Saturday, December 27, 2014
Leo Strauss Man of Peace-Thanks to Paul HorwitzMany thanks to Paul for the great shout out about my new book Leo Strauss Man of Peace. Followers of PrawfsBlawg can get a sense of what I'm up to in the book in this NPR interview I did-the Leonard Lopate Show. http://bit.ly/1vh4YV4. There will be a launch event at NYU Law School on January 26, where Benedict Kingsbury will give introductory remarks and Seyla Benhabib will discuss the book. One of the discoveries I made in researching it was Strauss's course on Hugo Grotius, often considered the founder of modern international law. And also thsnks to Joseph Weiler for his appreciation of the book on EJILTalk, making it a "must read" pick for 2014.
Friday, December 26, 2014
Robert Howse, Leo Strauss: Man of Peace
Happy holidays to all. If you have an Amazon or Barnes & Noble or what-have-you book certificate lying around from the holidays, I'm happy to recommend a new-ish book by our friend and occasional Prawfsblawgger (and one of my former teachers) Robert Howse, Leo Strauss: Man of Peace. We have been behind the times here recently at Prawfsblawg. On the whole, given the times, I think that's a good place to be. But there are exceptions, and this is one of them: the official publication date of the book was mid-September, and we should have been shouting it from the rooftops long before now. My attention was called to the book by this review of it at The National Interest. And here is a review in the LA Review of Books. The book is also available on Kindle, so there's no reason you shouldn't own it seconds after looking at this post. Congrulations on the book, Rob! Here's a book description from Amazon:
Leo Strauss is known to many people as a thinker of the right, who inspired hawkish views on national security and perhaps even advocated war without limits. Moving beyond gossip and innuendo about Strauss's followers and the Bush administration, this book provides the first comprehensive analysis of Strauss's writings on political violence, considering also what he taught in the classroom on this subject. In stark contrast to popular perception, Strauss emerges as a man of peace, favorably disposed to international law and skeptical of imperialism - a critic of radical ideologies (right and left) who warns of the dangers to free thought and civil society when philosophers and intellectuals ally themselves with movements that advocate violence. Robert Howse provides new readings of Strauss's confrontation with fascist/Nazi jurist Carl Schmitt, his debate with Alexandre Kojève about philosophy and tyranny, and his works on Machiavelli and Thucydides and examines Strauss's lectures on Kant's Perpetual Peace and Grotius's Rights of War and Peace.
Tuesday, December 23, 2014
Teaching emotionally charged subjects, ctd.
The conversation, promptly most prominently by Jeannie Suk's New Yorker piece, is turning to trigger warnings, at least according to this piece from Slate/Inside Higher Ed. Shorter version from most of the people interviewed: "Of course we should teach sexual assault and other sexually related subjects, but let's be sensitive." "Sensitivity," among many of those interviewed, seems to entail some combination of not cold-calling or providing trigger warnings. Note that the conversation is not only about sexual assault; it also is about "discrimination," which means, if taken seriously, a trigger warning for any Con Law, Fourteenth Amendment or Employment Discrimination course.
Eye of the Beholder
Historically, case law has been hesitant to define what constitutes “art.” However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here. All of this being said, I am reminded of a painting that I once saw in a law professor’s office. It was of a nude woman, clearly artistic, and certainly not pornographic. Yet, I imagine that some students and other visitors were likely uncomfortable with it. A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in. Should some art be off limits in the office – even in law schools?
"I've got a lot of problems with you people...!"
Today is one of my favorite made-up holidays: festivus (for the rest of us!) Somewhat amazingly, Festivus, the Seinfeld-inspired "holiday," has become a real thing in some places. According to that most-reliable source, both Wisconsin and Florida have displayed Festivus poles as part of their official winter holiday displays. Former Representative Eric Cantor apparently once held a Festivus fundraiser (although we can now see how that fared). This year, prominent politicians, such as Rand Paul, are finding their Festivus spirit, with Paul even hinting at a 2016 presidential run during his #festivus themed Twitter activity this morning.
So..air your grievances; engage in the feats of strength; and hope for a Festivus miracle!
