Tuesday, March 15, 2016
Thoughts on the Flint Water Crisis
The ongoing water crisis in Flint, Michigan has raised troubling concerns about how public officials oversee and manage drinking water systems. Accusations of corruption, negligence, dereliction of duty, and dishonesty have been leveled at federal, state, and city officials charged with protecting Flint's drinking water. The concerns about the oversight and response of these officials are well-grounded, but I think there are other aspects of the Flint crisis that are not receiving enough attention.
With most of Bergdahl’s story now told, Koenig turns in this episode to the negotiations that brought him back. Koenig doesn’t spend much time exploring whether the decision to trade Bergdahl for the five Taliban leaders was, normatively speaking, “right.” I expect that the next episode may bring together that normative theme with the other main normative theme – whether the decision to prosecute him was “right.” I think those two decisions should be viewed independently, but for many, the two are closely linked. Koenig still has to deal with that issue – the politicization of this case – and and I’m hoping that in the next episode, all of this will come together. And that might be the season finale (magic number 10?).
Back to this episode, the folks at Just Security and elsewhere have done a thorough job covering the national security and separation of powers aspects of the trade, and, being a military justice geek, I don’t have a ton to offer beyond what is already out there. I do think Koenig could have developed a couple of points, and I’ll discuss those below.
Twiqbal boldly goes where no man has gone before
In late December, Paramount and CBS filed a copyright infringement action against a small company making a short fan-fiction (Kickstarter-funded) movie, a prequel to the Original Recipe series featuring a one-off character from one episode who also has appeared in some expanded-universe books. The producers moved to dismiss, arguing that the complaint relied too much on information-and-belief allegations and did not specify what works were infringed or how. The plaintiffs have now amended their complaint to include 28 pages of details and photos that serious Trek fans (I confess to having stopped with Original Recipe) will love, including the origins of the Klingon language and the structure of the Federation and Klingon governments.
Litigate long and prosper.
Monday, March 14, 2016
This should not be surprising
Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.
[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.
But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).
Back From Spring Break
Loyola is back in session after a week of spring break, which got me thinking, fellow prawfs: what do you do over your Spring Break? (I'm assuming some significant percentage of you either are, like me, just back or are just entering yours.)
I'll go first, of course. Since my kids' break won't arrive for another month or so, spring break isn't a big travel time for me; mostly, it's catching up on stuff I fell behind on and doing family stuff that needs to be done. But I did get in two big things last week:
- I cleaned my office. And that's a big thing. As I throw myself into various writing projects, piles of sources stack up all over my desk. But now those stacks are largely gone, either recycled or organized in places I can comfortably get to them.
- I practiced my saxophone. Years (and years and years) ago, I was a halfway decent musician. But the rigors of law school, kids, and apartment living have made playing a lot harder. Still, I love to play and, while my acoustic guitar and electric piano are fun, I miss what was my primary instrument throughout my teenage years. But I got five days of playing in last week, which is probably four days more than I've done in the last ten or fifteen years. Now the trick will be to keep it up when I'm at work during the day.
So how about you?
Entry Level Hiring: The 2016 Report - Call for Information
I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.
Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
This report follows in the tradition of Larry Solum's excellent work over many years.
All PrawfsBlawg entry level hiring report tagged posts.
Added 3/21/15: Some clarification: the list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.
The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)
[Originally posted 3/14/16; edited 3/21/15.]
“The Right of the People to Be Secure in Their [Encrypted] Effects”
A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.
Sunday, March 13, 2016
Mr. Trump and the creative destruction of the Republican Party
The liberal superego warns that schadenfreude over Mr. Trump’s negative impact on the Republican Party is misplaced because the man’s threat to democratic values is too serious to dismiss. I disagree. Though well-meaning, this warning understates the power of American institutionalism (e.g., Constitutional checks and balances, legal culture, rights-based expectations) to neutralize and, ultimately, absorb the forces mobilized by Mr. Trump.
Instead, I see Trump as a step in the organic restructuring of the Republican Party, along the lines of Joseph Schumpeter’s idea of 'creative destruction.'. Schumpeter praised capitalism’s ability to – through disruptive ferment – undo status quos to make way for better products and technologies. Sometimes we use market analogies to model public processes (‘market of ideas’) and this one may fit.
