Wednesday, February 15, 2017
The Immigration Ban and the Establishment Clause
On Monday, the Hon. Leonie Brinkema of the Federal District Court for Eastern Virginia became the first judge to undertake more than a cursory analysis of the Establishment Clause questions surrounding President Trump’s travel ban. Rather than constrain herself to the four corners of the EO—as the Government urged—Brinkema rested her conclusion on “the highly particular ‘sequence of events’ leading to this EO and the dearth of evidence indicating a national security purpose.”
To justify this approach, she looked to McCreary v. UCLA, in which the Supreme Court self-consciously looked to the particular purpose and history of Ten Commandments displays in courthouses and public schools:
'[T]he world is not made brand new every morning.’ … Limiting the temporal scope of the inquiry ‘bucks common sense: reasonable observers have reasonable memories, and Supreme Court precedents sensibly forbid an observer to turn a blind eye to the context in which the policy arose.
With this in mind, Brinkema did a full inventory of the President’s campaign rhetoric, and concluded that the sequence of events leading up to the travel ban made it likely that the plaintiffs would succeed on the merits of their Establishment Clause challenge.
Tuesday, February 14, 2017
Could Jeff Sessions Stifle State Marijuana Reforms?
Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.” The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think a challenge to most reforms would clearly fail.)
However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.
Hadfield’s Institutional Innovation Agenda and the Administrative State
In Rules for a Flat World, Gillian Hadfield takes an ambitious looks at the rise of and the role of the rule of law. Motivating her argument is the observation, now accepted as received wisdom in the technology world, that we are moving from a world of hierarchies to one of networks. For Hadfield, Boeing’s experience with the 787 Dreamliner provides a case in point: “What Boeing needed from its contracts,” she explains on p. 136, was a means of supporting “a more networked approach to innovation and production.” As she explains, it was not a smooth transition.
The transition from hierarchies to networks continues to challenge how institutions built in the 20th century adapt to a 21st century economy. In commenting on Hadfield’s argument, I will focus on this challenge as it applies to the modern administrative state, as my most recent project focuses squarely on the need for entrepreneurial administration. In that context, it is not Boeing’s Dreamliner contract, but the building of the healthcare.gov website that is a notable case in point. The original website, created using the traditional government procurement model of “waterfall” development, was a disaster. By contrast, version 2.0, built using agile and lean-startup techniques, was a notable success. This success paved the way for the United States Digital Service, which develops professionals who can “hack the technology, as well as people who can hack the bureaucracy.”
Hadfield’s call for institutional innovation and a commitment to developing new models for regulatory oversight is essential in a world where regulatory regimes governing everything from food safety to energy efficient buildings must take account of globalization and technological change. Unfortunately, as Hadfield notes, there are powerful forces that hem in entrepreneurially minded public servants who face incentives “to avoid scandal” rather than experiment with new approaches. Stated differently, the ethos of “fail fast,” which is a core lesson in the technology world, is not tolerated in government. For leaders of agencies in a twenty-first century economy, failure must not be viewed as a scandal—at least if born through competent experimentation. Rather, failure provides data on what does not work and enables institutional designers to iterate and create a better system.
Hadfield sees great institutional promise in private regulatory systems overseen by governmental agencies. I share her interest in such systems and have written about how some of them do or could operate in the telecommunications arena, aiding resolution of network neutrality disputes, spectrum matters, and Internet governance more generally. In encouraging the use of such systems, I must underscore a point she adds about their promise: “private regulators have to fear losing their approval status” for any such system to operate effectively. This means that the governmental agencies who certify such bodies must remain vigilant and able to monitor private bodies operating under their oversight.
For Hadfield’s vision of institutional innovation to be realized, we need entrepreneurial leaders like former Civil Aeronautics Board Chair Fred Kahn to drive experimentation in the development and administration of regulatory regimes. For leaders open to such approaches, there are a range of models, including private regulatory authorities, that can provide more adaptable and effective regulatory regimes. And contrary to the impression left by much of modern administrative law scholarship, the practice of governmental administration is not defined by notice-and-comment rulemaking, let alone by public sector actors. Consequently, in line with Hadfield’s encouragement, regulators would be well served by a scholarly discourse informed by studies of regulatory regimes in practice, creative designs for how regulatory solutions can be developed, and suggestions on how to develop entrepreneurial leaders who can oversee such institutions.
Monday, February 13, 2017
CFP: 2d Annual Ad Law New Scholarship Roundtable
The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.
The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.
Friday, February 10, 2017
Do immigrants benefit from lack of due process? The pro-immigrant case for anti-immigrant procedures
Is the lack of procedural due process a bad thing for immigrants? Not necessarily: The more back-end process we afford to immigrants, the more reluctant Congress may become to authorize front-end admission. If it becomes too difficult to deport, or to deny re-entry to, a particular type of visa holder, then Congress may simply issue far fewer visas, leaving immigrants worse off. As Adam Cox and Eric Posner have argued, the American immigration system can be understood as essentially probationary: Congress lets a relatively large number of people into the United States on the theory that the President enjoys enormous discretion to kick them out or deny re-entry at the back-end. By a kind of political hydraulic pressure, the courts' imposing elaborate procedures at the back-end could induce Congress to increase enforcement resources ("build the Wall") or cut back on categories of visas, making more process an uncertain boon. In a thoughtful comment to one of my earlier posts, Chris Enloe, a former foreign service officer, made this case for expedited decisions: "...there is no way embassies and consulates are staffed for [elaborate hearings on visas]. And [such process] would result long term in [our] issuing many fewer visas in the first place....".
Enloe's point about ex ante effects is one reason why I remain agnostic about the value of judicially imposing a lot of procedures, let alone substantive limits, to protect immigrants from executive action. Fortunately, I do not believe that this worry about ex ante effects has much application to the Ninth Circuit's decision in Washington v. Trump. My reasons also go a ways toward answering some objections raised by Jonathan Adler and others to my earlier posts.
Managing the Vacancy Crisis: An Example of Resource Dependence in Federal Courts
One of the fundamental premises of modern organizational theory is that most organizations are resource-dependent; that is, they rely on the external environment for goods, labor, financing, or other resources necessary to complete their mission. Factories require raw materials, nonprofits require sources of funding, and government agencies require taxpayer dollars and at least some modicum of public support.
Court systems are heavily resource-dependent in their own right, perhaps unusually so. To serve their mission (which, we’ll stipulate for now, is the resolution of legal disputes brought before them), courts require a wide range of both tangible and intangible resources: funding, staffing, physical space, constitutional and statutory authorization to conduct their business, a regular flow of cases into the system, public participation (in the form of jurors), and public support (in the form of legitimacy). If any one of these resources dries up, a court’s ability to perform its mission is compromised.
Perhaps no resource dependency is as striking as judicial staffing. Many organizations depend on others for the resources or permission to hire key employees, but typically they have some say in who actually gets hired. Courts, by contrast, are at the mercy of the public and/or the other branches of government when it comes to adding or replacing their own members. In most state court systems, periodic judicial elections (whether contestable or of the retention variety) at least provide the judicial branch with some regularity as to the timing of replacing judges, although elections can also create massive turnover on the bench.
In federal courts, where a sustained vacancy crisis has led to nearly 120 unfilled Article III judgeships as of this writing, the deficiency is especially pronounced. Barack Obama showed little interest in quickly filling lower court judgeships during the first year of his presidency, and Donald Trump has not indicated much greater interest in the early weeks of his administration.
Still, the courts are expected to do their job. And over the years, the federal courts as an organization has developed a variety of ways—some public and direct, others more private and subtle—for managing inconsistent periods of this particular resource flow.
The Federal Circuit and "Patent Exceptionalism": Part I
The U.S. Court of Appeals for the Federal Circuit, the appellate court with exclusive jurisdiction over patent cases, is often criticized for treating such cases as “exceptional.” Over the past decade or so, the U.S. Supreme Court has issued a number of opinions, which, as Peter Lee recently wrote, “reflect a project of eliminating ‘patent exceptionalism’ and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles).” This is the first in a series of posts that will discuss the Federal Circuit and exceptionalism.
One fundamental way in which the Federal Circuit treats patent cases as exceptional relates to a choice of law question that arises frequently in patent litigation. When Congress created the Federal Circuit in 1982, it clearly intended for Federal Circuit law to govern substantive issues of patent law like infringement and obviousness. What Congress failed to consider, however, was whether procedural questions in patent cases should be controlled by Federal Circuit or regional circuit law. The Federal Circuit was forced to decide this question soon after its creation, and held that regional circuit law generally applies unless the procedural question is “unique to patent issues” or “intimately involved with the substance of patent laws,” in which case Federal Circuit law applies. Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564 (Fed. Cir. 1984). Since Panduit, the Federal Circuit has articulated this choice-of-law test inconsistently, creating confusion and difficulty for litigants and lower courts.
