Monday, October 13, 2014
Law School Centers
Many law schools have centers or institutes, most of which seem to be ways to carve out market niches, to attract students, to help graduates market themselves, and to attract scholars in a particular field. We have three of them at SLU (the Center for Health Law Studies and the Center for International and Comparative Law), and I am the director of one: the William C. Wefel Center for Employment Law. This center has been a part of the law school since 1987, and in that time has served as an institutional home for our employment and labor law concentration and provided a way to coordinate interesting programming and bring in outside speakers. The center has also provided a way to connect faculty who teach, write, or provide legal services in related areas.
For many years, the center was supported by the efforts of one or two faculty members, simply added onto their other full teaching and research responsibilities, with occasional help from one of the faculty support staff. Now, as a result of some new educational programming and shuffling of staff, the center has more support, including a full-time program coordinator. Additionally, we are in the midst of developing metrics and processes to evaluate our programs, as many law schools are, in line with the ABA's learning outcomes standard, a standard that has been required by other educational accreditors for some time. As a result, we are exploring what our center could be.
We are surrounded by some useful examples. Our own Center for Health Law Studies has been very successful in that field, bringing together researchers, advocates, students, and those who work in health law settings. The Institute for Law and the Workplace at Chicago-Kent, which Marty Malin wrote about for a recent symposium we held on teaching labor and employment law, is an example in the labor and employment arena. In addition to being home for a certificate program, the ILW has business, union, and law firm members, which contribute to the center and participate in its programming. There are opportunities for students (experiential and scholarships), a peer edited law journal and Illinois public sector newsletter, and a number of workshops, conferences, and events with outside speakers.
Our main focus is to provide the best educational and experiential program for our students. We already have a solid curriculum, including the opportunity to spend a semester in Washington, DC, working full-time for an agency that works in the area. We also want to be able to focus on the needs of our community, and provide a home for research, both of which we have made some forays into. So what else might we consider for our center? Are there any centers or institutes you know of that are doing interesting and important things? Have there been difficult tradeoffs in centers or institutes you know about? I'd be interested in any thoughts in the comments.
Adverbs and the Law
One of the many fun things about teaching Criminal Law to first-years is playing around with the different uses and meanings of all the mens rea terms -- adverbs (nearly) all. (I admit, I try to get them to at least appreciate the colorful, pre-MPC terms like "wantonly", "abandoned and malignant", "depraved indifference", etc.). The other day -- prompted at least in part by the debate in Hobby Lobby about "substantially" -- the Wall Street Journal noticed that, whatever our composition teachers might tell us is good writing, "maligned" adverbs live on in the law and in court cases interpreting criminal statutes ("Why Adverbs, Maligned By Many, Flourish in the American Legal System"). (By the way, count me among those who think that Justice Kennedy carries adverb-adversion too far.) Here's a bit:
No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”
Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them. . . .
First Annual Civil Procedure Workshop
We are pleased to announce the First Annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.
The Workshop will give both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. We hope the Workshop will strengthen the study of procedure as an academic discipline. By assembling annually, colleagues will have regular opportunities to meet to exchange ideas, to collaborate, and to participate in a national conversation on civil procedure scholarship.
10 Lists I Read on the Internet That Made Me Feel Stupid
Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post. All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.
But I must not be the only person to notice that the internet seems to have been taken over by lists. There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike. Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list. Still...
It's as if the internets think people can only think in lists. I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid. But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.
I'll join the fun, though. Here's a list of recent lists I find silly:
Sunday, October 12, 2014
With apologies to Property and Land Use prawfs . . .
. . . for introducing them to what I imagine will be a huge time-suck: A quick way to get comparative info about any and every ZIP code. (On the off chance that you ever get tired of the SSA's "Popular Baby Names" site . . ..) (My ZIP code is lower-income, younger, and denser than the median. There are a lot of other things one could say about it, on Notre Dame home-game weekends . . ..)
Too old to root?
My wife grew up in Baltimore, so our family is rooting for the Orioles in the ongoing American League Championship Series--as I told a student, I now am an Orioles Fan-in-Law. And it is utterly exhausting to care this much about a team and to so badly want it to win.
So my question: Does there come a point when we are old to root passionately for a team? Mind you, I am not talkng about caring about sports--I regularly watch (and obviously write about) baseball and other sports and it always will remain a pleasure.* I am talking about living and dying with a particular team, the way I did as a kid or even a younger adult. I was catatonic for days after the Cubs blew the 2003 NLCS and my wife understood. But 11 years later, in a series that it does not even really involve "my team," I cannot work up the energy to be sad or worried about losing. And it even is hard for me to watch, because it feels like too much work to care.
* Although the NFL and I are on a break right now, my response to domestic violence and the gladiatorial nature of the game.
Worse: Maybe the dirty secret is that I am glad and take relief that the Cubs (and, to a lesser extent, Northwestern, my college rooting interest) regularly stink, because it saves me the pain of disappointment when they (inevitably) lose.
Now get off my lawn.
Saturday, October 11, 2014
The Relationship Between Scholarship and Advocacy
This is a pet interest of mine and is fairly well covered and debated in the latest issue of the University of Illinois Law Review in the context of the ACA litigation (h/t: Andy Koppelman). From the relevant page of the Law Review website:
Issue 4 next presents 5 essays responding to Professor Hyman’s article “Why did Law Professors Misunderestimate the Lawsuits against PPACA?” Professors Ramseyer, Blackman, Blumstein, Mazzone, and Koppelman all contribute to this discussion on the Affordable Care Act. The final article, by Professor Hyman responds to and summarizes the foregoing discussion.
Without completely endorsing it, I particularly recommend Jason Mazzone's piece, Obamacare and Problems of Legal Scholarship. (I think that, by way of background, Part IV of Josh Blackman's piece is also useful. I find myself rather skeptical that Ramseyer's piece is as persuasive, with all due respect. It relies on general rather than field-specific data, often rather old data, and not necessarily the most relevant data, and then engages in rather broad, non-field-specific speculation by way of explanation.)
I quoted part of Jason's article on my FB page and got some interesting responses. Let me quote him more fully here, placing in bold the text that provoked the responses I got elsewhere, and see what comments result. The passage addresses an op-ed Jason wrote fairly early in the ACA litigation suggesting that the Commerce Clause arguments in the litigation might have greater purchase than early academic skeptics were suggesting:
[T]he reactions I found most curious came from fellow law professors. Almost without exception, the professors who contacted me (or who wrote responses in other settings) expressed bewilderment, disappointment, even anger that in my op-ed I had “endorsed” the Commerce Clause challenge the plaintiffs were making to the individual mandate. I had, of course, done no such thing. All the op-ed did was explain why I thought the plaintiffs’ Commerce Clause arguments would have greater traction than other commentators were predicting and that a success for the government at the Supreme Court was far from certain. No matter. To the academics who responded to my op-ed, my analysis was actually advocacy. That meant I was on the wrong team.
The lessons Professor Hyman draws from the PPACA episode go to the future role (or not) of professors in predicting case outcomes. I offer a different conclusion, one that concerns professors not as predictors but as scholars—the role we are actually meant to be playing. The failure of constitutional law professors to distinguish between advocacy and analysis is not confined to the PPACA episode I have described. Rather, this failure is commonplace.
I won't quote my FB interlocutors, although some or all of them graciously gave me permission to do so, in part because I'm not going to reprint or do justice to their responses here. In very brief summary, the responses centered around the idea that scholarship, especially in our field, just is advocacy; that this can be productive; and that one must parse the purposes that legal scholarship might serve more carefully before rendering too sweeping a judgment.
I think the last point is a good and important one. It does not, however, answer questions about what professional or normative considerations we should draw for particular types of scholarship serving different sorts of purposes. I am less in agreement with the first two points. And I doubt that any of these points would justify a scholar expressing "disappointment" that a scholar had "endorsed" or given traction to some legal argument because he wrote an op-ed pointing out that this argument might actually have traction on the courts.
I do have some caveats about Jason's piece. I think the present-tense-oriented nature of his piece, which concludes that "something may be wrong--very wrong--within the [legal] academy itself," assumes too readily that the mixture of legal scholarship and legal advocacy, and the problems it creates, is of recent vintage and not a long-standing issue. I think his comparison to other fields is problematic, both because 1) as I noted above, we should do more careful thinking about the purpose and function of scholarship in our field in particular and be careful in assuming that particular comparisons are appropriate, and 2) we should be cautious about assuming no such problems exist in other fields, especially in the humanities and social sciences, or that they are properly dealt with there.
That said, I think the sentences from Jason's piece quoted in bold above have a strong basis in fact and do present cause for concern. Rather than come up with absolute condemnations ("all legal scholarship is political crap," "the left has ruined serious legal scholarship," or what have you) or absolute rules barring law professors from doing both things, I do think we need to think much more seriously, publicly, and collectively about what a proper ethics of the dual scholar/advocacy or scholar/activist role entails. I think it would make a proper occasion for a print and/or live symposium, AALS panel, or (God help me) white paper of some sort.
Friday, October 10, 2014
The Rule of Law and Chess
This coming Monday and Tuesday are fall break here and there are no classes. I had originally planned to get out of town over the weekend and compete in the so-called "Millionaire Chess Tournament" being held in Las Vegas, but various law school related deadlines have nixed that idea. This is the first tournament ever in the world with a million dollar prize fund to be distributed among victors at various levels of chess, ranging from grandmasters to lesser players (like myself). The usual prize funds in chess are a pittance, especially compared to poker tournaments. The sponsors are trying to generate publicity and excitement about the game, and have gotten press coverage in the New York Times, and other venues, even though most experts think the sponsors will lose money. Chess has taken off lately by being used in various school systems and by the establishment, for example, of the St. Louis Chess Club which is now considered one of the most famous in the world (due to its generous patron). But one of the crucial issues in chess is the problem of cheating, especially when there is a lot of money at stake as in this tournament.
Chess tournaments have experienced a rash of cheating. One of the most noteworthy situations occurred several years ago with allegations of cheating by a member of the French chess international olympiad team that involved the player apparently receiving signals from an affiliated spectator, who was receiving moves electronically from a person located elsewhere. The person elsewhere was relying on a super-grandmaster level chess computer engine. The French case resulted in substantial litigation. Another series of incidents involved a Bulgarian player who had several tournaments where he was badly beating much higher rated grandmasters. This raised a red flag. The player was essentially banned from various tournaments, and officials finally decided that he was likely using technology in his shoes where he somehow received signals (the player refused to take off his shoes when challenged). But the more basic problem for ordinary players is the option of an opponent walking away from the board (say going to the bathroom) and sneaking looks at their smart phones which may contain chess engines. So from what I understand, the Millionaire Chess tournament is banning any electronics in the playing rooms, scanning players who enter for such devices, prohibiting spectators in certain places, and banning the players from going into certain areas while their game is ongoing. The venue also has "undercover" as well as casino employees monitoring the situation. It's distressing when games or sports experience these kinds of cheating, but it is even stranger (though not unprecedented) to see it happen in an activity where the goal is a celebration of the power of the mind.
More on prosyletizing police
On Wednesday, I discussed a lawsuit brought by an Indiana woman who alleges that a police officer, at the end of a traffic stop, asked her about accepting Jesus as her lord and savior and gave her literature about an area Baptist ministry.
In my Civil Rights class on Thursday, we had an extended discussion of the case (the timing of the suit was perfect--we were finishing Qualified Immunity) that drove home for me the real chance that the officer will be able to successfully argue that the right was not clearly established. There probably is no case law on factual point--a police officer distributing religious material during a traffic stop without an explicit threat or punishment. Cases about proselytizing teachers are analogous (the complaint repeatedly alleges that the plaintiff did not feel free to leave, setting up a similar captive-audience situation combined with an implicit threat of punishment), but perhaps distinguishable in context. While there likely were department regs setting out proper conduct during a traffic stop, there likely was not an express prohibition on proselytizing. And there is a question of whether the stop was still ongoing. Is this the equivalent of selling foster children into slavery (Judge Posner's favorite example), so obvious that general anti-establishment principles are sufficient to clearly establish? Can we say the officer was "plainly incompetent" in believing it was constitutionally permissible to do this?
Update: On speaking with a colleague, I may be slightly more optimistic, as he points to two more avenues through which this right might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.
Ultimately, it may not matter, as my guess is the officer (indemnified and represented by the city) will settle, as the case is not worth much money. But it reflects just how difficult life can be for § 1983 plaintiffs.
Thursday, October 09, 2014
While controversial among some ethics experts, uterus transplantation has been performed several times, most commonly in Sweden. A few weeks ago, a mother for the first time gave birth to a baby gestated in a transplanted uterus.
Should we worry about uterus transplants? Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but observers have raised additional questions about transplantation for life-enhancing body parts like faces and hands. As long as transplant recipients have their new organs, they must take drugs to prevent their immune systems from rejecting the transplanted organs. The risks can be substantial. For example, the immunosuppressive drugs put people at an increased risk of cancer. It is one thing to assume health risks for the possibility of a longer life, but are the risks of being a transplant recipient justified by improvements in the quality of life?
Wednesday, October 08, 2014
Zombies Defeat Tort Law
It's always a shame to let a Prawfs guest stint go by without working in zombies. Maybe there's just something in the air. The Walking Dead is returning to my DVR box (any series which once starred a law professor's kid can't be all bad). Maybe it's that I'm still hoping a review copy of Zombie in the Federal Courts will arrive.
So next week, my college's campus gets taken over by a game called "Humans v. Zombies." According to this article in the student newspaper, all campus needs to prepare itself, because hordes of people shooting each other with nerf guns and tagging each other with two hands are about to descend. What could possibly go wrong?
A bit, learned the plaintiff in Brown v. Ohio State University, 2012 WL 8418566.
India's Constitution and Sexual Identity
With all of the news about same sex marriage in the U.S., it's interesting to juxtapose developments here with what has occurred in India. India's Supreme Court is considered to be among the most activist and progressive in the world. To take one example, it has essentially endorsed socio-economic rights even though many of the relevant provisions are in a part of the Indian Constitution titled "Directive Principles." That title would seem to have allowed the Court to treat those sections as merely aspirational. Indeed several state courts in the U.S. have taken provisions that look like they contain positive rights and made them aspirational only.
Yet India's Supreme Court has been a bit schizophrenic on sexual identity issues. To the surprise of many, in December of 2013, a panel of the Supreme Court upheld an 1860 law that effectively prohibited gay sex. Kaushal v. Naz Foundation, Civ. App. No. 10972. The panel overturned an Indian High Court judment that had invalidated the provision. The Indian Supreme Court relied heavily on the fact that the Indian legislature had not amended the relevant section over the years, though it had amended other parts of the law. More recently, however, another panel of the Indian Supreme Court provided legal recognition for a third gender, rejecting the binary male-female categories used more generally by Indian law. National Legal Services Authority v. Union of India, Writ Petition (Civil) Nos. 400 of 2012 & 604 of 2013. The Court there wrote extensively about the discrimination faced by transgender individuals. That panel essentially ignored the Naz decision, though there is a formal effort by advocates to get Naz reconsidered. Perhaps these cases show a problem with having supreme court decisions made by panels.
But two other issues occur to me in thinking about these decisions. The first was raised by a journalist who said that though transgender people in India have rights, it may paradoxially not be legal for them to have sex with either males or females. The second is what would be the impact on American constitutional law if the U.S. Supreme Court ruled that there is a third gender that deserves legal recognition? I realize that some scholars have written about the transgender issue but the question remains.
On Being Sued, 1
In 2011, I published a paper called "Of Meat and Manhood." It's a paper about vegetarianism and sex discrimination. It's about how discrimination has changed in the half decade since Congress passed the Civil Rights Act. And it's about what the future of civil rights law might look like.
Here's a link to the version posted on the Wash. U. Law Review's website. Look at the bottom of the page. There's a link called "Editors Note to Of Meat and Manhood." When you click on it, a pdf opens, which says the following:
Editor’s Note: The allegations that are drawn from the publicly filed complaint in the case of Pacifico v. Calyon et al., No. 100992-2009 (N.Y. Sup. Ct. filed Jan. 26, 2009), are footnoted or sourced to the Pacifico complaint in the Law Review Article. The defendants in that case filed answers denying the referenced allegations of the complaint. Subsequent to the Law Review Article’s publication, the plaintiff in Pacifico voluntarily discontinued the case with prejudice.
No one ever said lawsuits produce poetry.
In late December 2013, I was sued in federal court in New Jersey. The case was dismissed in May of 2014, in a decision by Judge Engelmayer of the Southern District of New York. I haven't spoken much about the case--first because I couldn't while itigation was ongoing, then because I didn't want to.
So now I'd like to share some thoughts. Here's my first take.
More fan crowd-funding
Fans of Ole Miss stormed the field following the team's win over Alabama (sorry, Paul) last weekend; the acts cost the school about $ 75,000--a $50,000 fine by the conference and about $ 25,000 to replace the goalposts and other damage to the field. Fans crowd-funded the total amount and more in a matter of hours. In our Catalyzing Fans paper, we considered fans raising money to pay an athlete's fine.
This is an interesting move, although with two important distinctions. First, the fines/costs were the result of the fans' own conduct, so it makes sense for them to pay it. It does not raise the moral hazard problem of fans essentially indemnifying player misconduct; here, they were paying for their own misconduct. Second, the school was involved--fans contacted the athletic department about contributing and the school set-up a special site. But since Ole Miss (as opposed to the Cleveland Cavaliers) is a not-for-profit entity, the direct giving makes sense.
Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.
Too Much Information? GM Food Labeling Mandates
As NPR reported yesterday, voters in Colorado and Oregon will decide next month whether foods with genetically-modified (GM) ingredients should be identified as such with labeling. And why not? More information usually is better, and many people care very much whether they are purchasing GM foods. Moreover, it is common for the government to protect consumers by requiring disclosures of information. Thus, sellers of securities must tell us relevant information about their companies, and sellers of food must tell us relevant information about the nutritional content of their products.
Nevertheless, there often are good reasons to reject state-mandated disclosures of information to consumers. Sometimes, the government requires the provision of inaccurate information, as when states require doctors to tell pregnant women that abortions result in a higher risk of breast cancer or suicide. At other times, the government mandates ideological speech, compelling individuals to promote the state’s viewpoint. Accordingly, the First Amendment should prevent government from requiring the disclosure of false or misleading information or of ideological messages. (For discussion of abortion and compelled speech, see this forthcoming article.)
What about GM labeling?
Jurisdiction in Dart, With 5 Favorite Oral Argument Moments
The Court heard argument on Tuesday in Dart Cherokee Basin Operating Co. v. Owens, an important class action removal case that was unexpectedly hijacked by a jurisdictional problem pointed out by an amicus (Public Citizen). Like any good jurisdictional discussion, the argument includes funny moments, some provocative ideas, and insights into federal-court practice.
Tuesday, October 07, 2014
I read once that Jonathan Safran Foer wrote Everything is Illuminated on friends' coaches. He would use their apartments while they were out. I would very much like to try this...hint hint, wink wink. Please stock the fridge with sparkling water and a decent amount of hummus.
I've got writing environments on the mind. Though I do the bulk of my writing away from work--my office is in a heavily trafficked hallway, lots of noise--I've never really had an office at home. I wrote mostly at the dining room table, sometimes on my bed. Once or twice on the bathroom floor.
But now I have a desk. And a chair. And a 1960s Shabbat platter to hold my stuff and things. It's all very luxurious.
So what are your necessary conditions for writing? What do you need to get down to work? Where do you do it best? What gets in the way? Are you jealous of my platter?
The politics of sports
Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.
But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.
Monday, October 06, 2014
And then Ferguson
The start of the semester is always a bit of a frenzied mess. I'm usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public's demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.
After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.
Is it unseemly for SCOTUS to wait? (Updated)
Calvin Massey tries to figure out why SCOTUS declined to take a marriage-equality case. One possibility he offered is that "the Court is just avoiding the issue, hoping that the circuit courts will do the job for them," a possibility Massey calls "unseemly."
But is it unseemly and, if so, why? One reason to have "One Supreme Court" is to ensure uniformity of federal law. But if that uniformity comes anyway, is it really necessary that SCOTUS speak (or, as Dahlia Lithwick put it, lead) on any particular issue? Is there anything inherently wrong with SCOTUS waiting for a circuit split or for a circuit to get it "wrong"? Especially when the denial of cert. drops such a big hint to lower courts (particularly the Sixth Circuit, which seemed, based on oral argument, to be most inclined to uphold a state ban) to fall in line or risk being reversed later in the term?
Update: Neil Siegel frames the denials in line with the halfway decision in Windsor, as a Bickelian Court deciding as little as possible while dropping hints to direct the further conversation. Pivoting off that, it shows that our understanding of Bickel and passive virtues must be court-specific. Whereas Bickel likely imagined leaving the national conversation to the political branches and outside the Article III judiciary, here, it is unlikely any states will be suddenly motivated to legislate marriage equality. Instead, the conversation that SCOTUS is encouraging is in the lower federal courts, tasked with reading tea leaves (in Windsor and now in the cert. denials) and moving the discussion forward.
The many (too short) lives of Dan Markel
The just-completed Yom Kippur Holy Day is, in part, a day for thinking about death--our own and those of our friends and loved-ones who have passed away. So it was inevitable to think about Dan's before-his-time death. But the rabbi's sermon at Friday evening's Kol Nidre drove home the incredibly broad range of people and lives Dan touched and the serendipity of those often-intersecting lives. The rabbi and her husband were friends with Dan--all three had been Dorot Fellows in Israel and met several years ago at a Fellows reunion. So the rabbi spoke from the heart about the tragedy of losing their close friend in such a tragic way. And it just so happened that I was in the audience, someone who knew Dan from a different phase of his life.
Sunday, October 05, 2014
A Middle Ground In Heien v. North Carolina?
Could a middle-of-the road solution prevail in Heien v. North Carolina, the fascinating and important Fourth Amendment case being argued on Monday? The parties and most commentators have understandably focused on the more absolutist positions in the case, but alternative dispositions are available. In particular, the Court could rule that mistakes of substantive law are reasonable for Fourth Amendment purposes only when the police have relied on clear guidance from authoritative sources, like courts or legislatures. That middle-ground approach would give the government a partial victory on the legal standard applicable in future cases, while affording the defendant a victory in the case at hand.
Sunday Music Blog
I'm on sabbatical this semester. Seriously, you have to try it. It's the best. Like for realz.
Getting to step back from the day-to-day aspects of the job, take a needed break from faculty politics, look at your work through a wide angle lens, map out the next five years. Good stuff all around.
What's been especially nice is that I've been able to work on my writing habits. I've made two changes to my writing routine, both of which have proven to be wonderful developments.
First, I started writing in the morning. I used to be a late night writer. 10pm to 1am was my sweet spot. I liked the quiet of the house at night, the stillness. But these days I get tired around 7pm. I'm a wreck by 9pm. So now I wake up and crank it out. And it's been good. I heard someone once say that writing in the morning lets you tap into your dreams. I don't know about that. But the real benefit of writing first thing in the morning has been that, once I'm done, I'm done for the day, and I can go spend my sabbatical on things that really matter--like naps and old episodes of the West Wing.
Second, ambient music. Frankly, I'm shocked by this. I like jangly guitars. I like tortured artisists. I like music made by humans. I missed the whole techno thing; glow sticks have never been my jam. Ambient music is music by robots for robots. It makes me feel like I'm swimming, which is strange because I don't really like to go swimming, which is also strange because I live in Phoenix and swimming is what people in Phoenix do to stay cool in our post-apocalyptic summers.
Here's a link to some goodness. It's best enjoyed between 7:30 and 10 in the morning.
Saturday, October 04, 2014
A Law Professor Who Doesn't Want Tenure
So, I decided a while back that I didn’t want to apply for tenure, and advised the administration and (more recently) the faculty at Santa Clara Law of my decision. I reached this conclusion after conducting an inventory of my strengths and weaknesses. Pursuant to this census, I determined that, assuming I remain in academia, I’d probably be a better teacher and scholar without the cushion that tenure provides.
The post concludes:
I don’t want to be that guy — the professor who gets tenure, and then sits on his hands and reads straight from the casebook in class. I don’t think I’d be that person even with tenure. But why take chances? And although a professor without tenure is more likely to get dismissed than one with tenured status, that’s OK, too. I see it as my job, going forward, to perform well enough to make certain that doesn’t happen. If it does, well, I’ve still got my bar card, and being a park ranger wasn’t so bad, either.
Friday, October 03, 2014
The Right to be Forgotten
Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion. His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria.
The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten. The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people. It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues. Students would find it especially accessible. The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S. Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities. "The Two Western Cultures of Privacy: Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers
Can't They Read on the Fifth Circuit?
With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times,
Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.
At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.
The Rule Against Just One Generalized Grievance
During its romp through standing doctrine, last year’s unanimous Supreme Court decision in Lexmark had something to say about the rule against generalized grievances. In short, Lexmark illustrates that the rule against standing for “generalized grievances” (plural) has transformed into a rule against just one generalized grievance. That is, instead of prohibiting standing based on all widely shared interests, the rule has been narrowed so as to apply only when plaintiffs assert the widely shared interest in promoting compliance with the law. As a result, the generalized grievance rule now operates as nothing more than an application of the injury-in-fact requirement.
Thursday, October 02, 2014
Another Disappointing Sign of Our Political Times
As the campaign season heats up, demagogic appeals to the voters are starting to crowd the airways. So when NPR ran a story yesterday about the seemingly lax oversight by Federal Reserve officials over Goldman Sachs, it wasn’t surprising to hear a U.S. Senator condemn the cozy relationship between the Fed and financial institutions and talk about the need for “regulators who understand that they work for the American people, not for the big banks.” Nor was it surprising that the senator did not offer any specific proposals to make the Federal Reserve work better.
But what was surprising is that the U.S. Senator was Elizabeth Warren, who has given much consideration to the ways in which we might make financial regulation more effective in this country. It would have been far more enlightening to have a discussion about what we should be doing.
As a former state representative, I understand the difference between academic discourse and political discourse, but Senator Warren was being interviewed on NPR, not delivering a stump speech at a county fair. The listening audience would likely have been quite receptive to a more nuanced discussion of the issue. Unfortunately, our political system drives even the most thoughtful elected officials to play politics as usual.
What Do We Talk About When We Talk to the Media?
One of the fun things about being a law professor is talking to journalists. Even as a junior professor, one will often have the opportunity to comment in the news media, especially if one writes in a timely area or lives in a city with a decent media market. It's also important. Professionally, one might spend two years writing a piece which redefines the theory of, say, tort law, to be rewarded with 89 readers on SSRN. But in a 15 minute interview with a major or even local media outlet, one can generate immense positive attention for a law school and an affiliated university. From a mission standpoint, moreover, one of the things law teachers can do is educate the public about legal rules and institutions, and the public reads the news a lot more enthusiastically than it does 450-footnote articles.
Below are a few thoughts about talking to the media -- not meant to be exhaustive by any means, in keeping with the "tips" theme of some recent posts:
Is Ex parte Young Doomed?
Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.
The drawbacks of heightened expectations
The NFL has been raked over the coals recently for its (mis)handling several incidents of domestic violence by players. In some ways, this seems unfair, in that we seem to be asking the NFL to do more and do better with domestic violence than anyone else. Domestic abuse is a society-wide problem and no other institution--not the judiciary, not universities, not law enforcement--has not shown much more skill in understanding or handling the problem. In any event, why should professional sports leagues play any role (much less a special one) on the subject. It is not clear that there is a higher rate of domestic violence among professional athletes (it may depend on what the comparison is). And one could argue that teams and leagues should not care about players' off-field conduct, just as most employers don't care about what their employees do outside of work.
At another level, though, I wonder if it is fair to hold sports to a higher standard because of their history--a history that sports, leagues, and teams readily promote. Baseball regularly touts that it was ahead of society on integration--Jackie Robinson joined the Dodgers six years before Brown and two months before President Truman desegregated the military. The NBA has financially propped up the WNBA for almost twenty years, allowing for the longest-running professional teams-sports league. Creating athletic opportunities for women and girls is Title IX's most-visible achievement and what makes possible genuinely popular women's sporting events--University of Connecticut basketball, the US Women's National Soccer Team, etc.). NFL Commissioner Roger Goodell has made noise about the NFL being a moral leader; this is laughable (especially with Goodell as its head), but we should be able to take him at his word as to his intent, which means he bears the burden of figuring it out ahead of the curve.
So if sports and leagues have taken the lead in the past on some social issues and if they get much PR mileage out of that past, is it unreasonable to expect them to take the lead on this issue, when they clearly want to be involved? And if they fail so spectacularly, is it unreasonable to criticize them for that failure?
Another Type of Standing That Isn't?
Last term, the Court’s unanimous decision in Lexmark foreshadowed a major doctrinal shift in the area of third-party standing. As I’ve discussed in previous posts, Lexmark re-characterized “statutory standing” as part of the statutory merits. But Lexmark also went out of its way to hint that third-party standing might soon become parts of the merits as well.
Wednesday, October 01, 2014
The Electorate and Attorneys
Thanks to the PrawfsBlawg folks for letting me join in again. Dan Markel's loss has been devastating, but I hope we can keep his mission alive here by going full speed ahead. As an Iowa-based law professor (Director of the Drake Constitutional Law Center), we have one of the key U.S. Senate elections occurring between Republican Joni Ernst and Democrat Bruce Braley. They are battling to replace Democrat Tom Harkin. Some of you may know, from national new stories, that Braley got into trouble when he was filmed at an out of state fundraiser explaining, in part, that popular incumbent Senator Grassley is a farmer from Iowa who never went to law school. Moreover, Braley elaborated that Grassley may become leader of the Senate Judiciary Committee. Braley's statements were not good politics to say the least. In addition, the fundraiser apparently involved trial lawyers and Braley himself is a trial lawyer. Joni Ernst supporters have run that film clip often on television. On the other hand, Ernst has at times advocated abolishing the Department of Education, privatizing social security, and has not opposed impeaching President Obama. During a recent debate, she appeared to move to the center on some issues as would be expected. Braley did a good job in the debate but did not press her hard on certain matters.
What's fascinating though is that the Braley team has made no effort on television to defend the view that lawyers can play valuable roles in society, even though his campaign Web site does just that. The Web site mentions several instances of Braley helping the underdog against various powerful interests. Certainly, former Presidential candidate John Edwards used his work as a plaintiff's attorney at times to promote his candidacy. Presumably Braley's political consultants (who may know more than me) think the "attorney" word should go virtually unmentioned in television advertisements. But that has handed over the issue of who is the better person to Joni Ernst, as her campaign has run effective ads about her leadership in the National Guard. Moreover, she presents well on television. The polls show Ernst with about a 6 point lead. Whatever happens, it's sad to see the Braley team essentially abandon any defense of some of the good work that Braley likely did as an attorney, even if their strategy is not totally unexpected.