President Obama, in particular, has been very clear Trump is merely the fittest vehicle (in a Darwinian sense) for political values nurtured by GOP elites. Cf: except for his politically incorrect views on race and immigration, Trump is easily a moderate Republican given his other views, e.g., support for Planned Parenthood, gay marriage, income taxation, but that would take a separate blog entry; hence moderates like Bill Weld could support him
Saturday, March 12, 2016
Religious Accommodations and Third-Party Harms at Pepperdine
I had an engaging and helpful conversation yesterday, in the context of two panels at an ongoing, fascinating conference at Pepperdine, "Doing Justice Without Doing Harm," sponsored by the Nootbaar Institute on Religion, Law & Ethics. A group of us discussed various aspects of the problem of identifying, describing, and justifying the limits on accommodations of religion, with a primary focus on the recent and important article on the subject by Profs. Douglas NeJaime and Reva Siegel.
In my own remarks, I tried to engage (and push back on) the article's claim that we and the law should be hesitant and concerned about granting accommodation claims that touch on matters in "democratic contestation" or concerning with there is ongoing "political mobilization." I suggested that, in a way, this claim is a reworking of the Lemon reasoning (with which I took issue here) that the Establishment Clause authorizes judges to identify and invalidate laws that risk "political divisiveness along religious lines."
Friday, March 11, 2016
Visualizing Last Night's GOP Debate
So finally last night I watched my first presidential debate. (Why wait until now? Primarily because (a) I don't have cable, and (b) the debates usually come on right around my kids' bedtime.) And, based on the after-debate commentary I've heard about the other GOP debates, this was probably a good one to start with, it being higher on substance and lower on scatology. And shouting.
Still, around the hundredth time I heard Trump say the word deal, I started to wonder: what would a word cloud of the candidates' debate performance look like? So I present here, as a public service, a visualization of the candidates' messages from last night. (The transcript I used is here.)
Thursday, March 10, 2016
Hello. My name is Rhett Larson. And I angst over article submissions.
I never post under the angsting thread provided here at Prawfsblawg for those submitting articles for law review publication. I don't provide any information from my submittals. But when I submit an article, I follow the angsting thread pretty religiously until my article finally places. My behavior (and I hope I'm not alone) strikes me as bizarre and raises questions about myself that I'm afraid to answer. Why do I angst about article placement at all?
Why does it matter (redux)?
In December, I wondered why it mattered whether Donald Trump was "a racist," as opposed to just a person who said racist things. That question is back, thanks to questions at last night's Democratic presidential debate. Both Clinton and Sanders were asked whether they consider Trump a racist; both condemned the things he said, while refusing to put a label on him.
But, again, how cares? If someone says racist things, I know not to vote for him for President. Why does it matter whether the label is formally attached to him? And, in particular, why does it matter whether his potential political opponents attach the label to him?
Scalia & Litigant Autonomy, Part 2
In a previous post, I discussed how Justice Scalia seemed to think laws creating claims for individualized relief generally also vest claim-holders with substantive rights to control their own claims. In this post, I want to explore some problems with substance-izing claim-control.
First, though, here are a few (very significant!) consequences of this Scalia-ian conception of claim-control:
• Once we view claim-control as a substantive entitlement, its tough to see how courts can interpretively extend the scope of mandatory classing (e.g. under Rules 23(b)(1)(B) and 23(b)(2)) much beyond current boundaries without butting up against the Rules Enabling Act’s ban on procedures that alter or abridge substantive rights.
• Viewing claim-control as a substantive entitlement removes rulemakers’ flexibility to expand mandatory classing via Rules amendments, again thanks to the Enabling Act.
• This conception of claim-control also restricts states—if individualized claim-control rights are embedded in federal rights of action for individualized relief, that leads to reverse Erie constraints on state mandatory class action procedures.
