Saturday, October 31, 2015
Happy Birthday, Immigration and Nationality Act of 1965!
This month marks the 50th Anniversary of LBJ's signing of the Immigration and Nationality Act of 1965. The 1965 Immigration Act is, in a way, (I believe) the most important and effective of the great legislative accomplishments of the Second Reconstruction. Equal voting rights remain elusive half a century after the Voting Rights Act of 1965; of course, the Act was partially invalidated, and faces further challenges. And very few think that the Civil Rights Act of 1964 has more or less eradicated discrimination from employment and public accommodations. But through the 1965 Immigration Act, federal immigration law, which had been a cornerstone of White Supremacy policy in the United States before 1965, put the U.S. on track to be a majority minority nation in little more than a generation from now. The policy change wrought by the 1965 Immigration Act was relatively abrupt, and relatively complete. As Rose Cuison Villazor and I note in a piece on The Huffington Post, three-quarters of immigrants before 1965 where white, and since then, operating on a race-neutral basis (at least in the sense that there are no formal racial preferences or barriers), three-quarters or more have been from Asia, Africa, or Latin or South America. Rose and I edited (and wrote chapters for) a book on the Act, The Immigration and Nationality Act of 1965: Legislating a New America, published this month by Cambridge University Press. On this C-SPAN program, Rose, Deep Gulasekaram, and Jayeth Rathod, among others, discuss the 1965 Immigration Act.
Martian Water Rights
The recent discovery of evidence of liquid water on Mars resulted in a really fun discussion in my water law class. That discussion led to a piece that I wrote that will come out in Slate next week. The reputation of western water law has taken a hit during this drought. Some of the blame of poor water management can be placed on our arguably antiquated first-in-time, first-in-right system. The challenge for western water management is that we are facing a 21st Century climate with 20th Century infrastructure and technology and 19th Century laws. But thinking about water rights on Mars helps us understand how and why 19th Century laws developed and how it could be reformed. Mars right now is similar in some ways to the Colorado River Basin in the 19th Century - remote and arid, but with valuable resources and potential for colonization if the water scarcity challenge could be successfully managed. One part of that challenge was convincing smart, industrious people to move to the middle of the desert. How do you do that? You make development in the desert a race, with the prize to the winner being senior priority to the most valuable resource in the universe. Maybe our approach to water rights on Mars should create similar incentives, but adapted to extraterrestrial exploration. If you're interested in the subject, take a look at the short piece coming out in Slate on Monday.
Thursday, October 29, 2015
How many lives could PAS save? (PAS V)
[Recall that PAS would allow individuals to prevent their own future gun purchases.]
My first response to this question is always: let's enact PAS and find out. That's not usually a persuasive argument, but because PAS piggy-backs on the existing background check system, it would cost very little.
Short of that, estimating the number is hard, but a few statistics can at least put the potential of PAS into perspective. Gun tracing studies find that between 3% and 10% of gun suicides are committed with recently acquired guns. My own econometric analysis of gun purchase delays mirrors the 3% figure, so let's go with that. Given that there are roughly 20,000 gun suicides each year, that translates into 600 with recently purchased guns. That's the set of suicides PAS is most likely to prevent.
90% of suicides involve mental illness and my survey indicates that a very substantial percentage of people receiving psychiatric care would sign up for PAS. 600 suicides per year times 90% times the percentage from my survey is well over 100 suicides each year. And 100 suicides prevented would be three times the death toll of the worst mass shooting in U.S. history (VA Tech, 32 victims).
To sign the petition, learn more, or contact me, go to StopGunSuicide.com.
Yes Virginia, there is a trial penalty, and it's four times larger than we thought
Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than "penalizing" those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.
Abrams was wrong, and he’s not the only one.
My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study.84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy "penalty" indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial.
Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.
Why are my findings so different than everyone else's? Glad you asked.
[More after the fold]
Wednesday, October 28, 2015
Multiple sections, multiple professors
This story, about a professor at Cal State-Fullerton reprimanded for not using the department-prescribed textbook (because it costs $ 180), is only tangentially related to the law-school-specific question I want to raise:
How much coordination and identity should there be among multiple sections of a law-school course taught by different professors? Should we be coordinating syllabii, at least to ensure common coverage? Should we be using the same books? The same teaching approach? Is it enough that the students come away from any class with a knowledge base that will enable them to a) go forward in law school and b) pass the bar, regardless of which section or professor they take?
Ideas for Teaching Administrative Law
I love teaching Administrative Law. I love it for a bunch of reasons, but there are two things that I do in my Administrative Law class that make it particularly fun for me, and I hope interesting and challenging for my students. One is an exercise in teaching constitutional and statutory interpretation using Michael Jackson's song "Billie Jean." The other I call "Rule of the Day."
CFP: Second Annual Civil Procedure Workshop
The following is from the organizers of the second annual Civil Procedure Workshop.
We are excited to announce the second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law. The Workshop will be held at the University of Washington in Seattle on July 14-15, 2016.
JOTWELL: Mullenix on Levens on security class actions
Tuesday, October 27, 2015
Field trips: pedagogical value, just for fun, or it depends?
As a professor who has taken her students on many field trips - with destinations ranging from the Everglades to the Manhattan criminal justice system - I love them. Field trips get us out of the classroom to experience the real world, give me a chance to get to know my students better, and appear to enhance student understanding of at least some aspects of our course substance. The students love them as well.
As a frequent field tripper myself, I am curious about what others are doing. Do you regularly utilize field trips in your law school courses? If so, please share some examples or stories. Do you believe that field trips can be a valuable tool to aid student appreciation of your material? What factors go into whether they do so? Do you lead them yourself, or use expert speakers onsite? How do you bring the experience back into the classroom afterward? Alternatively, are they just a waste of time and money, and if so, why?
Hopeful Thoughts on the Drought
One of my pet peeves (and I am way too sensitive about this) sometimes happens when people ask me, "What kind of law do you teach/study?". When I respond, "Water Law," people will sometimes say something like, "That seems very narrow." Narrow?! Water?!
But that has really started to change as the drought in California has raised general public awareness of the scope and importance of water issues and the role of the law in water management. So I guess that's one silver lining in this whole "devastating drought" thing. There are other silver linings, though. I was talking to a friend who writes on police misconduct. She said, "I feel like your field is even more depressing than mine right now." The drought is awful. It is just as much a man-made disaster as a natural one, as it reflects a failure to plan and adapt. Still, I think there is a little too much gloom and doom on the drought. There are reasons to be hopeful.
