Sunday, March 23, 2014
Purely Historical Tests
A few terms back, in United States v. Stevens, the Supreme Court faced the question of whether depictions of animal cruelty constituted unprotected “low-value” speech that the government can freely regulate (like obscenity, fraud, true threats, etc.). The government argued that identifying low-value categories of speech rests on “a categorical balancing of the value of the speech against its societal costs.” The Court, however, rejected this approach as “startling and dangerous,” adopting a purely historical approach to identifying low-value speech categories. The Court later clarified that novel categories of speech can't be deemed low-value unless there exists a “long (if heretofore unrecognized) tradition of proscription” of such speech.
As I’ve written before, I don’t like this test. Calling it a “historical” test gives it a veneer of neutrality, but in practice, it’s so manipulable that it effectively acts as cover for what are, in essence, value-driven judgments. Unless the Court wants to freeze the development of the law completely (which doesn’t seem to be the case here), historical tests necessarily work by analogy. And making analogies inherently requires value-driven judgments: what are the essential characteristics of a historically recognized category of “low-value” speech that makes it unprotected? At what level of generality will one define the historical category of unprotected speech? At what level of generality will one define the “novel” category of speech to which the historical category will be compared?
More broadly, my instinct is that--except in obvious cases--any purely historical analysis works primarily to hide the ball when courts are in fact making broad normative judgments. This is, I think, obviously true within the Court’s substantive due process jurisprudence, where fundamental rights must be “deeply rooted in this Nation’s history and tradition,” but the game is effectively won or lost based on how broadly or narrowly the court decides to define the right in question.
But this is just an instinct, and I’m interested in getting more data points on this. Are there other discrete doctrinal contexts where courts purport to resolve issues based solely on history or tradition? (Off the top of my head, the only other one I can think of is Seventh Amendment civil jury trial analysis.). And am I simply being too reductive and cynical here? Are there good reasons to adopt these sorts of purely historical tests?
Saturday, March 22, 2014
What does/should a law professor write?
My recent post, "What is/should be a law professor?", garnered a decent amount of posts; not surprisingly, as it opened the door to professor-bashing, which is in vogue these days. A major, if not the main, criticism was that law professors write academic esoteria that has nothing to do with their teaching, about which they do not care. Anyone who has both taught and done scholarship either knows this is a false dichotomy, or, imho, hasn't thought creatively about the synergies between teaching and scholarship.
However, having just gone through the spring law review submissions season, replete with offers, expedited requests, and rejections, all toward the realpolitik goal of a top 20 placement, it is clear that something is amiss. A recent poster to "What is/should be a law professor?", AnnOnY, lamented that s/he had a lot of practice experience, and had drafted bar journal articles, CLE manuscripts, practice-oriented articles, and "briefs on very sophisticated and intricate legal issues at the trial and appellate levels." When s/he went on the teaching job market, s/he received few interviews.
Add to this a few of my own experiences: I have used my current and past appellate briefs as teaching tools, and the ideas contained therein to inform my scholarship; one of my low-ranking law review articles has been cited in two SCOTUS cert petitions and was the basis for another scholar calling me a criminal law theorist on par with Joel Feinberg (if only...); and a practice-oriented article in The Champion has been used in public defender training materials around the country.
Based on all this, I'd like to posit that (1) traditional scholarship can be, and often (usually?) is valuable to teaching; (2) low-ranked scholarship can be valuable both academically, pedagogically, and practically; and (3) non-traditional writings, like those of AnnOny, can inform one's teaching and can advance the law (which is the purpose of traditional scholarship). I'd like, therefore, to ask: what does/should a law professor write? And perhaps more pointedly, what writing should a promotion and tenure committee count? And how should it count it?
Wednesday, March 19, 2014
Abu Ghayth Takes the Stand
In a rare move in terrorism (and all criminal) cases, Sulaiman Abu Ghayth took the stand today. We therefore don't have to rely on the government's version of events, which is often strained and unreliable when it comes to conspiracy charges in times of national crisis.
Abu Ghayth testified that just after 9/11, bin Laden summoned him to ask his advice. The very next day, Abu Ghayth began to make propaganda videos and give speeches "based on talking points from Bin Laden." Cross examination will be fascinating, and the government will certainly elicit from Abu Ghayth that he had a "personal agreement . . . [to] do anything he could within his capabilities as a religious scholar and experienced orator to assist” Bin Laden and Al Qaeda.
I have argued that the First Amendment right of assembly should protect even criminal conspiracies when they pose no likelihood of imminent lawless action. This could, in theory, protect Abu Ghayth from criminal charges. On the other hand, Abu Ghayth's case represents the point at which my argument breaks down. If Abu Ghayth was willing to do "anything he could" to help Al Qaeda, why should the government not be able to indict? On the other hand, Abu Ghayth limited this "anything" to religious activity and speech, so should he have any First Amendment protection?
One reason that Abu Ghayth's case troubles me less than many other membership crime cases is that the facts are emerging from the defendant himself, not from the government. But this is legally irrelevant: when one wants to support a group by otherwise protected advocatory speech alone, should that person be able to do so? I have documented many cases where the normative (and perhaps constitutional) answer is "yes." But asked in light of Abu Ghayth's case, the normative answer is "no"; what of the constitutional answer?
I have from Professor Suzanna Sherry of Vanderbilt this unusual and interesting call for papers for her new journal, New Voices:
“I’ve just started a new journal, and I need your submissions of your students’ top-quality work. New Voices will publish only student papers submitted by professors – you submit it with an explanation of why readers should be interested, and if we’re persuaded we edit and publish it along with your explanation as a preface. I’m attaching the first issue, which includes a description of the journal and information on how to submit your students’ papers. The deadline for the next issue is coming up soon, so if you taught a seminar or sponsored an independent project any time in the past year or so, pick out the best paper(s) and send it/them to me right away! And spread the word. --Suzanna PS: The first issue is also available here.”
Think it was his law clerks?
This Fair Labor Standards Act case turned in part on the length of time it takes workers in a poultry processing plant to don and doff protective clothing. Judge Posner conducted an experiment, described on pp. 9-10 of the majority opinion--he purchased identical equipment and video-recorded "three members of the court's staff" taking the clothing on and off.
I guess a Posner clerkship really is a different type of clerkship.
A new justiciability puzzle
The Enforce the Law Act was introduced in the House earlier this month; it purports to allow one or both houses of Congress to sue the President or other executive officers for failing to enforce the laws. The focus is on executive-branch non-enforcement policies, rather than individual enforcement decisions. And it does not include policies of failing to defend laws is court (e.g., what happened with DOMA).
Assuming the bill solves the legislative standing problem (because a clear statement granting legislative standing is enough to solve the Article III issue), any action seeking an injunction compelling the executive to enforce the laws would seem to be barred by the Political Question Doctrine. Is there anyway to avoid that hurdle?
JOTWELL: Coleman on Reinert on meritless litigation
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Alex Reinert's Screening Out Innovation: The Merits of Meritless Litigation (forthcoming in Indiana L.J.), which critiques a host of doctrines for not distinguishing meritless claims from frivolous claims. On a separate note, Reinert's article is terrific and I have tried to get my students to grasp that basic distinction, at least rhetorically.