Although scholars have discussed this issue over the years and proposed various solutions (see, e.g., here, here, and here), neither the Supreme Court nor Congress has weighed in on this question. There’s a good argument that specialized courts like the Federal Circuit would benefit from a generalist perspective, so perhaps the Federal Circuit should apply regional circuit law on all procedural matters. The problem with that approach is that often procedural questions arise that are unique to patent cases, so there is no regional circuit law for the Federal Circuit to apply. On the flip side, the position that the Federal Circuit should simply apply its own law to all procedural questions like other Article III appellate courts is also persuasive. What’s clear to me is that the current framework—which leaves parties guessing at what procedural matters are “unique to” or “intimately involved with” patent law—is flawed and should be fixed.
The process of challenging the travel order
The litigation in Washington v. Trump has become politically confused following Thursday's decision by the Ninth Circuit.
The district court issued a Temporary Restraining Order; while it was entered following an adversary hearing, it was on light briefing and without an evidentiary hearing. It was designed to maintain the status quo until there could be briefing and a an evidentiary hearing on a preliminary injunction, although the briefing schedule was set so that the TRO would last more than the 14 days allowed by FRCP 65(b)(2), although not substantially more than that. The order was, as many have noted, bare-bones and conclusory in the constitutional analysis, as befits a TRO.
The United States appealed, although it was not clear what or how. TROs are not subject to immediate appeal, although preliminary injunctions are. The purpose of the appeal appears to have been to get the Ninth Circuit to stay the district court order.
The Ninth Circuit panel recast the TRO as a PI (pursuant to Ninth Circuit precedent allowing the court of appeals to look through the label), granting it appellate jurisdiction, then denied the stay pending appeal. The Ninth Circuit has set a briefing schedule for the appeal (running into March), so we are done at the district court, at least at the preliminary injunction stage. At the same time, the panel left open the possibility that the merits panel could revisit the issue, decide this is really a TRO and that there is no appellate jurisdiction, kicking it back to the district court for the evidentiary hearing it was trying to hold. There also is the possibility that the Ninth Circuit panel will decide that it cannot review the decision without an evidentiary record and remand for that hearing.
Thursday, February 09, 2017
Procedural Due Process in the Ninth Circuit's Immigration Order Decision
The Ninth Circuit's decision upholding judge Robart's TRO on President Trump's Immigration Executive Order focused on the procedural due process rights of lawful permanent residents, citing Landon v. Plasencia and noting that "[t]he Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens." The Court brushed aside the ad hoc efforts of White House Counsel to exclude LPRs from the scope of the EO, noting that "[t]he Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order" and that, "in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."
More interestingly, the Court went beyond LPRs to recognize the potential procedural due process rights of other aliens, including nonimmigrant visa holders:
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).
As I noted in an earlier blog post, I believe that procedural due process forms the best hope of overturning this EO. Beyond the fate of this particular EO, however, the courts' recognition that holders of nonimmigrant visas have protected liberty interests in those visas would be an enormous triumph for bringing constitutional doctrine in line with practical reality and justice. If Trump's EO succeeds in extracting such recognition from the judiciary, it would be a lovely irony.
Submission Angsting Spring 2017
We are going old school with the angsting thread -- back to its beginnings, when Redyip, the great bird of the gods of Zarcon, first alighted into the sky to signal the beginning of the law review submission season. I'm not sure if Redyip has provided the signal to Orin yet; we await further enlightenment. But ye may gather here, on this angsting thread, to provide such news: have journals awakened from their winter slumber to renew their manifold judgments? Hark, traveler! -- do I see the winged colossus?
Two cheers for corruption: Avoiding Sino-American Conflict with Conflicts of Interest
The New York Times reports that the Trump Administration/Family (is there a difference?) is backing away from its confrontational attitude towards China by sending a friendly letter to President Xi Jinping calling for a "constructive relationship." As another story in the Times notes, Trump's letter follows on the heels of Ivanka's visiting the Chinese embassy for a Lunar New Year party, Trump's granddaughter's singing a song in Mandarin on Instagram (viewed by many Chinese), and (most important) Jared Kushner's enter into talks with the Chinese ambassador. The Times also notes that Kushner has important business dealings with Wu Xiaohui, a Chinese billionaire who owns Anbang Insurance Company, one of China's largest insurers, and who has close ties to the Chinese Communist Party. Wu and Anbang also have close business ties with Stephen Schwarzman, the Blackstone Group billionaire and chair of Trump's business council. (Schwarzman has created a scholarship program, college, and Institute at Tsinghua University, the university with the closest ties to the highest elites of the CCP).
Some might view this byzantine network of familial and financial ties as just another skein of Emolument-laden corruption tying the Trumps to power and money across the globe. To which I say: Praise the Lord. It is precisely such ties that might prevent global catastrophe during the next four years. I am admittedly biased in favor of Sino-American stability over Trumpian integrity: Far better to be governed through billionaires' global guanxi than the paranoid nationalist fantasies of Bannon, Flynn, and Navarro. There are uncanny parallels between August 1914 and 2016. The race for naval supremacy between an incumbent superpower (British Empire/USA) and a rising land-based monarchy (Wilhelmine Germany/PRC) is one such parallel; the shadow-boxing between Great Powers over the independence of small nations bordering the land-based monarchy (Serbia/Taiwan) is another. Jingoistic mass publics on both sides of the Pacific (愤青 in China, Trumpistas here) provide ample tinder if one of Trump's rash moves lights a spark. If Wu, Schwarzman, and Kushner's deal-making saves us from war, then I am happy to say "to Hell with the Foreign Emoluments clause."
Of course, my worries about war and my hopes that economic ties can avert it might both be overblown. (Norman Angell, in his Great Illusion predicted in 1910 that war between the Great Powers was made impossible by their economic and social ties). But I nevertheless breathe a sigh of relief every time Anbang makes another investment in Kushner's buildings. 新年快乐和最好祝的和平愿望!
Predicting the Future of Legal Services
Thanks to Dan Rodriguez for organizing this symposium and inviting me to participate. As a long-time reader of Prawfsblawg, I’m especially delighted to join the conversation.
It wasn’t easy to decide how to contribute to the discussion about two terrific books. They both raise so many important issues and make so many provocative points that it is hard to engage with the ideas adequately in a few posts. I ultimately decided to focus my comments primarily on Richard and Daniel Susskind’s The Future of the Professions: How Technology Will Transform the Work of Human Experts. In this admittedly lengthy post, I explain why we should take the Susskinds’ predictions seriously. In two subsequent posts, I’ll explore the implications of the predictions for legal education and legal services regulation, when I also hope to touch on Gillian Hadfield’s book, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.
My views on the future of legal services have been informed by Richard Susskind’s earlier books and my own work on projects where “futures” discussions have been front and center. For example, I recently completed service as the vice chair of the ABA Commission on the Future of Legal Services, which produced a report describing many “legal futures” issues in great detail. And I am now the chair of the governing council of the just-launched ABA Center for Innovation. Before becoming a dean, I was fortunate to serve as Suffolk Law’s inaugural director of our Institute on Law Practice Technology & Innovation and the related concentration in the area.
These experiences lead me to believe that we are going to see more significant changes over the next couple of decades than we have seen over the last twenty years (and those recent changes already have been considerable). That’s a long way of disclosing that I read the Susskinds' book expecting to find myself largely in agreement with their predictions. I wasn’t disappointed.
The Essence of the Susskinds’ Forecast
The Susskinds’ predictions turn in no small part on an important narrative about how people have developed and shared their expertise during different periods of human history. Namely, we have seen an evolution from strictly oral communications, to written work, to modern printing, and (most recently) to a digital age where knowledge is acquired and shared with great ease (pp. 147-53).
Wednesday, February 08, 2017
Must Police Return Wrongfully Seized Marijuana?
Imagine the following scenario. P is a local police officer who stops D for speeding. In the course of a consensual search of D’s car, P finds a small bag of marijuana. State law bans the simple possession of marijuana by most people, so P seizes the drug. However, D subsequently convinces a judge that he was allowed by state law to possess the marijuana (say, because he’s a qualified patient under the state’s medical marijuana law). Following the judge’s ruling, D asks P to return the marijuana. Must P do so?
Many states explicitly require the police to return marijuana they have wrongfully (as a matter of state law) seized from individuals like D. But the police sometimes refuse to obey such requirements. The police claim that the act of returning marijuana constitutes a drug distribution offense under 21 U.S.C. Section 841, since federal law defines “distribution” as any transfer of a banned substance. Hence, a state law requiring police to return marijuana poses a direct conflict with and is thereby preempted by federal law.
Ah, but there is a twist. 21 U.S.C. section 885(d) expressly immunizes state police from “civil or criminal liability” under federal drug laws if they are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” The provision was likely adopted to shield police from liability for participating in sting operations. But marijuana users have claimed that Section 885(d) also applies to other scenarios, including the return of marijuana, and thereby resolves any conflict between state and federal law.
Law's New Frontiers: An On-line Symposium
Among the gaggle of recent books on law schools and the challenges to the legal profession, two 2016 books, both from Oxford University Press, stand out for what they teach us about the emerging frontier of law, technology, and professional regulation. Richard & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.
They point to an interesting future -- dynamic, unstable, and conspicuously multidisciplinary -- and make the none-too-subtle point that professional education must adapt to a new landscape.