Prof. Paulsen's reprint "letter"
Prof. Michael Paulsen (St. Thomas) gave me permission to post his (I thought) awesome "reprint cover letter (with apologies to Jackson Browne and Glen Frey):
Monday, October 26, 2015
Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines
The following post is by Jessica Berch and Chad DeVeaux (both of Concordia). They will be guest-blogging in December. But the timing of the new debt-ceiling debate made an early post appropriate.
The Gospels tell us that Jesus multiplied “five loaves and two fishes,” providing a bounty sufficient to feed 5,000 hungry souls. Apparently, House Republicans expect President Obama to perform a similar miracle. On November 3, the Treasury will exhaust its funds. If Congress does not raise the debt ceiling by that date, authorizing the Government to borrow money, the nation may face an unprecedented economic cataclysm.
As New York Magazine’s Jonathan Chait has observed, only “the most ideologically hardened or borderline sociopath” would “weaponize the debt ceiling”; to do so, one “must be willing to inflict harm on millions of innocent people.” Bloomberg Business explained that a federal default would be orders of magnitude worse than the Great Recession of 2008: “The $12 trillion of outstanding Government debt is 23 times the $517 billion Lehman owed when it filed for bankruptcy on Sept. 15, 2008.”
Following up on earlier work, The Fourth Zone of Presidential Power, (Conn. L. Rev.), we are writing an article entitled Once More unto the (Fiscal) Breach, addressing the president’s options in this latest crisis.
Continue reading "Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines"
Methodological Case Prerequisites and the (Mild, Ironic, but Real) Reproduction of Hierarchy
Michael Dorf and Larry Solum have a very interesting and mutually respectful dialogue on constitutional interpretive methodology, here (Dorf), here (Solum), here (Dorf), and here (Solum). Key to the discussion is a prerequisite offered by Dorf and labeled by Solum as a species of "Canonical Cases" objection to originalism. In Dorf's most recent words:
[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.
This reminds me of a classic line that can be found in various constitutional law articles (a good overview is provided in Laura Kalman's great book The Strange Career of Legal Liberalism. The line runs roughly as follows, in the words of one of my articles: "Admission to polite legal circles requires one to avow that Brown was wholly correct and Lochner terribly wrong." It's been around for some time but is nicely presented, quoting Cass Sunstein, in Balkin and Levinson's fun article on The Canons of Constitutional Law:
A third reason for increasing interest in the composition of the constitutional canon in particular has to do with the perceived threat to the beloved precedents of the beloved Warren Court . . . . For example, Cass Sunstein, a well-known liberal constitutional theorist, has insisted that “an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.” This is more than a claim that Brown must be taught to law students . . . . Rather, Sunstein is arguing that Brown is normatively canonical. One can no more criticize it than one can suggest that Mozart is a wildly overrated composer of music for eighteenth-century dinner parties. One establishes oneself as a cultured person by affirming Mozart's genius; one establishes oneself as a properly acculturated lawyer by affirming Brown's correctness.
Sunday, October 25, 2015
"No, no, thank you for that [awful] presentation"
I want to pick up on two themes from Paul's post on excessive flattering of questioners during job and paper talks.
I recall a SCOTUS case in which the lawyer responded to a question from Justice Scalia by saying, "that's an excellent question," to which Scalia responded (no doubt sarcastically--I never heard the audio), "Thank you very much." From the moment I read that, I made an effort never to use that phrase in responding to questions in talks or in class. I also made an effort to get my students never to use it in class, moot courts, etc. (usually by responding a la Scalia when they do it in practices). I agree with Paul that this is largely a tic, as well as a way to fill dead air while thinking of an answer. It also can come across as obsequious or arrogant or both, depending on the context.*
* For what it's worth, I doubt that "thank you for the question" is a noticeable improvement. There is no reason to thank me for playing my expected role in this common scholarly exercise.
Second, the flip side to the "that's an excellent question" response is the question that begins with 30 seconds of effusive praise for the paper and the talk and the presenter's brilliance and insight, whether warranted or not. This bears the hallmarks of what Paul was talking about, from the other side--a tic, verbal filler, and an overdone effort to be supportive or civil. Dan tried to eliminate such filler at PrawfsFest! under his "no foreplay" rule--commenters must get right into their comments. Yet many colleagues (here and elsewhere) resist such a rule, suggesting that taking out this filler reflects incivility or excess negativity--that in not starting off by telling the presenter how great her paper is, we turn into the worst stereotype of the University of Chicago, where faculty members do nothing but tear down papers and their authors.
Saturday, October 24, 2015
"Thank You for That [Awful] Question"
I am mostly out of the business of giving blog advice for teaching job hopefuls, largely because I've repeated my advice too many times and it's all archived. It can be summarized easily enough: (a) Everyone should read Martha Nussbaum's "Cooking for a Job" article, hopefully with concern rather than as a "how-to"; (b) although it makes sense to direct advice at hiring candidates, hiring faculties are both the least-cost-avoiders and the ones with a greater moral obligation to do it right, so (a) applies especially to them. But I did want to comment on something said in response to Rhett's post. One of the virtues of both tenure and a long stint on a blog is that you can get away with adding a little sour to the sweet, like putting a lemon wedge on a glass of iced tea. I'm not sure this counts as advice, exactly, especially because the faculty members most in need of hearing it are perhaps the least likely to take it. Call it, rather, an observation about what has in my experience become a pretty strong norm at most schools not just at job-talks but in workshops and talks of all sorts, and one I think we need to ease back on.
On Rhett's post, a commenter identifying as "AnonHiringChair" writes:
I would also add a reminder that, during questioning, you always make the person asking the question feel good about herself. I've seen many times when a member of my faculty asks a less-than-great question and the candidate's response makes clear to everyone in the room that it was a less-than-great question. Fast forward to voting and the faculty member in question frequently finds another reason to argue against the candidate. Bottom line: When you make the person asking the question feel bad about herself, it will redound to your detriment (and conversely, when you can make the person asking the question feel good about herself, it will redound to your benefit).
Of course this is perfectly sensible advice for job candidates, and my experience over the last few years suggests that it's been drummed into many candidates, especially those coming out of fellowships. Like many such norms, however, it is not used just by job candidates; many speakers have a frequent habit of identifying many, most, or even all questions they receive as "good" questions.