Tuesday, March 18, 2014
Cartoon Caption Contest Contest
This week's cartoon caption contest in The New Yorker features the following cartoon:
As far as I can tell, what we have here is a nine-member court watching a ping-pong match between two players also wearing judicial robes. I have been puzzling over this one. Is this a routine nine-member court watching two more judges from some other court, a somewhat unusual eleven-member court, a poorly thought out cartoon, or something else? Your suggestions are welcome--to me if not The New Yorker.
Banks and the Social Contract
“Banks ought to consider it as a principle object to promote beneficial public purposes…. A bank is not a mere matter of private property, but a political machine of the greatest importance to the State.” -Alexander Hamilton, 1781, letters to George Washington about the advisability of forming a bank.
“My own judgment is that a bank is a public-utility institution and cannot be treated as a private affair, for the simple reason that the public is invited, under the safeguards of the government, to deposit its money with the bank, and the public has a right to have its interests safeguarded through organized authorities. The logic is beyond escape. All banks in the United States, public and private, should be treated as public-utility institutions, where they receive deposits.” --Louis Brandeis, 1914, “Other People’s Money”
“The presence of that public safety net implies unique public responsibilities on the part of banks and would further seem to imply that if we are no longer willing or able to segregate essential banking functions into an identifiable class of institutions, then the public safety net should be made universally available to any institution that provides a banking function, or it should be eliminated altogether.”--Gerald Corrigan, Former New York Fed Chair, 1983, “Are Banks Special?”
“Make more loans? We’re not going to change our business model or our credit policies to accommodate the needs of the public sector.”--John C. Hope III, the chairman of Whitney National Bank in New Orleans and recipient of $300 million in TARP funds, 2009, as reported here.
In 2008, Henry Paulson sold TARP to Congress and the public as a way to relieve average Americans’ mortgage debts through modifications and other direct relief. Congress passed the Act, and Henry Paulson immediately took advantage of the broad discretion given to him under TARP to inject billions of dollars directly into the country’s largest banks by purchasing preferred shares. Paulson reasoned that this was necessary to allow these banks to start lending again. However, the deal struck with the banks neither required or incentivized them to lend more. Once the banks had money in hand, it became apparent that they had no intention of using the funds to increase credit.
The new experiential-learning requirement
I gather, from Brian Leiter and Paul Caron that the ABA Council of the Section on Legal Education has voted to (among other things) require six (not fifteen) credits of experiential learning of all students. Mary Lynch calls this a "small step" but a step in "the right direction." (My own view, for what it's worth, is closer to Brian's.) Here (thanks to Prof. Lynch) is the language of the relevant new standard:
“one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement. To satisfy this requirement, a course must be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and engage students in
performance of one or more of the professional skills identified in Standard
(ii) develop the concepts underlying the professional skills being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.”
Whatever we think of the merits of this new requirement, it appears that most law schools will have to make some changes -- in some cases, adding and staffing new experiential courses and in others, perhaps, simply changing their graduation requirements -- to comply with it.
Are there new, creative, "outside the box" things that schools and faculties might try? The standard is not entirely open-ended, of course: An experiential course must be "a simulation course, a law clinic, or a field placement." Still, this would seem to leave enough room to create offerings that depart from, even as they build on, the experiential offerings and models with which we're most familiar: direct-service clinics, simulated negotiations, mock-trial and moot-court courses, externships in local (or not-local) prosecutors' and public defenders' offices, etc. Brian has reminded readers that "no law school in the United States is actually equipped to offering 'experiential' learning adequate to the full range of careers lawyers pursue" so it would seem that coming into compliance, in a way that actually helps our students and does not simply protect schools' accreditation, could be a challenge. What do you think most law schools will do, given the new requirement? What could they -- we -- do?
Monday, March 17, 2014
The 1L Canon
From time to time, I like to remind my 1L students that they’re becoming part of a distinct professional community, with shared experiences and a common culture. For instance, the general stresses and struggles that students encounter throughout their 1L year have been similarly experienced by countless generations of lawyers. The 1L experience thus becomes a common cultural touchpoint that they’ll share with any other lawyer they meet.
So occasionally during my 1L Torts class, I’ll tell my students something like: “This is one of those classic 1L cases that anyone who’s been to law school in the last 30 years will remember. If you ever need to make small talk with a random lawyer and all else fails, you can always chat about this case.” I say this in reference to at least two cases during the semester: Palsgraf (of course) and Vosburg v. Putney (the famous “eggshell skull” case).
This made me think about other cases that might be included within the “1L canon”—that is, 1L cases that are both so memorable and commonly taught that they become part of the shared cultural background of anyone (or nearly anyone) who’s gone through law school. Just to be clear, I’m not talking about cases that are ubiquitous merely because they stand for significant propositions; everyone presumably reads Erie and International Shoe as a 1L, but I don’t imagine that many people have striking memories of covering these cases in law school. I’m talking about commonly read cases that stand out as memorable for some reason. This may be because of colorful facts (like the exploding package in Palsgraf), but it can be for other reasons as well; for example, I’d guess that many of us harbor some not-so-fond memories of struggling through Pennoyer as newly minted 1Ls.
Another way of framing the question: if you tell a random lawyer sitting next to you on a plane that you teach Civil Procedure (or Torts, Contracts, etc.), what case(s) would they most likely bring up? Palsgraf and Pennoyer seem to me obvious inclusions; I’d throw Vosburg in there too, although I’m not sure how ubiquitous it is. Any other nominees for cases within the “1L canon”?
Sunday, March 16, 2014
What is/should be a law professor?
As I mentioned in my introductory blog post, I want to wade into the morass of the law schools-today discussion. The theses, from most negative to most positive, are that (1) law schools are a scam akin to a ponzi scheme, intentionally created by greedy institutions; (2) law schools have recklessly fed off of the often unrealistic aspirations of law students, and with the recession have been revealed for what they are; (3) law schools have negligently failed to keep up with the times, and now offer a staid structure of education that doesn't correllate well with student needs; (4) law schools are essentially the same as they always were, in terms of offering value to students; and (5) law schools are doing great, and the legal market is poised for an incredible comeback.
Instead of focusing on macro-economic market forces and whether law schools as institutions are deserving of praise or blame, what can individual law professors do now, to begin/continue a sort of grassroots evolution of law schools? In general, we can revisit our core requirements--teaching, scholarship, and service--and ask what they really entail or what they should entail. I imagine that most of us do this, but bringing this converstation out into the open can do a few things: it can show people what professors actually do, and the value they bring to their students, schools, and communities; it can remind us that we are more than writers of esoteria who visit with students for an hour or two a day in class; and it can inspire law professors to do new things.
So, I have identified, from my own work in the past couple of years, categories of work that may not neatly fit into the teaching-scholarship-service triumverate:
- drafting amicus briefs in appellate cases
- counsel of record in cert petitions before SCOTUS
- CJA appellate work (involving students in representation)
- service on statewide committees to oppose certain legislative measures
- drafting op-eds regarding statewide issues
- serving on university committee involving privacy issues in drone research
- substantive work as member of NACDL committees
- consulting with groups and interviews with media on legal issues
So the questions I'd like to pose are these: in more detail than "teaching/scholarship/service", what do law professors do, and what should they be doing? Instead of offering praise or blame--and there's plenty of each to go around, I suppose--how can we contribute to make our institutions, students, and communities better off?