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Modesty About the System's Ability to Find Truth
The big criminal justice related cases, at the moment, are the killing in Ferguson and Rolling Stone's UVA gang rape story. It is remarkable that in both cases, a key lesson is that witnesses cannot be trusted. Of course, it has long been known that eyewitness identifications are unreliable. But it is becoming clearer that statements about what people said and did, or where they were, are not necessarily so.
And yet, prosecutions for perjury are apparently rare--other than in cases involving financial benefits or demonstrable harm. The Ferguson prosecutor, for example, is giving a pass to witnesses who lied on both sides, perhaps because prosecutions would have a chilling effect on future witnesses. For the most part, then, there is no real deterrent to lying.
Another disturbing piece of the puzzle comes from J. Guillermo Villalobos and Deborah Davis, psychologists at Nevada-Reno, and USF Law Professor Richard Leo. in Honest False Testimony in Allegations of Sexual Offences, they propose, essentially, that the general social context, coupled with use of alcohol and the plasticity of memory make it quite possible for two people to testify honestly about very different versions of a single event. The paper is about sexual assault cases, but the moral certainly extends beyond that.
My reaction is that we should recognize that criminalization comes with significant costs, which likely include a signficant error rate. For rape, robbery, murder, and the other common-law felonies, there is no choice but to criminalize, even recognizing that mistakes will be made; the alternative is too terrible. But for lesser forms of undesirability, perhaps greater caution is warranted.
Sunday, December 21, 2014
Law Professor Poetry
Poetry by law professors and lawyers is a pretty rare thing; the doctors had William Carlos Williams, the insurance industry had Wallace Stevens; and James R. Elkins recently edited an anthology of poems about the practice of law, but I am unaware of any lawyer-poets as famous as Williams or Stevens or their ilk. [Update: Of course, Stevens was a lawyer, New York Law School class of 1903. My mistake.] A lot of legal poetry is, for some reason, in the form of haikus about cases, practical stuff.
One law professor taking a shot at serious poetry is Case Western's Lawrence Mitchell, a distinguished writer in traditional legal styles. His poems on Youtube include work on Robin Williams and on what is surely the most common topic of poetry.
Professor Mitchell's Youtube channel is here.
Friday, December 19, 2014
Civ. Pro. is the New Black
And...they're off! My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black." Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern. Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick. Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers. Various other prisoners attempt to intervene. I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.
I always feel nervous while my students are taking their exams. Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.
In this way, I suppose the exam is also an assessment of me as a teacher. Here's to hoping I pass!
Should En Banc Review Correct Obvious Errors?
There's recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge's remarkable suggestion that the majority had responded to "[p]rejudice and fear." According to Judge Thompson's dissent, the majority opinion will "ultimately be shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II."
In this post, I will entirely bracket the merits--important as they are--and focus instead on a procedural issue that actually leads off Judge Thompson's dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though "not ... unimportant," was also not of "exceptional importance." The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson's position offers an interesting point of comparison to Supreme Court practice.
Thursday, December 18, 2014
Unlikely Holiday Films
One of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983). This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best. It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus. Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity). What are some other great films set during the holiday season that have useful clips for the classroom?
The '60s, ctd.
Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.
In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).
* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.
Civil Procedure "Creativity" Extra Credit
Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course. About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!" I show all of the projects at the beginning of the review session the day before the exam (earlier today). In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices. They often do things well beyond what I expected. Below the jump I've posted some of my favorites from this year. Enjoy!
New Law Teachers' Workshop at SEALS
This year, in addition to the terrific New Scholars' Colloquia (early-morning panels of papers from new scholars, with each presenter assigned a mentor/reviewer), the Southeastern Association of Law Schools (SEALS) will be offering a New Law Teachers’ Workshop. It will include a variety of panels designed to prepare the new (or newer) law professor for his/her new career. This also is in addition to the Prospective Law Teachers' Workshop, which does mock job talks and interviews for people (usually VAPs/Fellows) about to his the market.
Details (courtesy of SEALS macher Russ Weaver) after the jump.
Wednesday, December 17, 2014
Paul rightly links the request by some students to delay exams in light of events in Ferguson, New York, Cleveland, etc., to the '60s, when students were similarly protesting about the war, civil rights, etc.