• Conceptualizing claim-control as a substantive right requires conceptualizing the class as an aggregation of individually controlled claims, ratter than as a juridical entity (i.e., a fictive party subject to legal consequences that vest independently of the choices of individual class members). And as my friend and future co-author Andy Trask notes, the Roberts Court has indeed tended to reject the entity model. Yet, even today, there are any number of judge-made rules that seem to accept the entity view of the class. Although some of these penumbral doctrines might be reconcilable with the view that claims confer a substantive control entitlement, others—particularly, the rule that the class counsel represents the class as a whole and so can settle individual class members’ claims over their objections—seem harder to justify in a world of substance-ized claim-control.
Some might respond to this (partial) list of consequences with a shrug: The restriction on mandatory classing is a feature of the theory, not a bug. And if some aspects of class action doctrine are, at the end of the day, inconsistent with a substantive conception of claim-control—this is a problem with these doctrines, not with substance-izing claim-control.
And that response seems totally right!—if rights to control claims are, in fact, part of the underlying right of action. The problem is that substance-izing claim-control rights doesn’t, on closer examination, really wash.
Here’s Ernest Young: “[E]ven in statutory cases, legislative intent about which plaintiffs ought to be permitted to sue will generally be fictional. Congress will not have addressed the problem, and the courts will need to rely largely on default presumptions.” “[T]he Court will need to recognize that it cannot do without prudential rules [that specify who can sue] entirely,” Young continues in another article. “Then the hard work of specifying which prudential rules are legitimate, which are not, and why can begin.” (my emphasis).
Yeah, careful reader, I know--he’s not writing here about class actions. He’s writing about the jurisdictional (and quasi-jurisdictional “prudential”) law of standing. But his point is equally applicable to class action law’s litigant autonomy norm.
The reality (I argue in the first part of this article, which, like this cute puppy, is still looking for its forever home, law review editors) is: Lots and lots of rights of action just don’t specify claim-control rights. And the inferences we can draw about legislative intent from background assumptions are actually pretty inconclusive—its been a long, long time since there was anything like a consensus in our law or legal culture about who, among a class of injured parties, ought to control their claims. That leaves the “usual rule that litigation is conducted by and for the named parties only” looking an awful lot like a judicial custom, informed, like the law of prudential standing, by both constitutional and forum-specific institutional values.
At the end of the day, the Scalia-era equation of that custom with substantive law did some good by reminding courts that they also need to be attentive to case-specific policies of the underlying substantive schemes when thinking about how much control class members should exercise over their own claims. But, even so, turning our attention in this direction answers fewer questions than we hoped—leaving those who want to put the Court’s treatment of litigant autonomy in the law of class actions on firmer footing with lots more work to do.
In a future post, I’ll suggest some overlooked avenues defenders of the Court’s cases might pursue.
Tuesday, March 08, 2016
Nixon, Burger, and timing of nominations
In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).
The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.
Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be. Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.
[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.
Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?
Dean Search: Concordia University School of Law
Concordia University School of Law is searching for a new Dean: http://law.cu-portland.edu/about/school-law-dean-search
Please consider applying if you are qualified, and spread the word to colleagues who would be interested. If you have any questions, Chad DeVeaux (firstname.lastname@example.org) is on the search committee and would be happy to help.
Standing in the DAPA Case
Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog here again. I'll start with some thoughts on standing in United States v. Texas, the DAPA case scheduled for argument on April 18th. (I previously blogged about this question over at Notice & Comment when the case was before the Fifth Circuit.) The United States has filed its merits brief, which nicely illustrates that questions of government standing can't be answered by Article III alone.
Remembering Influential Law Professors
I am so sad to hear about the passing of Elizabeth Garrett. She was my torts professor, and she was a wonderful teacher. I was always very reluctant to ask my professors for help or advice. I'm not really sure why - I'm not generally a shy person. I worked at a law firm for three years without a garbage can in my office. I kept a garbage sack in my office, and each night, I would take my own garbage out. One night, someone saw me and asked why I didn't just ask for a garbage can. I said, "Well, I don't want to bother anyone." She looked at my like I was crazy, and I totally deserved it. She then handed me my own garbage can. The same impulse that kept me from asking for a garbage can kept me from asking for help from my professors. Professor Garrett asked a group of students to come to her office for an informal chat. For whatever reason, that made it easier for me to approach her outside of class. I have always remembered how she made that extra effort to get to know her students. I have tried to emulate her example as a teacher, knowing that there are students like me who will not ask for my help or advice unless I am the one to reach out first. Like Professor Garrett, I want them to know that not only is it okay to ask, but I want them to and I'm happy to help.