I am certainly not complaining about civility at job-talks and workshops. But like most such sensible advice, I wonder if this one hasn't been applied too much and too mechanically. I have nothing against "bad" or dumb questions as such, as should be clear from my own long record of dumb questions on such occasions. Self-serving (and self-citing), irrelevant, or pointless questions, yes; we should avoid those. But, as with journalists, it's more important for academic questioners to engage and clarify than to worry about looking smart. Still, since we all know that there is such a thing as a bad or dumb question, and that they make frequent appearances at job-talks and workshops, I wonder whether there aren't better ways to be civil and respectful than to respond promiscuously or automatically with "That's a great question" every time a question is asked. When I ask or am asked a dumb question, I am perfectly happy to give and receive the words "Thank you for the question." In particular, when I ask a dumb question, I think it's not unreasonable to expect courtesy in return, but I definitely don't expect (or want, really) flattery. "That's a good question" risks becoming both excess verbiage and a mere tic. In a sense it may reveal a problem with a good deal of both academic and civic discourse: not enough plain civility, and too much flattery and mutual back-patting, as if people have forgotten that it is quite possible to be polite in a clear and economical fashion without also concerning oneself with the feelings and ego of one's interlocutor. Our society worries too much about feelings and not enough about common courtesy.
There is, of course, an added concern about being too quick to call something a good question. As complaint department staff have long known, it is possible for a polite statement, properly delivered, to mean its exact opposite. The more glaringly dumb or irrelevant a question is, the more likely it is that the statement "That's a good question" will be heard by everyone in the room, with the possible exception of the questioner, as conveying the statement "What in God's name were you thinking when you asked that?" This is another virtue of simple but non-substantive civility: "Thank you" need not be taken as rendering a judgment on the question, and thus mostly avoids the problem of irony. (I actually think the legal academy needs much more irony, but that's a subject for another time.)
And one more problem: I have found, and not infrequently, that "That's a good question" is sometimes followed by an answer that avoids or evades the question rather than make a good-faith effort to answer it. One quite understands the impulse when the question is genuinely irrelevant, although there are more or less effective ways to pivot from such a question. But occasionally the question actually is good, and when a questioner has both identified a question as "good," however perfunctorily, and then not answered it, the exchange is usually underlined for me as especially dissatisfying. That's one more reason that "Thank you" is such a useful phrase. Indeed, it should be possible to be civil, but also to civilly explain how and why a particular question is, in fact, off-base or irrelevant or outside the scope or what have you, or conversely to acknowledge in a polite and responsive rather than defensive fashion that the question is good and requires more thought.
None of this negates the general usefulness of the commenter's advice, especially since, as I observed up front, those faculty who most expect flattery from a speaker are least likely to be satisfied with anything less. But these are the kinds of general norms that all of us who sit through or deliver endless talks should think about at least a little, and like all such norms they require some individual pushes in the right direction. In particular, I don't mean to place the burden on job-talkers; I notice it when a job-talker is too free with flattery, but I don't hold it against him or her.
But there are others who perhaps need the advice to emphasize and expect civility rather than flattery, not to evade questions labeled as "good," and, as a general rule, to avoid calling bad questions good. Habits of this sort, first adopted when one is a supplicant, end up becoming part of one's repertoire even when one is "just" a workshop speaker, with no job riding on the outcome of the talk, and end up being assumed or expected by faculty audiences as well. The legal academy and perhaps most academic fields may well need more civility, but not more flattery. Ideally, workshop speakers who are not job supplicants, and who indeed are already tenured and rooted somewhere, could certainly afford to ease up on this tic. Faculty audiences should train themselves not to expect or encourage it. And advisors to job candidates, especially those who send large numbers of fellows and such out into the world, should certainly carefully consider the costs and benefits of the advice they give, and remind their charges that this advice, like all advice, should be used sparingly and with care rather than heaped upon every question, no matter how bad it actually and obviously is.
Thursday, October 22, 2015
Evolving Law Review Selection Processes (Part II)
Yesterday I blogged about a couple journals who took an unusual approach to publication offers, making multiple authors race to accept one offer, rather than the usual process where we make journals wait to see if we will accept their offer or expedite up. http://prawfsblawg.blogs.com/prawfsblawg/2015/10/exploding-offers-from-law-reviews-a-new-trend.html
The post sparked a... spirited discussion about the fairness and efficiency of the current law review selection processes. So, I thought I'd mention another unusual approach to article selection, this one from Ole Miss's flagship journal, the Mississippi Law Journal. In their own words:
Established in 2014, the Mississippi Law Journal’s innovative peer review process adds a valuable new dimension to the Journal’s tradition of excellence. Like most American law reviews, the Mississippi Law Journal is a student-edited journal. The majority of its articles are selected by student editors—sometimes with input from University of Mississippi School of Law faculty. However, a few of its articles are now selected and workshopped through an alternative process involving formal review by faculty peer reviewers. These articles are published in the Mississippi Law Journal as peer reviewed articles.
The Journal’s peer review process has two major components: (i) peer selection of articles and (ii) peer workshopping opportunities for authors.
The Journal’s Editorial Board selects articles for publication in the peer review forum based on the recommendations of faculty peer reviewers—members of a Peer Review Board staffed by UM law faculty. The Editorial Board forwards a subset of articles from its general pool of submissions to peer reviewers for blind review. The articles are selected for peer review principally on the basis of the peer reviewers’ common areas of scholarly expertise. The Peer Review Board meets each week during the fall and spring submission seasons to discuss articles in depth and endorse a small number as worthy of special peer review publication. The Journal’s faculty peer reviewers are committed to the rigorous review of anonymized articles within their joint areas of specialization. . . .
Full disclosure, my article, Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, was one of the first articles selected through this new process. (Look for my blog post on the article next week). The peer review aspects and workshop opportunities convinced me, a junior pretenured professor, to accept their offer over other arguably higher ranked journals.
If you wish to comment, please do so on the original thread, http://prawfsblawg.blogs.com/prawfsblawg/2015/10/exploding-offers-from-law-reviews-a-new-trend.html, to maintain the continuity of the conversation.
Fr. Robert Araujo, S.J., R.I.P.
I had the pleasure of learning from, blogging with, and being inspired by Fr. Robert Araujo, S.J. -- a gentle interlocutor, a caring teaching, a careful teacher, a good priest -- for more than ten years. Those Prawfs readers who also had the chance to read Fr. Araujo's posts at Mirror of Justice know that -- whether or not one agreed with him -- he was a model of civil and thoughtful engagement with questions that matter.
If you didn't know him, I'd encourage you to re-read the inspiring "goodbye" he posted, at MOJ (here ), last August, when he went into hospice care. And for those unfamiliar with his story, and with the range of his scholarship, here is the link to his faculty web page at Loyola. Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May he rest in peace.
Wednesday, October 21, 2015
Has Environmental Law Made it?
There are many factors that go into where you place your law review article. We all know that quality counts, as does your institution's U.S. News ranking and your own prior publication record. Many have pondered about how to strategize the details as well - what are the best words to include in your title to impress 2Ls, what is the preferred word count (a moving target as well as a variable one), and how flashy should the introduction be, as just a few examples.