Saturday, March 15, 2014
Where are they now, St. Patrick's Day Edition
(or Winning by losing and losing by winning)
In 1995, SCOTUS unanimously held that the private organizers of Boston's St. Patrick's Day Parade (a group called the Allied Veterans' War Council) had a First Amendment right to exclude LGBTQ groups from the parade. That decision laid some important free-speech groundwork, particularly in the idea that speech need not have a particularized message to enjoy constitutional protection (citing to works such as Pollock, Schoenberg, and Carroll's Jabberwocky). Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality.
Fast forward two decades. That same organization, armed with a First Amendment right to exclude, still runs the parade. But it is facing increasing political and economic pressure to allow some LGBTQ groups into the parade. The group had been negotiating to allow in the LGBT Veterans for Equality, although those stalled last week, with AVWC accusing a gay rights group of creating an ersatz veterans' group as a "Trojan Horse" to sneak into the parade. Now numerous corporate sponsors of the parade--including Gillette and Boston Beer Co. (makers of Sam Adams)--have withdrawn as parade sponsors.
So the AVWC has its constitutional rights. But so do other people and entities and they are exercising them in a very different direction and in support of very different ideas than they were in 1995. And so that hard-won constitutional victory may end up somewhat empty.
Friday, March 14, 2014
Who will create an astute marijuana litigation and legal practice blog?
Regular Prawfs readers know that I have done some blogging here about marijuana laws, policies and reform because I see so many interesting general legal issues intersecting with the drug war generally and criminal justice approaches to marijuana specifically. Indeed, I felt compelled to start a new blog, Marijuana Law, Policy and Reform, in part because I was interested in writing about broad issues of public policy implicated by modern marijuana reform efforts: as I have said in my marijuana seminar course description, "contemporary state-level reforms of marijuana laws have raised significant new constitutional, legal, political and practical issues; policy concerns relating to states' rights, local government law, race, gender, public health, crime, political economy, and bioethics intersect with modern marijuana law reform."
Now, as the title of this post suggests and largely thanks to some terrific guest blogging by Alex Kreit over at MLP&R, I think the time may be right for an enterprising lawyer and/or law firm to start a blog focused particularly on marijuana-related litigation and emerging legal practice issues surrounding this new industry. I say this based in part on these four new recent posts over at MLP&R which highlight the array of diverse issues and courts now dealing with dynamic marijuana-related litigation:
In this Prawfs post a few months ago, I speculated that green (i.e., young/junior) lawyers may have a uniquely important role to play in the emerging marijuana "green rush" industry: not only may veteran lawyers be cautious and concerned about representing persons actively involved in state marijuana business, but marijuana reform often seems a "young man's game" for which junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena. Now I am thinking, based in part on the posts above, that an especially effective way for a young lawyer or law firm to make a name in this arena (and to learn a whole lot) would be to start blogging astutely about the emerging challenges and opportunities that surround marijuana litigation and legal practice.
Big Mountain Jesus saved . . . for now
I visited the University of Montana School of Law in beautiful Missoula earlier this week, to talk with students and give a public presentation on religious freedom and the Constitution. (Thanks to Anthony Johnstone for the hospitality!). Since I was out there anyway, I decided to do some (ahem) field work, and visit "Big Mountain Jesus," up at Whitefish Mountain Resort (which happened to have recently been gifted with more than two feet of fresh snow). Here is a picture:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
In 2010, The Madison, Wisconsin-based Freedom From Religion Foundation would demand that the Forest Service not renew the permit. While initially agreeing, public outcry led the service to reconsider.
In February 2012, FFRF sued to have Big Mountain Jesus removed from the government owned property.
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Thursday, March 13, 2014
What Makes Lawyers Happy? A Study
My colleague and guru, Larry Krieger, has this very cool new paper up on SSRN (co-written with K. Sheldon), and in the space of a couple weeks, it's already received an avalanche of downloads. Here's the abstract. Smart law review editors should want to get their paws on this since it will be cited a zillion times.
"Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained."
Wednesday, March 12, 2014
"The Silver Bullets Are Coming"
A forthcoming piece of mine focuses on what I call First Amendment “audience analysis”—that is, courts’ determinations of how audiences process speech. When the government seeks to regulate speech based on its content, it generally does so on an assumption that listeners will process the speech in a manner that produces social harm. And because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech. A few scenarios that I think touch on some of the fundamental questions underlying this issue (the first two are actual cases, the third a variation of the famous Skokie case):
- An FBI agent, after conducting a criminal investigation based on a man’s complaint, concludes that the record does not support a prosecution (a decision that the man protests). Three months later, the man leaves the following voicemail for the agent, which frightens the agent and leads to an indictment for threatening a federal officer: "Hope things are well, hope you had an enjoyable Easter and all the other holidays since I’ve spoken with you last. I want you to look something up. It’s known as misprision. Just think of it in terms of misprision of a felony. Hope all is well. The silver bullets are coming. I’ll talk to you. Enjoy the intriguing unraveling of what I said to you."
- Randi sues the publisher of a nonfiction book for libel, based solely on the following sentence: “Maria was eager for news from Randi about a junkie they both knew who was doing time in prison.” She argues that the passage "falsely accuses her of criminality or associations with criminals."
- A neo-Nazi organization holds a rally in a town full of Holocaust survivors. One of the speakers, after praising the policies of the Third Reich, looks out into the crowd and expresses the organization’s desire to “finish the job the Nazis started.” The speaker is charged under a criminal statute prohibiting true threats.
For present purposes, let's set aside any additional doctrinal issues, such as questions of intent or the constitutional value of the speech in question. I'm interested in the basic question of how courts, in determining the extent to which speakers should be held responsible for the harmful consequences of their speech, ought to evaluate the ways in which audiences process speech. Should the guiding principle be how an idealized, “rational” audience should process the speech? Or merely a best-guess prediction as to how the actual targeted audience would likely process the speech--even if this may be "irrational” in an abstract sense? And how much weight should be attached to the fact that, say, the FBI agent or Holocaust survivors actually understood the statements to be a threat? What do people think?
Tuesday, March 11, 2014
Green Bag In Arlington
From page 125 of the forthcoming Winter 2014 issue of the Green Bag, news that would be too dull to justify comment were it not for a melodramatic earlier post:
In our last issue we reported, with regret, a parting of the ways with the George Mason University School of Law. But now, like Liz and Dick, we are happily reunited. Details of this reconciliation, like the details of the parting that preceded it, are not important. Have conditions changed in ways that make it easier for the Green Bag and George Mason to cooperate? Yes. Are those changes likely to affect our readers? No. Are we happy to be back? Yes.
Two other things, however, must be said. First, we are grateful for the kind words and generous offers of support we received from many friends. We have expressed our appreciation piecemeal and sometimes too hurriedly in recent weeks. We now repeat it more correctly: Thank you very much . . . .