I became a law professor in part because of teachers like Elizabeth Garrett. I had a transformative law school experience because of many great teachers who challenged and encouraged me. One of the most influential law professors in my life is someone from whom I never took a class.
This is the episode I have been waiting for. I’m going to give away the big reveals (at least, in my geeky way, I think they are big), so if you haven’t listened yet, don’t go below the fold.
Affirmative Consent and Interpreting Signals
In my previous post, I argued that “affirmative consent” does not mean “unambiguous consent” (except for the few policies that contain words like “unambiguous” or “clear”). If affirmative consent does not require clear, unambiguous consent, then what does it require?
Definitions of “affirmative” include the following: “saying or showing that the answer is ‘yes’ rather than ‘no,’” and “involving or requiring effort.” In this context, “affirmative” seems to require that there be some positive signal of agreement. Agreement cannot be inferred solely from passivity or silence.
This is at most a very minor alteration in existing consent standards, and it does not help to solve the real and serious problems of determining when consent has been given and when it has not.
Cornell's President (and my Civil Procedure professor), Elizabeth Garrett, has passed away. A notice from the New York Times can be found here.
In her Green Bag essay on the Socratic Method, she ended with a wonderful quote from Norman Maclean: "Teaching is the art of conveying the delight that comes from an act of the spirit (and from here on the Presbyterianism gets thicker), without ever giving anyone the notion that the delight comes easy."
That's a great description of teaching, as it was practiced by Professor Garrett. She will be greatly missed.
Monday, March 07, 2016
Jurisdiction, merits, and same-sex marriage
SCOTUS today granted cert and reversed the Supreme Court of Alabama, holding that under the Full Faith & Credit Clause, Alabama must recognize a Georgia second-parent adoption between same-sex partners.
SCoA had held that F/F/C was not required because the Georgia courts lacked subject matter jurisdiction to do a second-parent adoption for an unmarried couple, where the biological parent's rights were not terminated. But the propriety of the adoption was a matter of the merits, not jurisdiction. Georgia trial courts have general jurisdiction over "all matters of adoption," which this clearly was. The Court then turned to its usual jurisdictionality touchstones--the relevant statute does not speak in jurisdictional terms, does not refer to jurisdiction, has never been interpreted (by Georgia courts) as jurisdictional (Georgia courts recognize the line between whether a court has power and whether to grant relief), and the fact that the provision is mandatory does not make it jurisdictional. Georgia's rule of decision as to whether to allow an adoption does not speak to or limit the power of the state court to decide this type of case. SCoA thus was wrong (yet again, when it comes to marriage equality--it's been a bad week) in trying to squeeze this into the lack-of-jurisdiction exception to F/F/C.
Sunday, March 06, 2016
TRAP laws, rump SCOTUS, and the shadow docket
1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.
2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.
3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.
4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).
5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.
So might the Court take the following out in the short-term?
Friday, March 04, 2016
Alabama Supreme Court dismisses SSM mandamus
The Supreme Court of Alabama today dismissed the pending motions and petitions in the larger mandamus action filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.
Update: The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so. Marty Lederman's analysis captures the continuing confusion, given the seeming disconnect among the Order, the Certificate of Judgment, and the various concurring opinions, as well as the likely practical consequences (not many). Adding to the confusion--if the March 2015 mandamus order remains in effect, then what "petitions" (as distinct from various motions) were dismissed by Friday's order? [Further Update: Marty points to several separate petitions filed since March, including one by a probate judge asking the court to declare his entitlement to religious objections to issuing licenses to same-sex couples, in light of the jailing of Kim Davis.]
The interesting question is whether anyone can or will appeal the Alabama order. I expect it is unnecessary. If necessary, the federal court will enforce its injunction against any recalcitrant probate judges without regard to the continuing state order. To the unlikely extent Judge Granade refuses to enforce, plaintiffs can appeal the federal order and get the Eleventh Circuit (or SCOTUS, if things really go sideways) to enforce Obergefell and ignore the state court. All of which further supports Marty's point that SCoA's order will sit there, ignored but embarrassing in its existence.
