Saturday, November 01, 2014
Thanks for having me back. It's November, so let's pretend these posts count toward my NaNoWriMo goals. This month, as we wrap up our classes (for me, tax and family law), I will be blogging about education issues. I will also blog about some items related to my research agenda—the property transfers families make—that have appeared in the news and in my forthcoming articles. One of these articles has benefited from the generous attention and edits of Dan Markel, in whose memory I am guest blogging this month. He is missed.
With October over, my guest-blogging stint is done. Thanks for reading and commenting. Because I was guest-blogging in Dan Markel's memory, I'll end with a sad reminder. It has been several months since Dan was murdered, and his killer has not yet been brought to justice. May that change soon.
Thanks to our October visitors, who may be sticking around a few more days to say good-bye.
For November, we welcome back Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington). And Richard Re (UCLA) continues his semester with us.
Friday, October 31, 2014
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."
Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.
* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.
Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.
Ebola and Korematsu
Ebola is an unprecedented public health crisis, but quarantine falls squarely within a long tradition of preventive detention: depriving liberty not to punish past wrongdoing but to prevent future harm. In a recent article(here), I argue that the government has resorted to indefinite preventive detention only in response to fear of an undeterrable Other. That conclusion (descriptive, not normative) is based on case studies of the Japanese internment, the Oklahoma City bombing, the War on Terror, both phases of sex offender commitment, and the Virginia Tech shooting.
In my formulation, Otherness is perhaps the most elusive concept. By it I mean being a member of an identifiable and devalued minority group. Affected Others have included Japanese-Americans, Arab non-citizens, sex offenders, and the mentally ill. But the Ebola quarantine teaches that Otherness is not required for short-term, as opposed to indefinite, preventive detention. Fear of an undeterrable virus is enough.
Tenure standards and recruiting
A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?
A "Call for Annotations" from The Green Bag
Call for Annotations: “The Adventure of the Norwood Builder”
Our annual Almanac & Reader always has three main features: (1) exemplary legal writing, (2) chronologies of interesting moments in law and language, and (3) entertaining tidbits relating to some theme that we hope you will enjoy. The theme for the 2015 Almanac is “The Adventure of the Norwood Builder” – a Sherlock Holmes mystery set in 1894 and published in 1903. One of the tidbits will be a freshly annotated edition of the story, based on the 1905 U.S. edition in The Return of Sherlock Holmes. (It is available on our website.)
How to submit an annotation: Email us a Word document with the passage from “Norwood Builder” that you want to annotate, and the annotation included as either (a) a footnote to your document if the annotation is just text or (b) a separate attachment if the annotation is an image (photograph, chart, or whatever). If your annotation involves assertions of fact or law, include citations to – and quotations from – appropriate authorities. Thus, for example, it is not enough to say, “The will drafted by McFarlane was invalid because English law in 1894 required two disinterested witnesses and he had only one.” What law? What did it say? Where are the cases supporting your interpretion? Do any go the other way? Similarly, if “the Anerley Arms was a going concern in 1894,” we will need to see some record or contemporaneous report of its operations in 1894. You get the idea: We are giving “Norwood Builder” the law review treatment.
Each point of annotation should add to the reader’s understanding or enjoyment of the story, including but not limited to its legal aspects.
We will give credit where it is due: Annotations to our edition of “Norwood Builder” will appear as footnotes and illustrations. Each footnote will identify by name the author of that note. Each illustration’s caption will identify by name the contributor of that image.
Length limit: There is no length limit, but please be reasonable.
Deadline: Finished works must be received at firstname.lastname@example.org by December 24, 2014.
Criteria: We will select works for publication based on how useful, interesting, well-researched, well-written, and good-spirited they are.