Second, “it is an ill wind that blows nobody good.” Commonwealth v. Fourteen Hogs, Serg. & Rawle 393, 397 (Pa. 1823) (We do not know who coined that classic line, but we like the caption that goes with this version, and the ruling: escaping and trespassing hogs should be captured, not slaughtered.). In any event, some of the correspondence triggered by the recent foofaraw has in turn triggered new projects and new collaborations. The results of some of these should reach you, faithful reader, this year. Others will have to percolate a while longer. All-in-all, we think the recent turbulence has been good for the Green Bag, inspiring us to be both more serious and more fun. We – and, we hope, you – will be better-off and happier for it.
Teaching While Woman
I was fairly naïve my first few semesters teaching and thought that I would just be myself in the classroom and I would earn the class’s respect (or "R-S-P-E-C-T"). I’m naturally averse to hierarchy and formality and wanted to run a democratic classroom. I didn’t want to impose draconian rules or shame my students into submission—I worked hard to know the materials and offer it in a way that they would learn it—without having to force them to pay attention by forbidding laptops or cold-calling. The result: my first few semesters were disasters. It turns out that they didn’t automatically see me as an authority and a few loud talkers began to dominate my “democratic” classroom. There was also rampant disrespect and eye rolling. I called on a student once who wouldn’t take the lollipop out of his mouth to answer my questions, which he did in a very dismissive way. (I should mention that my 1L classes were predominantly male at BYU).
I knew things weren’t going well so I asked for advice. It turns out this was happening to a lot of my young, female colleagues. This may also happen to some men, but I just didn’t talk to any who could relate. So below is a short list of advice I received and ideas I came up with. The main thing is that I had to get more confident and some of that came naturally, but there are also ways to fake it till you make it.
Before you trust my opinion, rest assured that things have changed a lot. My classroom is under control and my classes are rated well. I even get comments such as this: “Baradaran is the teacher I am most scared of/need to be most prepared for, etc.” Now, this may reveal an overcorrection, but it’s better than total anarchy and disregard.
- You have to assert that you are the alpha dog right away. This advice came from a young Harvard Business School professor who was also a woman of color. Let me elaborate. Within the first two weeks of each class, without exception so far, there will be one or two challengers to your authority. The challengers will say something like this (usually with an aggressive tone and stance): “You say ____, but doesn’t the case actually say ____?” “I don’t agree with that, isn’t ____a better explanation?” The class will go silent as they recognize this as a small insurgency. You must shut this down. You must do it quickly, painfully, and effectively. But here’s the catch: you have to do it with a smile on your face. You cannot appear threatened or defensive. You need not spare the feelings of the aggressor, but need to convince the class that you are the one who knocks. You only have to do it a few times at most. And then the rest of the class goes smoothly. Even the challenger who was forced into submission comes around and ends up respecting and even liking you.
- Don’t underestimate the importance of body language. A more senior colleague came to one of my earlier classes and she said that when I lectured, I stood away from the podium and used my hands, but when I was asked questions, I stood behind the podium, appearing to retreat. Now, I make sure to spread my arms, put them on my hips, and stand tall. If I am ever challenged, I force myself to assume a power stance. Seems hokey, but it works!
- Be strict. I hate being strict. I’m a permissive parent who was raised by permissive parents. (While my husband has been out of town, I overheard my 6-yr old tell a friend: "my mom is not good at consequences.") But in the classroom, I can’t tolerate tardiness, unpreparedness, etc. I need to be good at consequences. I think this applies to everyone, but it took me a while to learn this lesson.
- Be Kind. Not just because there’s a double standard that women in positions of power must also be likeable. But because you can’t get people to respect you if you don’t respect them. My 1Ls come to class nervous and afraid and I try to be careful with them. I generally stay focused during the lecture, but stay around after class to answer questions and make an effort to know my students and help them out when I can. As opposed to the above, this is not something you can fake. You must actually care about your students or they will see through you.
Let me also say what I do not do: Some of the advice I got was to dress in dark colors and pant suits with minimal jewelry, etc. Essentially, try to tamper down the femininity. I have not and will not do that—the truth is that the J.Crew catalogue is my sirens song and I feel and look silly in pantsuits. I dress professionally and appropriately, but I sometimes wear bright colors or patterns, dresses and jewelry.
I was also told to leave my family life and personal interests out of class. I don’t do that. I inherited a lot of notes from colleagues filled with sports hypos. I changed all those to things I know—dealings with my kids, celebrities I’m interested in, other trivialities that are no more trivial than sports, but where I feel like I’m not faking.
These are just a few things I have learned in the last four years. I’m still new at this so I would love to hear any advice you all have for me or others just starting out.
Monday, March 10, 2014
Letter on cameras in SCOTUS
Yesterday (intentionally timed to the fiftieth anniversary of New York Times v. Sullivan), the Coalition for Court Transparency, a coalition of media and public interest organizations, sent a letter urging Chief Justice Roberts to open SCOTUS proceedings to video. The letter addresses all the familiar arguments for and against video, as well as offering a preliminary step of same-day audio before moving to same-day video.
Northwestern Conference on Best Law Teaching Methods
Northwestern Law and the Institute for Law Teaching and Learning are proud to present: What the Best Law Teachers Do: Educators in Action, June 25-27, 2014, in Chicago, Illinois.
What the Best Law Teachers Do: Education in Action is a two-and-a-half day conference that will provide a forum to hear the insights and teaching techniques of one-dozen remarkable law educators from among those interviewed in Harvard Press’s newly-released book. Our educators will share their insights and teaching techniques over the course of two full days. For more information, to register for the conference and to make reservations our exquisite accommodations, please visit our website.
Deadline Reminder for CrimProf Conference at Rutgers Newark July, 2014
Folks, just a reminder for those who are interested, the deadline for this conference that Carissa Hessick (Utah) and I are organizing is today-ish.
Here's the text of an email that we sent out to the CrimProf list-serv. Not everyone who is interested in this conference subscribes to that list-serv, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me ASAP. Thanks!
Dear Fellow CrimProfs:
Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.
Our friends at Rutgers-Newark have kindly agreed to host. The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd. Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.
Sunday, March 09, 2014
When an Undue Burden?
Recently passed legislation in Texas is effectively closing 44 of 50 abortion clinics in that large and populous state. Meanwhile, in my home state of North Dakota--large, but not very populous--where one abortion clinic operates in the far southeast corner of the state, parties have just settled a lawsuit regarding a state admitting privileges law when a local hospital agreed to give such privileges. Despite the divergent outcomes in each of these two states, isn't the ultimate result the same: people who don't reside near a state's clinic(s) may be unduly burdened when attempting to exercise their constitutional right to an abortion.
Imagine if a Texas or North Dakota law required gun stores to follow clearly unnecessary regulations that forced the closure of most of them, and another law prohibited the mailing of firearms. No doubt people would claim a Second Amendment violation if they had to
- travel hours to buy a gun;
- wait for 24 hours;
- receive information about the alternatives to buying a gun, such as installing home security systems or buying a guard dog; and
- receive information about how guns inevitably result in the death of whole, human lives.