Of course, there are some things we can control (details, and to some extent quality and building a solid publication record to improve future placements), and some we cannot (what U.S. News thinks of us - and strategizing that is a topic for a different post). But what about the field you have chosen to research and write about? While arguably in your control - hey, you picked it - for many of us with careers underway, this is a set reality. Not to say we'd want to change it (if you're lucky, you remain fascinated with the subject), but it is our somewhat fixed reality now. We may make small moves around within it, but these varying subtopics tend to fit together under a larger umbrella (for most of us - we aren't all Sunstein). This, of course, raises the importance of how your given field fares in law review selection, and clearly I mean the general law reviews.
If you managed to choose something like Constitutional Law to write about, or are writing about a currently hot topic otherwise, you should do fine in the general law review process. Environmental Law, however, like many other fields seen as "your thing" and not "everybody's thing," has traditionally not made the cut. The vast majority of our articles get placed in the specialty journals for our field (for example, in 2006 Sunstein published a conlaw article in the Yale Law Journal and a Global Warming article in the Pace Environmental Law Review, so even Cass is not immune). But is the tide turning for Environmental Law, and if so, why?
Recently I've noticed more of my colleagues' articles turning up in general law reviews. A quick set of Westlaw searches (limited by time and context, but perhaps a matter worth assigning an RA to more precisely research) suggests there may be such a trend (although the vast majority of our work remains in specialty journals, which are notoriously undervalued). A small handful have even begun to make their way in to the top journals in the country.
If Environmental Law article placement is moving up in the world, why might that be happening? It could be that it is a topic of increasing real-world impact. Or perhaps it is because law review editors are so young, and the young have been raised to fear environmental harms (especially climate change) in a way those of us who hid under our school desks from hypothetical nuclear bombs cannot imagine. These possible reasons do make sense, but I think there is more to it than that. I suspect that it may relate to environmental scholarship becoming both more theoretical and more interdisciplinary. Whatever it is, we may well be mainstreaming, which could have many other fringe benefits for the field.
Making a Good Job Talk First Impression in 3 Easy Steps
Candidates are now turning their attention to callbacks and job talks. Other than the stakes involved, job talks are not much different than most other presentations of academic papers. Any time I present a paper, I try to focus on making a good first impression. There is no point in ending strong if I lose everyone at the on-ramp. I have many objectives when I present a paper, but I know that I can’t effectively achieve any of those aims if I confuse or bore my audience. So my first priorities are to be clear and to be interesting. And I know that I have to achieve those priorities at the beginning and quickly, or I risk losing my audience. I think there are a lot of ways to do this, but here are three things I try to do that I think generally help me get my presentation off to a good start:
Would anyone voluntarily give up their right to buy a gun? (PAS, Part IV)
Yes. Some of you may have known Cheryl Hanna, a professor at Vermont Law School. Cheryl bought a handgun and used it to kill herself the next day. Aged 48, she left behind a husband, two children, and a successful career. Hanna had been privately battling severe depression. She had twice voluntarily admitted herself to a hospital for psychiatric treatment. In doing so, she gave up much of her liberty in an effort to get better. One right she was not allowed to give up was her right to buy a gun.
“I think she would have signed up for this,” said her husband, Paul Henninge.
Cheryl is not alone. A suicide expert at UAB, psychiatrist Richard Shelton, has written: “Professor Fredrick Vars has proposed a simple and sensible alternative for people who have recurring periods of suicidal thinking: add their names to a gun ‘do not sell’ list. A natural first response might be ‘would anyone really do that?’ As a practicing psychiatrist I see suicidal people on a regular basis. Many of them readily agree to safety measures such as removing guns from their homes, committing themselves to a psychiatric hospital, and securing their medications to protect themselves. It seems likely that people will take the further step of blocking access to firearms in this way. A voluntary and confidential system of ‘opting out’ is a reasonable next step in reducing suicide deaths.”
Sign the petition.
An Important New Fact, or a Report on the Coal Industry From the Newcastle Boosters League?
I admire what I have read of the work of Jean Cohen, a Columbia political scientist--particularly her Regulating Intimacy: A New Legal Paradigm, which discusses and uses "reflexive law" as a means, in the words of the book's jacket copy, to approach debates over "the regulation of intimate relationships" in a way that is "free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us." It is always useful to escape from the standard prisons of our thought and to think perpendicular to and across the usual and tedious left-right divisions that channel and stymie so much intellectual work in the United States.
I am thus struck by the abstracts to two new papers by Prof. Cohen. I look forward to reading the papers, which are on subjects of great interest to me. But I am surprised by what she chooses to foreground in those abstracts. Here is one:
This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.
Can a school increase citation count?
Last month, Gregory Sisk and others updated for 2015 their study of scholarly impact by the top 1/3 of law faculties. They use Brian Leiter's methodology of counting total Westlaw citations by all tenured faculty, then apply a formula of (mean x 2) + (median) to get a weighted score.
So here is a question: Is there anything a law school can do, individually or institutionally, to improve its citation counts? (let's assume hiring a senior well-cited scholar is not an option) Is it just a matter of telling people "write more and place well," which means your stuff should get cited more? Is it about picking topics to write about, such that some topics are more likely to be cited in future works? Are there publicity efforts that the school can support, such as supporting the mailing of reprints to authors in the area? Other things?
Tuesday, October 20, 2015
Is It Unconstitutional to Apply Erie to D.C. Law?
Last December, I wrote a post about the strangeness that arises from the applicability of Erie (pursuant to which federal courts in diversity cases apply the state substantive law dictated by the choice-of-law rules in the state in which they sit) to the District of Columbia. Although it's strange to apply Erie in the federal territories at all, it's especially strange in D.C., which is the only one of the six federal territories in which the court receiving deference under Erie was created (and is controlled) by Congress, as opposed to the territorial legislature. Thus, as my post last December noted, when they follow Erie, the Article III D.C. district court and D.C. Circuit are necessarily deferring to an Article I court's interpretation of federal law (to wit, the D.C. Code). And although this result is not remotely compelled by the Rules of Decision Act, the (Article III) D.C. courts have nevertheless chosen to adopt it for purposes of convenience and litigation efficiency, if nothing else.