Let me ask a different question that relates back to the issue of exams and coverage on hot-button subjects and contexts: How did professors handle discussing and testing on the subjects that ruled the day 40-50 years ago and how did students react? After all, just as students then were similarly too busy protesting the war to deal with exams, they were also similarly emotionally invested/triggered by these issues (after all, many of them were a student deferrment away from maybe fighting in the jungle). So did profs feel free to ask questions about protesters and demonstrators getting arrested? What about the constitutionality or wisdom of US conduct in Vietnam or Cambodia? What about the constitutionality of the Voting Rights Act or C/R/A of 1964? And did students object to such questions when they appeared on tests? And if not, what should we make of that difference?
An Interesting Op-Ed on Delaying Exams, and its Consequences
The National Law Journal has this op-ed from a law student, titled (although the author probably didn't write the title) "Delaying Exams Is Not a Request from 'Coddled Milennials.'" It concerns, as the author writes, students at various law schools who have "requested that their administrations allow extensions on final exams for students who have been confronting the aftermath of the recent failed grand jury indictments of the officers who killed the unarmed black men."
The Developing Law of Rotating Credit Groups
Here's a quick summary for how rotating credit groups work, drawn from Eric Posner's thoughts about them in The Regulation of Groups: The Influence of Legal and Non-Legal Sanctions on Collective Action, 63 U. Chi. L. Rev. 133, 169-70 (1996):
[A] rotating credit group typically consists of a small number of people . . . who periodically contribute money to a pot. At the beginning of each period, one member takes the pot. Members determine the recipient by lottery or bidding. Failure to make timely payments and other breaches result in nonlegal sanctions such as criticism that, carried along the channels of gossip, injures the defaulter’s reputation and may lead to social ostracism. When everyone has taken one pot, the group dissolves.. . . [P]articipation in a rotating credit group either reduces the time necessary to save up to buy an indivisible good or earns interest.
These "money clubs" are often ways for ethnic groups or small groups of close friends and/or family to build capital outside the formal banking system. The clubs have roots that extend back centuries -- but they continue to exist in the US even today. Korean-Americans are particularly reliant on "gyes" or "kyes" -- but there are analogous money clubs in communities of, for example, Mexicans ("tanda" or "cundina"), Japanese ("tanamoshi"), and those from the West Indies or West Africa ("esusu," "sou-sou," or "susu"). Among legal academics, Lan Cao has a canonical article about these financial instruments -- Looking at Communities and Markets, 74 Notre Dame L. Rev. 841 (1999) -- though there are many anthropological studies of these practices, too. Perhaps Geertz's The Rotating Credit Association: A "Middle Rung" of Development, 10 Econ. Dev. & Cultural Change 241 (1962), is the most famous.
The Price is Right
December marks the start of the season for faculty job offers – as few and far between as they may be in this economy. In the “old” days, salaries and perks were likely much more flexible. Is there much room for negotiation, or will candidates jump at the chance to accept any offer, just to have a foot in the door? In our current economy, what can one realistically ask for and receive?
Suk, "The Trouble with Teaching Rape Law"
Adding to the conversation about teaching and testing on controversial or emotionally charged subjects, here is Jeannie Suk (Harvard) this week in The New Yorker. (H/T: My FIU colleague Eric Carpenter). Of course, sexual assault fits into the first category, in that the subject itself is emotionally charged regardless of the context in which it is presented or tested. Obviously, I share Suk's conclusion that it is too bad that we are moving in this direction--and that it is bad not only for law students, but also for law and legal reform.
Can Justice Kagan Narrow Heien v. North Carolina?
Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding--that police act constitutionally when they make certain mistakes of law--and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the "other" rule of lenity--that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police's "good faith." And then there's the historical dimension of Heien. So, as expected, Heien is a big decision.
For now, I'd like to focus on how lower courts will construe Heien in light of Justices Kagan's concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan's decision to join the majority may seem somewhat surprising. But the content of Justice Kagan's concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan's concurrence might be an example of "aspirational narrowing." It's less clear that Justice Kagan's efforts will be successful.
Tuesday, December 16, 2014
But can I wear my "Fuck the Draft" jacket?
From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:
No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.
Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?