Over the next three weeks, a group of commentators, from the U.S. and abroad, will offer their reflections on the themes animate in the Susskind and Hadfield books. (You'll note that Phil Weiser (former dean, Colorado) happily jumped the gun, with his interesting post from late last week). I hope that these posts, and the comments they generate, will help advance this very important conversation about how we can move constructively forward as lawyers and legal educators into a world in which technology and the shifting infrastructure of information and expertise propel adaptation (or even failure).
Tuesday, February 07, 2017
The Organizational Character of Courts
In the last few years, there has been a miniature explosion in legal scholarship concerning how courts operate as organizations. I say “miniature” because this recent literature, to date, has largely been limited to a few interesting studies, mostly by Israeli scholars. I say “explosion” because this sort of concerted effort to situate courts within a larger framework of organizational theory hasn’t been attempted in earnest since the 1980s.
If these new studies signal a coming renaissance in court organization scholarship, it would be a welcome development. The studies of the late 1970s and 1980s primarily centered on lessons for court administration—the degree to which state court systems should be centralized, for instance, or how trial courts could be structured to reduce delay in case processing. That work was important for its time, but it was also narrowly focused. Broader investigations into how court systems operate as organizations, and how they structure their interactions with other organizations, still have not been conducted on any significant scale.
It is also an opportune time to reopen court organization scholarship because theories of organizational behavior have advanced markedly in the last thirty years.
Monday, February 06, 2017
Thoughts on the Johnson Amendment
My first encounter with the Johnson Amendment came back in 2010, while I was teaching at Drake Law School. You might recall that the Iowa Supreme Court had just struck down the state statute defining marriage as between “one man and one woman," and three of the Justices were up for a retention vote. In the midst of the wild politicking and spending in the lead up to that vote, the Reverend Cary Gordon, of Cornerstone World Outreach, sent out over 1,000 church pamphlets urging his followers to vote against retention. Indeed, he issued an open challenge to the federal government, publicly asking God to “allow the IRS to attack my church, so I can take them all the way to the U.S. Supreme Court.” The national Liberty Institute quickly offered free to provide free legal services should Gordon’s prayer be answered. It was not, however, and—as you probably know—Iowa lost three talented and dedicated jurists.
Over the last six months, the Johnson Amendment has been in the news again, as candidate Trump pledged to do away with the language that limits 501(c)(3) tax exempt status to certain non-profit organizations, so long as they don't advocate for or against political candidates. And, again, last week, President Trump vowed to “destroy” the provision, which got me wondering how mainstream church leaders actually feel about the disincentive on politicking from the pulpit.
Lewis & Clark Law Review on "Law and Religion in an Increasingly Polarized Society"
The Lewis & Clark Law Review, under the supervision of some superb student editors and Prof. Jim Oleske, has just published a superb symposium issue on "Law and Religion in an Increasingly Polarized Society."* The contents are below and can be found here. The writers include Kathleen Brady, Kent Greenawalt, my colleague Ron Krotoszynski, Marc DeGirolami, Robin Fretwell Wilson, and others. I haven't read all of them yet, but what I have read has been very interesting.
In my rather rough and general opinion, the symposium is highly and obviously timely, and yet comes at a particularly difficult time for those who would attempt to predict the course of law and religion jurisprudence right now, precisely because of both increased polarization (at least in some sectors of the population) and the ways in which the nature and subjects of that polarization have altered dramatically in the past few months. If Hillary Clinton had won the election and depending on the composition of Congress and of political power in the states, we might have expected a more or less linear or steady progression in the kinds of issues and the sorts of debates that had been occurring in the past few years. It's less clear to me that that continues to be true. I agree with those who argue that current events and political outcomes are a continuation of rather than a break with the culture wars; and I think that even if events were taken to mean that the "losers" in that war were suddenly winning and vice versa, but without much else having changed, it would be more or less possible for the discussion to continue along a similar path to the one it had taken. I'm far less certain that that is currently, clearly the case. One needn't conclude that that is either a good or a bad thing, except insofar as unpredictability is itself a major problem. But the issues may change, the intensity and focus may shift from one area to another, and the ability to frame those issues within some kind of "culture war" might need to wait for a clearer picture of where and how that war is being conducted.
My general sense is that even prior to the last few months, there has been some enervation in the field. Law and religion scholars' responses to this enervation have varied. Some have focused their attention on other subjects altogether, outside of law and religion. Some have focused more narrowly on doctrinal questions, sometimes as a way of fighting the legal battle as tenured partisans and sometimes because doctrinalism in such cases can be a way of addressing interesting and pressing "little" questions while avoiding the big questions. (Query how much it is possible to say about the "little" questions if it is the "big" questions that are driving them.) Some may continue writing in the field but shift their attention to other areas, such as standard, good-old-fashioned Establishment Clause questions. (Vouchers!) Some may refocus on larger theoretical questions, abstracting away from particular controversies; I rather hope they do. I think those (and I would characterize some of my recent work in this way) who have tried to stand outside the actual combat and think about the cultural and sociological context of these controversies must perforce remain in a holding pattern on that kind of work until the ground becomes clearer again; at least I think that's the appropriately modest and sensible thing to do, if you're interested in those specific questions. (That said, I have a review essay coming out that at least tries to evaluate where we stand right now and the relationship between recent upsets in the culture wars and law and religion. Like any piece on these issues written between October 2016 and January 2017, it is even more uncertain in its conclusions than usual.)
All this is by way of context and some general observations on the state of the field. To say it's an uncertain time for the field is not to detract from the symposium itself, which contains some excellent contributions and is well worth taking a look at. Congratulations to Lewis & Clark and the journal editors, as well as the contributors, for this fine collection.
Here are the contents:
Kathleen A. Brady
20 Lewis & Clark L. Rev. 1093 (2017)
Marc O. DeGirolami
20 Lewis & Clark L. Rev. 1127 (2017)
Religion and Polarization: Various Relations and How to Contribute Positively Rather than Negatively
20 Lewis & Clark L. Rev. 1157 (2017)
B. Jessie Hill
20 Lewis & Clark L. Rev. 1177 (2017)
20 Lewis & Clark L. Rev. 1201 (2017)
Agora, Dignity, and Discrimination: on the Constitutional Shortcomings of “Conscience” Laws that Promote Inequality in the Public Marketplace
Ronald J. Krotoszynski, Jr.
20 Lewis & Clark L. Rev. 1221 (2017)
Ira C. Lupu & Robert W. Tuttle
20 Lewis & Clark L. Rev. 1265 (2017)
A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion over Religious Exemptions, and the Future of Free Exercise
James M. Oleske, Jr.
20 Lewis & Clark L. Rev. 1317 (2017)
The Nonsense About Bathrooms: How Purported Concerns Over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns
Robin Fretwell Wilson
20 Lewis & Clark L. Rev. 1373 (2017)
* A personal and embarrassed note, which is sincerely meant as the opposite of a #humblebrag. I was asked to contribute to the symposium, and ended up repaying the editors' kindness and generosity with...nothing. Doubtless recovering from surgery didn't help, and certainly some of the questions of uncertainty that I discussed above contributed to my wavering, but I am still embarrassed at my failure to contribute, aside from my regret at not joining such distinguished company. Surely if there is a personal lesson, it is that it is better to say "no" to an attractive invitation than to say yes and then vacillate. Clearly, judging by the contents of the symposium, I would not have added perceptibly to what is already a very good and broad collection of articles.
Should states always have standing to sue the President? Texas, Washington State, and Standing to Enforce (or Fight) National Immigration Law
In a delicious irony (or at least"turn about as fair play") Washington State is now playing the role against President Trump's Immigration EO that Texas played against President Obama's Deferred Action policies: Both states presumed to enforce federal law against the President's immigration policy. One might ask why state attorneys general have standing to bring such claims in federal court. Indeed, the Department of Justice asked this question at length in its motion for an emergency stay, citing old cases like Mellon v. Massachusetts for the proposition that states lack parens patriae standing to protect the interests of their residents (in Washington's case, its state universities' and private firms' interests in retaining profs, students, and employees with nonimmigrant visa).
Massachusetts v. Mellon is, however, so ...1920s. We have a new Massachusetts case -- Massachusetts v. EPA -- as well as the Fifth Circuit's decision in Texas v. United States. If Massachusetts can litigate to hold back the rising tides of water from its coasts, can Washington State sue to keep open its coasts open to the ebb and flow of immigrants? Judge Robarts pressed Michelle Bennett from DOJ to distinguish Texas v. United States: If Texas suffers an injury from the threat of having to subsidize drivers' licenses for unlawfully present persons, why does not Washington State suffer an Article III injury from the loss of tuition-paying students at the University of Washington University? (The transcript is attached to DOJ's motion, with Judge Robarts' questions at pages 23-24). Bennett responded that state universities' losses were "speculative": The students could apply for a waiver from DHS. Judge Robarts, however, could easily have answered that Texas's injuries were even more speculative: Texas could have simply charged more for licenses or stopped handing them out to unlawfully present persons. (As Chief Justice Roberts noted during oral argument, the feds might have sued on preemption grounds in the latter case -- but it was surely speculative about whether the feds would have won that suit).