The more I think about this issue, the more I wonder if this approach isn't just "strange," but also one that raises constitutional concerns. After all, it's well settled that Congress may not give non-Article III actors (whether non-Article III judges or Article I or Article II entities) supervisory authority over Article III courts, but the application of Erie to D.C. at least theoretically gives the D.C. Court of Appeals a supervisory power over some federal law within the District vis-a-vis their Article III brethren, even if it lacks authority over the latter's decisions. Thus, could Congress really compel a lower Article III court to follow an Article I court's interpretation of federal law (whether in general or as limited to the "local" federal law of D.C.)? This surely goes much further than Chevron, since, among other things, there's no room under Erie to set aside the Article I court's unreasonable interpretations of ambiguous "local" law...
But even if you don't find that argument compelling, what if the Supreme Court were ever presented with a question of D.C. local law? Wouldn't there be a serious problem under Article III with following Erie in such a case, given that the Supreme Court would, insofar as it applied Erie to the District of Columbia, necessarily be deferring to an inferior Article I federal court on a question of federal law (as compared to deferring to an independent state supreme court on a question of state law)? Although I'm somewhat ambivalent about the constitutional problem with applying Erie in the Article III D.C. lower courts, the constitutional problem with applying it in the Supreme Court seems manifest.
To be sure, an obvious rejoinder is that, unlike the D.C. district court and D.C. Circuit, the Supreme Court has never chosen to follow Erie in such a case, and so the constitutional question hasn't arisen. And in an appropriate future case, the Supreme Court could certainly choose not to follow Erie then, too. So if the constitutional problem only arises at the Supreme Court level (and again, I'm still not sure it's that limited), it can easily be avoided by the Justices if and when it presents itself.
But insofar as a refusal on the part of the Supreme Court to be bound by D.C. law as interpreted by the D.C. Court of Appeals would solve the constitutional problem, it seems to me that it also undermines the pragmatic justification the Article III D.C. lower courts have advanced for adopting Erie, since it suggests that, in fact, there will be cases in which the Article III courts will be constitutionally bound to reach an independent interpretation as to the meaning of D.C. law--and that those cases will come through the very courts voluntarily choosing to defer.
The Perfect Letter of Recommendation
I often find myself staying in the office late and coming in on weekends to finish writing recommendation letters for students. Writing these is often one of my favorite parts of my job, especially when I am writing for a student whom I know well and in whose future I really believe. Often, my letters will be long - 3-4 pages is normal for me - and filled with details. The more I can tell the reader about a student, the better. I try to make each recommendation into a story about a person's life, hopes, and dreams. Though we only see a snapshot of a person in a letter of recommendation, that snapshot is all about convincing the reader of a life's trajectory. I really enjoy writing such letters.
I'm less knowledgeable, however, about what the market for letters of recommendation looks like. I have no idea what kind of letters my colleagues write - how long they make them, how many details they include, how they begin, or how they end. I have no idea if they agree to write a letter for everyone who asks, or if they turn down some requests. And I have no idea if they focus only a student's performance in class, on attributes of the student about which they learn outside of class, or on a combination of both. Obviously, different norms and standards apply for different purposes. And different kinds of letters are appropriate for different students. All of that is given.
Still, what does the market for a strong letter of recommendation look like? What should the letter's length be? Should the law professor writing it include information about him- or herself too, and if so, what kind of information is most pertinent? And at what point should a letter go beyond academics to focus on the applicant's other attributes? The Internet, of course, is awash with recommendation advice. Here is some advice that I am cribbing from a website about writing the perfect letter of recommendation:
The rival of my rival is . . .
This defies words. (H/T: Josh Blackman). Westboro Baptist yesterday picketed outside the Rowan County Clerk's Office in a protest of Kim Davis, for her sins of being divorced and of failing to obey her oath to follow the law. Apparently "all sin" is "awful," so adultery, same-sex marriage, and oath-breaking all stand on the same footing.* I wonder what LGBTQ groups are thinking right about now.
* Never mind that Davis does not violate her oath by not following SCOTUS precedent--I do not expect the Westboro folks to understand the precedent/judgment distinction).
Argument preview: Three-judge courts and 12(b)(6) dismissals
I have a preview essay at SCOTUSBlog on Shapiro v. McManus, which considers whether a single judge can dismiss a claim under FRCP 12(b)(6) in an action that is subject to resolution by a three-judge district court. The argument is scheduled for Wednesday, November 4.
Exploding offers from law reviews: a new trend? (Part I)
We all know the standard practice when it comes to law review submissions: we get an offer from a journal with a deadline to accept. Then, we frantically go back on ExpressO to expedite to higher ranked journals. If we get a better offer before deadline, we drop the original offer like a bad habit and hopefully expedite our way all the way to the top. The practice is often tough for lower ranked journals, who have to scramble to find new articles, but it's the way the process has worked for years. What if the students switched it up on us?
This fall I've heard two reports of authors who received "exploding offers" from student law reviews. The journal told the authors that they had given more than one offer for their publication slot. The authors were given a deadline, but were told that the offer would be revoked before the deadline if a different author accepted the slot first. True to their word, offers were revoked, before the deadline.
According to the faculty advisors of one journal, the students decided to do this in response to "exigent circumstances," after receiving the short end of the stick from the process we're used to. Over the course of a month, the students had made fifteen separate offers to authors to fill one slot, and each time the author declined their offer after expediting upwards. They felt their unusual solution was necessary to make sure the students could start editing on time. The students were upfront about the process when they made the offers to the authors, and the faculty advisors emphasized that this was NOT the journal's standard practice.
I am torn on my feelings about this practice. On the one hand, it puts authors, whose careers often depend a lot on getting the best placements they can, in a very hard situation. On the other hand, the standard process can be very difficult for students, especially those at lower ranked journals, and getting good articles to start editing on schedule is central to the pedagogical function of law journals. On yet another hand, exploding offers could ultimately be self-defeating, as it could discourage authors from submitting to those journals in the first place.
Is this the wave of the future, or a creative mistake by a couple journals?
Because I've heard some strongly negative responses to exploding offers and the faculty advisors say this will not be their standard practice going forward, I think it makes sense to keep the names of the journals out of this blog, and the comments, for now. I won't delete any comments that offer to share the names offline.
Please let me know if you've heard of any other student journals that have done this, or similar practices. I promise to handle any such reports with the utmost discretion.
Monday, October 19, 2015
If Congress refuses to pay its bills, can the President do it for them?
Here we go again, another debt ceiling crisis. Congress passed lots of laws spending more money than it takes in, but they also passed a law saying we can't borrow more than a certain amount. So, as has happened so many times before, we face a potential government shut-down unless Congress votes to raise the debt ceiling, which would allow the government to actually pay what it promised.