Dodson on Twombly Creep
The following is by Scott Dodson (Hastings):
Yesterday’s Supreme Court’s opinion in Dart Cherokee held that a notice of removal need not be accompanied by evidence of the amount in controversy in a CAFA-removal case. The Court split 5-4 on the nerdy question of whether the Court could even review the issue itself because the Court of Appeals declined, in its discretion, to hear the appeal from the district court. That latter issue got quite a bit of play at oral argument, and coverage of the opinion’s resolution of that issue has overshadowed the Court’s decision on the merits, which pretty much everyone—myself included—thought fairly obvious.
But there’s something funny, and potentially important, in the merits part of the decision that people seem to be overlooking.
Erie and/in the District of Columbia
An otherwise routine decision this morning from the D.C. Circuit raised a question I must confess to never before having considered: Why do the Article III D.C. district court and D.C. Circuit consider themselves bound to follow the Article I District of Columbia Court of Appeals on questions of "District of Columbia" law? After all, (1) D.C. is not a state; and (2) D.C. is not covered by the Rules of Decision Act (which, unlike plenty of other federal statutes, does not treat D.C. like a state); and (3) the provisions of the D.C. Code (and, presumably, the decisional law of the D.C. Superior Court and D.C. Court of Appeals) are, for constitutional purposes, federal law--such that it's not even clear the Rules of Decision Act would apply even if it did treat D.C. as a state. Thus, not only is a federal court sitting in diversity and applying D.C. law not bound by the Rules of Decision Act to follow the decisions of the D.C. Court of Appeals; there actually is something that seems untoward about an Article III court being bound by a non-Article III court's interpretation of federal law--even where that federal law is only of local applicability.
Fortunately, hours ten minutes of research led me to the following footnote in a 1979 D.C. Circuit decision, which appears to be the originating citation for all subsequent statements that the Article III D.C. courts defer to the D.C. Court of Appeals on questions of D.C. law:
We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64 (1938). In the first place, Congress, when [it bifurcated the D.C. courts into separate Article I and Article III tribunals in 1970], did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. Secondly, the constitutional considerations discussed in Erie have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.
Nevertheless, we have in past diversity cases looked to the District of Columbia's courts to provide the applicable choice of law principles and substantive rules of decision. That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law . . . . Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts neither of which could review the other's decisions would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.
Other than the suggestion that the D.C. Court of Appeals should have the final say on D.C. law (a matter which, again, seems to ignore the extent to which D.C. law is federal law, at least for constitutional purposes), this argument seems quite persuasive to me as a normative matter. But what it means in practice is that the only reason today that Article III judges must defer to the D.C. Court of Appeals on questions of D.C. law is because the D.C. Circuit itself has said so--and so stare decisis, and not the Rules of Decision Act or principles of federalism--carries all the weight (and would not bind federal courts outside of the D.C. Circuit in diversity cases in which choice-of-law rules compel application of D.C. substantive law).
Let’s Make a Deal
Negotiation is a skill that every attorney needs to have in his or her tool box, but it is not a required course in any law school of which I am aware. As one who is certified in ADR from one of the best programs in the country, I can honestly say that I use these techniques on a daily basis – on and off the clock. Although this topic is non-doctrinal and is not tested on any bar exam, it is a skill that every law student should learn before entering practice. Should it be a required third-year course? Why or why not?
Monday, December 15, 2014
Pfander on Dart
SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.
James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):
Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters. As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision. Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction. There were no adverse parties joined and nothing was contested.
It’s here that the construct of non-contentious jurisdiction can help. If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.
(Mis)trusting States To Run Elections
The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law. I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews. But that is unfortunate, because it is both doctrinally wrong and practically dangerous.
As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice. Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny. Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest. But often the state is not really trying to achieve election integrity, at least not principally. There are often partisan motivations behind an election regulation. How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters? Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.
Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face. Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.
After the jump I explain the problems with this approach.
Sunday, December 14, 2014
Promissory estoppel in emotionally charged contexts
1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.
2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.
3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.
