Monday, July 25, 2016
JOTWELL: Campos on aggregating administrative action
The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.
Google Scholar Law Review Rankings - 2016
Google has published its 2016 Google Scholar Metrics, just in time for the fall law review submissions angsting season to begin (I see that in response to folks already calling for a new Angsting Thread, Sarah has just posted the Fall 2016 Angsting Thread slightly ahead of schedule). I've placed a table with the 2016 Google Scholar Rankings for flagship/general law reviews below the break (with comparisons to the 2015 ranking). I started tracking these Google Rankings as part of the Meta-Ranking of Flagship Law Reviews that I first proposed here at Prawfs in April (combining USN, W&L, and Google scores into a single ranking). And, as both Google and W&L have updated their rankings/metrics since that time, I'm also working on an updated meta-ranking in time for the opening of the fall submissions period (just for fun).
I realize most people probably don't make any submissions decisions based on the Google Rankings (and the methodology does have its limitations; and one startling change in the 2016 data is that the North Carolina Law Review, ranked #21 in 2015, doesn't even show up in Google's metrics this year for some reason - perhaps their article repository no longer meets Google's inclusion criteria), but I do think it provides an interesting metric for measuring law journal impact, alongside the W&L rankings, particularly for someone like me who publishes in both law reviews and peer-reviewed journals in other disciplines. I like that Google Metrics can provide some idea of how a particular range of law reviews measure up to a social science journal - and vice-versa - in terms of scholarly impact. The W&L ranking doesn't provide much of that information, as it is generally limited to law reviews; US News college rankings don't apply; and the Journal Citation Reports rankings by Thompson Reuters doesn't have very good coverage of legal journals.
However, with Google's metrics I can see e.g., how the social science journals I've published in (or am thinking about submitting to) stack up against law reviews. For example, I can see that Government Information Quarterly has a slightly higher average Google Metrics score (63; h5-index of 51, h5-median of 75) than the Harvard Law Review (61; 40/82), that The Information Society (26.5; 21/32) ties with the UC Davis Law Review (26.5; 20/33) and the Ohio State Law Journal (26.5; 18/35), and that Surveillance & Society (21; 18/24) ties the Houston Law Review (21; 16/26). I think this can be helpful for gauging where to submit research that crosses disciplinary boundaries, but I see how it might not be so useful for someone who only wants (or needs) to publish in law journals. I'm curious if any readers find the Google metrics useful for comparing law/non-law journals or for thinking about (law) journal submissions generally.
Submission Angsting Fall 2016
This is the post to share information or ask questions about submitting to law reviews.
The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.
Additionally, a spreadsheet to gather information is here (and embedded below).
I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.
Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.
Here is the final page of comments.
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II
In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.
About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.
In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.
These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.
Saturday, July 23, 2016
Dudziak on Trump on Turkey (Updated)
Mary Dudziak (Emory) critiques Donald Trump's comments about not lecturing Turkey about civil liberties in light of our problems at home. A legal historian, Dudziak describes how this argument--that the United States could not exercise moral authority abroad because of problems at home--was made by the Soviet Union, not Presidents of the United States. Instead, those Presidents responded by seeking to remedy domestic injustice (she points to Eisenhower sending troops to Little Rock and Kennedy's response to Birmingham), expressly to bolster international standing.
But as I argued, Trump is not making the same argument that the Soviets made during the Cold War, that we cannot exercise moral standing on matters of justice because we have not corrected racial injustices at home. He is not arguing that we are estopped to exercise moral leadership because of our own failings, failings these other Presidents then tried to correct. He is arguing we should not care about exercising moral leadership until we get our house in order. And getting our house in order means not eliminating barriers to racial equality, but eliminating barriers to police maintaining law and order. Trump does not want to convince Turkey to be more like us; he wants to make us more like Turkey.
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Clinton's VP and the Senate
I do not pretend to know anything about Hillary Clinton's political calculations in choosing Tim Kaine (forever a/k/a, "The Boring Choice") as her running mate. There was a lot of media discussion about the effects on the Senate. Four of Clinton's choices were sitting Senators--Kaine, Cory Booker (NJ), Sherrod Brown (OH), and Elizabeth Warren (MA)--who would resign their seats if elected VP. All but Kaine would be replaced by a temporary appointee appointed by a Republican governor, possibly costing the Democrats control of the Senate, which might come in at 50-50. In theory, that was a factor in his favor.
But this also means the Democrats will have to defend that seat in a special election in a purple state, a low-turnout situation in which Democrats tend not to fare well. Which means if the Senate is 50-50 beginning in January 2017, Clinton may have her majority only for a year. By contrast, at least with Brown Booker and Warren, Democrats would have had the opposite problem--a lost or weakened majority at the beginning of the term (because those seats would be filled by Republican governors), but a greater chance to win the special election in a deep-blue state (Booker won his seat in a 2013 special election), giving or increasing that majority for the second year of Clinton's term. Moreover, the calculus likely assumes that Democrats will lose the Senate in 2018, when they have to defend 25 seats, including a number of people in Republican states who won on the strength of Obama turnout in 2012. So is it better to have the bigger majority in the first year or the second year? Probably the first, since by 2018, the Republicans will be gearing up for a landslide mid-term.
Advocates for selecting Warren had been pushing a way to make the appointee term even shorter. Massachusetts requires a special election 145-160 days after a vacancy occurs (in the other states, the special election would be in November 2017). So if Warren had resigned on January 20, the election would have been in June; if she resigned November 8 (or whatever date it became clear she and Clinton had won and that she would be VP absent some catastrophe), the special election would have been in April. The Democrats likely would have won that seat (having learned the lesson of Scott Brown), so Clinton would have gotten her majority 3-6 months into the first year of her term.
Friday, July 22, 2016
The Meaning of Sex Discrimination
In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.
A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.
The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.
But if you try sometime
The Rolling Stones' "You Can't Always Get What You Want" has become a staple at Donald Trump rallies, including following last night's acceptance speech (the band objected months ago, but the campaign has not relented). Some questioned the choice, that it seems odd for a political candidate to adopt a theme of settling because you could not get what you wanted to get.
But the theme of last night's speech-- "I alone can fix it"--suggests that the key phrase is what comes later in the chorus--"if you try sometime, you might find you get what you need." Trump is positioning himself as the essential person, the only person to save the nation from, apparently, a dystopian hellscape. The American people need Donald Trump, and only Donald Trump, to be President. By electing him, the American people will find they got what they need.
Or am I giving them too much credit?
Call for papers: Visual Data as Accountability, Resistance, and Surveillance (Law & Social Inquiry)
Along with my colleagues Sarah Brayne (UT-Austin, Sociology) and Karen Levy (Cornell, InfoSci), I am excited to announce our call for papers for a special section of a forthcoming issue of Law & Social Inquiry. Abstracts of ~500 words are due August 10 via email to LSIvisualdataspecialissue [at] gmail [dot] com. You can find a PDF of the full CFP here, and in text form below.
We are happy to receive a broad range of proposals for the special issue as long as they fall within the theme Visual Data as Accountability, Resistance, and Surveillance. Indeed, quite a few topics in the news recently also speak to the importance of greater legal, technical, and social understandings of these issues, including the continued use of citizen video/body camera video/CCTV video to document police action or even livestream events, Erdogan's use of FaceTime after the recent attempts at a coup in Turkey, and even Kim Kardashian's snapchat video of Kanye West and Taylor Swift.
Overview (continues after the break):
The capture, analysis, and dissemination of visual data—including video (with or without audio), photographs, and other visual recordings—has become ubiquitous. Facilitated by digitization, globalization, and the proliferation of mobile media, visual data is transforming the documentation of activities in a wide range of contexts, including policing, legal adjudication, war, human rights struggles, and civic action. Visual data is being collected by state actors and individual citizens, each often documenting the actions of the other. The use of this data as evidence (both inside and outside formal legal proceedings) raises significant issues related to privacy and ethics, authentication and credibility, interpretation, inequality, power, and legibility. Law is implicated at both the point of recording (or documentation) and during downstream activities, such as when recordings are shared or posted online, publicly disclosed under freedom of information laws, or introduced into evidence during legal proceedings.
Different technologies afford different viewpoints. Visual data constitutes a unique form of information that presents emergent legal and policy questions because of its technical form and social effects. The mobilization of visual data can shape and reshape public opinion, representation, suppression, visibility, inequality, and admissibility of evidence; it can serve to incriminate or exonerate. Visual evidence can legitimize certain accounts of events while calling others into question. And, thanks to the proliferation of mobile devices, more people can capture video and photographs than ever before, at a moment’s notice, simply by pulling out their phones—and can distribute them instantaneously, creating visual records of all types of behaviors and conflicts, from confrontations between citizens and police to political gaffes, from sex tapes to dashboard camera footage of traffic-related events. The recent adoption of police body cameras and the use of video by bystanders as a tool for inverse surveillance demonstrate our increasing reliance on video as a check on power, as well as a source of ostensible authority when accounts about “what really happened” are in conflict. At the same time, the crucial role of interpretation suggests video is not as much of an “objective observer” or independent witness as it is sometimes claimed to be, and visual evidence may have unforeseen implications for weighing evidence in civil or criminal cases—or in the court of public opinion.
Thursday, July 21, 2016
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.
Trump, Turkey, and the "problem" of civil liberties
Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.
Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.
But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.
He Who Must Not Be Named
Do Animal Rights Trump Their Guardians' Fourth Amendment Protections?
Today, the Supreme Court of Oregon decided State v. Newcomb, an interesting animal neglect/Fourth Amendment case, which raises interesting questions about sentience, ownership, poverty, and state intervention.
Newcomb's neighbor complained to the police that Newcomb was neglecting and starving her dog, Juno. A police officer arrived at Newcomb's house and saw Juno "in a near-emaciated condition", with "no fat on his body", "eating at random things in the yard, and * * * trying to vomit", but "nothing was coming up." The officer inquired as to the dog's condition, and Newcomb explained that she had run out of food for the dog, which she bought in small quantities. The officer took custody of Juno and brought him to the Humane Society, where he was found to be in deplorable physical condition due to starvation. The vet took a [warrantless] blood sample--which is at the heart of the controversy here--which found that Juno had no underlying condition explaining his emaciated state except malnutrition.
Newcomb was charged with second-degree animal neglect and moved to suppress the evidence. She claimed the officer had no probable cause to seize Juno. More interestingly, she claimed that, since the dog is no more than property in the eyes of the law--"no different than a folder or a stereo or a vehicle or a boot"--the blood sample was an unreasonable Fourth Amendment search, which violated Newcomb's expectation of privacy. The fact-finding court denied the motion and Newcomb was convicted. At the Oregon Court of Appeals, the decision was reversed with regard to the blood sample. The Supreme Court unanimously reversed, finding for the State and affirming the conviction.
Wednesday, July 20, 2016
In defense of Paul Ryan (no, really)
Paul Ryan is taking heat, from right and left, for his speech last night and his general decision to support Trump's presidency. But Ryan's decision is defensible, in terms of his political and policy goals.
He wants to enact a particular conservative agenda, which he only can do with a Republican in the White House. Ryan may sincerely believe that Trump is not Mussolini or David Duke [or other non-Hitler authoritarian], but Warren Harding with verbal diarrhea--someone who lacks the ability or interest to govern and will turn things over to those around him. So Trump will travel the world and the country talking (sometimes stupidly, perhaps, but never to any real effect), leaving the business of governing to others. Ryan must believe that he will be that other (although it could be Mike Pence), with Trump coming back to sign the bills that Ryan passes. In a sense, Ryan is trying to make himself something like a Prime Minister--the head of government to Trump's figurehead head of state. It is telling that his speech last night spoke less of electing Trump than of establishing a "conservative majority" that could enact the conservative legislative agenda. Trump is necessary for that only in that he is more likely to sign that agenda into law than Hillary Clinton.
Ryan could be wrong about what Trump is and would be as President, of course, and this could blow up in his face. But if he genuinely believes Trump is not dangerous, then this move is the logical extension of the recent trend toward a system that only works if there is party unity between the legislative and executive branches. It no longer matters who is President, only his party affiliation.
Note that Mitch McConnell is making the same calculation in the Senate (with the added bonus that he is more likely to keep his job as Majority Leader if Trump wins, since a Clinton win may flip the Senate), although without taking the same heat. That must be because no one had any illusions that McConnell was anything other than a political hack.
SSRN, Elsevier, and the Alternatives (again)
(I've updated this post on July 21 at 10:17am CET, and I've indicated below what content is new or revised)
Elsevier has become the world's largest open-access publisher, but it has also faced quite a lot of pushback from scholars over its open access policies. Now it has purchased SSRN, generally seen as the go-to repository for open access to (mostly) pre-print legal scholarship (or papers not bound by restrictive copyright licenses), and certain voices have begun to call for authors to pull out of SSRN and move elsewhere (the almost-in-beta nonprofit and open access SocArXiv repository looks like it might make a viable option as it comes more fully online).
Following up on this recent post by Howard (of an email by Stephen Henderson (Oklahoma)), as well as coverage at TechDirt, and Author's Alliance (asking: "Is it Time for Authors to Leave SSRN?"), I wanted to raise some additional questions. My first reaction is that a well-organized and sufficiently funded not-for-profit platform would be much more preferable in the long run than keeping ties with a for-profit platform owned by a controversial mega-publisher. However, I wonder whether such a move is worth it, without some larger (even institutional) challenge to SSRN's reign. I also wonder whether junior scholars like me risk more in leaving than more established scholars. To the specific questions:
First, is there a role for institutions (law schools) to withdraw support for SSRN/Elsevier and move towards supporting a non-profit like SocArXiv? If so, how would we organize such a movement? Would it be worth it in the long run to move support away from a for-profit platform to something like SocArXiv? SSRN has done a good job of getting institutional buy-in, which may make it harder for a broader institutional challenge to its pre-eminence in this regard. For example, my own law school, at Tilburg University, has proudly advertised that we are ranked in the top 10 (worldwide) and #2 (international, non-US) on SSRN for "total new downloads." We also publish our working paper series through SSRN. Yet, we also have a history of calling for boycotts of Elsevier over not making more work available on an open access basis in the Netherlands. (Edit: I offered these examples to show that the elements of gamification on SSRN work as a way to entrench support or, at least, make leaving more costly.)
Second, what are the individual risks of pulling papers off SSRN and moving elsewhere? Would pulling papers off SSRN (and thus presumably losing the stats and author ranking on the site) be more risky for less established junior scholars (or law prof hopefuls)? What role has SSRN (and author download rankings) played in evaluating entry-level job candidates or lateral candidates for jobs, or internal candidates for promotion/tenure? Does SSRN performance play any role in committees or administrations judging scholarly impact? (if so, should it?)
[Edit: Third, If a new open-access archive for law scholarship were to come online in the near future, what characteristics or features would you want it to have or not have (either those already existing on SSRN, ResearchGate, et al., or entirely new features?)]
Tuesday, July 19, 2016
Stanley Fish is Criticizing the Academy, for a Change
I must admit that I am bothered by Stanley Fish’s op-ed from a couple of days ago, entitled Professors, Stop Opining About Trump. In it, he criticizes the strongly anti-Trump “Open Letter” from a group of historians calling itself Historians Against Trump, published on July 11, 2016.
In his op-ed, Fish describes the letter as hubristic, in that it improperly seeks both to “equate the possession of an advanced degree with virtue” and to “claim for [the historians] a corporate identity and more than imply that they speak for the profession of history.” He points out that historians do not all share the same political views; that the fact that “that they have read certain books, taken and taught certain courses and written scholarly essays, often on topics of interest only to other practitioners in the field” gives them no special expertise relevant to the question of Trump’s suitability for the presidency; and that professional academic historians’ job is not to opine publicly on such matters, but rather to “to teach students how to handle archival materials, how to distinguish between reliable and unreliable evidence, [and] how to build a persuasive account of a disputed event.”
To summarize, it seems there are two principal aspects of the Open Letter that Fish takes issue with: first, that it claims to speak on behalf of an entire profession; and second, that it implies that historians, by virtue of their professions and advanced degree, have any special standing to criticize a political figure or make political arguments.
This sort of anti-elitism from within the elite of the academy has its charms, of course, and Fish is certainly one of its most brilliant and provocative practitioners....
Black and Blue in Baltimore
Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?
I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.
Monday, July 18, 2016
Decentralizing the Exclusionary Rule
One strand of my research in the last few years has focused on exploring what I see as a federalism component of the Fourth Amendment. In The Contingent Fourth Amendment, 64 Emory L.J. 1229 (2015), I looked at the law of search and seizure from 1765 to 1795, with particular focus on the Justice of the Peace manuals used at the time, and what the Anti-Federalists said and wrote about search and seizure during the ratification period. I concluded that the best way of viewing the Reasonableness Clause of the Fourth Amendment was as a constraint that federal officers follow state law when searching and seizing. In a piece I am currently finishing up, “The Local-Control Model of the Fourth Amendment,” http://ssrn.com/abstract=2721014, I provide more evidence in support of that claim and I contrast this “local-control model” to the two dominant models of viewing the Fourth Amendment, the “warrant model” and the “reasonableness model.” And in “Decentralizing Fourth Amendment Search Doctrine,” which I just began in earnest, I am exploring the claim that the “what is a search” question should be decentralized so that the answer might differ by State, or even by locality.
Something I so far have not looked at, but hope to in the coming years, is the exclusionary rule, and how a decentralized approach to the rule might make sense.
Sunday, July 17, 2016
Greetings from France
As chance would have it, I happen to be in Paris at the moment (and was here at the time of the Nice attack, on the 14th of July). I can’t imagine what it’s like to be in Nice at the moment; Paris is very calm and even somewhat quiet, though this is probably at least partly attributable to the fact that the city is starting to empty out for the long holiday season for the French, which stretches from the second half of July to the end of August.
I haven’t had enough contact with actual French people here to tell you what they are thinking and feeling about the Nice attack; it would be pretty presumptuous to try to speak for them anyway, even if I did. But I was struck by a headline in the Sunday edition of Le Monde, which roughly translates to “After Nice, [Prime Minister] Valls responds to critics, denounces ‘Trumpification.’” (The article, which recounts an interview with the Prime Minister, makes clear that this neologism refers to Trump’s proposed policy of excluding all Muslims from the country.) Apparently, Donald Trump is already having an impact on policy, or at least rhetoric, abroad—though at this point the impact is mostly in the form of rejection of his views. I’ll leave it to others to imagine what the Donald’s Twitter response would be, if he ever read Le Monde...
Saturday, July 16, 2016
Free assembly at the Cleveland RNC
Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.
Part of Tabatha's argument is the following:
While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.
I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.
[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.
Friday, July 15, 2016
Interesting Development in Federal Capital Case in Vermont
As reported by a local Vermont paper, there is an interesting development going on in a federal capital case in Vermont, United States v. Donald Fell. Fell and an accomplice committed a carjacking in Vermont in 2000 in which they kidnapped the victim, Teresca King, drove her into New York, and killed her. Fell was convicted and sentenced to death in 2005. The Second Circuit affirmed but the conviction was vacated in 2014 due to juror misconduct. The case is back in the District of Vermont for retrial.
The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment. Curiously, the court issued an order this past February calling for a hearing on the issue. Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality. However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.” In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine the sources of social and statistical information cited by the defense” and “offer its own empirical evidence in response.”
That hearing began this past Monday and is scheduled to continue next week. Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal. My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States). I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances. Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.
SSRN postings and copyright
The following was sent by Stephen Henderson (Oklahoma) to the Law Prof Listserv; it is reposted here with his permission. It is one experience and could be unique, but it presents something to watch for.
It appears that the corporate takeover of SSRN is already having a real impact.
When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well. Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract. So, download counts are gone, and no article. Not the former working version nor the final version. And then in the revision comments, I found this:
It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to email@example.com, or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US.
Old Man Yells at Cloud, First Installment
I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship. This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece. I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points: these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed. On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).
For the first installment, I wanted to focus on a glaring error that I see more and more: Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.” It is as if those last three words don’t really matter, so they can be cut out. I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form. I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back. But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.
Thursday, July 14, 2016
Some reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"
A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty. It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs. Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick). And here, in the Journal of Law and Religion, are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin. The book, and the tickets, are -- like the man says -- "highly recommended"!
Privacy and Transgender Bathroom Access
In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.
Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.
First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.
As if on cue . . .
The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.
Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.
Wednesday, July 13, 2016
Violence and the future of public assembly
Since the Dallas shootings, I have been concerned about the possible effect on public protest. Local governments already cite vague concerns for public safety and risks of violence as grounds for restricting public assemblies, marches, and protests, and courts already accept those concerns too easily. An event such as the Dallas shooting makes those concerns more than abstract and allows government to argue for greater restrictions (if not for closing the streets entirely) with a "it-could-happen-here" argument. Reports of a link between a Baton Rouge burglary and a plot to shoot police (which the tiny conspiracy theorist in my brain finds a bit too convenient) have been used to justify police breaking up protests there.
See, then, this post from Michael Dorf, arguing that the threat of violence is unavoidably baked into the idea of public assembly and protest. This means government efforts to maintain order and safety, while legitimate, cannot be allowed to render hollow or meaningless the rights to assemble, speak, and petition. The balance to be struck must account for the risk inherent in the very nature of the First Amendment enterprise.
Hiring Posts - Schedule
An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 18) and the AALS conference (October 13-15).
Wednesday, July 13 (today): Hiring committee thread posted. Available here.
Thursday, August 25: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Thursday, August 25: Clearinghouse for Questions (last year's thread here).
Monday, October 17: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Monday, November 7: VAP thread (last year's thread here).
Late February/early March: Begin entry level hiring report data collection.
Hiring Committees 2016-2017
Please share in the comments the following information related to the 2016-2017 law school faculty hiring season:
Additionally, if you would like to share the following information, candidates might find it helpful to know:
I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)
If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.
Update: to clarify, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.
Pokemon GO and the law
Pokemon GO has quickly garnered a massive following since its release last week, prompting one University of Utah professor to call it "arguabl[y] the most popular video game in the world," and others to argue that "it's daily use is expected to exceed Twitter by the end of the week." But the app raises some very interesting questions about privacy and data protection law, as well as a variety of other possible liability issues. Supposedly it originally siphoned huge amounts of personal data off smartphones, but the developer has been pulling back after getting some bad press.
Users, by getting out of their lazy boys and joining the outside world in the hunt for monsters, have already begun harming themselves and putting themselves in real physical danger, and the app has reportedly sent dozens of players to at least one private residence (a remodeled church building) in search of a Pokemon Gym. Douglas Berman, over at the Sentencing Law and Policy LawProfBlog, has noted that criminals have begun (or could begin) to abuse the app. And Andrés Guadamuz has just posted a very interesting summary of some the legal issues raised by the game over at TechnoLlama, including privacy and data collection, security, liability, and virtual location rights (or: how can a person tell the app to move an unfortunately-placed Gym to somewhere besides the inside of his or her home?).
Have you seen students (or faculty colleagues) wondering around campus chasing Pokemon? Are there other interesting liability issues raised by an augmented reality game like this that haven't yet been addressed?
Ginsburg's Double-Down: Not Defensible--And Also Interestingly and Problematically Elitist
Since the round of interviews I wrote about yesterday, Justice Ginsburg has doubled down, in an interview with Joan Biskupic. (Biskupic's interview, incidentally, raises the same question I noted yesterday: Who is more damaging to Justice Ginsburg--her enemies, or her friends?) I thought her last set of remarks was inappropriate, and that the new remarks are even less appropriate and less defensible. So, naturally, there have been some defenses. Those defenses are mostly wrong.
I'll address those points in my next post. (I may be slow getting around to it, for medical reasons. For the same reason, and with apologies, I'm going to close comments.) First, I wanted to deal with some related issues--more far-flung in certain respects, perhaps, but also less likely to be remarked upon by the legal academic commentariat, which is basically conventional, non-radical, and establishment-oriented. Although these observations are less immediately related to the question whether the defenses offered on Ginsburg's behalf are sound or credible, I think they provide some useful background to that question. They also add some necessary points unlikely to be raised elsewhere, since most law professors enjoy essentially and often unconsciously privileged positions and are not likely to go in for self-wounding class warfare.
So, a couple of preliminary and certainly opinionated observations. The first has to do with the substance of Ginsburg's remarks. One understands why politeness might dictate not saying much about that. Still, one can and should ask: Do her remarks offer something new, insightful, wise, expert, or authoritative? Does she say anything that one would consider useful and novel regardless of the speaker's identity, or that draws usefully on any particular expertise? Or are her remarks essentially conventional, unexceptional, and banal? My view is that they fall easily into the latter category. This view does not depend on whether her opinions are right or wrong. I think some are right, and some buy into a conventional narrative that is so un-nuanced as to be more wrong than right. But even if they are all correct, they are still all conventional, unoriginal, and uninteresting. One remembers a fuss a while back when Justice Scalia said that he had stopped bothering to read anything other than the Wall Street Journal and the Washington Times. The opinions Ginsburg offers here are fully consistent with the views of a well-educated if impressionable person who reads, and only reads, The New York Times and The Washington Post every day, takes what is written there as conventional wisdom, and then passes it along. Apart from the identity of the speaker, there is no value-added in the substance of anything Ginsburg says in her latest interview. That's not a terribly kind thing to say, perhaps. But it is ultimately relevant to the underlying question whether her remarks are appropriate or defensible. Extraordinary extrajudicial statements may be justified because the circumstances are so novel, or (in my view, and only on rare occasions) because the remarks are so interesting and valuable that we would lose something if the judge remained silent. I'll deal with the first case later. But these remarks certainly don't fall into the second category.
Even if banal, are her comments expert? One can, of course, hold a conventional opinion that is still buttressed by expertise. Hearing it from one more expert doesn't really add all that much, but it is still an expert opinion, at least. None of Ginsburg's remarks fall into the category of expert statement. Of course she has more experience dealing with the press, with powerful people, and with fellow members of the elite than most of us could ever hope for (or, perhaps, want). But her remarks do not really seem to call seriously on any of that experiential knowledge, and certainly not on any of her legal expertise.
So we are left with the fact that Ginsburg indulged herself in a series of statements, vastly amplified by the megaphone provided by her fame and her office, that if offered anonymously on the comments section of, say, Slate or Salon, would read like every other comment to be found there. Not that there's anything wrong with that! No one should expect people to be wise because they are smart, or original because they are wise, or brilliant because they are heroic, or to have fascinating and unconventional opinions on matters that are essentially outside their expertise. Ginsburg spoke as the average well-educated citizen-member of a certain cohort of the population offering a fundamentally conventional set of opinions. That's fine, or would be if she were simply the average citizen of this kind and was not also making use of an ethically constrained public office as a megaphone. But it certainly doesn't make her remarks vital or necessary.