This standoff, if unresolved, threatens to confront the president with a no-win scenario that Neil Buchanan and Michael Dorf aptly coined the “Trilemma.” Any action the president might take—be it unilaterally cancelling or reducing programs, increasing taxation, or borrowing more money—stands in direct conflict with a congressional command. Professors Buchanan and Dorf posit that any choice that the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.”
Does PAS violate the Second Amendment? (PAS, Part III)
(Recall that under PAS, individuals could prevent their own future gun purchases by adding their own names to the "do not sell" list.)
No. Law professors Ian Ayres at Yale (here) and Joseph Blocher at Duke (here) have both argued that the right to bear arms includes the right not to bear arms. Critically, my proposal is completely voluntary. The government is not taking away anyone’s right to buy a gun. Rather, the government is merely providing a new avenue for citizens to exercise their right not to buy a gun.
Here’s an excerpt from Ian’s endorsement of the proposal, titled “Libertarian Gun Control”: “Vars’s proposal is one that every card-carrying libertarian should endorse. It’s the kind of voluntary gun control that even the NRA can support – especially as it comes with self-chosen methods for subsequently removing yourself from the list.”
An explanation about the name removal options. There would be two, selected by the individual when signing up: (1) removal after a seven-day delay; or (2) removal after a judicial hearing finding no elevated suicide risk. These removal options negate Second Amendment challenges even for individuals whose waiver of the right to buy guns was not knowing and voluntary. If a person has an elevated risk of suicide, then a ban on firearm purchases is narrowly tailored to the compelling government interest in preventing suicide. A more complete explanation of the constitutional arguments appears in an article by me and Angela Selvaggio forthcoming in the Harvard Journal on Legislation (here).
Sign the petition.
Merits and mootness
In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.
Sunday, October 18, 2015
Law School Hiring, 2015-2016, Thread Two
Please leave comments on this thread regarding whether you have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. In each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
Update: We once again have an aggregator! Below is the spreadsheet, which you can view and download here.
All information should come in through the comments. Our aggregator will use the spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.
The aggregator will update the spreadsheet approximately once a week.
You can reach the aggregator at aalsaggregator (at) gmail (dot) com.
Originally posted October 18, 2015; edited October 22, 2015, to add aggregator information.
In praise of lectures
Friday, October 16, 2015
Number of Schools at FRC Over Time - 2015
In 2012, there were 142 AALS member or approved schools at the FRC.
In 2013, 94 schools.
In 2014, 81 schools.
In 2015, 89 schools.
(Say +/- 2 for each year due to vagaries of counting.)
Wednesday, October 14, 2015
"The Marriage Moment" Is a Good Time to Fix a T&E Problem
I have an essay forthcoming in the Temple Law Review Online that proposes a solution to the following problem in trusts and estates law (exacerbated by Obergefell):
“[S]uppose an elderly person is completely dependent upon a nurse. The nurse pressures the patient into executing a will leaving everything to the nurse. After the patient dies, the family challenges the will on undue influence grounds, and likely wins. But suppose instead the nurse pressures the patient to marry. Marriage too can be set aside on undue influence grounds, but in most jurisdictions not after a spouse has died. The unscrupulous nurse keeps the ill-gotten spousal share.”
The solution draws on equitable principles and long-forgotten case law: "a person who procures a marriage solely to receive advantages at death and through misconduct that would support a will contest should not be treated as a spouse for purposes of intestacy, the elective share, or other death benefits."
Kevin Walsh has coined the term to perfectly capture the precedent/judgment/departmentalism distinction I have been drawing and that Josh Blackman and I make: "Judicial Departmentalism." (H/T: Rick, in a comment to my prior post). The idea is that SCOTUS precedent and vertical stare decisis control what happens within the judiciary.* But they do not control the actions of anyone outside the judiciary, particularly officials in the other branches of government, who remain free to act on their own constitutional understandings in terms of the legislation they propose, the way they enforce laws, etc. At bottom, Kevin argues, the American Principles Project is rejecting judicial supremacy in favor of judicial departmentalism.
* The APP statement acknowledges the supremacy of the Supreme Court over the federal judiciary, although does not mention state judiciaries. I default to James Pfander's argument that a state court deciding a federal issue is a "Tribunal inferior to the Supreme Court," thus part of the federal judiciary and bound by vertical stare decisis to the same extent as a federal district court.
Of course, judicial departmentalism inevitably morphs into judicial supremacy, because the actions of public officials contrary to binding SCOTUS precedent will eventually find their way into court, where vertical stare decision and judicial departmentalism will compel the court to issue a judgment compelling the officer to abide by the precedent. And the executive cannot act contrary to a judgment directed at him--stated differently, the specific judgment pulls the officer into the judicial department. Moreover, a number of rules that the judiciary applies functionally enforce, or at least incentivize, judiciary supremacy: 1) FRCP 11 requires lawyers and parties to bring cases that are supported by existing law or a nonfrivolous argument for overturning that law, meaning law as established by SCOTUS; 2) qualified immunity is lost and damages possible against a public official who disregards SCOTUS precedent; and 3) the knowledge that an official will certainly be enjoined by a court applying SCOTUS precedent may cause the official to fall in line. [Ed: I guess I should add state Rules of Professional Responsibility, although I know less about these; based on comments to my earlier post, it sounds as if they limit lawyers' freedom to advise their government clients not to feel tied to judicial supremacy]
But the fact that we (likely, if not certainly) reach the same result at the end of the does not mean there are not multiple steps involved, that everyone is bound everywhere by what SCOTUS says about the Constitution, or that our system is, in fact, one of judicial supremacy.
Tuesday, October 13, 2015
Lawyerly obligations, precedent, and judgments
A group of conservative academics, under the name "American Principles Project," has issued a statement calling for constitutional resistance to Obergefell and calling on presidential candidates to refuse to treat it as binding precedent. The statement essentially relies on a comparison between Obergefell and Dred Scott--that is, between a decision allowing same-sex couples to enjoy the same benefits and protections as any other couple and a decision categorically denying rights to a group of people based on their race.
I have not blogged about this before, finding both the rhetoric in the statement and the rhetoric of the responses absurdly over-the-top (even while agreeing with the basic idea that public officials can act contrary to Obergefell if believing it wrong). But Lyle Denniston has this post at the National Constitution Center Blog arguing that lawyers who sign and follow the call are acting contrary to their ethical/professional-responsibility obligations. In particular, Denniston insists that a lawyer fails to show "respect" for precedent in arguing that it should not be treated as binding or controlling in similar cases. He also points to Kim Davis as an example of what happens when a public official refuses to treat a decision as binding.
Job Talk Advice - From the Archives
This post excavates two "job talk advice" posts that aren't tagged with "Getting a Job on the Law Teaching Market" and so might escape notice. These posts are old (in Internet time) but not dated.