Would this be a Second Amendment violation (not to mention a First Amendment violation as to the last point, something courts in the abortion context have rejected)? If so, should the anti-abortion laws in Texas and North Dakota be unconstitutional as well? What if potential gun purchasers and women seeking an abortion, who live near their state's border with another, more libertarian, state, can travel five minutes across state lines to exercise their constitutional rights? Would this mean that these people lack standing to sue for their state's complete prohibition on gun sales and abortions, because they can exercise their rights? Put another way, may tiny Rhode Island prohibit gun sales and abortions but Texas may not?
The inconsistent answer depends upon whether we engage in a formalist-legal analysis or a factual analysis. Under a formalist-legal analysis, the answer is clearly no, because states may not prohibit that which is a federal constitutional right. It doesn't matter whether Rhode Islanders can easily travel across state borders to exercise their rights. Under a factual analysis, however, the answer is yes. Someone in portions of Texas who wants to obtain an abortion will formally-legally have the right to an abortion in one of the six remaining abortion clinics, but because of distance, cost, etc. will effectively not have that right. Thus, Texas' laws should be struck down because they create an undue burden. Someone in Rhode Island who wants an abortion, however, can (in theory) easily travel to Connecticut or Massachusetts. Factually, she has much less of a burden than someone in parts of Texas.
But this cannot be. There must be a formalist-legal and factual analysis, which courts ostensibly engage in. But thus far, courts have been unwilling to recognize that geographical distance to an abortion clinic might pose an undue burden. Perhaps if the same law were leveled at gun sales, courts would rule differently. While choice is popular among legislatures and courts, apparently it's only the choice to possess an object that can kill. For these institutions, perhaps being pro-choice does, in fact, mean being anti-life.
FSU Law Review Exclusive Review
The Florida State University Law Review will be conducting exclusive spring article reviews over the next few weeks. Any article submitted to this exclusive review between now and March 15th will be evaluated by March 22d. By submitting the article you agree to accept an offer for publication should one be extended. You are not required to withdrawal your article from consideration by other journals, but you may not accept an offer from another journal unless we have notified you with a decision not to publish your piece. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2015.
If you have an article you would like to submit, please e-mail Jordane Learn a copy of the article and your CV at [email protected] with the subject line "Exclusive Spring Article Review." We look forward to reading your submissions.
Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Coulda Been Contenders
Do people have favorite cases/issues for which SCOTUS did not grant cert, but who think that if it had, the resulting opinion might have been impactful, important, or otherwise interesting? Mine is Epton v. New York, 390 U.S. 29 (1968), in which the Court denied cert from the petitioner's conviction for conspiracy to riot, advocating criminal anarchy, and conspiring to engage in such advocacy. The overt acts alleged consisted of speeches and the preparation of leaflets, all of which, according to a dissenting Justice Douglas, would normally be protected by the First Amendment.
As I have argued, conspiracy entails a First Amendment work-around: direct speech prohibitions are generally unconstitutional, but conspiracy charges can effectively quash speech rights. Epton might have responded, answering the "important question," as Justice Douglas put it, "Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected." Id. at 31.
Friday, March 07, 2014
The problem with PowerPoint
Editing Cases for Class
This is my first year teaching on the tenure track, as well as my first year teaching doctrinal courses; to a certain extent, I’m still feeling things out as far as how I’d like to run and organize my classes. This semester, I’m teaching a class on Speech Torts. As you might imagine, the coverage of the course is fairly idiosyncratic, which posed some problems in picking out a casebook: no casebook would hit all (or even most) of the material I wanted to cover in the course, and a significant portion of any casebook I could pick would go unused.
So I decided to put together my own case materials. I’ve largely found the extra investment of time worth it, since I can tailor the course exactly the way I’d like it (while, of course, saving my students from having to shell out $200 for a lightly used casebook).
This has raised the issue of how (and, I suppose, if) to edit cases. My instinct has been to edit on the heavier side so cases are lean and focused on the points I want to emphasize, which leads to more focused classroom discussions and allows me to cover more material. On the other hand, there’s a lot of potential benefit in giving unedited (or very lightly edited) cases to students. Many will go through law school with only limited experience in dealing with cases “in the wild,” and being able to organize multiple issues, plow through complicated procedural histories, and generally separate the wheat from the chaff are all valuable legal skills.
So a question for those of you who regularly edit cases for your classes (and those who have put together casebooks): what is your general case-editing philosophy? I realize that a lot of this will be tied to the specific case and material being covered, but all else being equal, do you tend to edit lightly (or not at all), or do you tend to apply a heavy hand?
Supreme Court Unanimity, T'other Way Around
At CoOp, Gerard Magliocca has an interesting "thought experiment"--I would call it a "question"--about Supreme Court unanimity. He asks: "Can anyone think of a Supreme Court opinion that failed because it was not unanimous? In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?" The discussion is good. (For the record, like at least one other commenter I would have offered Gobitis as an example as well.) But I think the question or its suppositions may get things the wrong way around. Supreme Court opinions don't fail because they're not unanimous; they're not unanimous because they (are about to) fail.
Not always, of course. Really, this question and/or situation is most relevant where the Court is confronted with a politically and socially charged issue that is in the middle of the journey from being uncontested on one side of an issue to being uncontested on the opposite side of the issue. (The best discussion I know of on this is Larry Lessig's earlier con law theory work.) Unanimity at the first end will not rescue an opinion from being overruled when the social and legal consensus has reached uncontestability on the other end. But a lack of unanimity on the Court in the middle period, the stage in which some issue or value is in a period of contestation, is a sympom or indication of that state of contestability. The consensus may resolidify around the earlier view of what is uncontestable. Who knows; maybe the Court's opinion, divided though it may be, will contribute to this resolidification, although I rather doubt it. Other times, the consensus will end up forming at the opposite end of the issue. (And perhaps the Court will help here too, although again I am skeptical.)
We won't know where we stand until there has been some kind of new equilibrium reached. But if and when it is reached, and if the social consensus has formed around a new view of what is uncontestable, then we can look back to that divided (and later reversed or dead-ened) opinion as an indication that the Court took on the issue, not so much too early (although we might conclude that it did), but too early to be in a position to settle the issue, or appear to settle it, with any finality. Until that social consensus has arrived, courts will engage in lots of issue avoidance and other exercises of the passive virtues. On some occasions, they will nevertheless reach a substantive decision on one side of the issue or the other. But as long as that issue is still socially contested, there is little reason to think any court decision will be the final word on the subject.
The comments to Gerard's post offer some possible examples and illustrations. I'm not sure all of them work with the little pattern I've offered above. Some certainly do. Others indicate, in line with Michael Klarman's work, that sometimes the state of contestability on an issue can be in one place for the Court and other national elites and elsewhere with respect to public opinion. Brown's unanimity made an important statement about the state of contestation around issues of segregation on the Court and in similar circles, but did not necessarily indicate the same stage of uncontestability in the South. Bowers, Lawrence, the SSM cases, and the contraceptive mandate cases can all be viewed in light of the fact that we are in a period of active contestation on issues of gay rights. And so on.
Nothing terribly novel here. Just food for thought, picking up on the discussion in the comments to Gerard's post.
