Sedition Acts), and Lincoln (suspending habeas corpus and telling Taney to go to hell) just as seriously as Locke or Madison in this course.
Why give authoritarianism its due in this way? After the jump, I give my reasons, which are, in brief, that the true experience of a liberal education is to be skeptical about liberalism.
Saturday, February 21, 2015
A tribute to Judge Morris S. Arnold
After law school, Nicole Stelle Garnett and I had the pleasure and privilege of clerking for Judges Morris ("Buzz") and Richard Arnold, in Little Rock. Judge Richard passed away a few years ago. Last week, though, the Arkansas bar hosted a really nice tribute-event for Judge Buzz, and Nicole was able to attend, along with a bunch of former clerks. With her permission, I'm sharing -- and highly recommending -- the short presentation she gave (Download Judge arnold). In a nutshell: "The law matters, even the mundane can be magical, and the government doesn’t always get to win."
Friday, February 20, 2015
Levels of Generality in Means/Ends Analysis
It is a familiar lesson of U.S. constitutional doctrine that the outputs of decision rules will sometimes depend on the level of generality with which their inputs are defined. This theme is perhaps most evident in substantive due process doctrine: Defining a liberty interest in broad terms can increase the likelihood of its qualifying as “fundamental,” just as defining the interest in narrow terms can reduce that likelihood. But generality levels can make a difference in other areas of the law as well. A “right” may be more likely to qualify as “clearly established” for purposes of a qualified immunity defense if we characterize that right broadly rather than narrowly, a “matter” may be more likely to qualify as “of a public concern” when the matter itself is defined abstractly rather than specifically, a “power” may be more likely to qualify as “great substantive and independent” (and hence not implied by the enumerated powers of Article I) if the power is described in general rather than specific terms, and so forth. In these and other contexts, the outcome of a doctrinal inquiry can depend not just on the content of its evaluative criteria (e.g., what does it mean for a right to be “fundamental”?, what matters are and are not of “public concern”?, what does it mean for a power to be “great substantive and independent”?, etc.), but also on how one defines/describes/characterizes the objects to which those criteria apply (e.g., what is the “liberty interest” whose “fundamentality” is at issue, what is the “matter” whose “public-concerned-ness” we are evaluating?, what is the “power” whose “greatness”/“independence” we are measuring?, etc.).
Crime, Lead, and Abortion (Bear With Me on OVB)
Continuing my examination of the Brennan Center report on crime and incarceration, I now want to consider whether the failure to include measures of lead exposure and abortion rates introduce serious concerns of omitted variable bias. In my previous post, I suggested that omitting inflation and consumer confidence probably didn’t raise many concerns since it is unlikely those variables had much impact on crime.
Here, I want to argue that omitting changes in lead exposure and abortion rates is also likely not particularly problematic, though perhaps a bit more so than dropping inflation and consumer confidence.
Given that abortion and lead are thought to be two of the most important causes of declining crime in the 1990s and 2000s, it clearly can’t be for the same reason I wasn’t bothered by the failure to include inflation and consumer confidence.* Instead, for these two variables it seems unlikely that there is a strong correlation between either of them and incarceration rates (though I note at the end that there could be a slightly attenuated one). As I explained before, the bias from OVB grows with both the size of the direct effect of the omitted variable (lead, abortion) on the outcome variable (crime), and with the correlation between the omitted variable and the variable of interest (incarceration). If either is low, the bias is low.
Crime, Inflation, and Consumer Confidence: Unbiased Omitted Variables
As I mentioned in my previous post, the recent Brennan Center report on the effect of incarceration on crime identified fourteen possible factors that could explain crime trends, but included only eight in their regressions. So I wanted to think a bit about how omitted variable bias might throw off their findings. Last post I focused on just one, the failure to control for trends in crack use, and suggested that its exclusion likely leads to report to understate the crime-reducing impact of incarceration.
In my next few posts (spreading these out over several as a concession to “wonky” + “long” = “unreadable”), I want to consider the remaining five variables that didn’t make the cut. I feel like four of them don’t really raise any concerns, but one—the adoption of CompStat—does.
First, the four that don’t matter so much. These are trends in inflation, consumer confidence, lead exposure, and abortion. In this post I’ll consider the first two, and I’ll look at lead and abortion in the next.
Holmes and Brennan
My new article, Holmes and Brennan, is now on SSRN. This is an article-length joint book review of two terrific legal biographies--Thomas Healy's The Great Dissent and Lee Levine and Stephen Wermiel's The Progeny. I use the books explore the connections between Abrams and Sullivan as First Amendment landmarks and between the justices who authored them and who are widely regarded as two leaders in the creation of a speech-protective First Amendment vision.
The abstract is after the jump.
Thursday, February 19, 2015
A Preview of Henderson v. United States
Over at SCOTUSBlog, I have a preview of Henderson v. United States. Here's the opening:
Next Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?