In short, looking past hair-splitting of Scholastic proportions, nowadays there always seems to be a plausible argument available for state government standing to enforce, or contest, federal statutes. As Michael Greve noted in a brilliant essay, we live in an age of polarized, presidential federalism: Contests between the President and Congress have been replaced by fights between the President and State AGs from the opposite political party. Is that a bad thing? Or a second-best thing -- the closest way to approximate what old-fashioned Madisonian separation of powers would look like if Congress were not mired in gridlock or smothered by one-party control of both branches?
Criticizing v. Threatening--wither the line?
Where is the line between criticizing the judiciary and engaging in threats that potentially undermine the independence of the judiciary? That is the question following Donald Trump's tweets over the challenge to the travel order--where he first referred to District Judge James Robart as a "so-called judge," then said Robart and the judicial system had put the country in peril and would be to blame if there were a terrorist attack while enforcement of the order is enjoined. Will Baude, Eric Posner, and profs on various listservs have decried this as a genuine threat--undermining judicial independence and possibly inciting mob violence against judges should anything happen.*
[*] Threats aside, the comments also rest on a false premise--that there has been a dramatic increase in travel to the United States since the TRO was entered or that the TRO prohibits all vetting and discretion in issuing visas or accepting refugees.
I agree that this is a wrong and intemperate way to criticize a court, a judge, and a judicial ruling and a wiser President would tone it down, focusing on the correctness of the decision rather than whether the judge was acting as a judge and thus had the power to render that decision (Will's point). But I am not convinced this reflects a threat or a shot across the bow of an independent judiciary. Nor am I convinced by how bound up the comments are with whether Trump might disobey or disregard a judicial order. Trump could disobey the order without verbally attacking the judge. These tweets perhaps prime the public to support and accept his disobedience, because they have been primed to understand the decision as non-judicial and thus not entitled to obedience. But they are not a necessary condition for a presidential showdown with the courts, should Trump choose to have one.
On the other hand, I worry that in seeing the President's tweets as so much noise that should not be taken seriously, I am falling into the very trap that a would-be authoritarian President needs--missing efforts to undermine the judiciary before it is too late.
Sunday, February 05, 2017
Focusing on temporary visas as protected "liberty interests" in the challenges to Trump's Immigration EO
The indefatigable Josh Blackman has a post on the "statutory legality" of President Trump's Trump's Executive Order on immigration. Josh focuses on whether 8 U.S.C. section 1182(f) authorizes the E.O., setting aside questions of the E.O.'s constitutionality. Unsurprisingly, he finds that section 1182(f) authorizes the E.O.'s denial of entry: As I noted in an earlier blog post, section 1182(f), a sweeping McCarthy-Era delegation of power to the President, pretty much authorizes everything by its plain terms. My only cavil with Josh's analysis is that the question of statutory interpretation here really cannot be separated from doubts about constitutionality. Such doubts can lead a court, Kent v. Dulles-style, to impose an upper limit on section 1182(f)'s blank check of power, "construing" it narrowly in light of non-delegation doctrine norms.
In order to analyze that hybrid constitutional/statutory question, however, one needs to focus on the most legally plausible constitutional interest at stake that would counsel for a narrow construction of the President's power. In my view, the EO's point of greatest vulnerability is its depriving long-term U.S. residents with non-immigrant visas of their interest in entering the United States and returning to their homes, families, workplaces, and schools. By contrast, the claim that the EO violates equal protection faces a steeply uphill battle. Disparate impacts on Muslims are not sufficient to trigger strict scrutiny (although the smoking gun of Trump's campaign speeches as well as Giuliani's boasting about creating a "Muslim ban" might suffice to shift the burden of proof). Moreover, nationality-based discrimination is still deeply embedded in our immigration system, despite the 1965 move away from national quotas. The Hart-Celler Act of 1965 still maintains per-country limits on immigration, and, more recently, national categories similar to those in Trump's EO were used to exclude immigrants from the visa waiver program in the Terrorist Travel Prevention Act. I do not see federal judges eager to overturn all such nationality-based distinctions in immigration law in the name of equal protection.
After the jump, I offer some thoughts about how and why the procedural due process angle, despite being the most effective argument against Trump's EO, has gotten short shrift from activists and lawyers. The current legal challenges to Trump's EO give higher priority to the equal protection argument, but the PDP argument deserves better billing: The latter provides our best opportunity to shift the constitutional status of nonimmigrant visa holders closer to the reality of their lives. The visa holders excluded by Trump's order are our neighbors and members of our community, not strangers bidding for admission to the USA for the first time. Lawsuits challenging this EO should hammer home that central point, seeking from the courts an unequivocal statement, never before given to my knowledge, that holders of temporary nonimmigrant visas have a protected liberty interest in entry back to their (temporary) homes, schools, and workplaces.
Allergies and the Airlines
Thanks to Howard and PrawfsBlawg for inviting me back as a guest for February. Because I teach and research in the areas of patent law and procedure, most of my posts will focus on those topics. I wanted to start, however, by discussing an issue that has caught my attention primarily because I am the parent of a child with severe food allergies.
As the New York Times and others have reported, American Airlines (AA) has recently come under attack based on its policies regarding customers with peanut allergies. Specifically, unlike other airlines (e.g. Alaska Airlines, JetBlue, and British Airways), AA does not “allow passengers to pre-board to wipe down seats and tray tables” in an attempt to reduce the possibility of exposure to nut residue. Last month, Food Allergy Research and Education (FARE) filed a complaint with the U.S. Department of Transportation (DOT) challenging this policy. FARE argues that by refusing to allow allergy sufferers to pre-board, AA is in violation of the Air Carrier Access Act of 1986, which prohibits discrimination by air carriers on the basis of a “physical or mental impairment that substantially limits one or more major life activities.” According to DOT regulations, “major life activities” include breathing. Thus, FARE argues, allergy sufferers are physically impaired due to their limited ability to breathe. DOT regulations further provide that airline carriers “must offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated.”
This will not be the first time DOT has considered how to handle the situation of peanut allergy sufferers and air travel. In 1998 and 2010, the agency proposed restrictions on airlines serving in-flight peanuts, but those efforts failed due, at least in part, to opposition from the peanut industry. So, today, individual carriers have wide discretion in deciding how to treat passengers with peanut allergies. Some airlines have taken steps to protect peanut allergy sufferers—e.g., by not serving peanuts, creating “buffer zones, ” making announcements when someone on board has a severe nut allergy, or allowing allergy sufferers to pre-board to wipe down their seats. But other carriers have not made such efforts, and currently are not required to do so. While I realize that a complete ban on peanuts is probably unrealistic, I hope that FARE’s complaint will make air travel safer and more predictable for those who suffer from life-threatening food allergies.
Saturday, February 04, 2017
Nationwide TRO bars enforcement of immigration order (Updated)
A judge on the Western District of Washington has issued a nationwide Temporary Restraining Order barring enforcement of the main provisions of President Trump's immigration executive order. The order is short (7 pages) and cursory and lasts only until the parties can brief the preliminary injunction, which presumably will receive fuller analysis. Josh Blackman has a quick analysis, with which I basically agree. At the same time, a judge in the District of Massachusetts refused to extend the TRO issued on an emergency basis last weekend.
Some quick highlights:
The lawsuit was brought by the states of Washington and Minnesota. The court seemingly accorded them parens patriae standing, although courts generally do not allow states to assert their citizens' rights--Virginia tried unsuccessfully to use it to challenge the Affordable Care Act). The court also finds harm to the state itself, through its public universities, tax bases, operations, and public funds.
Friday, February 03, 2017
What a law school world without U.S. News might look like
First, many thanks to Howard Wasserman for inviting me to guest blog. It has been a terrific experience.
Many people in legal education criticize the U.S. News rankings in a variety of ways. I don't want to revisit those criticisms. The question I want to discuss is not whether USN could be better, but whether law schools would be better off without USN. Many people pine for a world in which USN's rankings did not exist at all.
USN rankings are important to schools primarily because they're used by prospective students and employers (including judges), and to a lesser extent by other constituencies such as alumni/ae and prospective faculty members. It is no secret that many schools make operational and strategic decisions based at least in part on the likely effect on the school's USN ranking. As a school's USN ranking declines, its costs go up because its admissions yield usually declines and its tuition discount usually goes up.
More on Eight is Enough--the Appointments Process
Some further thoughts on Eric Segall's proposal for an eight-person, even-partisan-divided Supreme Court. I believe it produces a functioning Supreme Court, so the objections that it cannot work--that it will create disuniformity and uncertainty in federal law--are overstated. But it does not resolve problems in the appointments process, leaving in place gamesmanship and perverse incentives that may create more. I alluded to these in my JOTWELL essay and want to flesh them out further.
Broadly speaking, Eric's proposal has four pieces (put aside how to codify this): Eight Justices; no more than four Justices from either major party and each seat must be filled by a member of that same party; 2/3 supermajority to appoint an independent or someone who refuses to disclose her party affiliation (to leave open the possibility of a highly qualified independent); approval by a majority of members on the Senate Judiciary Committee from the nominee's party.