Thursday, March 06, 2014
More on United States v. Abu Ghayth
In its opening statement to the jury in the conspiracy and material support trial against Sulaiman Abu Ghayth, about which I posted a blog entry yesterday, the government did not allege that Abu Ghayth helped plan 9/11 or any other terrorist attack. Instead, the government alleged that Abu Ghayth was part of a "global conspiracy" and used his words to recruit fighters to the Al Qaeda cause.
Rachel VanLandingham, a prominent national security scholar and excellent person, has provided a thoughtful counterargument to my first blog post. Given that as well as the prosecution's opening statements, a few additional thoughts are in order, after the jump...
The 2013 Full Hiring Report
Alexander Tsesis, of Loyola-Chicago Law School, has individually contacted all 180 law schools that are members of the AALS and collected all of the hiring data for entry-level law school hires who began in 2013 (i.e., last year's report: this year will be the 2014 hiring report).
I run some analysis of this information below, but let's be absolutely clear: all of the work on this project was done by Tsesis, to whom, if you are interested in this sort of thing, you owe a big thanks. (I'll start: Thank you!)
Following is a data summary that compares the Spring Self-Reported Entry Level Hiring Report for 2013 (i.e., last year's report) to the full data set for 2013 (last year).
To remain consistent with previous analyses, while the Tsesis data spreadsheet contains all hiring information he received, the data analysis includes only tenure-track hires at U.S. law schools.
In the self-reported version, there were reports of 106 tenure-track hires, at 74 different law schools. The complete data set has 127 tenure-track hires, at 83 law schools. So the self-reported version got about 83% of the new hires.
We had only two schools have been reported as doing no entry level hiring in 2013. In contrast, the complete data set has 86 schools reported as doing no entry level hiring.
(86 schools did no entry level hiring; 83 schools hired entry-level tenure-track professors, perhaps in addition to non-tenure-track long-term-contract entry-level hires; and 11 schools did not hire entry-level tenure-track professors, but did hire long-term-contract entry-level hires. This is a total of 180 schools.)
The two sets are quite similar. The biggest difference is in the percentage of fellowships: in the self-reported set, 78% of the hires had fellowships, and in the complete data set, 71% have fellowships.
Here are the schools from which people got their JDs in the complete data set, with the increase in number of reports in parentheses.
Q: How many tenure-track hires in 2013 got their JD from School X?
Yale 21 (+4); Harvard 18 (+2); NYU 13 (+1); Chicago 6; Duke 6 (+1); Berkeley 5 (+2); Michigan 5; Northwestern 4 (+1); Virginia 4; Columbia 4 (+2); Cornell 3; Georgetown 3; ; Other 35.
Schools in the "other" category with two JD/LLBs who reported hires: Stanford; Texas; UCLA.
Schools in the "other" category with one JD/LLB who reported hires: American; Boston U; Brooklyn; College of Mgmt Acad Stud; Diego Portales; Duquesne ; Florida; Fordham; George Mason; Hastings; Kansas; Louisana State; Melbourne; Mexico; Miami; Montana; New Mexico; North Carolina; Oklahoma; Penn; Phillipines (U of); Puerto Rico (+1); Russian University; Rutgers-Camden; SMU; Tulane; UC Davis; Washington (St. Louis); West Virginia.
Here is the full spreadsheet. This includes sheets with (1) All tenure-track and long-term clinical hires; (2) tenure track hires only (this is the data on which I ran the comparison, to be consistent with previous reports); (3) a list of schools that did not do entry-level hiring in 2013; and (4) a comparison of the self-reported data and the full data set. Hires that were not on the self-reported sheet are indicated by a yellow highlight.
Three cheers for Alexander Tsesis!
[Originally posted 3/6/14; edited 3/6/14, 3/7/14 to remove four hires erroneously included; edited 3/9/14 to add one hire erroneously mischaracterized as non-tenure track; edited 3/10/14 to add one clinical and one tenure track hire and to remove Cardozo from non-hiring list.]
Update, 3/7/14: Brian Leiter provides updated placement rates.
The Unfulfilled Potential of "Above the Law"
"Above the Law" has been disappointing. Like a lot of other law professors, I would guess, I'm uncomfortable with some of the anti-law-school rhetoric that Elie Mystal and others have been trading in there. But that's not the disappointing part -- in fact, I think Elie has been largely responsible in his vitriol. (And there have sadly been many deserving targets.) Instead, I'm disappointed that ATL has not fulfilled its promise of being the go-to site for news about lawyers and law schools. Instead, it's been a useful site for *links* to news about lawyers and law schools.
What's the difference? ATL has almost no original content, at least in terms of news. There's a lot of opinion, yes, and that opinion can be entertaining and informative. But most of the time, the opinion is: "Hey, did you see this? Wow! LOL!" I cannot remember any time--any time--where ATL broke a news story. Maybe they have, and I'm forgetting. All the stories I remember start with a brief overview, a link, opinion, a block quote from the original source, and then further opinion. It's like I'm reading Yahoo.
So here's my plea -- do some original journalism! Yes, journalism is expensive. But how many people are working over there? Can't you assign three folks out of j-school or law school each to a "beat" -- law schools, Big Law, and other lawyers and judges -- and set them loose with a modest expense account and time to dig? There's news out there -- do some actual reporting! I suppose it's not the Gawker way, perhaps, but seriously -- how much better would ATL be if it actually broke some of its own stories? It would depend on the quality of the stories, of course. But ATL could make itself into a "farm team" for folks looking to work at the New Yorker, NY Mag, VF, the Atlantic, the Awl, or Grantland. I'd prefer some long-form pieces -- send somebody to X law firm or Y law school to actually do some digging and provide a deeper perspective. But short "Page Six" items would be entertaining as well!
I give ATL credit for its rankings, which were a thoughtful attempt to reconstruct the formula with more emphasis on jobs and alumni rankings. (Full disclosure: SLU placed 47th.) But it's not the investigative journalism that ATL seemed poised to provide when it started. With the proliferation of blogs, there is so much opinion out there. ATL is now a group blog, with some smart folks and smart opinions but just links, not news. I had thought it had the chance to be something a little different.
More on the Civil Rights Division
Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."
But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).
Wednesday, March 05, 2014
More Honest Bob Casey
[But any attorney who seeks to help guarantee that right, in a case in which I believe the crime is sufficiently heinous, becomes per se unqualified for high public office. So, hey attorneys, feel free to help guarantee that right to citizens.]
Down with OCC?
Most banking experts would agree that the Office of the Comptroller of the Currency (OCC) is the most captured of the banking agencies. In fact, given its funding structure (it is paid fees by the banks it regulates), how could it not be? If you don’t believe me, go and read Saule Omarova’s excellent article that carefully describes the OCC’s use of interpretive letters to allow banks to engage in derivatives trading, which is clearly outside the parameters of “the business of banking.” The OCC allowed a historical expansion of traditional banking activities and introduced unprecedented risk into the banking sector without seeking public comment through rulemaking. In addition to allowing banks to engage in risky activities, the OCC also did its best to protect national banks from state consumer protection laws. In other words, the OCC repeatedly asserted that federal consumer protection law preempted state consumer protection law. That would be just fine if there were similar federal consumer protection laws that the OCC or other regulators meaningfully enforced. What it actually did, as Art Wilmarth explains, was to free national banks from any consumer protection law that had any bite. But why wouldn’t you do that if you are funded by fees from the very banks that get to choose you as their regulator?