Scalia and Litigant Autonomy
A belated, blawg-y RIP, Justice Scalia. Over my next couple of posts, I want to talk a little bit about Justice Scalia’s legacy in an area where it doesn’t get a ton of play—class actions. Lots of posts around the web already note that Scalia was, of course, the fifth vote in important rulings restricting the class action. Without Scalia, you don’t get the common answers test from Wal-Mart Stores v. Dukes or the majority in Comcast v Behrend. And so on.
But what gets neglected about Scalia is that he seemed to have a pretty distinctive way of conceptualizing external constraints on the class action, one that has made some inroads on the way proceduralists think about these questions—but also one that has never quite prevailed (which is probably a good thing).
In this post, I’m going to focus on litigant autonomy (for non-proceduralists, this is the term we proceduralists like to use to refer to litigants’ control of their own claims). Protecting that autonomy is, of course, one of the guiding norms of class action law.
Core values and trade-offs in legal education
Let me start by thanking Howard for inviting me to participate this month as a guest blogger. This spring, I talked about the challenges facing legal education as part of two campus visits as a dean candidate. For what it’s worth, I wanted to share a redacted version of my comments. They point to what I see as generic challenges to the law school business model.
Mostly I wanted to discern core values that are necessarily pitted against each other in a law school: (i) the long-run interests of students; (ii) the law school’s corporate interests; (iii) the University’s institutional interests; and (iv) the claims of external constituencies. The dean’s role is to manage these trade-offs.
My second goal was to begin responding to some of the negative claims made of late about legal education. I think that we have been too bashful in responding to criticisms.
This was my first time doing this, so I’m very interested in any thoughts you might have about any aspect of these issues, on- or off-line.
The IRS Needs to Pay Attention to Pulpit Freedom Sunday 2016
In just over eight months, we'll be voting for our new president. Irrespective of who's on the ballot--and, for that matter, irrespective of who ultimately wins--one thing is for certain: in seven months or so, a bunch of church-goers are going to hear their spiritual leader endorse a candidate.
Sometime during the month leading up to the presidential election,[fn1] the ADF will sponsor its annual Pulpit Freedom Sunday, an act of civil disobedience by churches[fn2] and an attempt to challenge the campaigning prohibition in court.
Basically, in 1954, Congress added a short phrase to section 501(c)(3) of the Internal Revenue Code. That phrase prevents an organization from qualifying for a tax exemption unless it
does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
The ADF believes that this campaigning prohibition is unconstitutional, at least as applied to churches. So for the last eight years, it has encouraged pastors to flout the rule, to include an explicit endorsement of a candidate in their sermons leading up to Election Day, and then to send a copy of the sermon to the IRS.
Kende on Berger on The Rhetoric of Constitutional Absolutism
At Jotwell, Mark Kende has a "jot" about Eric Berger's recent article, The Rhetoric of Constitutional Absolutism. I very much enjoyed Berger's comprehensive article, which describes a tendency toward rhetorical confidence and certainty in Supreme Court opinions, even (or especially) in divided opinions, in which the opinion "conten[ds] that a particular constitutional statement is either absolutely true or false" and confidently "insist[s] that a case has only one possible correct constitutional answer" and "often depict[s] a case as easier than it is." Berger offers several pretty convincing accounts--"strategic, institutional, and psychological"--of why this rhetoric happens, although he might have said more about the role of law clerks and the "chambers style" of an institution that relies heavily on them for opinion-writing. It is not surprising that he concludes that it is a problematic style, but he commendably totes up the benefits as well as the costs of this rhetoric. Kende offers a clear, quick, and sensitive description of Berger's article and concludes by saying that "Berger has given us a superb article that suggests that there would be much value in the Supreme Court writing less absolutist and more nuanced candid opinions."
As Kende notes, there is an interesting existing literature relevant to Berger's article (which Berger certainly cites). I recommend especially Emily Calhoun's book Losing Twice: Harms of Indifference on the Supreme Court, and, before that, Robert Burt's The Constitution in Conflict. Calhoun's book also has a wonderful set of bibliographic essays on the topic.