Crime, Incarceration, and Crack
In my first post on the new Brennan Center report on prison’s impact on incarceration, I examined its problematic treatment of endogeneity bias. Today I want to look at how it addresses another tricky empirical morass, namely omitted variable bias.*
To the report’s credit, the authors think through a long list of possible causal factors. In the end, they come up with fourteen:
Omitted Variable Bias: A Quick Primer
The next potentially serious issue with the Brennan Center report that I want to consider is one that arises in pretty much every empirical social science paper, namely the always-present threat of omitted variable bias. I actually want to spend a few posts on this issue, so I thought it could be helpful to start with a brief, nontechnical overview of why and when this is problem for the more non-statistical readers of this blog. That way I can refer back to this in future posts, rather than “see the middle of a longer, more substantive post.” And those already familiar with OVB can just skip this one.
Here’s a simple example to demonstrate how—and when, and to what extent—OVB throws off a model’s results. Let’s say we are trying to understand what causes an individual to engage in crime, and we think those with more education are less likely to commit crime. So we include education as an explanatory variable. However, due to a lack of data, we can’t include any information on whether someone is using drugs. Does this omitted variable matter, and to what extent?
It’s easy to show how it matters. I mean, how much clearer could this be?
Wednesday, February 18, 2015
A Few Words on Why E-Cigarettes Are Still Being Marketed to Children-Even though they are just as addictive as other Tobacco products.
It’s likely that everyone reading this will have heard of e-cigarettes (and vaping) and has at least a vague impression of claims made that they are less dangerous than regular ones. It’s possible that impression comes from the fact that they are advertised heavily in a way that cigarettes are not—at sporting events, through free coupons in the mail, on the radio. They are also available in a multitude of flavors. That wouldn’t be possible unless the FDA had decided that they posed less of a threat to children’s health than other tobacco products would it?
But in fact the FDA has made no such determination. Quite the opposite. Under its authority to protect children from tobacco, the only authority it has to regulate cigarettes at all, the FDA has already proposed a “deeming rule” to put e-cigarettes in the same category as other tobacco products. That is, perfectly legal for adults to purchase and enjoy, but not allowed to be marketed in ways attractive to children. And it’s children who are being targeted here. Kids who have heard anti-smoking warnings all their lives, but are led to believe that e-cigarettes are different. A recent poll out of Utah found that “nearly one-third of teens who used e-cigarettes in the past 30 days have never tried a cigarette.”
So far, the rules are on hold because Congress is concerned that this form of regulation is the first step towards “banning” them, even though that has yet to come anywhere close to happening with regular cigarettes. At the close of its call for comments last July, the FDA had received 70,000 of them.
I haven't read all the comments quite yet, but it's a safe bet that none of them suggest that it's safe for kids to become addicted to nicotine. Or that e-cigarettes are any less addictive. Because they are not. The nicotine in e-cigarettes is the same nicotine as in any other tobacco product. Rather, the claims are about the relative dangers of e-cigarettes as opposed to tobacco ones for people who already smoke. But this post is about people who don't already smoke and aren't yet addicted. And those people are very young. Almost everyone who becomes addicted started well before their 18th birthday. The "peak years" for starting to smoke are between sixth and seventh grade. And the next biggest group is young adults (our students) to whom e-cigarettes are being marketed heavily. Look around your town for the vaping parlors, billboards, and advertisements.
I blogged about this last spring as a gateway to teaching administrative law and will have an article out soon in the Saint Louis University Journal of Health Law & Policy (hi Rachel) in a few months, but the regulatory struggle going on now to prevent the FDA from treating e-cigarettes as it does all other nicotine delivery devices deserves attention as a paradigm of how closely tied our public health system is to politics and how difficult that makes it to protect children.
Collins on Terrorist's Veto
Great post from Ron Collins at CoOp on the need for democratic society's to stand firm in the face of the terrorist veto, which he calls the "savage cousin of the heckler's veto."
Tuesday, February 17, 2015
And more crazy in Alabama
With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.
The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.
First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.
Hail to the Chief
Congrats to Penn Law for choosing Ted Ruger as the new dean of the school. Ted was president of Volume 108 of the HLR (you may recognize the baton), and he had almost mythic status at the school. In fact, that year's parody ("The Cocky Lawyer Picture Show," I believe) had a character named "Rugerman" -- essentially a mild-mannered student turned superhero. The character captured Ted's humble nature as well as his otherworldly abilities. Penn Law is fortunate to have not only Ted but also fellow vol. 108 editorial board member Cathie Struve, seated to Ted's left. (And you may notice a certain senator also named Ted in the picture, seated down the row to the right.)
Crime, Incarceration, and Difficult Empirical Questions: Some Initial Thoughts on the Brennan Center Report
For the past few days, I’ve been struggling with what I think about the Brennan Center’s new report on the effect of incarceration on crime. What has me torn is this:
1. On the one hand, I think the report’s basic claim is likely more or less correct. The report’s central argument is that incarceration’s impact on crime exhibits diminishing returns. As we lock up more and more people in a time of falling crime, that seems like a reasonable claim.
2. On the other hand, the methods the paper uses are simply wrong, and their invalidity has been well documented for nearly two decades. Moreover, while the report’s basic claim is likely true, its estimates of the exact size of incarceration’s impact on crime are almost certainly too low.