Over the summer, my friend Dan Markel invited me to be a guest at this blog. I was one of probably hundreds who received that twice-yearly call for guest bloggers. Yet another exmaple of how many people floated in Danny's orbit. It had been years since I blogged, but I decided to respond to the request this time because I wanted to write a little about Catalanello v. Kramer, a defamation lawsuit in which I served, grudgingly, as the defendant. Current guest blogger Geoffrey Rapp blogged about the case back in April of 2013.
I do have thoughts on the case--what was at stake, what I learned from the process, how I came to love the concept academic freedom--and maybe I'll get to them while I'm here this month. But it feels wrong not to say something about Danny first.
Life is short
Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.
I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:
Living is no joke,
you must live with great seriousness
like a squirrel for example,
I mean expecting nothing except and beyond living,
I mean living must be your whole occupation. . . . .
Tips on Placing Law Review Articles
I've come back to guest-blog this month at Prawfs in memory of my friend Dan Markel. Dan started Prawfs as a forum for junior law professors. (The strange blog name, for those who don't know, is a Markelism for "raw law professor blog.") I thought it would be fitting to focus my guest-blogging on the topic that originally formed the core of Dan's vision. In particular, I'm going to blog about topics of special interest to junior law professors and those currently on the teaching market. I'll start with a topic that a lot of junior profs worry a lot about: How to place a law review article in a good journal. Here are five tips to consider.
1) Submit in the spring. The best time to submit an article is in the spring submission window, after the new Articles Editors take over and are looking to fill their volume. Other times can work, certainly, but they tend to be more hit or miss than the spring. So unless you have a very time-sensitive article, or you need a placement on your CV (such as for a FAR form you plan to submit), it's best to wait for the spring. The spring season varies journal to journal, but a good ballpark is somewhere in the mid-February to mid-March window.
2) Make your abstract and introduction clear and easy to read. For placement purposes, the abstract and introduction are the most important part of the article. Articles editors will skim them to see if the rest of the article is worth reading, so you need to make the best possible impression. Think of this as your elevator pitch. The abstract is the 1-minute version of your pitch, and the introduction is the 5-10 minute version. Your abstract and introduction should be as clear and straightforward as you can possibly make them. Assume your reader is a generalist, and speak plainly and without jargon about what you are saying and why it matters. For example, if you're making a normative argument, don't just say that your article "explores" a topic or "contemplates" an issue. Instead, tell them your precise claim at the outset. Have a prominent paragraph in both the abstract and introduction that begins, "This Article argues that . . . ."
Tuesday, September 30, 2014
Ebola in the United States—Some Resources for the Law School Curriculum
Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola. Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts, Commercial Law, International Law, immigration, etc. going as well. An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.
Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation. As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself), or interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole. That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others. Here’s a helpful article. This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health. Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service. While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%. Here’s how Vox explained it using visuals.
I wanted to take this opportunity to thank everyone at Prawfs for having me here. For those interested in following my work and activities, my SSRN page is here and my Twitter handle is @irina_manta.
Hiding Behind the Law
Today’s report in the New York Times provides disturbing information about the government’s decision in 2008 not to bail out Lehman Brothers, a decision that may well have deepened the economic downturn considerably. The report is disturbing in a number of ways—for example, Federal Reserve chair Ben Bernanke and New York Fed president Timothy Geithner apparently were not aware of an analysis that suggested Lehman could have been saved. It also is troubling that Bernanke and Geithner have claimed since the collapse of Lehman that their hands were tied by the law. In subsequent responses to questions about their approach to Lehman, Bernanke and Geithner have replied that they lacked legal authority to bail out Lehman.
According to the Times’ analysis, that was not true, and it is unfortunate that public officials would try to avoid accountability for their decisions. Of course, Bernanke and Geithner are not the first people to blame the law in an effort to avoid taking responsibility for their actions—judges and others do that all too frequently. And there is no small irony in blaming the limits of the law in an era when presidents are quick to take actions that exceed their legal authority.
AALS Recruitment Conference Advice
Before I sign off, I thought I'd put out a request on behalf of my fellow job market candidates for advice about the upcoming hiring conference. I've come across a number of helpful posts from a few years ago, but didn't find as much from the immediate past, and I think it would be particularly interesting to hear from anyone who was on the market in one of the recent down years. But of course all tips are welcome!
Here are a few helpful posts with interview tips from Lyrissa Lidsky (2011), Tim Zinnecker (2011), and Daniel Solove (2005). And here's a collection of teaching market advice posted on Prawfsblawg back in 2005.
Thanks again to the Prawfs team for giving me the opportunity to guest-blog, and best of luck to everyone going on the market this year!
Balance of video
This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."
But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.
Monday, September 29, 2014
JOTWELL: Wasserman on Redish & Aronoff on judicial retention
I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.
The Professor As Node
It's hard not to notice a shift this fall(?) among the lawblog world to Twitter. Though the cool kids are already up on something called "Ello," the rest of us, having only recently figured out how to create a "split post" on a blog are now trying to limit ourselves to 140 characters through imaginative vowel-deletion.
When I entered full-time teaching, the big, symposium-worthy question was whether blogging "counted" as scholarship. At that time and today, I thought that question somewhat off point -- it didn't and doesn't matter whether blogging is scholarship or counts as scholarship. The only real question was whether blogging was a worthwhile activity for a scholar and teacher. That is to say, is blogging what our students are borrowing money to have us do? Because Twitter posts are necessarily less detailed and thus, at least individually, seem to lack the usual scholarly weight, they perhaps more obviously raise the question of appropriateness as an activity for those whose lives are funded by the future repayment obligations of others.
I've come to the opinion that Tweeting, "LinkedIn-ing", and blogging -- along with other forms of online networking -- are exactly what our students are paying us to do.
Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2014.
The conference seeks to address the following topics:
- Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
- The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
- Legal obligations and accommodations of religious health care organizations
- Protection (or not) of health professional conscience
- Health care decision-making for minors with religious parents
- Religious objection v. discriminatory behavior
- Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
- “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
- Abortion policy, including clinic protests and protections, and its relationship to religion
- Embryonic stem cell policy and its relationship to religion
- End-of-life care, including assisted suicide, and its relationship to religion
- Complicity as both a legal and religious concept
- Comparative analysis, e.g., between professions, health care practices, countries, etc.
Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.
For a full conference description, including the call for abstracts and registration information, please visit our website.
As September turns to October, our thanks to our September visitors--Seema, Irina, Richard, and Jennifer--for helping kick-off the new school year.
For the new month, we welcome a slate of returning GuestPrawfs: Mark Kende (Drake), Geoffrey Rapp (Toledo), Marcia McCormick (Saint Louis), Zak Kramer (Arizona State), Orin Kerr (GW), and David Orentlicher (Indiana-Indianapolis). [Update: And Richard Re (UCLA) will continue his extended visit with us]
Sunday, September 28, 2014
ASU Aspiring Law Professors Conference
Yesterday I attended the sixth annual Aspiring Law Professors Conference at Arizona State University. I thought I would share a little about my experience for those who might want to attend in future years. Overall, I found the conference to be very helpful to me as someone who is on the market this year, and I really appreciated the enthusiasm and generosity of Dean Doug Sylvester and all the professors who attended. They are doing all of us aspirants a great service by spending their free time on a Saturday trying to prepare us as effectively as possible for the process that lies ahead. (I haven't attempted to reproduce most of the specific advice that we received, but a quick Google search reveals that past conferences were recapped in further detail by permanent Prawfs bloggers here and here.)
The day began with a keynote address by my Pepperdine colleague, Paul Caron, titled Law School Rankings, Faculty Scholarship, and the Missing Ingredient. The address started by asking a question Paul had previously raised with a co-author in What Law Schools Can Learn from Billy Beane and the Oakland Athletics, namely how we can better measure faculty contributions to a law school’s success. Paul went on to argue that, while existing rankings based on faculty scholarship are undoubtedly important, more metrics need to be developed to assess other aspects of a professor’s value to the institution, particularly with regard to the student experience (the “missing ingredient” in existing rankings).
Saturday, September 27, 2014
Intellectual Property Infringement as Vandalism (Part 4)
While, as discussed previously, a number of people advocate for intellectual property to receive the same level of protection as property, few would openly say that it should receive more. In the discussions about intellectual property as property, the latter is generally viewed as a ceiling in that category. One would therefore expect at first blush that when it comes to sanctions, intellectual property infringement would at most be punished at the same level as property violations. Our paper shows that intellectual property infringement bears the most resemblance to vandalism and trespass. In the realm of sanctions, however, not only are the statutory criminal and civil sanctions generally higher for intellectual property infringement than those for vandalism, they are also higher than for downright property theft.
One of the ways to make a comparison is to imagine a hypothetical good of a certain value and examine how it would be treated under intellectual property versus property law. As will become apparent, this exercise is not without its problems and perils, but it is informative nonetheless. Let us assume that an individual distributes a song illegally to 1,001 other individuals. The song would normally cost $1 to download legally. Had all 1,001 individuals who thus obtained illegal copies bought the song in a legitimate fashion, its owner would have earned $1,001. That being said, in this type of situation, undoubtedly not all 1,001 people would have actually bought the good, so the harm to the song owner is lower than that. Furthermore, one could argue that this distribution may constitute a proximate cause for future redistributions, which would bring about greater harm. The extent of this redistribution and of the role that the initial distributor played in their causation are difficult to predict, as is the number of people who would or would not have bought a given song. As a matter of approximation, let us therefore proceed with the figure of $1,001 for the harm (the high end) but with no regard for subsequent harm involving redistribution. Indeed, that is the figure that copyright law would use to evaluate the gravity of the offense. Whether the action was taken for profit or not, a person guilty of this violation could go to prison for up to a year and be fined up to $100,000. If that individual distributed the song to 2,501 people (thus causing a potential harm of $2,501), she would face a maximum sentence of five years if it was done for profit or three years if it was not. She could also be fined up to $250,000.
Friday, September 26, 2014
Thursday, September 25, 2014
"Conscience and Community: Understanding the Freedom of Religion"
Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project. A taste:
“Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .
The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.