Thursday, March 03, 2016
Tips on Writing & Publishing a Book
Thanks to Howard and everyone at Prawfsblawg for having me back. I have a research leave coming up, and I will be a Fulbright scholar in Ecuador. I will be teaching international water law at the Pontifical Catholic University in Quito and working on a research project on Ecuador's constitutional right to water. The whole family is going, and we are really excited.
There are currently 42 countries world-wide with a constitutional right to water, and I am interested in expanding this initial project in Ecuador into a book-length comparative project on how countries formulate and implement this right. I assume it would be a good fit for an academic press. I also have an idea for a book that I think would fit in a popular press. This book would be entitled JUST ADD WATER. Racial discrimination, gender inequality, immigration, terrorism, global pandemics - just about every major issue in society has a significant and/or underappreciated water component. Name almost any major challenge facing society, and my book will explain that challenge's relationship to water, and how improved water policy would help address it. This research leave seems like the perfect time for me to try to at least get the ball rolling on my dream to write a book. My problem, though, is that I have no idea how to do it.
What would be really helpful for me (and I'm guessing many Prawfsblawg visitors) is advice on how to write and publish books. What is the difference between pitching to academic presses as compared to popular presses? How do you go about getting an agent, and when? What is the typical timeline? What are common mistakes or misconceptions? What do you wish you would have known before pursuing your first book project? What are some resources you have found particularly helpful (books, websites, etc.)?
JOTWELL: Sassman on Bray on the new equity
The new Courts Law essay comes from Wyatt Sassman, reviewing Samuel Bray's The Supreme Court and the New Equity (Vand. L. Rev.), which explores the Court's recent new approach to equitable cases and the equitable powers of the federal judiciary.
A few weeks ago, Howard noted that a common "refrain among Democrats, liberals, and progressives on the eve of a presidential election is: 'If [insert Republican candidate] wins, I'm moving to Canada.'" He then wondered where Republicans would move if Sanders wins. Helpful commenters suggested, among other places, "Putin's Russia."
Given Donald Trump's disturbing primary successes since Howard's post, I guess the more relevant question at this juncture is: Where will libertarian-leaning Republicans who have pledged #NeverTrump move if Trump wins? Given that "Putin's Russia" seems a bad fit for these folks, I did some further research.
Wednesday, March 02, 2016
Affirmative Consent versus Unambiguous Consent
The most pervasive misunderstanding of “affirmative consent” standards is the notion that “affirmative consent” means “unambiguous consent.” This is wrong. “Affirmative” does not mean “unambiguous.” Requiring “unambiguous consent” would represent a major change to sexual assault law (or policy); requiring “affirmative consent” does not.
Most “affirmative consent” policies do not require clear and unambiguous consent. A few of them do. This is a major difference.
Tuesday, March 01, 2016
So long, Prawfs audience. It was nice chatting with you throughout the month of February. I'll have the pleasure of moderating a panel this Friday at Brooklyn's symposium on The Role of Technology in Compliance in Financial Services. By all means, please feel to swing by if you are in the neighborhood and have an interest in this topic.
Read the text, Senator
If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.
Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.
Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.
If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.
On Presidential Tax Returns
Last week, Mitt Romney suggested that presidential candidate Donald Trump hadn't released his tax returns yet because there was something--a "bombshell," according to Romney--hiding in them.
Then, over the weekend, Marco Rubio and Ted Cruz released their tax returns. And both used the occasion to follow up on Romney's insinuation by explicitly calling out Trump's intransigence in not releasing his returns.
Now, there's no law requiring presidential candidates to release their tax returns. Rather, it's been a tradition since the 1970s for sitting presidents to release their tax returns, and that tradition has been bleeding into presidential candidates more and more. Still, neither Trump nor any other presidential candidate has a legal obligation to release tax returns.
“Yes means yes” is not the legal standard
The catchphrase of “affirmative consent” is “yes means yes.” Journalists and advocates regularly use “yes means yes” as a shorthand for "affirmative consent." A New York Magazine article referred to “the notion of ‘affirmative consent’” as “every step toward sex being explicitly agreed to with a ‘yes.’” On Vox, Jenée Desmond-Harris referred to California’s affirmative consent police as “making colleges replace the ‘no means no’ rule with a ‘yes means yes’ one.”