One goal of the plan is to fix the appointments process. The theory is that because no appointment shifts the Court's ideological balance, the stakes are not as high. A Justice of one party always will be replaced by a Justice of the same party, with only a difference of degree depending on the party of the appointing President. Segall also hopes it will produce less ideological Justices--as a President of one party will seek out a moderate from the other.
The problem is that an ideological balance remains at stake with the appointment, just in reverse--while a seat is vacant, there is a 4-3 Court, tilted to one side ideologically. And that may affect the desire to appoint or confirm anyone at all or how willing an actor in the appointments process is to negotiate over a Justice from the opposite party.
After the jump, thoughts on how the game might play out in four situations, all with a President from Party A. The game changes depending on four variables. The result might not be what we expect.
JOTWELL: Wasserman on Segall on Eight is Enough
I have the new Courts Law essay, reviewing Eric Segall's Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court, which proposes codifying the current eight-Justice/even partisan divide on the Court.
We moved up publication on this piece to time it with the Gorsuch nomination, which either spells the death knell for the proposal or gives it life. I remain unsure whether I am sold on Segall's plan as a normatively best design or whether it just looks good compared with the political alternative. But it has some genuine merit. Iwill have more to say in a second post.
Constitutional Limits on Delaying or Denying a Hearing and Up-or-Down Vote on the Gorsuch Nomination?
My view during the Garland nomination was that the Republican refusal to grant a reasonably timely hearing and an up-or-down vote on that nominee was deplorable but not unconstitutional, and that such arguments as they provided to justify it were rationalizations, not good reasons.* I think that Democratic refusal to grant a timely hearing and up-or-down vote to Neil Gorsuch is also not unconstitutional, while setting aside for the moment whether it is deplorable or not. On the whole I think it is dangerous, although I understand the arguments that it is justified by the prior conduct. Many constitutionalists agree with me both that the obstruction of the Garland nomination was bad but constitutional, and that obstruction of the Gorsuch nomination would also be constitutional (and possibly bad, although there will be greater variation in views on that question).
But it is striking, in going back through the Garland debate, to see just how many law professors (and others) argued that the refusal to grant a hearing and straight vote to Garland was not just deplorable but unconstitutional; not just unconstitutional but clearly unconstitutional; and not just clearly unconstitutional, but clearly and unequivocally unconstitutional, which is to say admitting of no clear exceptions, or no exceptions at all.
Here are only a few examples. 1) A letter by around 350 law professors publicized by the Alliance for Justice asserted that there was a "constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote." "The Senate’s obligation in this circumstance is clear," the correspondents argued. "The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty. The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a timely vote on the president’s nominee." The writers included some highly qualified and respected constitutional law scholars, including Laurence Tribe, Kenji Yoshino, Erwin Chemerinsky, Rebecca Brown, and Linda McClain. 2) Also under the AFJ, a letter from some 58 Indiana law professors argued that "an outright refusal to even consider his nomination runs counter to the Senate’s obligation, under Article II of the Constitution, to provide 'advice and consent.'" Its conclusion stated: "Chief Judge Garland is an eminently qualified nominee who deserves fair consideration of his nomination. Refusing to do so is an abdication of the Senate’s constitutional duty to provide advice and consent." The writers included a former head of OLC. 3) The AFJ publicized a similar letter from a similar number of Ohio law professors. Its language mostly tracked the Indiana letter. It concluded: "The Senate must perform its constitutional duty and deliberate over Judge Garland's suitability as a Supreme Court nominee. Holding a hearing and an up-or-down vote on his nomination are how the Senate does its job. Refusing to consider the Garland nomination on its merits would be an abdication of the Senate’s constitutional duty to provide advice and consent." 4) A letter from 43 current and former law school deans was, in fairness, cloudier in its arguments, but suggested the belief that there is a "constitutional duty to ensure a fully functioning Supreme Court," that this includes a constitutional duty of "holding hearings and providing an up-or-down vote on [a] nominee," at least where there is an eight-member Court. It added more straightforwardly that Article II, section 2 of the Constitution operates "without qualification." 5) In the Chicago Tribune, Professor Geoffrey Stone wrote that "it is [Senators'] constitutional obligation to have a fair and open hearing and to vote to confirm Garland." Note that Stone went further than his colleagues, arguing not just that there is a constitutional duty to provide hearings and an up-or-down vote but that, depending on how you read his op-ed, either as a matter of well-established practice or as a matter of "well-established constitutional tradition," the Senate must confirm any "well-qualified and reasonably moderate" Supreme Court nominee.
No doubt others could find more, and still more emphatic, examples. Although it's an obvious point, it's worth stating that no one put a gun to anyone's head and insisted these writers sign on to a constitutional argument of this sort. They could have said nothing, or argued on non-constitutional grounds, including grounds of traditional or optimal Senate custom and practice. They didn't. The fairest and most respectful reading of their action, therefore, is that they considered what the letters said before signing them and believed what they said, and that they should be treated as such.
Given what they wrote, I find it difficult as a matter of constitutional law (on their understanding, not mine) to conclude that there is not an identical constitutional duty in this case to provide a fair and timely hearing to Neil Gorsuch and an up-or-down vote on his nomination. (Possibly, on Stone's view, there is also an obligation to confirm him, although the "well-qualfied and reasonably moderate" language allows for some wiggle room, albeit one assumes it should not be used disingenuously). Of those several hundred signers, one would expect at least a few of them to say so equally publicly, and none of them to contradict their earlier reading without persuasive and sincere reasons to do so.
To be clear, I am not making--am frankly not interested in--charges of "hypocrisy," a move I generally find overused and under-important and try to avoid, and one for which I would have no grounds unless there was clear evidence that they were ignoring or contradicting their earlier-stated views. I am, instead, interested in the fact that this was a large group of law professors voluntarily making a constitutional argument; interested in the obvious implications of this boldly and broadly stated argument in the current case; and interested in whether they will follow through on their own presumably sincere professional constitutional views.
There are a couple of possibilities for action and a couple of colorable, although I think not plausible, counter-arguments. The writers are not obliged to say anything at all about the Gorsuch nomination, or to make any arguments in particular about whether Democrats can delay, resist, or deny a timely hearing and up-or-down vote on Gorsuch. They could write about other aspects of the nomination, or write only about the Garland debacle, or remain silent altogether. Given how strongly they asserted a broad and relevant constitutional principle, this would be unfortunate and suggestive of an unwillingness to speak truth to power. But it is an available option: the best option they have, I think, and the one most consistent with scholarly consistency if not integrity.
Then there are the usual "this case is different" arguments,* and the argument that delay or denial of a hearing or up-or-down vote in this case would be constitutional as a "remedy" to the earlier constitutional violation. I find neither line of argument especially plausible given the earlier assertions. Those arguments, on my reading and I think on any clear reading, were that Senators have a clear constitutional duty to provide a hearing and up-or-down vote to Supreme Court nominees, that the obligation is unequivocal, and that there is no right to ignore it, let alone to do so because you don't like the party in power or the nominee. Of course, one can argue that the Senators should fulfill their duty and then vote against the nominee. (Stone may be barred from making this argument, as we saw, depending on how he uses his wiggle room. Again, I think that wiggle room must be used with integrity.) But I think any fair reading of their earlier statements makes clear that they must believe the same duty applies here. Language like "admits of no qualifications" suggests that simply arguing that obstruction here would be justified in light of the prior obstruction is impossible to square with their apparent constitutional views.
And there are multiple problems with the "remedy" argument. For one thing, most of the time, constitutional lawyers argue, rightly or otherwise, that constitutional "remedies" must not themselves violate clear constitutional rules and duties, and people will go to some lengths to argue that an apparent constitutional violation for remedial purposes is actually consistent with a fair reading of the constitutional text. For whatever reason, constitutionalists generally avoid arguing that some action violates the Constitution but is justified nonetheless. Arguments in anti-discrimination and affirmative action law, for example (and with a good deal of generalization), generally assert that when race-conscious government action is employed for remedial purposes, it is constitutional where the remedy is aimed at addressing identified discrimination that continues to affect individual rights and is closely linked to ongoing governmental actions and effects. That is not an argument that the race-conscious remedy is unconstitutional but justified, but that it is not unconstitutional in that particularized context. It does not apply to this context clearly, if at all. It would certainly be a miracle if all of the several hundred letter and op-ed writers concluded otherwise. Moreover, it is much fairer to call any obstruction of Gorsuch a response to the Garland situation, not a remedy.
One could argue--at least one writer on the constitutional law listserv has done so--that obstruction in this case would be unconstitutional, and that advocates of responsive or "remedial" obstruction in the Gorsuch case should say so in clear terms and argue for it just the same. This has the virtue of transparency and consistency, of forcing its advocates to think about the circumstances in which the Constitution can or should be violated as opposed to massaged or reread, and of being willing to convince fewer people that the "justified violation of the Constitution" argument is right--and risking the possibility that some readers will draw the conclusion that any violation of the alleged constitutional duty of a hearing and up-or-down vote with respect to Gorsuch is just that, and cannot be justified. It would sacrifice political effectiveness for candor. I might not agree with such an argument, but I would welcome having that view aired clearly and publicly.