After the financial crisis, some suspected that the OCC would be disbanded like the OTS. But that didn’t happen. It would appear that actually nothing happened to punish the OCC except some verbal slapping around by Congress. Indeed, Congress—for mysterious reasons—elevated the OCC’s status by making it an independent agency. However, Kent Barnett’s article, Codifying Chevmore (forthcoming in the NYU Law Review), points out that Congress does actually punish the OCC in a way that has huge repercussions for the administrative state.
The article says that Dodd-Frank slaps the OCC with a “Skidmore penalty” for preemption decisions. Meaning: while all the well-behaved agencies get stronger Chevron deference, the OCC now has weaker Skidmore deference. This does a few important new things: (1) alerts the courts that they need to keep an eye on the OCC, (2) sends a strong message of disapproval to the captured agency, (3) codifies Chevron and Skidmore deference (which he calls Chevmore) for the first time, suggesting that Congress knows of and generally acquiesces to the Chevmore doctrines, and (4) establishes that Congress has found another legislative tool for agency oversight—what Congress giveth in agency interpretive discretion, it can taketh away.
The Skidmore penalty is a great message Congress sends to the OCC as to agency preemption. But it does not apply to other OCC decisions. Congress went out of its way in Dodd–Frank to say just that (§25b(b)(5)(B)).So nothing stops the OCC from acting through guidance documents as it did with derivatives. Should Congress use the Skidmore Penalty for other OCC decisions? Other agencies? Which ones? And will it ultimately make any difference to agency decision-making?
Swansea University College of Law Chair In Empirical Legal Studies Available
Swansea University College of Law wishes to further augment its interdisciplinary research through the appointment of a Chair in Empirical Legal Studies. We seek a research leader with training in criminology, social sciences and law whose work is focused in quantitative methods as they are applied to law, institutions of criminal justice, and human behaviour. The successful appointee will also serve as Head of the Department of Criminology within the College of Law.
Applications are invited for the post of Chair in Empirical Legal Studies, reference AC00757. This is a permanent post on the Research and Leadership pathway.
This is an exciting opportunity for the successful candidate to establish themselves as a recognised campus leader on quantitative analysis in the social sciences, responsive to external research income initiatives of UK research councils and European funding bodies. Swansea University is one of the leading natural and physical sciences and engineering universities in the United Kingdom. This post offers an opportunity to bring expertise in the empirical social sciences to complement the cutting edge research being undertaken at Swansea University not only in the natural and physical sciences and engineering but also in the social sciences, the humanities and the professional disciplines.
Applicants should have an outstanding record of international excellence in research achievement and publication over the last five years in their subject area. They will be excellent and enthusiastic communicators of their subject and will demonstrate the ability to provide academic vision for their subject, with supporting evidence of strong academic leadership in research and teaching. In addition to demonstrating a first-rate research publication record (3* and 4* in REF terms), applicants should look to establish their credentials for academic leadership.
The College will be delighted to speak with potential candidates who wish to explore this appointment further on an informal and confidential basis. Please contact the Head of College, Professor John Linarelli [email protected], +44 (0) 1792 295831.
Sulaiman Abu Ghayth, Membership Crime, and the First Amendment
The criminal trial of Sulaiman Abu Ghayth is beginning in the Southern District of New York. Abu Ghayth is charged with conspiracy to kill U.S. nationals, conspiracy to provide material support and resources to terrorists, and providing said material support. See United States v. Sulaiman Abu Ghayth, No. S14-98-cr-1023-LAK. The initial (not superseding) indictment is here. The indictment alleges that Abu Ghayth “urged others to swear allegiance to Bin Laden, spoke on behalf of and in support of al Qaeda’s mission, and warned that attacks similar to those of September 11, 2001 would continue.” In addition to these allegations, the government has alleged the following overt acts: Abu Ghayth agreed to assist Bin Laden by “giving speeches and appearing in al Qaeda propaganda” for the purpose of recruitment to al Qaeda; praised the September 11 attacks; praised other terrorist attacks; and participated in other al Qaeda propaganda. It is also alleged that Abu Ghayth was “engaged in planning and perpetrating federal crimes of terrorism against the United States.” More after the jump...
SEALS Prospective Scholars Workshop
I had the good fortune last summer to participate in the program for prospective law profs (prawfs?) at the Southeastern Association of Law Schools (SEALS) conference. I participated in two mock interviews with folks that I'm sure will be terrific faculty members, and we also got a chance to chat more informally and review their CVs. Luke Milligan and Leah Chan Grinvald are again hosting the workshop this year on August 2 and 3. If you are a potential candidate and are interested in the SEALS workshop, you should contact Luke at [email protected]
Monday, March 03, 2014
Partial Speech-Tort Remedies?
Thanks to everyone at Prawfsblawg for inviting me to guest blog this month.
One of the projects that I'm working on focuses on the ways in which courts resolve speech-tort cases, and on that note, I'd like to pose a question to the room. Most people are I think familiar with the Snyder v. Phelps case, where the family of a marine who had died while serving in Iraq sued the Westboro Baptist Church for IIED after it had picketed the marine's funeral. Although the jury deemed the church liable under Maryland tort law and awarded the Snyder family substantial damages, the Supreme Court held that the First Amendment completely barred any such liability against the church.
But let's say that the Snyder Court instead decided to adopt a more Solomonic approach--let's say that it found Westboro liable for IIED, but it held that the First Amendment applied solely to limit the damages to which the Snyders were entitled. Perhaps they were entitled only to compensatory damages for purely economic losses; perhaps they were entitled to nothing but nominal damages. The Court's rationale would be that while Westboro's speech has some value and thus should have some degree of First Amendment protection, the Snyders should have at least something to show for the social harm committed against them, even if it's only the purely dignitary benefits associated with getting a public pronouncement of IIED liability against Westboro.
Does this sort of partial-remedy approach appeal to you as a potential means for courts to resolve speech-tort cases, or would it bother you? Why? I'm posing this question in the abstract, not in terms of whether such an approach would make sense under the particular facts of the Snyder case. Otherwise, I'll leave the question vague; my sense is that people's gut reactions tend to differ widely on this, so I'm interested to hear everyone's thoughts.
In Why We Need More Judicial Activism (the subject of a great Green Bag micro-symposium), Suzanna Sherry identified the eight universally condemned Supreme Court decisions (Spoiler Alert: Bradwell v. Illinois, Minor v. Happersett, Plessy, Abrams, Buck v. Bell, Gobitis, and Hirabayashi and Korematsu). The unifying theme is that all have been, if not overruled, certainly discredited, such that none remains good law.
But are there cases that remain genuinely good law that are similarly disliked by both sides of political and constitutional debates and that both sides would like to see overruled? Two come to mind.
One is DeShaney. Liberals would like to see the Fourteenth Amendment impose affirmative obligations on government to protect the public; conservatives see affirmative government obligations to protect the public as a possible route to prohibiting abortion (my thoughts here were triggered by Steve's post about North Dakota's personhood amendment, which, as I said in the comments there, arguably overrules DeShaney at the state level and imposes some sort of affirmative obligations on government). A second, I think, is Slaughterhouse. Both sides would like a textually sounder basis for incorporation through Privileges of Immunities (although Due Process incorporation is so well-established at this point that the issue is more formalist). And since that was an economic liberty case, conservatives would like to see it come out differently.