Saturday, December 13, 2014
A Few More Cents on the Exam Question Question
My initial inclination concerning the UCLA Law School Ferguson-related exam question fuss was to think that the professor had not acted terribly or outrageously, especially since the question itself was one step removed from direct questions about the shooting or the grand jury process. That said, I ended up more ambivalent about this question than I expected I would be, for various reasons. Some of those reasons are given by Eugene, whose post title--"Exam questions about emotionally charged events"--puts things in the right context. A few observations:
1) The main goal of any exam drafter should be to give a clean question that offers a simple basis for evaluating a student's mastery of the subject matter of a course and grading those questions. Anything that distracts from that goal should be avoided. Sometimes the thing to avoid is the professor's own 'wit.' An exam question, for instance, should not feature parties named Chuck, Chick, and Chet, so that students have to waste time figuring out who's who. A clever question based on a TV show should not assume that students know anything about the show. A professor should certainly avoid using a question as a vehicle for his or her own politics, because students may worry about satisfying those politics.
Friday, December 12, 2014
Where's John McCain?
Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties. The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money." Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators. The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.
The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle. This is more than three times the current limit. The provision was slipped in at the last minute without any public debate. The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.
Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure. But what about John McCain?
Procedure week at SCOTUS
I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.
I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).
[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]
Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:
Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.
And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.
Thursday, December 11, 2014
Video and public opinion
William Saletan at Slate reports on a recent study showing that more whites believe the Michael Brown grand jury was right but the Eric Garner grand jury was wrong. Saletan argues it is evidence, not race, that explains the difference--the "quantity, quality, and clarity of evidence differed between the two cases," namely the presence of "unflinching" video of Garner's death.
This is an important aspect of video evidence. It is not only what video can do in criminal and civil litigation. Video also plays a role in the public conversation over a particular incident or event, which in turn may affect more official responses, both in and out of court. Certainly that video will provide the key push if DOJ decides to pursue a civil rights prosecution in the Garner case.
JOTWELL: Mulligan on Preis on causes of action
The new Courts Law essay comes from Lou Mulligan (Kansas), reviewing Jack Preis, How Federal Causes of Action Relate to Rights, Remedies, and Jurisdiction (Fla. L. Rev.) (forthcoming). Jack's article is terrific (it will be an essential piece if/when I return to writing about jurisdictionality) and so is Lou's review.
Race, Bias, and Doctrine in Warger v. Shauers
This week, the Supreme Court decided Warger v. Shauers, a unanimous decision on the rule against challenging trial jury verdicts based on evidence of jury deliberations. Warger is noteworthy in part because it comes at a time when grand jury decisions are coming under special scrutiny, particularly in cases involving concerns of racial bias. In Warger, the problem of racial bias lurks just beneath the surface—or, more literally, in a footnote just beneath the main text. Warger's elliptical reaction to this problem illustrates how the Court translates constitutional principles into rules for normal cases and exceptions for extraordinary ones.
Most large law firms have marketing departments, but the practice of marketing legal services is not always popular among lawyers. We have attorney advertising guidelines, and there are still plenty of ads in the yellow pages, but the idea of selling one’s services can be uncomfortable. Traditionally, lawyers thought their work should speak for itself. It still should, but marketing assists with spreading the word. As David Packard once said, “Marketing is too important to be left to the marketing department.” That being said, should marketing techniques be considered a necessary skill in the modern practice of law? Should they be addressed in law school?
Wednesday, December 10, 2014
Happy Birthday to My Wife, and Happy Wyoming Day!
Not really law related, but I wanted to take this opportunity to wish my wife, Bari, a happy birthday. She's not a law prawf--she's an elementary school teacher, which is a much harder job! If you have 10 seconds, I'm sure she would love happy birthday emails from random prawfs around the country--it will sure make her chuckle. Her email address is baridouglas [at] gmail [dot] com.
In looking for a quasi-legal hook, I learned that the Nobel Peace Prize is always awarded on December 10, which is the anniversary of Alfred Nobel's death.
More up my alley, on December 10, 1869, Wyoming's governor approved the first law in U.S. history granting women the right to vote. To celebrate, every year December 10 is officially "Wyoming Day" in that state. Wyoming is also a pioneer in having elected the first woman Governor, in 1924. Way to go Wyoming! Another reason to go there (it's one of six states I've never visited).