And, of course, if nothing else, there is a forward-looking possibility, which is that we should--once again--rethink our duties and obligations with respect to signing letters, writing op-eds, and making other public arguments. We could confine ourselves only to those arguments we are sure are right, refuse to sign letters or (especially) write op-eds where we are uncertain their arguments are right, use the narrowest possible arguments we are convinced are correct, and then hold ourselves to those views or clearly and publicly explain why we have sincerely changed our minds.
Again, I make no accusations of hypocrisy or, more important to me, of a failure to make arguments in this case that are consistent with one's clearly stated constitutional views, which is important not for what it says about hypocrisy but for what it says about constitutional and scholarly integrity. To so do, I would have to wait and see how the Senate acted, and then examine every writer's publicly stated views in this case to see whether they followed their earlier views, skirted them, remained silent about those specific issues or about the Gorsuch confirmation process altogether, or offered sincere and persuasive justifications for a change in view. I have seen a couple of Twitter feeds from prominent figures who signed at least one of the documents listed above in which the new statements seem to be in tension with their earlier views. But they may yet qualify their positions, offer sincere and persuasive justifications for any alterations, recant their earlier or newer statements, or even come out in favor of timely hearings and an up-or-down vote on Gorsuch's nomination as a matter of constitutional duty. I do think, however, that what they wrote earlier must be treated as meaning what it said and as a statement of their own sincerely held constitutional views; that any fair reading of those views suggests that, absent some very good reasons, they must urge, or at a minimum not oppose, a hearing and up-or-down vote for Gorsuch; and that any direct contradiction of those freely, voluntarily offered views would raise fair questions about their constitutional views, constitutional and scholarly integrity, or reliability as experts and public commentators.
* As a relevant aside, among the epistemic and rhetorical battles we fight these days, about "fake news," "alternative facts," and the like, there is another problem that I think is both more significant and widespread and much less discussed. That is the profusion of the kinds of arguments, rationalizations, justifications, and rhetorical tactics that are characteristic of both some lawyering and much forensic debate. The problem is not that they are valueless, but that they are much less valuable and much less genuinely respectful of serious attachment to either facts or reasoned elaboration than they appear to be, much more susceptible to "bullshitting," and in the end, in my view, more damaging than some fake story on Facebook to serious discourse or an attachment to integrity and seriousness in thinking and argument. Political argument is not or needn't be legal argument, and legal argument is itself often highly problematic. Once again, although the classic adage is that we are all Legal Realists now, and a few people argue that critical legal theory has not died but been absorbed into general legal thought, I find on the whole that lawyers and law professors at least appear to have internalized very little of the lessons of Legal Realism or CLS, and retain in thought and deed a surprising attachment to the appearance of "reasoned elaboration." Perhaps it ill-behooves a lawyer and law professor to say so, but I think this is a dangerous mistake, especially when this kind of approach to argument increasingly emigrates from the courts and colonizes public and political discussion and debate.
Thursday, February 02, 2017
What Susskind Can Teach Law School Educators
To be a law school leader today, one needs to listen to what Richard Susskind has to say. When he talked about the impact that email would have on legal counseling in the 1990s, many professionals failed to listen. When he talked about the impact of outsourcing of legal work in the 2000s, many professionals still failed to listen. Today, all leaders in law are on warning that what Susskind has to say is worth listening to.
The payoff for law school leaders from reading The Future of the Professions comes both from its discussion of the future of the legal profession and its examination of the future of education. In short, legal education is the crosshairs of disruptive changes to both the profession it serves and to the basic model of higher education. As Susskind explains, both educators and lawyers need to reconsider the historic emphasis placed on expertise and knowledge.
In legal education, the legacy model was focused on knowledge transmission and the goal of teaching students to “think like a lawyer.” The Socratic method and large classrooms for lectures, with a “sage on a stage,” were the norm. in the 1990s, smaller classes, including legal clinics began to develop a range of competencies beyond those developed in larger lecture classes. And even some traditional larger lecture classes introduced “non-traditional” competencies and sought to broaden the skill set developed by the Socratic method.
Teaching and Writing About Marijuana Law
Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.
For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.
Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.
Posted by Robert Mikos on February 2, 2017 at 09:54 PM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2)
Supreme Court Litigation Behind the Veil
We hosted Ted Olson today as part of the law school’s speaker series, and listening to him lament the intense politicization of the Supreme Court, I was reminded that I have a paper deadline upcoming. In early April, Pepperdine Law School is hosting a symposium focused on these issues, and, like Eric Segall and others, I have proposed a possible structural reform.
Article III imposes no numerical constraints on the makeup of the Court. Neither does it specify how many Justices must hear or vote on any particular case, nor how those Justices must be assigned. Thus, the original Judiciary Act of 1789 provided for six Justices, which number was reduced to five in the infamous Midnight Judges Act, and each Justice regularly “rode Circuit” to help decide lower appeals cases until 1891. There is, in other words, no constitutional magic in the current structure of Supreme Court decision-making.
With this in mind, I propose a change to the longstanding practice whereby every non-recused Justice participates in every case. I suggest that cases could be heard and decided by panels consisting of some smaller number of Justices—say, for now, three—and that the particular makeup of these panels could be the product of some version of fair division theory protocol. In other words, if the requisite 4 Justices vote to grant certiorari in Case X, then a mathematical mechanism would assign three Justices to the X panel. These three Justices would hear arguments and then cast votes in much the same way that Federal Circuit Court Judges now do. Unlike the Circuit Courts, however, there would be no appeal for a hearing en banc. Or perhaps this would require a unanimous vote.
Wednesday, February 01, 2017
Framing the coming debate on the Gorsuch nomination
Neil Gorsuch will be on the Supreme Court. Nevertheless, speaking purely as a political partisan, I would like to see Democrats filibuster the nomination and force Republicans to own the decision to eliminate the procedure. Or that both sides agree to end the arms race and adopt Eric Segall's plan to hold the Court at eight.
But the framing of the strategy is going to be essential. It is too easy to say (as the press already is saying) that a filibuster is extraordinary and unprecedented and this would be only the second time it has happened. Forget that the filibuster of Fortas's nomination as Chief was bi-partisan and done when the filibuster was an extraordinary step (as in the then-fresh filibuster of the Civil Rights Act of 1964), rather than a routine part of Senate business producing a de facto super-majority requirement. The year 1968 was the dark ages for Supreme Court confirmations and filibusters, no longer a meaningful historical analogue.
Similarly, the argument has to be more than that the seat was "stolen" from President Obama and Merrick Garland. Senate Republicans did not merely deny Garland a hearing, but did so for a purported principle--a President should not fill a SCOTUS vacancy in an election year/in the final year of his term (although I have never been clear whether that was the final year of a term or only in the final only of a second term).*
[*] That was the stated principle; I am not saying I believe it. Mitch McConnell would have led the Republicans to do the same thing had Scalia died on December 13, 2015 or August 13, 2015 (when the Republicans were already holding primary debates). Or, frankly, anytime after the 2014 mid-terms.
So the Democrats need to find their own principle beyond tit-for-tat.
When articles began to pop up about Neil Gorsuch's mother, the late Anne Gorsuch Burford, I thought "that's interesting." Stories about political families are always interesting. Anne Gorsuch Burford's career at the EPA was interesting as was her her 1986 take-no-prisoners book on her experiences in D.C. I am not, however, among the group that thinks that the most telling thing about Neil Gorsuch's parentage is that Anne Gorsuch Burford was an extremely controversial EPA head.
Actually, the most interesting thing I wonder about Neil Gorsuch's experiences as his mother's son (one of two sons among three siblings) is whether the experience of his mother's death from cancer in 2004 helps to explain some differences between the chapters in his 2009 book The Future of Assisted Suicide and Euthanasia that appear to have been written specifically for the volume and those that were essentially reprints of earlier articles on these topics.
I know nothing about Ann Gorsuch Burford's death but that she died too young, at the age of 62, and that she died from cancer. Although there are those who say that "dying of cancer is the best death, " there is another school of thought that notes many cancer patients die in "excruciating pain and fear." At any rate, we sequester the dying so successfully in our society that it may not be until a very close friend or family member dies from cancer that we knowingly look a cancer death in the face.
Ann Gorsuch Burford's obituary reports she died in Aurora, Colorado while her son Neil Gorsuch resided in Vienna, Virginia. I do not know if Neil Gorsuch was able to participate in caring for his mother at the end of her life when he himself was only 37 years old. What I do know is that the experience of hands on caregiving and on-the-spot decision making for someone leaving this world in the face of great physical and/or psychic pain can be life transforming. Interestingly, we see this transformative experience studied more in the shifts in perspective some hospice and palliative care providers make over a career of caring for the dying than in the re-working and re-thinking of beliefs related to death and dying in the lives of lay people or even bio-ethicists who pass through this experience.
I am interested in whether and how lay people and family caregivers who actively care for those approaching an untimely and painful death also have to square up their lived experience with their theoretical understanding on all sorts of issues, including assisted suicide or medically assisted death. Some of those lay people are bio-ethicists, which I find even more interesting.