I've closed comments on this post to try to minimize proliferation of comment threads; if you have thoughts or comments on these posts, please share them over at this year's Clearinghouse for Questions.
Edited 10/19/15 to add:
Another post by Orin, this one candidates' choosing whether and how to specialize in a particular area of law--the comment thread is also very good.
The first episode of C-SPAN's Landmark Cases covered Marbury. It was an interesting program, mostly a discussion between Akhil Amar and attorney Cliff Sloan, who has written a book on the case. The discussion tells the full historical and political context of the case.
I was struck by a few things. And as to all, I recognize that this program is not pitched at lawyers and law students. But if the purpose is to elevate the conversation, perhaps some better editing was in order.
How do YOU feel about guns on campus? Deterrence and academic freedom
Eight states, including Oregon, Texas, Arizona, and my own state of Idaho require public colleges to allow licensed students to carry concealed weapons on campus. The issue’s popped up a lot in just the past couple weeks. A few highlights:
- A student at Umpqua Community College killed 10 of his classmates on campus. link
- At least one UCC student, an Air Force veteran, was legally armed that day and, probably wisely, chose not to get involved because he was worried the police would mistake him for the shooter. link
- University of Texas students and professors are protesting over the new campus carry laws. link
- One of those protests is #CocksNotGlocks. Pretty much what it sounds like. link
- Four more people were shot at Texas Southern University last week. link
- Another four students were shot at Northern Arizona University last week. link
On the one hand, there’s the argument that students with weapons can shoot the bad guys, limiting the damage and deterring attacks. Indeed, as Eugene Volokh emphasizes, civilians with guns do stop bad guys sometimes. See also, David B. Kopel, Pretend ‘Gun-Free’ School Zones, 42 Conn. L. R. 515 (2009) (campus carry can deter). At the same time, as we saw at UCC, there’s limits to how much armed civilians can do to stop an active shooter because the second they pull out their own gun they risk being mistaken for the “bad guy.” See also, Shaundra Lewis, Bullets and Books by Legislative Fiat, 48 Idaho L. Rev. 1 (2011) (deterrence value of campus carry is minimal).
Also, most shootings, like those at Texas Southern and Northern Arizona, are not premeditated mass shootings, but the kind of things that arise out of arguments on campus. Campus carry laws mean more guns on campus, increasing the chances a random argument could turn deadly. It seems that the deterrence effect of concealed carry on these kinds of shootings would be minimal.
Teaching/Free Speech/Academic Freedom
One argument that is growing in prominence is that campus carry is bad for teaching. As the UT petition states, “The University must be a safe place for people of all views and backgrounds to express their views WITHOUT FEAR.” See also, Lewis, Bullets and Books by Legislative Fiat (campus carry interferes with professors’ academic freedom) The argument, in essence, is that it’s harder for a professor to express their views and maintain discipline if they are worried that students might shoot them if they get upset.
I’ve spoken with students who I knew were armed before. I can’t say that it bothered me at the time, but they were also friendly conversations. I’m pretty sure I’d feel differently if a normally unarmed student showed up with a handgun to talk about their grades! Criminal laws and campus rules about threatening behavior might apply in some of these situations, but not all of them. Ultimately, these laws are fairly new: I haven’t heard of any post-campus-carry horror stories of students legally intimidating professors/fellow classmates… yet. Perhaps only time will tell if these campus carry laws will be a pedagogical disaster or just not that big a deal.
Monday, October 12, 2015
New from Cambridge University Press and newly arrived on my desk is Religion and the State in American Law, by the late Boris Bittker, Scott Idleman, and Frank Ravitch. (Individual chapters were also contributed by Jennifer Ann Drobac and Jill Wesley, Angela Carmella, and Cynthia Lee Starnes.) Here is the CUP page for the book. I have unfortunately been unable to post much for the past few months, but it's well worth making the extra effort to bring attention to this book. It seeks to provide, as the book jacket says, "a comprehensive and up-to-date overview of religion and government in the United States, from historical origins to modern laws and rulings." The topics are broad, extending well past the standard narrow treatment of cases dominated by the Religion Clauses to include contracts, torts, family law, and a number of other areas; and the coverage is similarly catholic, ranging deep into the lower court caselaw. It is truly an impressive book and a fascinating and useful treatise. I'm not sure what the authors' or the press's update plans are, but I hope they will keep the enterprise going at least a little bit. It is also remarkably well-priced at some $37 on Amazon and $45 list--highly unusual for a book of this kind.
If I were to recommend a very short list of essential books on religion and American law, I would first recommend my books and then, after an awkward silence, more honestly and accurately would recommend this book, along with Kent Greenawalt's two-volume Religion and the Constitution and perhaps this book on religious organizations in the United States. It looks great and I congratulate the authors on their achievement.
"Older Faculty Keep on Keepin' On"
Here's an NPR piece on the phenomena of (a) the aging of tenured faculty (ed.: um, it's not just tenured faculty who are aging, right? Isn't everyone? RG: Come on, ed., you know what I mean) and (b) what seems to be the lack of interest on the part of most aging-tenured-faculty in buyout-plans and other efforts by universities to move them out. Here's a bit:
This dramatic trend foretells more than a future of campuses populated by white-haired professors in sensible shoes and tweed jackets with elbow patches. Universities say it's making it harder for them to cut costs and improve productivity exactly at a time when students and their families are balking at the high cost of a higher education.
And when those students — not to mention politicians and business leaders — are expecting a better return on that investment, the institutions say the buildup of aging faculty leaves them less able to respond to changing demand for new kinds of majors, or to declining enrollments, and that it's also blocking younger Ph.D.s from entering the workforce. . . .
. . . [O]ne real reason universities want their tenured faculty to leave is so they can be replaced by cheaper faculty who are not on track for tenure, and by part-time adjunct instructors, in the same way that private companies outsource their work to cut costs. The proportion of faculty who are part time has already climbed from 22 percent in 1969 to 67 percent today, according to the Association of Governing Boards of Universities and Colleges, meaning that the full-time tenured faculty who won't leave are already a much smaller proportion of the total than they used to be.
I wonder, would the perception among many faculty of universities' efforts to incentivize older tenured faculty -- some of whom remain productive scholars and good teachers, some of whom do not -- be different if universities were to make clear -- to provide assurances -- that the opened-up spots would be filled by younger tenure-track scholars (rather than untenured adjuncts, special-professional faculty, etc.)? Without such assurances, the universities' efforts might seem to reflect hostility to tenure itself (and the costs it involves and inflexibility it arguably creates) rather than frustration with its possible student-disadvantaging and scholarship-depressing misallocation?