Tuesday, December 09, 2014
Speaking of Non-Competes
I knew this moment would come. In Talent Wants to Be Free I argued quite strongly against the rising and pervasive use of non-competes in a wide range of jobs, positions, types of employment and industries. As academics we are rather free to move around the market; it's one of those last remaining havens where some employees, specifically the faculty, have job security and mobility. A moral hazard for sure, but we tend to agree that the benefits of academic freedom are worth the costs. Most of the time, it's the reverse these days: no job security but also limitations on mobility. Well, today I was asked to sign a speaking agreement for a non-academic conference in which I will be speaking about Talent Wants to Be Free and lo and behold, as I read down the lines, a section entitled NonCompete Clause appeared before my eyes. It reads something like: the speaker agrees to not speak at a related conference within a 100mile radius of the conference in the two weeks prior and the two weeks following. Oh the ironies! At least the time frame is reasonable, not the one, two and three years we are seeing in some employment contracts.
Who Would Hire Kingsfield?
Over the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty. It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set. With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers? Are seasoned lawyers wasting their time by going on the market? If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?
The New Cognitive Property & Human Capital Law
Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:
Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.
Posted by Orly Lobel on December 9, 2014 at 10:45 AM in Article Spotlight, Employment and Labor Law, Information and Technology, Intellectual Property, Orly Lobel, Property, Workplace Law | Permalink | Comments (0)
Faculty Teaching Loads
This semester I am serving on an Ad Hoc Committee to consider the University of Kentucky's teaching loads. Specifically, we are looking at whether there is a disparity in how much each of us teach.
To that end, it would be helpful to hear what other schools do to allocate teaching resource. In the comments, would you be kind enough to share whether your teaching loads are based on:
-Credit hours taught
-Student contact hours (credit hours times number of students)
I'll start: at the University of Kentucky, each faculty member generally teaches two courses per semester, regardless of credit hours or student contact hours.
SCOTUSBlog Preview: Jurisdictionality and the FTCA
I have a SCOTUSBlog preview of tomorrow's arguments in United States v. Wong and United States v. June, which jointly consider whether the timing requirements for filing claims under the Federal Tort Claims Act are jurisdictional or procedural and whether they are subject to equitable tolling.
Monday, December 08, 2014
Body cameras and and predictive analysis
Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.
Another police video produces confusion
Wow. It does appear that an FBI civil rights investigation still is ongoing (the mayor's claims nothwithstanding) and a § 1983 surely will follow. But this suggest the key framing of the two limits on video (and thus of body cameras): 1) Video is not certain, so everyone (courts, officials, and the public) errs when elevating video over all other evidence (call this the Scott/Plumhoff issue), but 2) What video says to you is not the same as what it says to someone else (call this the Dan Kahan issue).
This means we should not necessarily be surprised by the Eric Garner grand jury or by Hammond's mayor. They simply saw something different on that video than I (and many other people) did.
The Scope of Voting Rights Under Article I: Understanding the Problem
My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.
In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2. Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections. Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections. Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2). Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
Tattoo . . . You?
I was reading an interesting article about lawyers and tattoos, which led me to question the practice among law faculty. Although dress codes have certainly become more relaxed since the days of wingtips and shoulder pads, some of the old taboos remain. Are tattoos one of them? After all, I cannot recall ever seeing a lawyer or a professor with a tattoo. Have you? Perhaps more importantly, should it matter?
SCOTUSBlog Preview: Finality and MDL
I have a SCOTUSBlog preview of tomorrow's arguments in Gelboim v. Bank of America, which considers whether a decision dismissing all the claims in one action, where that action has been consolidated for pre-trial purposes with other still-pending actions through multi-district litigation, is a final and appealable order.
Sunday, December 07, 2014
Despite the various wacky connections people are making between Ferguson and pick-your-favorite-issue, I'd like to offer a shameless plug for my current project, which does relate to Ferguson because it deals with the rights of assembly and association, and how the criminal justice system can accurately discern individual criminal liability when that individual is operating in the context of a criminal group. The current draft can be found here.
Take Ferguson and the demonstrations that have followed thereafter. Some members of these demonstrations committed crimes, and some were engaged solely in exercising their First Amendment rights, but given the fog of assembly that involves some criminal conduct, proving individual liability often rests on connecting that individual to her group. There are obvious substantive constitutional problems with this, primarily that it violates what David Cole has repeated discussed as the right against guilt by association.
Why it's impossible to regulate racist speech
Too often, the people doing the regulating do not (or cannot) get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which talks about how multi-ethnic and non-racist Mario is by reference to all the ethnic stereotypes he embodies.
In my view, it's pretty funny. But the FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.