Thursday, October 30, 2014
An Anatomy of the Death of the Kibbutz: Review of Amos Oz, Between Friends
My grandmother Dora and her sister Batya were the sole survivors (so we thought, years later, a brother would emerge in Ukraine) of their family, having both moved to Palestine before the war. But Dora and Batya could not have had more different paths in their new life in the new state of Israel. Dora married into a prominent family and raised her kids in the vibrant bubbly urban culture of the young white city, my beloved Tel-Aviv. Batya married a devout kibbutznik, Yekush, a true believer as Amos Oz might describe him, and they raised their kids in kibbutz Ein Hahoresh (below is a picture of children of the kibbutz’s infirmary bathing in the sun in the 1940s). Poet Abba Kovner, a longtime member of Ein Hahoresh, wrote a poem about my uncle Yekush, a ballad of wonder of a man who was a thirsty intellectual, an antique collector, a historian, and the lifelong garbage collector of the kibbutz, never wanting another job but the essential one he had. Yekush was unique even for his time in his humility and selflessness. Even at the peak of the idealist era, human nature meant that there would be conflict and tension within the close-knit collectives of the new state. Envy, resentment, ego, discontent, doubts, cynicism, and more simply, human nature, would eventually bring an end to the dream of the kibbutz. Yes, kibbutzim still exist today but mostly by name only. The kibbutz as a utopian vision and an institution, the purist combination of socialism and Zionism, has ceased to exist. The kibbutzim of today no longer have communal infant dorms; parents are allowed to kiss their children good night and tuck them in. The kibbutzim of today can no longer order their young adults on when and where to go to college. The kibbutzim of today are basically privatized rural gated communities with differential wages and private property.
Last week, I finished Oz’s latest, Between Friends. I read it in English, which I usually don’t do with books translated from Hebrew but that was the copy I had. The translation is good but even the title inevitably misses the key point of the book: Friends, haverim in Hebrew is also the word for members. Between Friends is an interwoven collection of short stories of the members of the fictional kibbutz Yekhat. They are all haverim because they are all members of the kibbutz but they are most certainly not all friends. They are occasionally friends, but also enemies, lovers, ex-lovers, bullies and, most frequently, simply strangers. That they call one another Haverim, friends, makes the loneliness, betrayals, and disillusionment of camaraderie sharper. Yekhat’s funny guy, who is also the distraught dad of a bullied child (and a stamp collector like my uncle Yekkush) quotes Levi Eshkol who said that a person is only human, and even that, only rarely.
A Mistake Regarding Korematsu
Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu. Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes. Here is what Ilya wrote:
"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/
Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps. http://korematsuinstitute.org/institute/aboutfred/ Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.
Gun Control Targeting Dangerous Symptoms
Scholarly productivity, generational change, and empirical data
Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.
* Who also chides me for not bringing data to bear in my original post.
** For what it is worth, she did not find them inversely correlated.
But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.
I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.
Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.
On Being Sued, 3
In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.
So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it.
One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.
Wednesday, October 29, 2014
The "New Normal" and Generational Change
Howard's interesting post below on whether there is a "new normal" for law school tenure standards brings up a broader subject: The different scholarly productivity expectations among law professors over time. In the last generation or two, expectations have changed considerably. Here are some broad-brush thoughts on that shift.
My understanding is that a generation or two ago, the usual scholarly expectation in law schools ran something like this. First, getting an entry-level teaching job didn't require any scholarship. Instead, by the time a person came up for tenure, he (and it was almost always a "he") had to produce an article or two. The lawprof job was more focused on teaching than scholarship, so an article or two was enough to get tenure. Consider now-Justice Stephen Breyer commenting on tenure standards at Harvard back in the late 1960s:
Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.
Today, the idea of a tenure-track professor at Harvard asking “How can I possibly write an article?” seems exceedingly strange. The norm today is very different. By the time a law professor today at any ABA-accredited school comes up for tenure, she -- and fortunately, the professor often is a "she" -- probably has been writing consistently for several years. A typical professor up for tenure might have the following post-J.D. writing on her resume:
Kentucky Law Journal: Exclusive Submission Window
Photo ID Laws and Voter Suppression
My colleague, Mike Pitts, has posted his latest analysis in a series on the impact of Indiana’s photo ID law, the law that was upheld by the U.S. Supreme Court in 2008. (The earlier papers also are posted on SSRN.) Pitts draws three major conclusions:
First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.
Of course, photo ID laws in some states have more stringent provisions, so may have a greater disenfranchising impact.