Baseball and viewpoint discrimination?
As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?
In Favor of a Strong Presumption of Testamentary Capacity
Testamentary capacity is required in every jurisdiction to execute a valid will. There is little variation in what that means substantively, but significant variation in standards and burdens of proof. I have argued that someone challenging a first will should have the burden to prove incapacity by clear and convincing evidence (here). A minority of jurisdictions follow this approach, which better effectuates testators’ intent. The majority require a showing of incapacity by a mere preponderance.
Massachusetts is even worse. An appeals court there last month affirmed the denial of probate to a will on the ground that the testator lacked testamentary capacity. In re Estate of Galatis (2015 WL 5227413). In accordance with my position and the majority rule, there is a presumption of capacity in Massachusetts and the burden is on the will contestants to show incapacity. However, in Massachusetts, the burden flips to the proponents of the will to show capacity as soon as the contestants present “some evidence” of incapacity.
The proponents of the will in Galatis were unable to meet that burden. The facts illustrate how this flawed burden-shifting approach can lead to bad results. The evidence on incapacity was admittedly mixed: the panel split 2-1. Leaving the burden on the contestant and requiring clear and convincing evidence of incapacity could well have tipped the scales. And probating the will would almost certainly have better advanced testator’s intent. The challenged will was nearly identical to a draft signed by the testator eight days earlier when his capacity was not disputed. And the will contestants who took by intestacy when the will was thrown out were the testator’s cousins--the testator was a widowed only child with no children of his own.
Sunday, October 11, 2015
Lisa McElroy's "Called On"
Lisa McElroy (Drexel) has published Called On, a novel about law school that Tony Mauro calls "This Generation's One L." Lisa tells me that Dan encouraged her in this project early on and she mentions him in the acknowledgements.
Friday, October 09, 2015
Definitive Answers to Unanswerable Law Review Submission Questions
There is a quote attributed to the screenwriter William Goldman regarding Hollywood - "Nobody knows anything." I increasingly feel like this applies to article submission strategies. Everybody has their ideas about timing and titles, word counts and body/footnote ratios. Nobody knows what they're talking about. Nevertheless, this post will now definitively answer these questions for all time with no more need for disputes or discussion. You're welcome.
"The Rise of Corporate Religious Liberty": Pre-order yours today!
This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now. Just in time for Alascattalo Day!
The book was edited with skill and heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders. More than a few Prawfs guests and bloggers are among the contributors, who include Sarah Barringer Gordon, Paul Horwitz, Nelson Tebbe,Douglas Laycock, Christopher C Lund, Liz Sepper, Frederick Gedicks, Ira Lupu, Robert Tuttle, Robin West, Jessie Hill, and Mark Tushnet.
Here is the abstract for my chapter:
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Picking our free speech stories and heroes
Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).
Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.
Thursday, October 08, 2015
It's going to get pricey
Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).
Kim Davis must know that her stunt is going to get very expensive very quickly.
Rethinking Kitty Genovese
The New Yorker reviews a new documentary that screened this week at the New York Film Festival--a reexamination of the murder of Kitty Genovese, produced by and starring Bill Genovese, one of Kitty's younger brothers. The film attempts to reinvestigate the murder and the response to it. Similarly, a 2014 New Yorker story explored how the media created the "bystander apathy" narrative and how it almost immediately took hold, to the point that it actually affected the State's decisions in prosecuting the case.
That narrative remains sticky. In my 1L Crim Law class, we read an early New York Times story about the murder (The Times and editor A.M. Rosenthal was the great engine of the apathy narrative) for a discussion of the law/morality divide and when liability should attach to inaction. At a Torah study a few weeks ago, a participant referred to this story, and its common narrative, to illustrate some principle about how the Torah commands us to treat people.
Never mind that the best understanding of the story (as discussed in both of the New Yorker pieces and in the film) is that several neighbors did try to help. This includes at least two who called the police (police records show one call and that the response to that call was that the police were aware of the attack, suggesting at least one earlier call).
A few new themes emerge from the film and from the review.
Wednesday, October 07, 2015
EPA Required to Muscle Out Invasive Zebra Mussels - Can it Be Done?
This Monday as I was preparing to teach my Tuesday Biodiversity seminar, in which we were to discuss invasive species, the Second Circuit issued an important Clean Water Act opinion. For years the EPA had been avoiding the significant challenge of dealing with invasive species routinely dumped into our nation's waters by cargo ships. When the ships load and unload their cargo, it is necessary to balance the weight of the ship by filling or emptying massive tanks of water within the vessel. This water (called ballast water) is typically drawn into the tanks in one location and expelled in another, carrying along numerous stowaway species ready to invade new territory. This practice has introduced many microscopic pathogens, but the poster child is undoubtedly the zebra mussel, which has taken over the great lakes ecosystem. In addition to causing ecological harm, the zebra mussels have cost hundreds of millions of dollars to the companies whose industrial water pipes have been clogged by the Asian mussels.
The Clean Water Act makes it unlawful to discharge a pollutant into the nation's waters without a permit. The EPA has no discretion to exempt categories of discharges from this permitting requirement, as the DC Circuit held way back in NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). More recently, in 2008, the Ninth Circuit struck down the EPA's attempt to exempt ballast water from the CWA requirements, in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008), a case I had just happened to assign for this week's class. So, I was pleased in more ways than one to see the Second Circuit issue its opinion in NRDC v. EPA just 24 hours before our class met to discuss this very issue. Having failed in its attempt to exempt ballast water entirely from permitting requirements, EPA had generated a lenient Vessel General Permit, which the court this week struck down as a violation of the CWA. The permit failed to be strict enough both as to technological requirements for treating ballast water and as to limits on the invasive species discharged.
While exciting for environmentalists, this ruling will be quite challenging for the shipping industry. Many of the most cutting edge technologies for killing everything in ballast water tanks is easier to design into new ships than to add via retrofitting older ones. Of course, we have a very serious invasive species problem, so to address it, step one is obviously to stop introducing them. There is no question that this red light is incredibly valuable to the environment. What is less clear, though, is whether we can ever actually accomplish the underlying goal of such regulation, which would be to restore the ecosystem and stop the economic harm. In forcing the EPA to regulate ballast water, the Northwest Environmental Advocates Court noted that "[o]nce established, invasive species become almost impossible to remove," in part because they can become so successful absent their natural predators.
So this decision raises the important question of what's next. Assuming we can cut down on the continued delivery of invasive species into our waterways, will we maximize the value of that effort and sacrifice by also working to eradicate the massive population already present? Can we do this?