And this is the preliminary point I wanted to reach before showing why Ginsburg's defenders are wrong. Ginsburg's statements essentially present a representative, non-expert elite view--not wrong, necessarily, and perhaps quite right, but also not new or interesting. It is not an authoritative view in itself. But, because of who she is and because the statements are broadcast as coming from a Supreme Court Justice, they do trade on her authority, and get vastly more attention than they would have if coming from the average, anonymous, highly (perhaps unduly) self-confident and assertive Ivy graduate.
It's worth thinking a little about the ways in which her remarks speak to, and about, problems with class, social status, and elites. Our democracy would, in my view, be healthier if citizens paid no more attention and gave no greater weight to extrajudicial statements on non-legal matters from Justice Ginsburg than they did from the next randomly chosen person. And it might be healthier still if members of elites did not--as they so often tend to do--think of their own non-expert opinions as especially sage, interesting, courageous, or well-qualified. Failing that, if and when elites, by virtue of some office or position they occupy, are given special attention, authority, and weight by listeners when speaking in an unofficial capacity on matters outside their authority and expertise, but in circumstances which they know take advantage of their office and status, it does not seem like a heavy burden to ask them to use that status lightly--if at all. The failure to display that kind of modest silence, aside from the particular concerns that arise where a Supreme Court Justice is involved, speaks in broad terms (I am not accusing Ginsburg herself of these qualities) to the risks of arrogance and hubris that may afflict the successful members of what people sometimes think of, consciously or not, as a kind of natural aristocracy of high SAT-scorers.
One last aspect of the overlooked elite-centric nature of Ginsburg's remarks is that they were essentially costless. Supreme Court Justices have lifetime tenure and, as many others have complained on many other occasions, are substantially insulated from the same kinds of ethical rules and requirements that would confine many another professional. They make enough money and can draw on enough resources to insulate themselves quite effectively from many other pressures of everyday life or notoriety as well, if they choose to. Ginsburg can and, famously, will retire whenever she feels like it and not before. She will not face any serious repercussions for trading on her official status and celebrity in this very public fashion, other than being condemned on blogs or subjected to angry tweets. An Army staff sergeant with a couple of mortgages who decided to throw on her uniform, head downtown to the local newspaper, and make the same remarks would....Well, most likely she would not be paid any attention at all; she's not a Supreme Court Justice, after all, just a common soldier. But if she were, she would face the risk of the kinds of serious and even devastating disciplinary and professional consequences--military discipline, perhaps dishonorable discharge--from which Ginsburg at this point is essentially completely insulated. And, unlike that staff sergeant, for every critical remark she gets, Ginsburg will also receive any number of garlands from like-minded friends, fans, and courtiers. It's always worth remembering that one reason elites sometimes, if rather rarely, "speak truth to power," whatever that phrase means exactly, is because doing so is fairly cheap for them. It seems to me that if we're going to consider fully and seriously how we feel about Ginsburg's recent escapades and whether they are defensible, we should not overlook the heavy elements of class, elite social status, and privilege that feed into the whole affair.
More on the question whether Ginsburg's remarks were defensible, which essentially turn on two arguments--"emergencies justify extraordinary conduct," and "all citizens are entitled to speak"--in the next post.
NBA changes to stop Hack-a-Shaq
The NBA on Tuesday announced rule changes designed to limit the "Hack-A-Shaq" strategy of intentionally fouling bad free throw shooters away from the ball. Beginning next season, all fouls away from the ball in the final two minutes of every quarter will result in one free throw and the ball out of bounds for the offensive team (this has been the rule for the final two minutes of the fourth quarter). The same rule will apply to fouls on inbounds plays (the new rage was jumping out of bounds to foul the inbounder). And jumping on a player's back during a free throw (a recent development used in the final two minutes) will be deemed a flagrant foul, punishable by one free throw and the ball, plus possible future punishment of the fouling player for repeated violations.
Unfortunately, I am not sure this gets the NBA where it wants to be, because it does nothing to deter Hack-a-Shaq outside the last two minutes of a quarter. Perhaps the league had statistics showing that the strategy was more prevalent in those times. But the rule change does nothing to stop the reductio of the strategy--a January 2016 game in which the Houston Rockets intentionally fouled DeAndre Jordan of the Los Angeles Clippers twelve times in a row (four times, using an end-of-the bench player, to put them in the bonus and eight times to put Jordan on the free throw line) at the beginning of the third quarter. I still believe the better rule would be to give the offense the choice of shooting the free throws or taking the ball out of bounds for off-the-ball fouls. Presumably, teams will choose the latter option for all but their best free throw shooters, thereby eliminating the perverse incentive to intentionally foul, at least away from the ball. But the NBA went a different way, given us temporal, if not complete, relief from this eyesore.
Update: This Deadspin piece makes a fair point: Hack-a-Blank only becomes worthwhile if the hacking team is in the bonus following the fourth foul of the quarter, so that the hacked player would shoot. If a team is otherwise playing good defense and the game is not being called unusually close, that may not happen until 6-8 minutes into the quarter. So the window left for Hack-a-Blank is not the first ten minutes of a quarter, but maybe only a 2-3 minute window before the last two minutes. Teams typically do not do what the Rockets did in the game described above, hacking right from the beginning of the quarter, using an end-of-bench player only to commit a succession of fouls; this is what drew so much attention to that game.
Tuesday, July 12, 2016
Professor Patricia Leary
Random free speech stories for a Tuesday
1) It is sad that an even-handed attempt to mourn police and victims of police violence--and thus to show that the problem affects all sides--nevertheless devolves among those who cannot accept the possibility that some police shootings are unjustified, that an antagonistic relationship between law enforcement and those they police cannot hold, or that police conduct is a legitimate subject of public discussion and protest.
2) If this story is even a bit true, I can hear the consent decree language ordering Baton Rouge to establish policies and training regarding "the right to criticize or complain about police conduct without being subject to retaliation" and "the right to engaged in lawful public protest." Part VIII offers a good start, as the same things keep coming up.
3) If Black Lives Matter is responsible for the "horrible" and "divisive" rhetoric of some protesters, then is Donald Trump responsible for the rhetoric of some of his supporters, not to mention himself? And will anyone point that out to Trump? Obviously, Trump is not responsible for his protesters' rhetoric. But then neither is BLM. And Trump cannot have it both ways.
Monday, July 11, 2016
Judges--and, Perhaps, Journalists--Behaving Badly
I was glad to see I was not the only person who thought Justice Ginsburg spoke obviously inappropriately in a couple of recent press interviews, in which she pronounced on presidential politics--although there is no particular reason to think she has any special expertise, insight, or wisdom about presidential politics--and on current cases. There is no point in loading another dollop of high moral dudgeon on about this, but there are a couple of other interesting things to be said about it.
The most interesting thing, to me, is what Jonathan Adler points out today on the Volokh Conspiracy blog. I'll just quote the relevant material from Jonathan's post:
[Ginsburg] said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has not been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.
I was going to write about the changes to the Liptak story before seeing this second example. I hate to attribute motives or actions to others on the basis of what "obviously" must have happened, because I know life is regularly more boring and contingent than that. From my brief experience in journalism, I know that although editors often help prevent reporters from screwing up, reporters nevertheless routinely have to fight editors to make sure that their edits don't introduce new inaccuracies into a story. And that was in the pre-Internet days, when one fought only one or two editors for only one or two editions of a story, rather than having to put up different versions of stories all day and struggle against a larger and less experienced cadre of editors. Still, one obvious possibility was that Justice Ginsburg, or someone from the Court, had asked Liptak or his editors to change the story between one version and the next, so that Ginsburg would not be seen as publicly trumpeting her desires and intentions for future cases. Against that, however, one has to factor in the possibility that the original version was the inaccurate one, and that the requested correction had to do with accuracy and not with saving the Justice from embarrassment.
I still refuse to impute or ascribe motives or anything else absent much stronger evidence. But it becomes much harder to accept the charitable readings so easily in the face of the second example, noted by Rick Hasen and reported by Jonathan Adler. In both cases, it appears that the story was changed to soften some of the details provided by Justice Ginsburg, on the record in a press interview, and thus reduce the damage done by the interview. That damage includes reputational damage in both instances, at least for those fuddy-duddy traditionalists who still think judges ought to abide by standards of dignity and discretion in extrajudicial statements. And it would include perhaps greater and broader damage in the case of the Liptak interview, since the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases. Given that both examples involve changing the story in the Justice's favor t0 make it less rather than more revealing, it is harder to simply assume that the change in both cases had to do with eliminating inaccuracies.
From my point of view, if it is in fact the case that Justice Ginsburg, or someone in her office or acting on her behalf, or some officer of the Supreme Court, contacted both reporters to get them to try to soften their stories in subsequent editions, that itself is not blameworthy conduct--for the Justice or her proxies, that is. After all, they don't work for the paper. But if the original versions of the stories are accurate, it would be entirely blameworthy for the reporters, or their editors, to change the story because someone associated with the Justice complained about it. It is certainly not a reporter or newspaper's job to save a judge or Justice from indulging, embarrassing, or even hanging him- or herself in print. To the contrary, and I doubt any journalist would disagree with me, if Justice Ginsburg or some other judge or justice wants to say something either slightly or incredibly inappropriate in an interview, the journalist's job is to provide him or her with enough rope to effect the hanging. And there is only one reasonable journalist's response to a request or demand from a source to change a story for any reason other than that it is inaccurate. The answer is a colloquial one, and the colloquialism is "get bent," or "go to hell." Via FB I have asked Adam, a regular and generous reader of the blog, to shed some insight into how or why the change was made in his story.
There are two words I think highly relevant but too rarely spoken or offered, due to the law's culture of flattery, in thinking about Ginsburg's recent rash of foolish public statements. The first is "senescence." Never having met Justice Ginsburg, I have an insufficient basis to think, or at least to say publicly, that she has become partly or completely senile. I also have no desire at all to speak lightly or casually about such things. But I think foolish interviews of this sort, which she has given increasingly over the last few years, do not just demonstrate a changing cultural standard that is being applied by an increasing number of judges. They also suggest, on an individual level, a possible increasing loss of the kind of judgment and restraint that Justice Ginsburg once would have displayed. I raise this not to suggest that she is not still capable of doing her job as a Justice--although this is not saying much, since I think even a pretty senescent individual can continue to fulfill the function of judge or Justice in a staff-heavy environment. But Justices are effectively managed by their staff in their official work, not their extrajudicial statements. And the increasing lack of prudence she is displaying with regard to the press, in circumstances where her staff does not or cannot run interference for her up-front, does suggest that she is no longer functioning at her best. (This, incidentally, is the kind of point we once would have expected Judge Posner to raise especially keenly, given his interest in aging and old age and his realism about judges as human beings. But I dare say that Posner's own recent extrajudicial statements suggest that he is suffering from the same condition.)
The second word is "enabling." One wants one's friends, not one's enemies or adversaries, to look out for one and to speak up if one is behaving badly or showing signs of decline. I wonder whether all the Ginsburg fans, friends, and admirers who have enjoyed and passed along these interview remarks, or who have indulged in the fun of meme-sharing and buying trivial T-shirts and coffee-table books, recognize just how much of a disservice they are doing to the person they purport to admire. If they really admired her, they would be better advised to urge her, publicly and privately, to keep quiet off the bench.
Should junior legal academics write a book? (and if so, when?)
As a junior academic, I found Chris Walker's recent Junior Law Prawfs FAQs Series here at Prawfs to be quite useful and informative. I don't intend to add an exhaustive series of posts on this topic this month, but I do hope to contribute a little to that rich conversation, as I think it's worth continuing.
First of all, I want to ask about the place of books in legal academy - specifically, should junior (or aspiring) law profs seriously consider writing a book? And, if so, when? How should such a decision be approached and where should a junior prof be thinking about submitting their work? (Brian Leiter has previously blogged about ranking the prestige of presses in law, but there are also other such lists for other disciplines - often with some overlap.) Books obviously consume a large amount of research and writing time, and could potentially distract an author from publishing as much in journals. However, many legal academics write books (though quite a few authors often incorporate a number of previously published law review articles as chapters, which does help keep the book from completely consuming the author's output during the writing period). As a point of reference, I have just signed a book contract myself, and I know others who are proposing and writing books at the moment, both inside and outside of legal academia. The process, and the decision-making that up to my decision to initiate it, was both difficult as well as quite encouraging, and the prospect of the book itself is quite exciting.
I've noticed what I suspect might be two approaches to writing books among legal authors. First, those that started as book-length projects from the outset, with select chapters sometimes also serving as the basis for separate law review articles published in the months or year before the full book. Second, I would guess that other books only became books after an author had published quite a bit on a topic and then, subsequently, decided to incorporate his or her scholarship together into a longer, more extended discussion. I suspect both of these approaches have their pros and cons.
FIRE podcast on Nazis in Skokie
The latest edition of FIRE's So to Speak podcast features an interview with Aryeh Neier, who was the ACLU's Executive Director in the late 1970s, when the Nazis marched in Skokie and wrote a book on the controversy. Neier makes an interesting point in the interview--this case is a strong symbolic victory for speech, although not necessarily precedential victory, as the case really ended in the Seventh Circuit. Nevertheless, this case is the reverse slippery slope for free-speech advocates--"If the Nazis can march in Skokie, then ____ is permissible."
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part I
This post and the next (Part II) are drawn from my contribution to the forthcoming edited volume Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge University Press 2017).
In the wake of Whole Woman’s Health, what will be the future strategy of anti-abortion activists? One possibility, for which there is at least some evidence, is that they will turn away from working to enact restrictions justified by purported health and safety benefits and instead focus on restrictions that advance a claimed state interest in the life and/or dignity of the fetus.
Restrictions that fall into this category include reason-based bans on abortion—laws forbidding abortions that are sought for particular reasons, such as fetal abnormality or sex selection. It may be easier for such restrictions to pass constitutional muster after Whole Woman’s Health v. Hellerstedt, because, given the intangible nature of the dignitary interest supporting them, states will not bear the onus of justifying them with hard medical or scientific evidence. Abortion opponents may also reason that such justifications are more likely to appeal to Justice Kennedy, who has shown concern for various kinds of dignitary harm, including to the fetus (see Gonzales v. Carhart).
It is therefore worth considering whether such bans (at least one of which—Indiana’s—has recently been challenged) are constitutional. In the remainder of this post, I’ll analyze that question. In the next post, I’ll consider a different form of reason-based regulation of reproduction: state laws that distinguish between therapeutic and non-therapeutic uses of contraception for purposes of insurance coverage mandates.
Saturday, July 09, 2016
Law professor responds to students on "Black Lives Matter" (Updated)
Update, July 10: As noted in the comments, the response states that the professor wore the t-shirt on the day the Crim Pro class discussed police violence against the Black community. But that leads me to a curriculum question: How many of you cover police violence (or, more broadly, Fourth Amendment/excessive force) in crim pro? This seems an odd fit in a course that typically focuses on how police conduct affects subsequent prosecution and the evidence that can be used in that prosecution. I think of excessive force (aside from physically coercing confessions, which has not been BLM's focus) not as a matter of the lawfulness of a search or seizure for evidentiary purposes, but only for subsequent civil damages suits.
This letter by an unknown crim law professor at an unknown law school responding to an anonymous student complaint about the prof wearing a "Black Lives Matter" t-shirt to class is making the rounds and drawing raves in the left-leaning interwebs, as well as Facebook accounts of law profs.
I post it and welcome responses comments. I have not yet figured out what I think.
Friday, July 08, 2016
Police body cameras raise a host of legal (Fourth Amendment) issues
Police use of body-worn cameras raises a host of difficult and interesting legal questions. I have spent a good deal of time watching body camera videos over the past couple of years - both those that show up on sites like YouTube as well as those filmed by officers with whom I have been conducting field research with two municipal police departments in Washington State. Because some of my recent (forthcoming) research is focused primarily on issues of state privacy and access to information laws, I wanted to raise some issues for discussion here at Prawfs related to some of the videos I've watched most recently, and in the context of the Fourth Amendment (as this is the next area I need to begin really grappling with). One of these videos is now on YouTube, and the other hasn't made it there (but I describe it more in my paper and forthcoming book), but both were filmed by officers in the departments where I conducted my research).
The first video (I'm not going to provide links, as I don't want to directly increase the number of views of these videos) was captured by an officer's camera as he responds to a call for service from an elderly woman who is complaining about people she believes are trying to scam her into a fraudulent loan for home renovations (I know this because the conversation is captured on the video). Upon reaching the woman's house, the officer says hello and enters the home when he is welcomed in by the woman. He does not verbally announce the presence of the camera - and under the State AG's legal interpretation of Washington State law, he has no obligation to do so - but he does continue to record the conversation that takes place inside the woman's house. The second video is captured by a camera worn by an officer as he responds to an emergency inside a private residence, and the video depicts a truly horrible scene, including the failed efforts of the officer to revive a lifeless little baby who has stopped breathing. We see other children, adults, a wailing and distraught mother, and a number of other officers throughout the video as the officer's chest mounted camera captures the scene in front of him.
In both of these cases, body cameras were worn into private homes and captured different types of officer-citizen interactions. In both cases, much of the video (and audio) was subject to public disclosure, even to anonymous requestors, at the full expense of the police department. Officers also wear cameras during warranted searches and arrests inside homes. However, on June 9, a number of new exemptions to Washington State's Public Records Act became effective, and one of these exemptions specifically covers body camera footage that records "[t]he interior of a place of residence where a person has a reasonable expectation of privacy." (Another prohibits disclosure of dead bodies.)
Thursday, July 07, 2016
Learning About Gender Identity
As transgender people have gained more visibility over the past couple of years, many of us have had to consider what it means to be transgender for the first time. Understanding what it means to be transgender is important for unpacking the legal issues confronting transgender individuals, but, as educators, being knowledgeable about gender identity is also necessary to make sure we are serving our students. As a recent study by UCLA’s Williams Institute concludes, roughly 1.4 million adults in America are transgender, suggesting we are likely to have trans or gender nonconforming people in our classrooms.
So, while in future posts I will dive into some of the legal issues, I thought it might be useful at the outset to share some of things I’ve learned about gender identity.
First, a transgender person is someone whose sex assigned at birth (usually based on a quick exam of their external genitalia) does not accurately reflect their gender identity.
Second, we all have a gender identity, which simply refers to one’s personal sense of being a certain gender. People whose gender identity comports with their sex assigned at birth are referred to as “cisgender.”
Your first big news story
What's the first major news story you can remember living through as a child?
(Note: This is not necessarily the same as "where were you when" or even the first story you could understand; it is the first story you remember hearing or knowing about, even in simplest terms):
For me, it was Nixon's resignation and the impeachment talk in the month-or-so leading to that.
Have at it in comments.
Wednesday, July 06, 2016
A short take on churches' tax exemptions
This might be timely, given our recent commemoration of the July 4 tax revolt! Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions. A bit:
. . . But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.
The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .
. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not simply that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.
The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.
Alton Sterling and Police Backlash
Once again we are confronted with the police engaged in the violent killing of an African American man, one who appeared unable to defend himself. This time it was Alton B. Sterling, a 37-year-old father who was pinned to the ground by two officers when one of them shot him.
Once again, we would not know of this shooting were it not captured by a member of the public on a smartphone camera and made public. Yet the police hate this activity, which Brooklyn Law Professor Jocelyn Simonson calls “Copwatching.” But the police have their own name for it—the “Ferguson Effect”—and sadly that is the name that has been picked up by the press and certain sections of the public.
FBI Director James Comey has argued that this “viral video effect” makes “officers wary of confronting suspects for fear of ending up on a video” and undermines their willingness to undertake their conceptually basic duties of upholding the law and intervening to prevent misconduct and ensure civilian safety.
The “Ferguson Effect,” if it exists, is wrongly named. It should be called a “backlash effect.” Thanks to ordinary citizens independently scrutinizing police officers on the street, policing has become less able to operate without civilian observation *and recording* (the ability to record and to *publish* the recording is vital). That scrutiny has often been directed at race-based or race-disparate policing tactics. A consequence is that those tactics are now both public and publicly denigrated. And a further consequence is that society has become more anti-racist, if only in the sense that it denigrates these procedures.
Tuesday, July 05, 2016
Some thoughts about Whole Woman's Health v. Hellerstedt
Cross-posted at Casetext
I'm delighted to be back blogging at Prawfs! Thanks to Howard and the rest of the regulars for inviting me.
I wanted to start off with some thoughts about the Supreme Court's momentous decision in Whole Woman's Heath v. Hellerstedt -- more thoughts on the case may follow as they develop.
In Whole Woman’s Health v. Hellerstedt, the most important abortion case in over two decades, the Supreme Court handed the plaintiffs as sweeping a victory as they could have hoped for. In doing so, the Court also saved the “undue burden” standard and quite possibly the right to abortion itself.
Since the Supreme Court’s joint opinion in Planned Parenthood v. Casey, which was co-authored by Justices O’Connor, Kennedy, and Souter, the constitutionality of an abortion restriction depended on whether it imposed an “undue burden” on the ability of a “large fraction” of women to obtain an abortion. This standard was not only less protective of abortion rights than the strict scrutiny standard that the Court had set out in Roe v. Wade, it was also so indefinite and malleable that it opened the door to greater and greater envelope-pushing by states adopting increasingly onerous anti-abortion laws.
In Whole Woman’s Health, the Supreme Court was confronted with one such anti-abortion law—Texas’s H.B. 2. The Texas law required abortion clinics to meet the standards of ambulatory surgical centers (essentially, mini-hospitals) and abortion providers to have admitting privileges at a local hospital. The ambulatory surgical center requirements were prohibitively expensive for existing clinics to meet, and admitting privileges can be impossible for certain abortion providers to obtain for reasons totally unrelated to clinical competence, such as opposition to abortion (for example, by a Catholic hospital). Thus, the combined effect of the two restrictions—restrictions extant in numerous other states as well—would be to shut down approximately three quarters of Texas’s abortion providers, forcing many women—especially those outside the major metropolitan areas—to travel long distances and undergo long delays in order to obtain safe and legal abortion services.
In a 5-3 majority opinion by Justice Stephen Breyer, the Court held the Texas abortion restrictions to be an unconstitutional undue burden on abortion rights. In some ways, this holding was not surprising. After all, even Justice Kennedy, the most conservative member of that 5-Justice majority, would have to admit that if anything is a substantial obstacle to abortion access, H.B. 2 is. The bigger surprise was the way the Court went about it. In finding an undue burden, the Court held that the actual health and safety benefits of the law had to be balanced against the impact of the law on abortion access. Given that the two Texas requirements were found to have essentially no meaningful benefits to women, the massive burden on abortion access was unwarranted (or “undue”).
It is hard to overstate how important this particular approach was.
The ABF and the Legal Academy
Happy 4th of July! Thanks again to Howard, Sarah, and the rest of the Prawfs community for allowing me to be a guest blogger during the month of June. I’ve been a longtime admirer of PrawfsBlawg, and I had the honor a couple of years ago to participate in a PrawfsBlawg book club on my book, Making the Modern American Fiscal State (thanks to Matt Bodie for helping organize that online discussion). It was a real privilege this time around to share with you some background about the ABF and a few of our research highlights.
In my last post before I depart, I thought I’d discuss how the ABF connects to the legal academy.
Monday, July 04, 2016
Happy Interdependence Day
I would imagine that if you ask people to summarize what Jefferson was saying in that stirring second paragraph of the Declaration of Independence, most would focus on the words “all [people] are created equal” or “life, liberty, and the pursuit of happiness.” The focus, for them, is on equality or freedom, both manifestations of individual rights.
But, really, the Declaration is more about the collective right of self-governance. The important language comes after the bit about “life, liberty, and the pursuit of happiness”: “[T]o secure these rights, governments are instituted among [people], deriving their just powers from the consent of the governed.” That is, the Declaration is really about democracy and, in turn, law. Life, liberty, and the pursuit of happiness are the ends, but democratically enacted laws are the means by which to secure those ends. Liberty and happiness are abstract notions; reasonable people can disagree over what they mean in real life and how they can best be achieved. The Declaration is more about the process by which people get together and decide these things rather than about the substance of liberty and happiness themselves.
How do we know this? Read the Declaration. The whole thing, not just those first two stirring paragraphs. Most of the document is a list of grievances against the King, and the first eight of these grievances have to do with either the King’s failure to make laws or his creating obstacles to local lawmaking in the colonies. Indeed, the very first complaint is this: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.” So, when we celebrate the Fourth, we are not primarily celebrating individual rights. We are primarily celebrating local democracy and the resulting laws that in many ways constrain individual freedom. We celebrate independence from one legal regime but we also celebrate interdependence: free citizens relying upon one another to make mutually beneficial laws that constrict some individual freedom in exchange for what they collectively determine to be optimal “liberty” and “happiness.”
In other words, Happy Fourth everyone! Now let’s go blow stuff up!
A Belated Eulogy, Of Sorts
Before I begin blogging in earnest, I would be remiss if I didn’t say something about Dan, given that I haven’t blogged here since before his death almost two years ago. I am a little hesitant to offer any kind of eulogy, not just because it is so late in the day but also because I’m not sure I can say anything about Dan that hasn’t been said before, with much more eloquence than I can muster. In addition, I didn’t know Dan as well as some did. I had met him only a handful of times IRL (as the kids say), including being on a panel with him about five summers ago. Nonetheless, the magic of the internet – blogging and Facebook – gave me the illusion that I knew him better than I actually did, and I knew him well enough to be utterly shaken to the bone upon hearing of his death. In any event, I don’t think anyone will mind if I add a few thoughts.
Greetings from the Netherlands (and happy Fourth of July to US readers)
Thanks to Howard for inviting me to join you here at Prawfs this month! To introduce myself, I'm an American (and a California-trained lawyer) working in legal academia in The Netherlands. For just over a year now, I've been a researcher in the Law and Technology department at Tilburg Law School, where I also teach privacy and surveillance law subjects. I'm a JD/PhD (Information Science), and I enjoy mixing legal and empirical research as much as I can. I am looking forward to blogging about a few themes over the coming weeks, including questions related to policing, criminal procedure, and criminal law, especially as they relate to privacy and access to information concerns. I also anticipate mixing in some posts about socio-legal research and interdisciplinary approaches to studying law, as well as some issues that will hopefully be relevant especially to junior or aspiring members of the academy. I look forward to engaging with you over the next month or so on these topics.
My first substantive post (coming in the next day or two), will address and ask some questions about the legal implications of police officers wearing body cameras into private homes, as this is something I've been grappling with in my own socio-legal field research with two police agencies in Washington State over the past 22 months. I think there are some interesting and unresolved issues raised by this particular use of technology, both in terms of the federal Fourth Amendment, but also stemming from varying state constitutional and statutory rules about criminal procedure, privacy (including eavesdropping), and public access to footage.