How an earlier in life experience with death and dying can draw a scholar or a practitioner first close and then even closer to work in the area of death and dying might be seen as a kind of history of the present. From this perspective, we are all still re-considering, in our lives and in our work, our earlier experiences with death and dying each time we confront the mortality of those close to us.
The work of philosopher John Finnis appears to have been a powerful influence on our latest Supreme Court nominee. It might be argued that John Finnis is the intellectual parent to this son. But I still have to wonder if Neil Gorsuch personally walked those last hands-on miles with his mother.
Thanks to Prawfsblawg for the opportunity to visit here this month.
In Praise of Geographic Diversity on the Supreme Court
Much ink will be spilled in the coming days, I am sure, on President Trump’s nomination of Tenth Circuit Judge Neil Gorsuch to the Supreme Court. Here I want to weigh in on one oft-neglected but important part of Judge Gorsuch's resume: the geographic diversity he would bring to the Court. Gorsuch is a Colorado native, and his address last night repeatedly invoked those western roots. By contrast, most of the current Justices hail from within the so-called Acela Corridor, stretching from Boston to Washington, D.C.
It was not always this way. Twenty-five years ago, the nine members of the Court had spent their formative years in locales all across the country: California (Kennedy), Arizona (O’Connor), Colorado (White), Illinois (Stevens), Wisconsin (Rehnquist), Minnesota (Blackmun), Massachusetts/New Hampshire (Souter), New York (Scalia), and Georgia (Thomas). The distribution was a bit heavy on the Great Lakes states, perhaps, and a bit light on the south-central part of the country, but widely representative nonetheless.
There are several reasons to believe that geographic diversity on the Court makes a positive difference. More after the jump.
Welcome to February.
Thanks to our January guests, who may stick around for a few extra days. For February, our month-long guests will be Ian Bartrum (UNLV), Megan LaBelle (Catholic), Robert Mikos (Vanderbilt), and Jordy Singer (New England).
In addition, February will include an on-line symposium, something we have done in the past and hope to do more of in the future. Organized by Dan Rodriguez, this month will be Law's New Frontiers, a discussion sparked by Richard and Daniel Suskind's The Future of the Professions and Gillian Hadfield's Rules for a Flat World. Participants will be: Daniel Rodriguez (Northwestern), Daniel Katz (Chicago-Kent), Daniel Sokol (Florida), Phil Weiser (Colorado), William Henderson (Indiana-Bloomington), Renee Knake (Houston), Andrew Perlman (Suffolk), Stephen Denver (Law Society of England & Wales), and Javier de la Cendra (IE-Madrid). Dan (Rodriguez) will have more when it is about to begin.
Tuesday, January 31, 2017
Two things law schools should focus on that will help them stay open and thrive
Law schools are in many ways self-contained. Unlike some other disciplines (e.g., Business) we don't educate undergraduates in addition to graduate or professional students. Our dean is not the dean of a school with many, and disparate, departments. We have our own building with our own library. We have our own admissions and professional development offices. And we usually have relatively autonomous registrar and financial aid services dedicated solely to the law school and housed in our building. We are not unique in these attributes; medicine, dentistry, veterinary medicine and perhaps other units are similarly self-contained. But our insularity may be one reason why law schools may be indifferent to the outside world in ways that work against our long-term viability.
As dental education can attest, and as last Wednesday's Inside Higher Ed/Gallup report on provost attitudes (here) supports, insularity can be deadly. But the experience of dental schools suggests at least two things law schools, and especially their leadership, can do to increase support, which may help some schools to remain open and may help other schools to thrive.
Monday, January 30, 2017
Holocaust, Shoah, and unique group experiences
Lost amidst President Trump's offending Muslims the world over was his offending many Jews with his Holocaust Remembrance Day Statement. The statement spoke of the "depravity and horror inflicted on innocent people," without mentioning that more than half of those, the primary targets, and the raison d'être of the Nazi efforts, were Jews. Spokesperson Hope Hicks defended the statement by pointing to the 5 million victims of other groups, including "priests, gypsies, people with mental or physical disabilities, communists, trade unionists, Jehovah's Witnesses, anarchists, Poles and other Slavic peoples, and resistance fighters." Chief of Staff Reince Priebus tried to do the same on Meet the Press on Sunday, producing a fascinating three minutes of video (after the jump) in which he stares blankly ahead while concocting a word soup of adjectives to describe the Holocaust, including "horrible event," "miserable time in history," and "extraordinarily sad." All without ever saying, explicitly (as opposed to blandly agreeing with Chuck Todd's premises) that Jews were the central victims.
Jewish groups were outraged. Stripping away its uniquely Jewish nature is an element of denial--"many people died, not only Jews, and it entailed nothing programmatic or unique to history. And it divorces the event from 2000 years of unique anti-Semitism that made it possible. Fortunately, Preibus reminded us that Trump has Jewish family members, which will be his get-out-of-jail-free card for the next few years.
The question of universalizing affects what we even call this thing. I prefer the Hebrew word "Shoah" (literally, "destruction" or "total destruction"), although that word could isolate the event, and its victims, from the rest of the world and of world experience (not unaided by that historic anti-Semitism). On the other hand, a generic English word such as "Holocaust" allows for the Jewish element to be ignored, perhaps for those same reasons, just as Trump did here.
Updates: First is Deborah Lipstadt in the Atlantic, labeling this "de-Judaization of the Holocaust" as "softcore denialism."
Second is WH Press Secretary Sean Spicer, who was beyond annoyed by people nitpicking of the statement, insisting it had been "praised" (without mentioning by whom) and arguing that President Obama's "anti-Israel" policies of the last eight years are a bigger deal than a statement remembering the Holocaust. Three remarks. First, Spicer makes me long for Ari Fleischer. Second, every statement from the White House trying to defuse this keeps coming back, without acknowledging (or maybe even recognizing), the problem--that the statement is troubling because its memory of the Holocaust is historically wrong in significant ways that play on anti-Semitism. And third, the downshift of how much Trump loves Israel, because: 1) Israel is not the Holocaust and 2) what Trump loves is Benjamin Netanyahu and his government--which is not "Israel" in the same way that Donald Trump is not "America."
Sunday, January 29, 2017
More on the immigration order
Events move quickly:
• Secretary of Homeland Security John Kelly issued a statement deeming "the entry of lawful permanent residents to be in the national interest," meaning "lawful permanent resident status will be a dispositive factor in our case-by-case determinations." The question was raised whether this moots the actions involving LPRs. Administrative/executive interpretation, not reduced to formal policy, typically is treated as "voluntary cessation" of unlawful activity that is not sufficient to moot a case. The government must show it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Given the public confusion over the meaning and scope of the order--with contradictory statements coming from officials within the White House over threee days--and that the policy could be changed tomorrow by a new announcement from the Secretary, this announcement should not meet the standard.
Random thoughts on a Sunday
1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.
But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.
Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.
And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.
Saturday, January 28, 2017
Do President Trump (and Executive Power in General) a Favor: Subject Trump's Incompetent EOs to Vigorous Judicial Review
Suppose you are a President inexperienced in policy-making and, therefore, prone to issuing sloppy decrees that result in politically embarrassing applications that you did not anticipate. Imagine that the law gives you unlimited power to issue such decrees -- giving you, in effect, enough rope to hang your own political career. Such an executive might be well-advised to embed in those decrees some quality control allowing some other entity -- say, courts -- to sand off the decrees' rough edges, "construing" these executive edicts to avoid egregiously absurd applications that might inflame the nation against the edict's author. The very inexperience of the President (or the incompetence of his advisers) makes it unlikely, however, that such a chief magistrate will have the foresight to install such safeguards into his decrees.
Today's controversy over Hameed Khalid Darweesh illustrates how executive power is threatened by ham-handed executive orders like Trump's immigration EO. Hameed Khalid Darweesh was initially confined at JFK Airport pursuant to Trump's EO and, after a lawsuit and the intervention of two congresspersons, subsequently released. The event was more or less a PR disaster for Trump -- and more such disasters surely lurk at airports and consulates across the globe.
After the jump, I will take a page from Jean Bodin's Six Livres de la République and argue that the courts' enforcing some version of the non-delegation doctrine to limit President Trump's executive orders might not only save President Trump from himself but also actually enhance executive power in general.
Friday, January 27, 2017
Mark Roche on "Realizing the Distinctive University" . . . or law school?
My Notre Dame colleague, Prof. Mark Roche, has a new book out, Realizing the Distinctive University: Visions and Values, Strategy and Culture. It is noted, here, in the Chronicle of Higher Education. Here's a bit:
But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"
I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS: "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time). I think Garvey was right then, and Roche is right now, that we need more of this in higher education. I worry, though, that we are moving towards less. Check out Roche's book.
Thursday, January 26, 2017
I Brought You Into This World and I Can Take You Out
One of the more frequent criticisms of state antitrust enforcement is that it can be too political. No doubt that antitrust enforcement decisions can be quite political, whatever level of political unit is doing the investigating. Whether apolitical antitrust enforcement at the level of any political unit is a realistic goal is a question I cannot answer. Political concerns will be raised, after all, even if raised in an ill-advised manner by parties or opponents to a proposed merger. I think the better question is what place larger political decisions should take in antitrust enforcement decision making.