What other cases might fit the bill? And am I wrong about these?
Entry Level Hiring: The 2014 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.
We 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 3/3/14]
An Empirical Analysis of the Infield Fly Rule
The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.
Haters Gonna Hate
One of the most satisfying accomplishments of my career happened just a few weeks ago when I received my first slew of hate emails. They came all at once in response to my New York Times Op-Ed about post office banking and each one brought a smile to my face. (That’s not fully accurate—the three page hand-written letter I got from a prisoner in Georgia who informed me how difficult it is for him to even get stamps from the post office, let alone a loan, made me really sad). But I was cheered up when the Breitbart blog disparaged me and Elizabeth Warren in the same sentence—that just had me downright blushing. I was also flattered by the article that said that I was hiding my past as a high-powered bank lobbyist at Davis Polk—if only! Let me be clear, I’m not talking about nasty personal attacks that some of my friends have dealt with. I was just incredibly impressed by people who read the Op-Ed, disagreed with it, and took the time to write me a long substantive email. Although I did write each one back individually to thank them for their emails (except for the creepy ones), I would like to answer just a few general criticisms to post office banking here:
I have written about Post office banking in an article two years ago and more recently, in an essay on the HLR Forum so if you really want to disagree with me, those other sources will give you more to work with.
Sunday, March 02, 2014
Legrand and Werro on the Doctrine Wars
The following guest post is a contribution to the conversation continued by Rob Howse here earlier.
Professor Pierre Legrand teaches at the Sorbonne and has been visiting at the University of San Diego Law School and at Northwestern University Law School. Professor Franz Werro teaches at the Université de Fribourg and at the Georgetown University Law Center.
When It Would Have Been Better Not To Talk About a Better Model
So, the German Wissenschaftsrat — a government body concerned with the promotion of academic research (broadly understood) — suggests that legal scholarship should become more interdisciplinary and international. And the American Bar Association — a non-government body devoted to the service of the legal profession — opines that legal education should become more practical and experiential. These pro domo pleas featuring their own interesting history and having generated much debate already, we want specifically to address Professor Ralf Michaels’s reaction.
Saturday, March 01, 2014
Should the government be required to recognize and protect life?
I'm writing to you from beautiful Bismarck, North Dakota, where I spent the day speaking with folks about SCR 4009, commonly known as the Personhood Amendment. It will appear on the ballot this November, and if it passes will become part of the North Dakota Constitution. Here's the language, which is similar to failed amendments in Mississippi and Colorado:
"The inalienable right to life of every human being at any stage of development must be recognized and protected."
This is, of course, an anti-abortion measure that, because of the Supremacy Clause, will have no direct legal effect on abortion, but that could prohibit IVF treatments, DNR orders, living wills, the right of pregnant women to refuse certain prenatal prescriptions and make decisions regarding childbirth, and the right of all of us to make many medical decisions. It also suggests that North Dakota would now have a positive duty to "protect" life, as opposed to the more typical negative requirement that it generally not interfere with people's lives.
Having become somewhat of an expert on this amendment, I'm struck by a few things. First, this amendment turns constitutional law on its head, imposing on North Dakota a German-style positive duty to undertake a panoply of measures (state-provided housing and food, anyone?). Second, it was approved by our legislative assembly without regard to these potentially wide-ranging consequences. Third, and maybe most interestingly, it raises a more theoretical question: what role should state or federal governments play in "recognizing" and "protecting" life? Should states have a positive duty to recognize and protect life, or would that turn them into unworkable and bankrupt socialist utopias? What, indeed, is "life" for purposes of protecting it? At this level, the Personhood Amendment ceases to be a political issue and becomes one of fundamentally restructuring social and governmental systems.
Waldron v. Seidman, and the obligations of officials and the rest of us
"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience. Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me." I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the "meta" title and not make broader generalizations just yet.
Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation. There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).
Thanks to Dan and the rest of the Prawfs folks for having me as a guest blogger during March. I'm an assistant professor at the University of North Dakota School of Law and am currently doing a semester-long visitorship at New England Law | Boston. I teach criminal procedure, sentencing, constitutional law II, and First Amendment, and write at the intersection of First Amendment and criminal law, specifically "group" or "membership" crime, with an occassional dash of national security. You can find some of my representative work here, here, and, currently making its way through the spring submissions season, here.
Some of the issues that particularly interest me, and that I hope to explore during this guest blogging stint include: the role of the law professor in the "new" law school milieu of practice readiness, etc.; the role of the law professor as public intellectual, as Nicholas Kristof has recently discussed; and the abiding importance of scholarship for teaching and society, and how it can be understood and contextualized. Maybe I'll get to these, and maybe other events will unfold.
Friday, February 28, 2014
As March approaches, I just wanted to take a moment to thank our February guests, some of whom will linger as they get some remaining thoughts off their desk, and also to welcome our band of visitors for March: Erik Gerding from Colorado (with a new book to promote!), Steven Morrison from U North Dakota, Mehrsa Baradaran from Georgia, and David Han from Pepperdine. Thank you all for being part of the conversation and community here!
New York Times v. Sullivan at 50
As the faculty advisor to the Alabama Law Review, I'm delighted to note that the Law Review today is hosting a symposium on the 50th anniversary of New York Times v. Sullivan. The editors did a wonderful job putting together a great list of speakers. We are welcoming Judge U.W. Clemon (ret.), who not incidentally was the first African-American federal district court judge in the state; Judge Robert Sack of the Second Circuit; and Professors Sonja West (Georgia), Mark Tushnet (Harvard), RonNell Andersen Jones (BYU), David Anderson (Texas), and Christopher Schmidt (Chicago-Kent). I'm especially happy that the Law Review, in selecting these speakers, has recognized that the Sullivan decision is more than one thing: it's a speech case, to be sure, and an important press case, and an important case in comparative constitutional law (sometimes accepted, sometimes rejected), but it is also fundamentally a civil rights case, an aspect of the decision that is sometimes omitted. I'm glad in particular that students in and from Alabama, where the case began, have made an effort both to commemmorate this important decision and to spotlight its crucial civil rights aspects. I'm looking forward to a great day and want to praise the students who put this together. If you happen to be down the road enjoying a late breakfast at Rama Jama's or an early lunch at Dreamland, y'all come.
This being a blog, I will also link to a recent piece of mine on institutional actors in New York Times v. Sullivan, which doubtless is flawed but attempts to (1) think about the press, the civil rights movement, and the courts as institutional actors in the case; (2) ask questions about the long-term status of Sullivan as a canonical constitutional case; and (3) offer a puckish point in a footnote about Professor McConnell's excellent recent discussion of Citizens United as a Press Clause case. That point links my interest in law and religion to my interest in freedom of the press, and I believe Prof. West's paper today will take up a similar topic. Given similar concerns about identifying "religion," "churches," and "the press," it may be that church-state scholars can and will have something to add to thinking and writing about the Press Clause.