Now that second claim might initially seem like the clearly less-important one. So what if they say that prison contributed to 10% of crime’s decline when it should have been 15%? People only care about the general trend. In fact, policy can only really be based on the general trend—social science isn’t like putting a man on the moon. We operate by rough estimates, not fractions of an inch.
Right? Well… no.
Monday, February 16, 2015
Happy Mardi Gras everyone! In honor of the holiday, I thought I’d direct your attention to Chapter 34 of the New Orleans Code of Ordinances, which sets forth most of the rules and regulations governing Carnival in the Crescent City. If you want to know whether you can throw things from floats (generally yes, but not “marine life”—see the section on “prohibited throws”), whether you can throw things at floats (categorical no), whether you can “fasten two or more ladders together” while watching a parade (no), or whether you can you can bring your pet reptile to the festivities (not within 200 yards), you can find your answers here.
Sunday, February 15, 2015
If possible, Alabama could get more confusing
Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.
So how will this play out and what effect will it have?
Friday, February 13, 2015
People have been wondering when law schools would close in the new reality. Here comes a sort-of closure: William Mitchell College of Law and Hamline University School of Law are merging, forming Mitchell/Hamline School of Law as stand-alone not-for-profit with a "strong and long-lasting affiliation to Hamline University." The joint announcement from the associate deans at both schools is reprinted after the jump.
Thursday, February 12, 2015
You say potato . . .
Does anyone know how the federal judge at the center of the Alabama craziness pronounces her name? I have lived in South Florida for too long, so my instinct is to pronounce it Grah-nah'-day. The non-Spanish version (which I have heard some reporters use) would be grah-nayd'.
If the latter, then recent events have earned her a place on the Mount Rushmore of Appropriate Judicial Names, alongside Learned Hand, John Minor Wisdom, and William Wayne Justice.
Lower federal courts and state administrative actions
Thanks to Amanda for her post about her article and the effect of lower-federal-court precedent on state courts. I look forward to reading it and using it in a larger article on the procedural insanity we are seeing between Windsor and the decision this June.
But I wonder if this issue is just a distraction here, partly triggered by Moore's memo and order, which focused heavily on it. Probate judges are not acting in a judicial capacity or deciding cases in issuing (or declining to issue) marriage licenses. They are acting in an executive or administrative capacity, such that there is no such thing as "binding" or "persuasive" precedent. Absent a federal judgment against him, precedent does not act directly on any executive or administrative actor; its force is in the fact that, if sued, the precedent will bind the court hearing the case and the executive will almost certainly be enjoined.
So the non-binding nature of Judge Granade's original decision is in play here. But not because it is not binding on state courts; rather, because it is not binding on other federal district courts. Thus, the possibility of a different district judge disagreeing with Judge Granade justifies a probate judge, acting in an administrative capacity and performing an administrative function, in not immediately following that decision.
Now we have a meaningful federal order
The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.
So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:
1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.
2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.
3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.
4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.
Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2. In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.
Amanda Frost on Chief Justice Moore and the "Inferior" Federal Courts
[The following guest post is by my friend and WCL colleague Amanda Frost:]
Alabama Chief Justice Roy Moore is making news again. As reported on this blog by Howard Wasserman, he has advised Alabama probate judges to ignore an Alabama federal district court’s ruling that Alabama’s ban on same sex marriage is unconstitutional. In a fascinating memo laying out his position, Moore argues that state courts are not obligated to follow lower federal courts’ decisions. I’m very interested in this question, and I recently wrote an article examining the constitutional relationship between state courts and the lower federal courts. (My article was cited by an Alabama Supreme Court Justice Bolin, who concurred in that Court’s decision on Monday refusing to “clarify” the question for the probate judges.)
Thinking Further About Cognitive Effort: Some Additional Thoughts on the "Simms Postulate"
My previous post explored the connection between the “closeness” of a legal issue and the level of cognitive effort that goes into its resolution. In particular, I introduced an idea called the “Simms Postulate.” Named in honor of a dubious but thought-provoking assertion that Phil Simms once made about the NFL’s “indisputable video evidence” rule, the Simms Postulate posits a positive correlation between cognitive effort and the closeness of an issue (or “issue-closeness” for short), holding that the harder a decision-maker works to resolve an issue, the more plausible it becomes to characterize the issue as “close,” “disputable,” “on the borderline,” etc. The goal of the post (football pun intended) was to suggest that the Simms Postulate might be and indeed has been used when judges conduct doctrinal inquiries that turn on the closeness of an issue that has already been decided on its merits.
I have thus far reserved judgment both as to the validity of the Simms Postulate itself and as to its utility as a tool of legal analysis. But let’s now open that door. Specifically, this post identifies and discusses five questions that strike me as potentially relevant to the overall value of the Simms Postulate. To those of you expecting a comprehensive and definitive normative conclusion, I must apologize in advance: What follows is tentative and conjectural, aimed more at beginning an evaluation of the subject rather than completing it. To those of you who like to read short blog posts, I should also apologize. I really didn't intend for this one to go on for so long, but, alas, it may now be eligible for the so-called “tl;dr” treatment. With those caveats offered, however, let me share some highly preliminary thoughts: