Tuesday, October 01, 2013
It’s somehow already October and time to sign off. It’s been fun blogging here; thanks for all the comments. Good luck to those on the meat market and I hope to see the rest of you at AALS in January. You can normally find me on Family Law Prof Blog, and can also find an academic treatment of some of my blog posts here.
Until next time, Margaret
Luck, Taxation, and the PPACA
I am not a health economist, nor a political scientist, so I’m not exactly the most qualified person to talk about today’s shutdown. But I am a law professor, and one of our birthrights is a sense of entitlement that allows us to write about anything at all, regardless of our level of expertise.
Moreover, unlike a lot of policy debates, I have a direct, personal stake in this one. My wife and I had twins on Christmas Eve, one of whom was born with major defects in his heart, aorta, esophagus, and lungs. While he is making amazing strides, he spent over three months in the NICU at Columbia and has been in and out of Columbia and Boston Children’s Hospital for months. Needless to say, I’ve been thinking a lot about medical costs lately.
Not surprisingly, my family is a direct beneficiary of the PPACA. My son has a laundry list of pre-existing conditions (nothing is more pre-existing than a congenital defect), and if his medical bills haven’t exceeded $2 million yet, they will by the time he turns one. And the PPACA has made it illegal for insurance companies to deny coverage based on pre-existing conditions, and prior to the PPACA insurance companies often imposed lifetime (!) benefits caps of $2 million, meaning that my son would be uninsurable before his first birthday. So I am admittedly not a neutral observer.
Talent Wants to Be Free!
I'm so thrilled to announce the publication of Orly Lobel's book, Talent Wants to Be Free.
Here's a bit about it:
The book is about how each of us can become more creative, innovative, energized and motivated throughout our work lives. The book looks at how we fight over human capital, knowledge and skill in every industry, profession, and region, looking at the spread of non-competes, trade secrets, patent and copyright pre-invention assignment, human capital antitrust, and the balancing of secrecy & sharing, carrots & sticks, freedom & control to incentivize us in different settings. Through empirical research and insights from economics, psychology, law and business, it argues that more frequently than we have come to believe, everyone, corporations, individuals, industries, and regions benefits when talent is set free. Talent Wants to Be Free is available on on Amazon, B&N, Indie Bound, 800-CEO-READ . You can read advance reviews by Publishers Weekly, Biz Ed Magazine, Dan Ariely (Predictably Irrational), Tal Ben-Shahar (Happier), Martha Minow (Not Only for Myself; Dean, Harvard Law School), Frank Partnoy (Wait), Chris Sprigman (Knockoff Economy), Jason Mazonne (Copyfraud) and others here. You can also taste a fun short article highlighting some ideas from the book here: http://changethis.com/manifesto/show/109.04.Talent and new articles in Businessweek, and Fortune.
Also, Dan Solove did an interview with Orly today on his Linked In Influencer spot.
Monday, September 30, 2013
I really enjoy teaching federal income tax—it is relatively clear-cut and entertaining, with a lot of great stories. In fact, for the tax people out there, here is a fun story one of my students sent me about the history of the federal income tax code, as well as an incredible Disney propaganda video in support of a federal income tax.
Thoughts on the Court's new legislative-prayer case
I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting. (Go here for a list of all the very-worth-reading contributions, including ones by Prawfs-alums Jessie Hill and Nelson Tebbe.) Here's a bit:
. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment. What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings. “Establishments” of religion do exist in the world, but this is not one. Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches. “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.
The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions. The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .
What we do and why we do it
A few days ago, Matt put up a thoughtful post about the ABA Task Force Report on "The Future of Legal Education." Because Chief Justice Randall Shepard, the chair of the committee that produced the report, spoke the other day at Notre Dame Law School on the topic, I took the opportunity to re-read it, and with the benefit of Matt's post.
I agree with Matt that "there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up." And, like him, I was struck by the following assertion in the Report:
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
The last sentence resonates, I realize, with many who are angry at what they regard as a law-school scam, and I suppose no one would deny that there are some people who fit that last sentence's description who work in higher education. But, as someone who has spent a number of years on a law school's Appointments Committee, and met hundreds of incredibly talented young lawyers and scholars "on the market," it seems to wrong to say - let alone to report confidently, without data -- that a "substantial" number of those on law school faculties have "sought out" positions in legal education "because" those positions "reside largely outside market- and change-driven environments."
Still, even if the claim strikes me as too-quick, there is no denying, again, that it resonates, and it is hard to say to someone for whom it resonates "well, it shouldn't! You need to feel differently!" Instead, I think someone like me -- i.e., someone who looks at his colleagues and sees (for the most part) people who care about the formation and education of students, about the good of the profession, and about the importance to human well-being of the legal enterprise and who are engaged and excited by ideas and exchanges with students and colleagues alike -- has to ask, "o.k., why is it the case -- what have we said and done or failed to say and do -- that a distinguished ABA committee thinks this hasty udgment is spot on and that many students, recent graduates, prospective students, and practicing lawyers think the same?"
My thought here, to be clear, is not, "geez, we pampered law profs need to do some better, image-improving messaging"; it is (I hope) more sincere and self-critical. This sentence in this report suggests that we are failing to communicate -- that is, to express through what we say and do in our teaching and writing -- why we were drawn to and why we are committed to (what many of us see as) our vocations, because -- again -- I don't think it is the case for very many that the answer to this "why?" was or is "to avoid market forces or change."
What just happened at the Naval Academy?
I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.
The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman. According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out. Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.
While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules. Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.
What’s going on here? What was that hearing and do rape shield rules apply to it? Why is a sexual assault victim testifying and subject to cross-examination in the first place?
Steal this Map!
It's been a fun month blogging here at Prawfs -- thanks to Dan and crew for letting me hang out. As it happens, this final installment in my SCOTUS mapping series falls on the very last Monday in September. The first Monday in October is thus just around the corner. However, while Court junkies everywhere should be smiling, the prospect of a federal shutdown threatens to delay the our precious fix. Mercy!
Yet let's not let the Congressional anarchy get us down. Instead, we can embrace the farce Yippie! style. The Court Term will start sooner or later -- and doctrinal controversy will surely follow. And when those good days come at last, we'll all once again get to debate and dispute the meaning of our favorite constitutional Clauses and Amendments. So let the clowns play. In the meanwhile, fellow junkies might like to recall some recent highs the Court gave us.forthcoming piece in Northwestern Law Review Colloquy. Download it if you like, it's free!
Of course, Obamacare is at the heart of this whole federal shutdown boogie. Now didn't the Court actually decide whether that contentious law was consitutional a couple of Terms ago? Gee, I think I do. I even seem to recall that the law was upheld under the Tax Power. Then again, NFIB v. Sebelius did stir up a hornet's nest with its treatment of the Commerce Power. That was quite a colorful doctrinal fight. Want a picture? You know there's a map for that.
Call for Applications: Petrie-Flom Academic Fellowship, 2014-2016
The Petrie-Flom Center is now accepting applications for 2014-2016 Academic Fellowships.
PURPOSE: The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. For more information about current and past fellows, please visit the Fellowship Programs section of our website.
ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in a discipline that they intend to apply to issues falling under the Center’s umbrella. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship at the intersection of law and health policy, bioethics, or biotechnology during the term of the fellowship. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement.
APPLICATION: Applications will be accepted from September 16, 2013 through November 18, 2013. Please note that applications submitted before November 18 will not be reviewed early.
Sunday, September 29, 2013
Harmonization of Laws
One of the most dynamic areas of family law—other than same-sex marriage—is the harmonization of family laws currently occurring in Europe. The aim is to make family laws more consistent across international borders to accommodate continued mobility. In the area of matrimonial property law, for example, the most recent issue is whether EU member countries can agree to a common property regime for married couples. Germany and France have begun cooperation by introducing a new regulation that permits spouses to contract into a common property regime. The remaining European Union countries must now determine whether they too are ready for the common property regime.
For a long time, there was doubt whether family laws can ever be harmonized across countries. The main reason for doubt was the cultural differences among European countries. However, harmonization started to progress, especially in family law areas devoid of cultural values, such as marital property regimes.
Harmonization success in Europe, however, prompts certain questions—whether harmonization is desirable in itself, and if so, how it could be achieved. There are many issues to consider in answering these questions, such as the role of jurisdiction autonomy, cultural relativism, and legal absolutes. These concerns are especially relevant in the field of family law, which regulates the intimacy of fundamental human relationships.
How else do you enforce rules?
Last week, the NCAA reduced some of the sanctions imposed on the Penn State football program for the sexual abuse committed by a former assistant coach. Geoffrey Rapp (Toledo) describes this as "punisher's remorse"--the NCAA "realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible."
I disagree that only the current players are being hurt. Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.
Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?
All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.
Thursday, September 26, 2013
Courts vs. Agencies in Child Support Collection
Child support enforcement is universally a difficult proposition. In fact, the United Kingdom has overhauled its child support system several times since the Child Support Act 1991 replaced the previous, piecemeal framework. However, one feature has stayed the same in these overhauls: the significant authority over child support placed in a centralized agency.
This is, of course, stands in stark contrast to the American court’s role in adjudicating parent’s child support issues. Only custodial parents receiving welfare must assign their right to sue for child support to the state, the rest may sue an obligor parent in court.
In a forthcoming article in the Catholic University Law Review, I consider the pros and cons of each approach, although neither seems to have achieved an efficient child support system. On the one hand, a centralized agency may be beneficial to those custodial parents who cannot afford to litigate. On the other hand, perhaps it is best to let the biggest stakeholder in child support enforcement—the custodial parent—retain control over the collection. Ultimately, however, efficiency must be improved in the child support system, as more children depend on it than ever.
Wednesday, September 25, 2013
SCOTUS Mapping Going Forward
Over the past weeks, I've been blogging here about the SCOTUS Mapping project. Up until now, my focus has been on the theory animating doctrinal maps and their potential application in teaching and scholarship. By now, Prawfs fans should get the basic idea. Today then, I want to pull back from the cartographic details and discuss the big picture project. Instead of individual maps, let's consider the whole atlas.
In broad strokes, the project has two distinct components.The first component is the Mapper software. While the software already supports the creation of complex doctrinal maps and interactive slideshows, the plan is to develop it further. The project's second component is to create a public library of doctrinal maps. Right now, the project has generated about a dozen maps that cover disparate areas of due process, equal protection, commerce, and Fourth Amendment doctrine. Many uncharted territories remain -- and the idea is to build up a library that would be a useful free resource for law students, practictioners, and academics alike.
I hope that Prawfs readers who study Court doctrine and enjoy visual thinking might consider participating in the library-building component of the project. To wit: I'm looking for folks to play with the software and create doctrinal maps. To help pique interest, I have secured funding from my home institution that will allow me to offer modest stipends to potential map-makers. These stipends will range from $250 to $500 per doctrinal map. Obviously no King's Ransom, these stipends aim only to give a little extra incentive to folks otherwise curious about doctrinal mapping and sympathetic with the SCOTUS Mapping Project.
Subject matter ties
On the first day of Civil Rights, I discuss Reconstruction activity, including the Emancipation Proclamation. In honor of that, I wore a tie with the text of the Emancipation Proclamation, a fact I mentioned to the students. On the second day, students asked about the meaning of that tie; I chose it at random, which seemed to disappoint them. One even tried to find a tie that could represent action under color of law; he actually found one containing a police badge.
So my goal since then has been to match my tie to the topic of the day. Sometimes this is easy, as when I wore a tie with the U.S. Constitution when we covered "rights, privileges, or immunities secured," or one with cars when we covered Burton v. Wilmington Parking Authority. Others have been a stretch, such as the one with elephants for legislative immunity (explanation: The Republicans are in the majority in the House right now). We will see how this goes for the rest of the semester.
And if anyone has a relevant tie he would like to donate to the cause, I promise to return it in good condition.
Tuesday, September 24, 2013
Uncertain Future for the Indian Child Welfare Act?
Veronica, the girl at issue in last term’s U.S. Supreme Court case Adoptive Couple v. Baby Girl, was just handed over to her adoptive parents last night by her biological father after the end of continued litigation. In Adoptive Couple v. Baby Girl , the Supreme Court considered the application of The Indian Child Welfare Act of 1978 (ICWA), which was enacted to preserve the cultural identity and heritage of Indian tribes. The Court determined that the ICWA did not bar the termination of the biological father’s paternal right despite his membership in the Cherokee Nation.
However, the ICWA may face a new challenge. A Virginia appellate court has just issued this opinion, joining the growing number of courts refusing to recognize the Existing Indian Family Exception, which limits the application of ICWA to the removal of Indian children from an existing Indian family. There is some concern that if the judicially-created exception to the ICWA is not recognized, the ICWA would be subject to constitutional doubt under the Tenth Amendment.
Monday, September 23, 2013
Longer Sentences and Prison Growth, Part 2
In my last post, I made a broad—but vulnerable—argument for the claim that longer sentences have not driven prison growth. So I want to provide some stronger evidence for this point over the next few posts.
I want to start by looking at what we can learn from the National Corrections Reporting Program, a powerful and strangely-underused dataset compiled by the Bureau of Justice Statistics. Almost all work on prison growth simply uses the BJS’s aggregate annual admissions, stock, and release data. But the NCRP provides us with the ability to examine the role of time served more precisely.
The NCRP, unlike the aggregate data, reports information on individual inmates. States gather data on the inmate when he enters and then again when he leaves prison. With a bit of work, it is possible to construct the entire distribution of time served by an entering cohort: that of those admitted in, say, 1994, 35% were released within one year of admission, 15% between one to two years after admission, and, as of 2011, 4% of that cohort is still in prison.1 (Technically, this distribution can be calculated down to the number of days in prison.)
This granularity allows us to do two things that we can’t really do with the aggregate data: compute how the distributions in time served have changed over time, and consider how much different our prison population would look had our admissions or release policies been different. I’ll address the first point in this post, the second in my next one.
JOTWELL: Vladeck on Reagan on National Security CasesThe latest essay on JOTWELL's Courts Law is by our own Steve Vladeck, reviewing Robert Timorthy Reagan's National Security Case Studies, published by the Federal Judicial Center. Steve uses this compendium to show that Article III courts are capable of handling cases touching on national security, obviating the need for special national security courts.
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Two Tragedy of Religious Freedom Items
Please forgive the self-promotional book chatter, but here are two quick items on The Tragedy of Religious Freedom:
First, a review in the Law and Politics Book Review by political scientist Jesse Merriam. Here's the conclusion, which both gives a sense of Professor Merriam's (important) criticisms of the book and contains a little nice stuff too: "If DeGirolami truly is going to provide a middle-ground theory, one in which both theory and conflict can co-exist, we need to know more precisely how history and precedent can guide us. The reader will likely find that DeGirolami does not satisfy this standard. Nevertheless, DeGirolami does provide an important service in probing and pushing us closer to this understanding. And something that must be emphasized here is that he performs this service with a clarity, elegance, and intellectual depth surpassing almost every work in this field. TRAGEDY OF RELIGIOUS FREEDOM is an excellent starting point for a discussion of how to arbitrate the principled conflict underlying church-state adjudication, and in starting this discussion DeGirolami does an exquisite job of defending his approach. For these reasons, it is not only an important but also an immensely enjoyable book to read."
Second, a Liberty Fund podcast in which the gracious Richard Reinsch and I discuss the book. If you are not familiar with the web resources provided by the Liberty Fund (the greatest of which, in my view, is its extraordinary, free on-line library), you should be.
The Professor Behind Breaking BadTo celebrate Breaking Bad's Emmy win tonight for best drama, here is a recent interview with the (chemistry) professor advising the show.
Sunday, September 22, 2013
American Children Adopted by Europeans
It is no secret that racial politics play a significant role in adoption, most recently seen in the Adoptive Couple v. Baby Girl case last term. These politics often drive international adoption, with many Americans adopting from abroad to match their race. Much family law literature has arisen around this topic, but for today, I’ll just spotlight this heartwarming CNN story, which reports a continued increase of European adoptions of American children unable to find homes in the United States.
FSU Law Review Exclusive Period Begins for Fall 2013The Florida State University Law Review will be conducting exclusive fall article reviews over the next few weeks. Any article submitted to this exclusive review between now and October 1st will be evaluated by October 8th. By submitting the article you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2014.
If you have an article you would like to submit, please e-mail Sean Armil a copy of the article and your CV at firstname.lastname@example.org with the subject line "Exclusive Fall Article Review." We look forward to reading your submissions.
Saturday, September 21, 2013
Business Advisors for the Youth
Under Roman law, the age of emancipation was the age of puberty, set at 14 for males and 12 for females to avoid embarrassing physical inspections. However, both males and females retained a business advisor, called a curator, until the ancient age of 25 to help them with business matters (in fact, life expectancy at birth in ancient Rome was about 25, but this average was brought down by a high infant mortality rate). Maybe the Romans were onto something?
Defining public law
What is public law, as distinct from private law? Has anyone come up (or can anyone offer) a good defintiion of the distinction, where the line is, and falls in which category? A student asked a question the other day, which rested on the premise that the Constitution (and constitutional claims against the government) was public law and everything else was private law (the issue was a plaintiff bringing claims under both § 1983 and Title IX or Title VII). But that doesn't reflect convention, where we typically speak of statutory anti-discrimination law (Title VII, Title IX, et al.) as public law, even when it involves claims against private entities.
So where is the line and why?
Friday, September 20, 2013
Notice to all law faculty: Read this Report
According to the ABA Task Force Report released today, you prawfs out there need to "Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member’s School." So get to it! (However, in a separate statement, Task Force member and former OSU Law Dean Nancy Hardin Rogers "see[s] no need" for such a command.)
Having endeavored to follow the Task Force's directive, I was somewhat surprised with the lack of data in the Report combined with its willingness to make sweeping empirical observations and reforms. I saw no specifics in the report about attorney employment rates, law student debt levels, or law school tuition rates, or any analysis about how these might have changed over time. There is no data about faculty salaries, faculty workloads, or faculty scholarly productivity. There is no real discussion about what kind of education might be needed to be a 21st-Century attorney, and how this might differ from the education currently being provided. Instead, there are pronouncements such as these:
Words for ParentsFrom Freakonomics. The story is a couple of years old, but good listening for the weekend (for those moments when you're not schlepping your kids everywhere).
Thursday, September 19, 2013
Maps and Doctrinal Scholarship
In my last post, I looked at SCOTUS Maps in the classroom. My basic suggestion was that maps could help 1L students "find their way into" otherwise befuddling topics like FRCP 8 pleadings doctrine. Using the slideshow function, the mapper software allows law teachers to introduce complexity at a pace, and in a sequence, tailored to an audience just beginning to learn the law.
In this installment, I consider how maps might help facilitate conversations among more sophisticated audiences -- those engaged in serious doctrinal scholarship. Once again, the software's payout comes in its ability to visually represent complexity. This time around, however, the complexity we're talking about is very complex. For scholars who like to trudge deep in the doctrinal weeds, maps can provide a neat way to present an information-dense snapshot of their arguments.
Let's jump right into an example. The map below attempts to capture the complex argument advanced by Jennifer Laurin in her insightful and compelling 2011 article Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence.
Underwriting Credit Cards & Overwriting Congress
Here is an example of what lawmakers probably should not do: block stay-at-home spouses (which include more women than men, but a substantial number of each) from the credit card market. This would be inconsistent with the laws—including many family law principles—that treat spouses as a single economic unit. Yet, it happened. Not in 1911, but in 2011, and without much media attention.
In the wake of the economic meltdown, President Obama signed the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) on May 22, 2009, which aimed to increase the transparency of the credit card industry and to protect college students from predatory lending. While stay-at-home parents were not targeted by the Act, Title III focused on credit card consumers under the age of 21.
To carry out the CARD Act and its amendments, Congress assigned power (through the Truth in Lending Act's Regulation Z) to the Federal Reserve Board to issue such rules as it considered necessary. The Federal Reserve Board promulgated the "ability to pay" rule, which required credit card issuers to consider only a person's independent income, and not the household's income, when underwriting credit cards. However, in addition to keeping credit cards away from young adults—the target of the CARD Act—this "ability to pay" rule did the same for a larger group of people: non-income earning spouses that included stay-at-home parents and homemakers. Except in community property states, where spouses co-own martial assets, a stay-at-home spouse could not open a credit card without the signature of the income-earning spouse.
Wednesday, September 18, 2013
Determining the Scope of your Proposal
I have been describing some of the steps I went through in seeking outside funding to continue a research project. In previous posts I described the nature of the funding cycle in law schools and how soft money may be important and where to find sources of funding. Today I will begin to write about the project itself. I am not going to frame this as a “how to” or “do this” post. Instead I am going to describe what I did and make a few observations along the way.
First, I chose environs that I had a significant familiarity with for my study, rather than choosing the most convenient location to study. The area I proposed to study in my grant proposal was an area I had observed for the previous two years on a near regular basis -- the Los Angeles Plaza. Over the past two years, I logged more than eighty hours of observation in the Plaza, thinking about the Space and the different ways constituents used the space. At the end of the day, you are asking for money to study a problem you find interesting. Choosing a problem, a territory, or location you are familiar with will enable you to describe how the project better explains or better resolves problems on the ground. This is partially related to the question I raised in the last post of whether the funding or the project comes first.
Second, I formulated a thesis for what I thought I was looking for and why it was important. This was possibly the most difficult thing for me in thinking through the problems of space and property at the Plaza. And I knew this was a problem that I had not quite nailed down in my previous two years of thinking about the space. Fortunately, a couple of colleagues kept asking me “where is the law” in your research. That question, “where is the law,” kept me searching this area for the question I wanted to ask. In short, over that two year period, I kept returning to the plaza because my instincts told me there is a problem, a relationship, or a legal dynamic that is interesting and that will further property understandings. Forcing myself to formulate a thesis, helped me isolate what my real thesis would be.
Third, I spent time replicating the kind of research I want to undertake under the grant. For me, this was twelve days this summer hanging out around homeless persons, talking to constituents, and observing the Plaza for extended periods of time. Over the twelve days, I logged more than sixty hours of observation time on the Plaza. This time was spent doing the things that I would ultimately propose to do in the research. But it was also spent building and strengthening relationships in the area that would further the work I wanted to do. Both the ability to substantiate the relationships and the work plan are important features of the proposal that are best described by actually having boots on the ground, so to speak. Importantly this period of time helped me not only confirm some of my thesis, reframe other parts of the thesis, narrow the subject and create a narrowly tailored proposal.
Fourth, I read as many similar studies as I could find. For me, I knew homelessness was going to be a primary component for my understanding of the Plaza space. So I took with me on my extended investigation David Snow and Leon Anderson’s work Down on their Luck. Snow and Anderson spent several months studying the homeless population in Austin Texas. Their typologies remain one of the most important ways for understanding how homeless persons understand themselves. Being able to think about my thesis in a framework that took account of Snow and Anderson’s work helped me identify more questions while on the ground that were vital to my proposal.
Fifth, I forced myself, before writing the proposal to write a version of the project summary. For NSF, the project summary is a one page document that describes briefly the project merits, the intellectual merits and the broader impacts of the study, in the verbiage of the National Science Foundation. I would say that in my process, putting together the initial summary was the most important part of defining what I thought I could accomplish and why the research was important. Although the summary changed from the initial draft, undertaking this step was important for framing the project’s ultimate scope.
Lastly, I would recommend reading before, during and after several methodological books relating to the type of study you are wanting to engage. Methods approach receives much more attention in other disciplines than it does in law and there are a number of questions that will permeate even the theoretical pieces of your work by focusing on how you undertake your work. Grounding yourself in the methods literature while engaging in the work, and then thinking about it afterwards, will give you a deeper appreciation for how your research is carried out. One book I found very helpful was Analyzing Social Settings by John Lofland, David Anderson, Leon Snow, and Lyn Lofland.
Au Revoir, Will Contests
Here’s an amazing fact for those of us in trusts & estates: in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?
Two answers may be 1) the forced share of the estate that children receive in France and 2) the role of the notaire: a neutral, specialized type of attorney with authority from the French state to draft wills and be responsible for those wills.
Although some commentators have advocated for the importation of these two aspects of French wills law to the American system, importation would be difficult given the structure of American law. Wills law in the states favors giving forced shares to surviving spouses (through the elective share), not to children (through the forced share; an exception is Louisiana due to its civil law). As for notaires, they are completely foreign to the American legal system.
However, there are other aspects of French wills law that could be more readily imported to reduce the number of will contests.
Has the Moment in the Sun Finally Arrived for Section 2 of the Fourteenth Amendment?
I blogged not long ago about my argument that the Fifteenth Amendment impliedly repealed Section 2 of the Fourteenth Amendment. Section 2 imposes a penalty of reduced representation for states denying the right to vote, at least potentially implying that states have the right to do it. Meanwhile, the Fifteenth Amendment prohibits states from denying the right to vote on the basis of race. It seems to me that Section 2 and the Fifteenth Amendment are basically inconsistent. Since Section 2 has never been applied in spite of decades of race-based disenfranchisement, some explanation for its somnescence is called for.
Franita Tolson responded in a comment that "[u]nlike the Fifteenth Amendment, section 2 is not limited to abridgments of the right to vote based on race, which is a powerful source of authority to address facially neutral abridgments of the right to vote." Similarly, in their fascinating Yale Law Journal article Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, Richard Re and Christopher Re likewise argue that Section 2 is not limited to race. My argument fails if Section 2 applies in any case where the Fifteenth Amendment does not, so if they are right, I am not. These scholars do have the plain language of the text in their favor:
Monday, September 16, 2013
San Diego Hiring
Following Dan and Howard's posts about hiring aims of FSU and FIU, I thought I'd add something about our hiring process here at University of San Diego. Last year we were very fortunate to hire six extraordinary colleagues. This year, we are still on the market for some more great candidates, entry and lateral. We are always looking for unique opportunities in any and every field, but we also have in mind specific fields in which our search will be even more focused: environmental law, IP (bio emphasis), international law, immigration law.
Faculty Hiring: FIU College of LawFlorida International University College of Law seeks applicants for entry-level and lateral appointments for tenure-track faculty positions beginning in the 2014-15 academic year. Particular areas of curricular interest include Torts and Environmental Law.
How Does the Outer World Interact with the Ivory Tower?
Amidst thinking about the costs and pressures of legal education and law schools, we can benefit from looking more broadly at the relationship between universities and industry. A new study published in Research Policy The spillover theory reversed: The impact of regional economies on the commercialization of university science reminds us that spillovers – the positive externalities from institutional activity - are multi-directional. Mostly, the literature has focused on importance of universities in regional innovation and economic growth, including the creation of technology clusters and industrial spinoffs. This new paper looks at the effects in the opposite direction: how regional environments impact a university's success. Specifically, the study argues that university scientists are likely to develop pervasive networks of contacts with industry scientists when they work at a university embedded within a regional economy that encourages collaboration. Using social network analysis to examine the quality of social ties linking industry and university scientists in California, the study concludes that technology is more likely to flow from university to a regional innovation when the "plumbing" - the strategies and attitudes in the industry - is in place.
For law schools too, we know that geographies are sticky. We know that many of our students want to stay in the area and we encourage them to develop professional ties with the local community during law school. When times are easy, geography may matter less, but during downcycles, the importance of a community that is engaged with the law school is huge. We also are reminded of what we all intuitively know well - that national rankings (even when done well) are not the only important piece of the puzzle. The local positioning of a law school, relative to other law schools in the region, matters.
SCOTUS Maps in the Classroom
This is the fourth post in a series about visualizing Supreme Court doctrine. In today's entry, I want to briefly demonstrate one way folks could use doctrinal maps in their classrooms. I'll work through a short example that should be very familiar to Civ Pro prawfs and 1Ls around the nation -- the change in FRCP 8 pleading standards brought about by the Supreme Court's decisions in Twombly and Iqbal.
Below is a snapshot of the map I made last night to help structure my own Rule 8 discussion in Civ Pro class this week. After the jump, I'll explain how I use the map -- and also demonstrate the SCOTUS Mapper software's "slideshow" function that permits you to walk your students through the visual complexity one step at a time.
Longer Sentences and Prison Growth, Part 1
Over several future posts, I am going to argue that despite all the academic, political, and media attention they receive, long prison sentences are not driving prison growth. Sentences are not that long, and time served has been fairly stable over the years. It is a counter-intuitive and contrarian position to be sure, but I think I have the data on my side.
I want to start, though, with a very simple argument for why we should be skeptical of the longer-sentences-are-central-to-prison-growth argument. And it is one that requires almost no real statistical digging at all.
It’s this graph:
Sunday, September 15, 2013
Predictors of Bar Passage
Saturday, September 14, 2013
I’d like to highlight this interesting AALS 2014 panel on the privacy, if any, that parents owe their children on Facebook. I look forward to hearing the presentations on the Saturday morning of the conference. Personally, I’m just glad Facebook didn’t exist when I was a kid.
Friday, September 13, 2013
Two completely random itemsFirst, a question for our Jewish readers: Where will you be tomorrow evening after the shofar has blown--at "break fast" or at "break the fast"? And when did the latter become a thing?
Second, in Gore Vidal's memoir, he tells that when Tennessee Williams was confronted with the fact that he claimed to be younger than the age on his birth certificate, Williams responded "“I do not choose to count as a part of my life the three years I spent selling shoes." Which was, of course, done as an employee of the International Shoe Company of St. Louis, MO. I wonder if Williams only got to carry around the left shoe in every pair.
The Funding or the Project -- Where to find funds
My apologies for being lax in posting. Shortly after my first post, I was struck with tonsillitis and have been recovering since. In my last post, I wrote about the differences between soft funding and the role of symbolic funding. Today, I want to focus on a question of which type of funding to consider. The funding you pursue is going to be dependent on a number of factors.
The first questions you ask will actually lead you to more inert, fundamental questions. One such question is “does the funding dictate the direction of the research or do you pursue funds that support the research you want to do?” My recommendation is pursue the funding that supports your research, but let’s be honest -- all grants have specific audiences for which it looks for research to influence. National Science Foundation, for example, is interested in research that informs not only academic research but public policy. NSF is perhaps the most open in terms of research agenda, but there is still an agenda that you should keep in mind. Framing your grant proposal to the right audience matters for its successful application. Finding a balance between the research you are pursuing and the research that funding seeks may be more complicated in areas that are tied to ideological research.
Another question is timing. Many grants operate under cycles. For example, the NSF has two review periods -- August and January submissions. The review period is about five months, so the earliest that grant funding could commence is six months from the submission. That is assuming that IRB approval has been obtained and other institutional barriers are cleared. Some grants don’t operate on time cycles, but rather ask the researcher to submit proposals for funding. These proposals are one to three pages in length and spell out briefly the research, its goals and aims, its methods, and its budget summary. From these proposals, the grant foundation will decide whether to invite a more detailed proposal.
My funding trajectory may be slightly unique. I had the NSF on my radar for several years, thanks to my former University Sponsored Research Officer who made it her goal to get me funded (even if that was not my primary goal). From her perspective (and she was probably correct), my research was perfectly positioned between law and social methods, making it a prime candidate for several funding opportunities. Concurrently, I was serving on the University’s IRB committee, which exposed me to a variety of researchers in different departments that were talking about funding opportunities. Just being around those conversations on a regular basis made me aware of different opportunities that may be available and places where one becomes aware of opportunities.
I am listing below some social science resources that may be helpful in pursuing grant funds.
Do any studies explore increased (or decreased) violent crime or unemployment (or other undisputed social ills) in medicial marijuana states?
Perhaps to the chagrin and annoyance to students in my "Marijuana Law, Policy & Reform" seminar, I keep pushing our class discussion to try to figure out and precisely specify what could be considered undisputed and undisputable harms from any drug legalization regime --- especially if one views simply increased drug use alone, even by young people, to be a social good or at least not clearly a social harm. (This prior post raised some of these issues and ideas.) The question in the title of this post is prompted in part by our most recent class discussion, where a rough consensus emerged that increases in violent crime and/or unemployment might be undisputed metrics of a failed social policy.
Thus the question in the title of this post, which also builds a bit off a prior post which asked "Two decades into experimentation, what is really known about medical marijuana practices?". Specifically, I am wondering if anyone has yet tried (or if it really would even be feasable) to develop effective and sophisticated empirical studies to explore if there have been any statistically significant changes in violent crime rates or unemployement rates in states that have legalized medical marijuana.
As a relative agnostic (with libertarian leanings) on lots of marijuana reform issues, I believe I would be moved significantly by serious data showing (or even just suggesting) causal links between medical marijuana legalization and violent crime rates or unemployment rates. Of course, like research on incarceration and crime rates, the results of any such empirical study linking medical marijuana to an increase or decrease in social ills could be disputable and would be disputed by partisan advocates in the reform policy debate. But for those without a predetermined perspective on various marijuana law, policy and reform issues (which likely describes a majority of Americans), even tentative or partial data showing the positive or negative impact of medicial marijuana and violent crime or other undisputed social harms could and would likely "move the needle" considerably.
This post is intended not only to inquire as to whether anyone is aware of any modern studies exploring these issues in states with medical marijuana laws, but also to ponder whether there are other clear empirical metrics of undisputed social ills that ought to be a central part of the medicial marijuana reform discussion and debate.
Cross-posted at Marijuana Law, Policy and Reform
Recent related posts:
- Are there undisputed benefits from prohibition regimes and/or undisputed harms from legalization/regulation regimes?
- Two decades into experimentation, what is really known about medical marijuana practices?
Delahunty on Tocqueville and Religion
Professor Robert Delahunty has been posting about Alexis de Tocqueville and religion over at CLR Forum for the last several weeks. I have aggregated the series below for those with an interest in Tocqueville's thought about religion.
- Tocqueville's Faith
- Tocqueville and Machiavellianism
- Tocqueville and the Limits of the Political Imagination
- Tocqueville on the Naturalness of Religious Belief
- Tocqueville on Materialism
- Tocqueville on Protestantism and Natural Religion: Part I
- Tocqueville on Protestantism and Natural Religion: Part II
- Tocqueville on Unitarianism
- Tocqueville on Pantheism: Part I
- Tocqueville on Pantheism: Part II
- Tocqueville's America and Ours
- Tocqueville and Habermas
- Tocqueville and Gobineau
The Lost Brown v. Board of Education of Immigration Law
Have you ever had one of those co-authors who held up a project for years by sitting on a draft? Yeah, my co-authors have too. In 2001, I started a project with two students which has just now been published in the North Carolina Law Review as part of a wonderful symposium hosted by Al Brophy. The paper explores Lee Kum Hoy v. Murff, 355 U.S. 169 (1957), in which the Supreme Court granted certiorari to evaluate the constitutionality of a policy of the Immigration and Naturalization Service of blood-testing all Chinese, and only Chinese, applicants for admission to the United States as foreign-born children of U.S. citizens. (This was before DNA testing was invented; the A-B-O blood grouping of the children was compared to that of the claimed parents). The Second Circuit upheld the policy over a dissent by Jerome Frank.
The Court ultimately remanded the case on other grounds, without reaching the merits. However, based on the briefing, the papers of the justices, and not least the political context, it appears that five justices were prepared to hold the policy unconstitutional. This would have been remarkable, because in cases like Chae Chan Ping v. United States, and Fong Yue Ting v. United States, the Court held that the federal government could freely discriminate on the basis of race in the area of immigration--and to this day courts seem to say that these old cases remain good law. Accordingly, for the Court to apply Bolling v. Sharpe to the immigration context would have been remarkable. But for the Court to grant certiorari in the middle of massive resistance to Brown and uphold racial discrimination in any context would have been a significant self-inflicted wound.
Thursday, September 12, 2013
Visualizing SCOTUS Doctrine III - Network Analysis Compared
In the first two posts of this series, I discussed the basics of the SCOTUS Mapping Project and its method of looking to dissents to uncover the competing traditions at play in the Court's contested doctrines. In today's installment, I explore how this project compares with other scholarly and technological approaches to analysis of legal citation networks. I hope both to put the project in context and to give Readers potentially interested in in making maps a sense of the process involved.
Let's start with a little background. Prawfs fans may or may not be familiar with the fairly large and robust literature on legal "network analysis." (For a good survey article see here; for an influential example see here). A basic premise of this literature is that we can better understand the importance and influence of precedents (including, but not limited to Supreme Court precedents) by analyzing the patterns of their subsequent citation in networks of interrelated opinions. People who write in this field often create sophisticated mathematical models and generate alogorithms to be executed by computers parsing large volumes of case data.