Tenure's "New Normal"
Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?
The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*
* So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.
Yates, A Fishy Case
Next week, the Supreme Court will consider whether a fisherman violated an anti-obstruction provision in Sarbanes-Oxley by throwing illegally caught fish overboard. The case is Yates v. United States, and it's a weird one.
Tuesday, October 28, 2014
Elections and Gerrymanders
With Republicans poised to retain, and probably increase, their majority in the U.S. House of Representatives, expect political observers to criticize the partisan gerrymandering of House districts. The GOP likely will win a disproportionate number of seats because in many states, representation in Congress does not correlate well with the voting strengths of the parties. In Indiana, for example, Republican candidates for the U.S. House of Representatives outran Democratic candidates by a 53-45 percent margin statewide in 2012. Yet Republicans hold 78 percent and Democrats only 22 percent of Indiana’s House seats.
Observers are correct when they worry about the mismatch between voting strength and representation. But partisan gerrymandering is not the main culprit. Even if electoral mapmakers drew simple, compact districts without looking at voting data, representation would not correlate well with voting strength. Why is the conventional wisdom about partisan gerrymandering wrong? If partisan line drawing is not the main problem, what is?
JOTWELL: Vladeck on Richman & Reynolds on the appellate court crisis
The new JOTWELL Courts Law essay comes from our own Steven Vladeck, reviewing William M. Richman & Willliam L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford 2013).
What can you tell about a law school by its building?
I did think about suggesting a list of the "Least Impressive Law School Buildings in the World" but I've never actually been in one outside of the USA so I'm perhaps unqualified. And there's always a danger when working in a 41-year-old state-constructed Law Center that your own abode could show up on such a list, sending the College's Architecture Committee into a tailspin. It may be that one in fact comes to work in a piece of "visual indigestion" (see below), but no one likes to admit that.
These days, with law applications down, most college kids don't have to leave their dorm rooms to get in-person visits from multiple law school deans looking to find them the perfect forward-leaning experiential student-centered program. Or you can take an on-line building tour on some schools' web sites.
But some will still trek out for a campus visit. For what should they be looking?
Monday, October 27, 2014
Ebola: A Problem of Poverty rather than Health
Undoubtedly, the death toll in West Africa would be much lower if Guinea, Liberia, and Sierra Leone had better health care systems or if an Ebola vaccine had been developed already. But as Fran Quigley has observed, Ebola is much more a problem of poverty than of health. Ebola has caused so much devastation because it emerged in countries ravaged by civil wars that disrupted economies and ecosystems.
Ultimately, this Ebola epidemic will be contained, and a vaccination will be developed to limit future outbreaks. But there are other lethal viruses in Africa, and more will emerge in the coming years. If we want to protect ourselves against the threat of deadly disease, we need to ensure that the international community builds functioning economies in the countries that lack them.
Our humanitarian impulses in the past have not been strong enough to provide for the needs of the impoverished across the globe. Perhaps now that our self-interest is at stake, we will do more to meet the challenge.
State Courts Choosing to Follow Federal Precedents
Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:
One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.
Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:
Should Apprendi Apply to Substantive Reasonableness Review?
A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here's some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court's denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.
Saturday, October 25, 2014
The Ebola "Czar"
In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?
Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.
The "Oral Argument" Podcast
I realize that, for some, podcasts are very five years ago. But for those who still partake, one of my favorite legal podcasts is "Oral Argument," produced by (and starring) my friends (and University of Georgia School of Law Professors) Joe Miller and Christian Turner. Unfortunately, in this week's episode, they fell victim to one of the classic blunders: They had me as the guest. Among other things, we talked in detail about the minefield that is the availability of private remedies to challenge government action (see, e.g., Howard's post on the Eleventh Amendment). The catalyst of the discussion is the Armstrong case the Supreme Court is scheduled to hear during its upcoming Term (which, as I've previously written here, could be the real sleeper of the Term if the Court scales back the availabity of Ex parte Young relief).
This week's blip notwithstanding, the other episodes have been quite entertaining (and enlightening), at least for nerds like me...
Friday, October 24, 2014
The Eleventh Amendment is a pain
This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.
Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.
The push for quantity
Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).
1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.
"It is a book you will not be able to put down often enough."
I was not favorably impressed by Bruce Allen Murphy's recent biography of Antonin Scalia, Scalia: A Court of One. It was certainly a substantial labor, but in my view not a successful one as a matter of either substance or style. My review of the book is finally out in Commonweal. I note that Commonweal, which is currently celebrating its ninetieth birthday, is currently providing free access to the entire site for registered readers.
A number of people were struck by how favorably the book was treated in some early reviews by liberal writers, despite what I consider its highly evident flaws. (By no means all of of the liberally inclined reviewers praised it, to be sure.) It was also the target of enthusiastic evisceration by conservative writers, albeit there was much more basis for those criticisms. I suggest in the review that there are in fact two or three sound basic points in the book, but those points are not new. And
[w]hat’s new, alas, is not useful. Murphy['s book] is full of opinions and speculations. The opinions are conventional, the speculations tendentious. They’re easy to spot, at least: you know you’ve reached the end of the record and the beginning of fanciful speculation when the footnotes suddenly vanish. There are countless examples of overconfident speculations that quickly become treated as fact, and of downright questionable conclusions.
Whether Scalia: A Court of One is good or bad, fair or not, has been largely irrelevant [to a number of early reviews and discussions]. What matters is the occasion the book provides for liberals to come together in gleeful disdain for their stock villain, or for conservatives to gather in joyful defense of their hero. They’ve relived the Scalia controversy rather than reviewing the book. An experienced judicial biographer, Murphy has chosen well and labored hard—but in vain.
Enjoy. And be sure to read Justin Driver's excellent review of the book in The New Republic, whose "back of the book" continues to delight.
Con Law Offerings at AALS This Year
The panels in and around constitutional law at the upcoming AALS annual meeting are pretty impressive this year. Here's the AALS promo, with links to the panel descriptions and lineups. I was slightly involved in the Law and Religion program, which I think is extremely timely, has a great list of speakers, and will be well worth attending, for people interested in equality as well as those interested specifically in law and religion issues. And I look forward to catching the Fish-and-Posner Show.
- Perspectives on Federal Power Under the Reconstruction Amendments (Section on Constitutional Law)
- Liberty-Equality: Gender, Sexuality, and Reproduction- Griswold v. Connecticut Then and Now (Section on Constitutional Law, Co-Sponsored by Sections on Legal History and Women in Legal Education)
- Religious Beliefs and Political Agendas: What Role Should Faith Play in the Public Square (Section on Jewish Law, Co-Sponsored by Section on Islamic Law)
- Engendering Equality: A Conversation with The Honorable Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and New Voices in Women's Legal History (Joint Program of Sections on Legal History and Women in Legal Education, Co-Sponsored by Section on Constitutional Law)
- Transgender Equality: Prisons, Workplace, and Academic Institutions (Section on Sexual Orientation and Gender Identity Issues)
- Voter Suppression, the 2014 Elections and Beyond (Section on Civil Rights)
- The Future of Marriage (Section on Family and Juvenile Law)
- The Voting Rights Act at 50 (Section on Election Law)
- How (Not to) Provide Statutory Accommodations for Religion (Section on Law and Religion)
- Congressional Dysfunction and Executive Lawmaking During the Obama Administration (AALS Academic Symposium)
- Legislation/Regulation and the Core Curriculum (Section on Legislation & Law of the Political Process)
- Designing a Regulatory System for the Age of Decentralized Virtual Currencies (AALS Crosscutting Program)
- Competition Policy in Health Care (Section on Antitrust and Economic Regulation, Co-Sponsored by the Section on Law, Medicine and Health Care)
- The Rising Bar to Federal Courts: Beyond Pleading and Discovery (Section on Civil Procedure)
- After Bay Mills: The Longevity of Tribal Sovereign Immunity (Section on Indian Nations and Indigenous Peoples)
- The Role of History in the Federal Courts Canon (Section on Federal Courts)
- The Future of the Federal Housing System (Joint Program of Sections on Financial Institutions and Consumer Financial Services and Real Estate Transactions)
- Net Neutrality: Where does the FCC go from here? (Section on Mass Communications Law)
- Anita F. Hill, Supreme Court Confirmation Hearings, and a Screening of the Film "Anita" (AALS Crosscutting Program)
- The Fifty Years War: Can Legislation Ameliorate Poverty? (AALS Crosscutting Program)
- Richard Posner and Stanley Fish: Revising Interpretation (Section on Law and Interpretation)
Writing, Fast and Slow
Zachary Kramer's thoughtful post, "The Slow Writing Movement," brings up a broader choice between two approaches to producing legal scholarship. Fast versus slow. Or what I think of as the Chicago style versus the Harvard style.
The Chicago style is to pump out a bunch of articles every year. When you get an idea for an article, whether big or small, you write it up. The idea is to produce a steady stream of scholarship. Not every article will be a home run. But among your articles enough will be a hit that you'll produce a major body of influential work. I call this the Chicago style because it is most closely associated with the traditional faculty culture at the University of Chicago Law School.
On the other hand, the Harvard style is to write less but bigger. You focus on quality instead of quantity, not sending out an article unless and until you think it is the definitive statement about that area of law. You won't win any productivity awards. But what you send out should be a signficant statement -- if not a home run, at least a double or triple. And by focusing your efforts on really big ideas, the thinking runs, you'll produce a major body of influential work. I call this the Harvard style because I have heard it associated with the traditional faculty culture at Harvard Law School.
Thursday, October 23, 2014
More scholarly outlets?
Zak started a conversation and Bridget Crawford asks a follow-up: When did it become the case that one post-law school is not sufficient to make one a viable candidate and that 2-3 post-school pieces are the norm? One possibility (raised by Bridget and Glenn Cohen in the comments to Zak's post) is the rise of the VAP and the time and writing expectations it provides.
I want to connect it several changes in scholarly publishing (which may be complementary to the VAP explanation):
1) There are more outlets for scholarship. Most schools have several journals and the number seems to be rising. The number of speciality journals has increased, including "law-and-policy" journals that publish the same type of public-law stuff that already plays well in general law reviews.
2) The "typical" article is shorter than it was 10-15 years ago, prompted by the guidelines adopted by several of the t14 reviews. The typical piece is 15-20k words, as opposed to 25-30k. This means, I suppose, that you can write two articles in roughly the time you used to be able to write one.
3) The rise of on-line supplements and similar outlets for shorter scholarship provides an incentive and opportunity to publish one big piece and one small piece in a year.
I am not looking at FAR forms this year, so I do not know if any of these explanations is empirically supported. But I do know that all 3 have affected how and what I write. So it makes sense that they also might affect what VAPs and others planning for the market do (especially if they are getting advice from people in roughly the same position as me).
Justice Clarence Thomas and Korematsu: The Sequel
I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 . Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/ Respectfully, I think Ilya is wrong.
First, Ilya and I actually agree on several things. We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime. Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not.
Yet Justice Thomas in Hamdi wrote that: “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.” Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.” Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters. I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position. He is way out on a limb in finding this U.S. citizen has virtually no rights. And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant. Thomas also indicates that he believe courts should hesitate to intervene in such decisions. All of these views are consistent with Korematsu.
The Slow Writing Movement
Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.
In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.
On Being Sued, 2
Man kills puppies, allegedly.
In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.
Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.
At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.
The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.
Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.
I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.
While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.
More to come.
Wednesday, October 22, 2014
Doubts About Jurisdictional Doubts in Dart
Could there be outside-the-box solutions to the jurisdictional puzzle in Dart Cherokee Basin Operating Company, LLC v. Owens? I recently chatted about this topic with Akhil Amar, one of the five people still interested in it. If you are people three to five, then this is the post for you.
Tuesday, October 21, 2014
Another voice on classroom technology
From Clay Shirky, a professor media studies at NYU. I especially appreciate the point that student distraction by technology is a biological inevitably; as he writes, "[h]umans are incapable of ignoring surprising new information in our visual field, an effect that is strongest when the visual cue is slightly above and beside the area we’re focusing on." This is important on two levels--one personal, one professial First, it gives lie to the "if you'd be more interesting in the classroom, they'd pay more attention" trope. Second, I can use it to explain to my wife why my eyes always move to watch sports on a tv screen in a restaurant.
Subject matter jurisdiction crossword
The answer to 12-Down is "thetutor" (Spencer's TA); the answer to 15-Down is "Locke" (that section's torts professor). New York Times rules apply, so an answer can be more than one word. Have at it.
Tips for First-Year Law Professors
I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching. Everyone has a different perspective, of course, and if I go astray, I hope others will respond in the comment thread. But if this is your first year of tenure-track law teaching, here are some tips you might consider:
1. Send out an article in the spring submission window of your first year. When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar. Now they're watching you to see if their bet was correct. Prove them right by sending out an article in the spring of your first year. You'll benefit in lots of ways. First, your colleagues will be very pleased to see you off to a good start. Second, tenure will look (and be) so much easier with a new article already under your belt. And third, it will get you into the habit of sending out an article in the spring submission window. My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.
2. Invite your senior colleagues out to lunch. Your senior colleagues can be a tremendously useful source of wisdom and insight for you. They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined. Plus, some of them are even really nice people. (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops. Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're particularly prominent scholars -- and invite them each to lunch. Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can.
3. Don't assign too much reading. It's common for new law professors to assign a lot of reading for class. In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way. And in many cases, more reading means more students unprepared for class. I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark. If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester. Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.
Supreme Retirements and the Habit of Politics
There's been a lot of debate over the past year or so about whether Justices Ginsburg and Breyer should or will retire in order to maximize the chances that President Obama will be able to name their successors. In an effort to put out this fire, Justice Ginsburg recently fed the flame by asserting that “If I resign anytime this year,” the President “could not successfully appoint anyone I would like to see in the Court.” Jeffrey Toobin asked the President about this, and he responded with a measure of skepticism, while conceding: "Life tenure means she gets to decide, not anybody else, when she chooses to go.” Underlying these events is an important question: should supposedly neutral Justices time their retirement decisions based on what seems like political strategy?
Monday, October 20, 2014
Misunderstanding Rule 11
Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.
Whose job is it, FRE edition
I finally got around to reading the argument in Warger v. Schauers, dealing with whether FRE 606(b) prohibits inquiry into jury deliberations in trying to show that a juror was untruthful during voir dire. During the argument, counsel for respondent (the defendant, who won at trial) repeatedly argued that, if the Court believes it would be better to allow juror testimony on such claims, then it is a job for Congress to change the rule. Counsel repeated this point several times, always mentioning Congress as the source of any change.
But it is not Congress's job, at least not primarily--it is the Court's job, under the Rules Enabling Act. It is true that the original 606(b) from 1973 (it was amended once, in 2006) was affirmatively enacted by Congress as part of the original Federal Rules of Evidence. But since then, changes to the FRE follow the same procedure as changes to the FRCP or FRCrP, with the advisory committees and the Court taking the lead and Congress merely exercising a power to disapprove a submitted rule. And while Congress can always amend the rules through ordinary legislation, that is not the primary or presumptive way to make a change. When litigants talk about the meaning of the FRCP or the need for amendment, it is always discussed primarily in terms of the Court and the committees. I am wondering why it should be different with the FRE.
Parents and the Privacy of Their Children
In a fascinating article about her son’s relationship with Siri in yesterday’s New York Times, Judith Newman does a terrific job illustrating some key benefits of artificial intelligence. Newman observes how Siri has infinite patience for lengthy and detailed discussions of her autistic son’s obsessions, how it forces him to enunciate clearly if he wants to elicit an answer, and how their interactions improve his communication and social skills. Very exciting stuff.
While I enjoyed learning about Siri's impact on Newman's son, the article also reminded me that when writers take us into the privacy of their families’ lives, we may learn more than we should. Millions of other readers and I now know very intimate details about Newman’s son. We know what he likes to discuss. We know which social skills he lacks. We learn about his speech skills.
In this case, Newman may have drawn the right balance. From her description of her son, it sounds like his autism is obvious to people who meet him, so it’s not as if she disclosed a medical condition, such as HIV infection or diabetes, that otherwise would not be detected by others. And her son may be very proud of his role in teaching so many people how technology can influence the lives of people with autism.
But other revelations about children are more problematic. In many cases, it seems difficult to justify the intrusions into the privacy of their children’s lives by author-parents. Often, the writings may serve many purposes but not the interests of the children they depict. At a time when government, corporations, and other outsiders are too quick to invade the privacy of children, one would expect parents to be more careful about doing so themselves.
Law School Hiring, 2014-2015, 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 email@example.com 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.
A link to the last page of comments is here.
Sunday, October 19, 2014
An Op-Ed on Alabama's Amendment One
Here's an op-ed from the local paper, the Tuscaloosa News, discussing a state constitutional amendment that is on the Alabama ballot next month. That amendment, which bars the application or enforcement of "foreign" law (including religious law, and indeed the history of this provision suggests it is just a next-gen anti-Sharia law) in highly limited circumstances--circumstances that I argue are already covered by current law, rendering this law redundant at best--can be found here. More background on the amendment can be found at Ballotpedia. Comments are welcome, and more detailed inquiries via email are also welcome. Enjoy. Here's the opening paragraph:
Normally, when legislatures do foolish things, at least they do them on their own. But sometimes they ask for our help in being foolish. Alabama's Legislature has done so this year by putting Amendment One on the ballot in this November's election. We should decline the invitation.
Audio at Oyez
Does anyone know why Oyez no longer offers audio of SCOTUS arguments with the transcript embedded into the audio (Compare this audio from last term with one from this term)? It was a great feature that made reviewing arguments easier and more engaging. True, you get the same effect by reading the transcript while listening to the recording. But I am curious why the site has stopped using a truly unique and beneficial feature.
Saturday, October 18, 2014
Chairing, Hiring but Not Attending FRC
This year at USD law school I am chairing our appointments committee and we are focusing on hiring an environmental and/or energy law candidate, whether entry-level or lateral who will assume institutional leadership in the field given that we have a program, concentration, journal and an Energy Policy Initiatives Center (EPIC). We decided to not send a team this weekend to DC. Given our focused search, we believe we can identify the best candidates through the FAR forms, speaking to references, to the candidates over the phone/skype and reading their scholarship. I heard some other schools are following this pattern of skipping DC and our guru Paul Horwitz suggested I post something about this trend. It seems to have been working rather well on our end though it is always nice to have the opportunity to meet two dozen wonderful new scholars in a condensed period of time.
Friday, October 17, 2014
Religious accommodations and legal pluralism
In this piece, ("Religious accommodation's roots in legal pluralism"), Columbia's Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme." She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."
Now, for me -- unlike Katherine, it seems -- to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment! (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.) But, put that general matter aside: Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I don't think that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority." In practice, and in most of the arguments for religious accommodation, it seems to me, the conversations and litigation happen in terms of interest-balancing, toleration, benevolence, getting-along, etc.
It is true that -- for some of us, anyway -- the idea that the state's authority is both bounded and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception and decisions like Kedroff (more on that here). But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.
We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control. But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should. It seems to me that there is nothing -- to borrow Katherine's word -- particularly "radical" about that.
Egg Freezing and Women's Decision Making
The announcement by Apple and Facebook that they will cover the costs of egg freezing predictably provoked some controversy—predictably because it involves reproduction and also because too many people do not trust women to make reproductive decisions.
Interestingly, the challenge to women’s autonomy can come from both sides of the political spectrum, as has happened with several assisted reproductive technologies. Scholars on the left criticized surrogate motherhood on the ground that surrogates were exploited by the couple intending to raise the child, and other new reproductive technologies are criticized on the grounds that women will feel obligated to use them rather than free to use them. Indeed, this concern about coercion drives some of the objections to egg freezing.
Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.
The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.
Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.
Should Lower Courts Facilitate Supreme Court Review?
Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?