The statements and representations from Aetna Insurance's upper level management cited in Tuesday's Aetna-Humana Memorandum Opinion enjoining the merger illustrate Aetna's desire for a larger conversation about the trade offs between possible merger challenge and the loss of Aetna exchange participation. These documents give lie to the assertion that the review process is absolutely apolitical in all eyes and sharpen the question about how pointedly political goals ought be invoked when discussing merger enforcement.
As you may have read this summer, when a July 5, 2017 letter from Aetna CEO's Mark Bertolini discussing Aetna's desire for DOJ to back off in its merger investigation if the administration wanted Aetna's continued participation in certain state exchange markets came to light, eyebrows were raised by such a blunt quid pro quo demand.
It is hard to know, however, whether the apparent shock is over whether such demands were made or whether they were made so explicitly. For some time, Aetna appears to have self-identified as an, albeit somewhat cautious, booster of the ACA exchanges. One of the two largest health insurer trade associations (one of which did not lose Aetna's membership until this month) does not appear to dispute the vision of its collective role as a force in the shaping of the ACA .
Perhaps the real takeaway is that the government ought keep political concerns at bay, when and if raised by the parties or anyone else. Of course, memorialized statements seeking the quid pro quo of merger allowance in exchange for ACA exchange support can and will be used against you in court.
Some of the things law schools do that probably won't help them stay open (but some might be good things to do anyway)
As law schools struggle with fewer resources they are increasingly focused on activities either designed to increase revenue directly or designed to attract students who might otherwise go elsewhere. My sense is that at some schools, especially those that see themselves as vulnerable to being closed or merged with another law school, these initiatives are also taken with one eye on the central administration, the idea being that such actions will at least show that the law school is doing everything it can to alleviate the decline in JD tuition revenues.
But these efforts are unlikely to help a school stay open. In some instances, though, schools should be devoting time, effort, and resources to these initiatives because they will redound to the benefit of their students and the institution.
Wednesday, January 25, 2017
Email, The Gift That Keeps on Giving
U.S. District Judge John D. Bates spilled a considerable amount of ink in yesterday's Memorandum Opinion enjoining the Aetna-Humana health insurance merger. Even though antitrust opinions are not known for their brevity, the roughly thirteen pages devoted to discussing whether Aetna's announced withdrawal from the complaint counties about three weeks after the date of the filing of the government complaint was motivated by a desire to improve its litigation position or as part of ordinary business decision making is pretty detailed. Because the announcement of withdrawal implicated actions that might be interpreted as consistent with business interest (leaving the exchange market in Missouri, for example, where Aetna was distressed over years of non-profitability) or might be interpreted as inconsistent with business interest (leaving the exchange market in Florida, for example, where Aetna was apparently profitable).
Yes, it was the internal documents of Aetna management discussing motivation for withdrawal from the profitable Florida exchange market or, even, in refusing to discuss the Florida decision while laying out the business case analysis behind withdrawal from the exchange markets in other locales that animated Judge Bates' opinion. It is interesting to find internal Aetna management correspondence (from Steven Kelmar, Aetna's Executive VP and Chief of Government Affairs) memorializing "Most of this is a business decision except where DOJ has been explicit about the exchange markets. There we have no choice."
Still, my favorite part involved hints at what was sometimes unsaid in emails. When Aetna's Florida Market President, Christopher Ciano, received word of the decision to exit the Florida exchange market (he was not part of the decision making group), his serial emails lamenting the decision, pointing out that Florida's exchange market was profitable for Aetna, and stating that he just couldn't make sense of the decision are powerful because of his apparent ignorance or because of what wasn't said. Christopher Ciano was, eventually, directed to stop discussing this matter in emails and to take the conversation to the telephone.
That's the thing about email correspondents -- they often know, on some level, that the messages may be brought to light in some way but they can't always seem to stop. I wonder if, because email can be so conversational in tone, they forget that they are creating a written record.
Judge Gorsuch and the Federal Judicial Oath
President Trump is preparing to nominate someone to the US Supreme Court, presumably creating an opportunity for confirmation hearings to ventilate competing views of the judicial role. I have a draft paper that discusses one aspect of a judge's duty: the federal judicial oath to do "equal right to the poor and to the rich." It turns out that several of the reported front-runners have commented on this oath. Here, I'll explore some interesting albeit brief published comments by the most recent figure to float to the top: Judge Neil Gorsuch of the Tenth Circuit.
Monday, January 23, 2017
JOTWELL: Mullenix on Stancil on rulemaking and economic theory
The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Paul Stancil, Substantive Equality and Procedural Justice (Iowa L. Rev., forthcoming), which applies economic analysis to the rulemaking process (contra, Linda argues, the many of us procedural scholars who are doctrinalists).
Peaceably to assemble
A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.
Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.
So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?
Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?
Narrowing Federal Jurisdictional Rules in Lightfoot
Last Wednesday, the Court issued an opinion in Lightfoot v. Cendant Mortgage Corp.—a case about federal jurisdiction that serves as a useful illustration of a distinctive way of using and modifying precedent: narrowing. Lightfoot is also interesting in raising the possibility that narrowing jurisdictional precedents might be a special undertaking that ought to be governed by distinctive principles.
Sunday, January 22, 2017
Arguments in Ziglar v. Abbassi
Some thoughts on last week's oral arguments in Ziglar v. Abassi, the follow-up to Iqbal raising three issues: 1) Whether a Bivens action can be brought against policymakers on national-security matters; 2) whether the complaints were sufficient under Twiqbal; and 3) whether any of this was clearly established in 2001.
1) This case might give the Court an opportunity to re-emphasize and re-ignite "obvious alternative explanation" as part of the pleading analysis. Although mentioned in Iqbal, lower courts had de-emphasized it as part of the analysis, other than a bit rhetorically. Which is good, since such an inquiry contradicts the purpose of 12(b)(6). That motion asks whether, accepting everything the plaintiff says is true, he could win. For the court to explain the defendant's conduct as a result of something other than what the defendant alleges is for the court to act as factfinder based on the plaintiff's preliminary allegations. But the SG mentioned this standard several times during his argument on behalf of Ashcroft, Mueller, and James Ziglar (the policy-maker defendants); the core argument was that the decisions were based on their best judgment about national security given their lack of information, rather than invidious discrimination.
Saturday, January 21, 2017
"This is what democracy looks like": Jovial Gridlock at the Women's March on Washington
I am not much of a fan of gigantic Parisian-style marches in protest of this or that. I prefer American-style democracy of the town hall/zoning board variety, in which neighbors squabble passionately over boring matters like zoning and snow plows: The ratio of decision-making to time expended seems more favorable to the honing of real political skills. When my wife asked me whether I would attend the Women's March on Washington, therefore, I only reluctantly agreed, with the understanding that I was present strictly to register disapproval of President Trump. (As a lifelong Republican, I did not want to be dragooned into some peripheral cause aside from my "Never Trump" position). During the march, I found myself most in agreement with one sign: "Not usually a sign guy... but jeez."
With all of these caveats, I can report that the Women's March (four hours of which was just a "Women's Stand Around and Wait in Washington Gridlock") was a triumph of democracy, if by "democracy" one means spontaneous, patient, and completely good-natured collective action. In this sense, this March was the perfect complement to the basically spontaneous, patient, and completely good-natured attendance of Trump supporters at the inauguration of their standard-bearer the day before. Both those Trumpistas on the mall and their successors were, for me, a palate-cleansing chaser: The Republic, I feel, is safe.
Friday, January 20, 2017
I do solemnly swear
Maybe this time the Chief, not wanting Trump to wield executive power, will intentionally screw-up the Oath.
Empathizing With Students
I spent some time last week in a twenty hour January mini-term experiment combining students and faculty from UMKC's School of Nursing, School of Pharmacy, School of Dentistry, School of Medicine and School of Law. Our focus was on considering how to use personal narrative interviewing techniques to try to understand healthy, happy aging. Inter-professional training and education can also be something of an education in how other professional students understand their own roles and responsibilities and on how they propose to interact with other licensed professions. It can be incredibly revealing just to observe how students in the various licensed health professions think about wellness, aging, older people, people of modest means, and lawyers as problem solvers.
So many interesting observations on professional training and identity were offered by the students that I thought I might share a few of them here. Here's to the advanced medical student who, when asked to develop a few questions that might help him place an older individual in the context of a lifetime of health decisions, concerns and health successes, candidly observed "so, you're asking me to unlearn some of what I know." I won't forget the advanced pharmacy student who described her professional responsibility to "remember that everything can be poison" and that much depends on precision and caution in dosing. I was struck by the observation of one advanced dental student that people often come to the school's dental clinic deeply discouraged "to have lost their smile." Striking observations all.
My own thinking on what motivates people to enter licensed professions has been enriched by my time with these students and with all the generous with their time older individuals we interviewed this past week.
Empathy is a funny word, a slippery fish. I do not have an opinion on whether it can be taught but I do know it was revealed to me in unexpected moments last week.