I'll stress right off the bat that the SCOTUS Mapping Project is not an algorithm-driven or computer-automated undertaking. Rather, the Mapper software enables users to visualize doctrine after they conduct thier own close readings of cases. At the same time, the project derives inspiration from network analysis -- I thus fully expect human cartographers using the Mapper software to look for citation patterns just as computers are trained to do in network analysis.
The difference is quantity versus quality. While computers can quickly sift through reams of text to identify co-occuring words and phrases across thousands of cases, people can make deeper conceptual and thematic connections between opinions based on synthesized understanding. People can both interpret text and read "between the lines" of opinions in ways that computers, at least for now, cannot. Visualizations engineered by network analyses will not produce the same perspective as visualizations created using the Mapper software and method.
The best way to illustrate this difference is via a concrete example. Consider then the Supreme Court's doctrine regarding stare decisis. This is the Court's "precedent about precedent" -- pronouncements about when the Court may (or may not) overrule its own prior decisions. How might we visualize the most critical Court opinions in this area? First, let's take a glimpse an image produced using applied network analysis -- courtesty of the geniuses over at Ravel Law.
Figure 1 (Full size image)
Wednesday, September 11, 2013
"Better Call Saul"I am sure it will get so much law wrong, but I am totally in the bag for Better Call Saul, a planned prequal to Breaking Bad that focuses on the show's hilariously sleazy criminal-defense/PI attorney.
Grandparents' Rights Test Case
My friend Steven Morrison at North Dakota School of Law has sent me two interesting articles, here and here, about a grandparents’ rights cases heating up in North Dakota this week, complete with protests at the courthouse. In essence, a couple is fighting a judge’s order permitting their 16-year-old child’s grandparents generous visitation rights. This brings to mind the 2000 United States Supreme Court case of Troxel v. Granville, which struck down a Washington statute that allowed any third party to sue for visitation as a violation of parents’ 14th Amendment right to make decisions concerning the care, custody, and control of their children.
Troxel struck down the Washington statute on grounds of over-breadth, but the Court refused to define the precise scope of the parental constitutional right. While it was clear that visitation statutes had to be narrower in scope (such as being limited to grandparent visitation if in the best interest of the child), it was unclear at which point such a statute would infringe on parents' constitutional rights.
Perhaps this will be the case to push the U.S. Supreme Court to define the contours of parents’ constitutional rights in the grandparents' visitation context; it will be interesting to watch.
Tuesday, September 10, 2013
Updated FSU Law Hiring Info
This announcement below gently updates previous information we have shared.
The Florida State University College of Law seeks to hire several tenure-track faculty in the coming year. While all highly qualified candidates are encouraged to apply, the Appointments Committee would particularly welcome applications from senior lateral faculty, and especially in the areas of Trusts and Estates, Health Law, and Environmental Law. Named professorships are available for highly accomplished lateral faculty. Interested individuals should send a cover letter and CV to Professor Wayne Logan, Appointments Committee Chair, at email@example.com. FSU is an Equal Opportunity/Access/Affirmative Action Employer and encourages applications from women and members of minority groups.
Violent Media, Violent Crime, Old Data, and Self-Selection
Though I realize that the following article is over two weeks old, or a lifetime in BlogTime, I wanted to address a recent provocative op-ed in the New York Times about the alleged link between exposure to violent media and violent behavior. It is a great example of seemingly-compelling but actually low-quality work that so dominates popularized, non-technical discussions of complicated empirical issues. It’s worth spending a few minutes pointing out its flaws and thinking about how to identify the warning signs of bad pop-empiricism.
The article’s basic point is one that likely aligns with intuitions many of us have:
There is now consensus that exposure to media violence is linked to actual violent behavior — a link found by many scholars to be on par with the correlation of exposure to secondhand smoke and the risk of lung cancer.
It makes sense, instinctively, that watching something violent would stir up violent feelings, if not actions, in the viewer. But a lot of red flags quickly appear.
Understanding Civil Rights Litigation
I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.
My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.
Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.
Monday, September 09, 2013
There was a story that dominated the media earlier this summer: that mothers are the primary breadwinners in 40% of American households according to the Pew Research Center. This invoked, in many minds, the picture of an almost equal participation of moms and dads in the workforce and at home. After digging into the numbers, however, I found that nothing could be further from the truth.
The trick, it turns out, is to read Pew’s findings in conjunction with the birth data. While mothers are the primary breadwinners in 40% of households, the same percentage of births are to unmarried mothers. Although the two populations do not perfectly overlap—not every female breadwinner is a single mother—they do to a surprisingly significant extent: 8.6 million (63%) of women breadwinners in the United States are single mothers. A further analysis of the numbers reveals the startling fact that 25% of all breadwinners in the United States are single mothers earning a median income of $23,000 per year.
In other words, we are seeing a dramatic increase in women who are both the single parent and the primary breadwinner at relatively low wages. This would be a different story if the numbers showed that 40% of married households had a female breadwinner. But in married households with children today, only 15% have women primary earners. This is just a slight increase from the year 1960, when 11% of households had breadwinner moms and when, by the way, the rate of births to unmarried women stood at 5.3%.