In my ongoing attempt to unpack what “affirmative consent” really means and does not mean, the first step is to be clear that affirmative consent standards do not, in fact, require an express verbal “yes.” The phrase “yes means yes” may be a helpful slogan for educating students to be proactive in communicating about sex, but it is not the legal standard.
Monday, February 29, 2016
Conflating Economic Competition with National Security
Rochelle Dreyfuss and I have posted our new article Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security. The article is forthcoming as part of a symposium on U.S. Trade Secrets Policy, competition and innovation. Red Hot Chili Peppers gave us the epigraph: "Psychic spies from China try to steal your mind's elation".
In the article, we argue that national security is conflated in a concerning way with economic competition to the detriment of knowledge creation and flow. here is the abstract:
In the last few years, the Economic Espionage Act (EEA), a 1996 statute that criminalizes trade secrecy misappropriation, was amended twice, once to increase the penalties and once to expand the definition of trade secrets and the types of behaviors that are illegal. Recent developments also reveal a pattern of expansion in investigation, indictments, and convictions under the EEA as well as the devotion of large resources by the FBI and other agencies to warn private industry against the global threats of trade secret theft. At the international level, the United States government has been advocating enhanced levels of trade secrecy protection in new regional trade agreements This article asks about the effects these developments on innovation. The article examines the rhetoric the government is using to promote its trade secrecy agenda, uncovering that the argument for greater protection appears to derive at least some of its power from xenophobia, and most importantly, from a conflation of private economic interests with national security concerns, interjecting a new dimension to the moral component of innovation policy debates. Analyzing recent empirical research about innovation policy, we ask about the effects of these recent trends on university research and on private market innovation, including entrepreneurship, information flows and job mobility. We argue that, paradoxically, the effort to protect valuable information and retain the United States’ leadership position could disrupt information flows, interfere with collaborative efforts, and ultimately undermine the inventive capacity of American innovators. The article offers suggestions for reconciling legitimate concerns about national security with the balance intellectual property law traditionally seeks to strike between incentivizing innovation and ensuring the vibrancy of the creative environment. We conclude that a legal regime aimed at protecting incumbency is not one that can also optimally foster innovation.
Download while hot! Thoughts most welcome!
It seems as if it took a bit longer for March to come in like a lion this year.
Anyway, welcome to our March guests--Sam Brunson (Loyola), Brian Clarke (Charlotte), Seth Davis (UC-Irvine), Jose Gabilondo (FIU), Rhett Larson (Arizona State), and Mark Moller (DePaul). Also, my colleague Eric Carpenter will continue his weekly write-ups on Serial, Season Two. And thanks to our February guests, some of whom may be sticking around for a few extra days.
National Security Secrecy, Procedural Justice, and Legitimacy
It has been a delightful month at Prawfs, so thanks for having me! I am glad to be wrapping up today with some thoughts about how problems that arise accessing government held information risk undermining the legitimacy of the law. To conclude the discussion in my previous post demonstrating how litigation over national security secrecy is exempted from typical adversarial process, I will talk a bit about how procedural exceptionalism implicates both accuracy of outcomes and the legitimacy of the judiciary.
The U.S. justice system relies on adversariality as a means to uncovering the truth. As I discussed last week, we have abandoned adversarialism in the context of national security secrecy claims made in litigation, and courts have even failed to use inquisitorial methods in its place. As a result of this, we risk incorrect outcomes as to whether the secrecy at issue is justified, as well as the merits of the underlying claims.
In fact, some of the most famous cases concerning national security secrecy got it wrong. For example, in the state secrets context, United States v. Reynolds essentially defined the privilege, and applied it to allow an official report from a military plane crash to be withheld in litigation brought by the families of the victims. Years later, however, the report was released and as it turns out it contained no secrets but did reveal negligence that would have made the government liable. The failure of courts to apply rigorous procedural testing to national security secrecy claims means that information that should be made public, or should be made available to particular litigants or criminal defendants, will remain secret even though release would not result in true harm. It also affects the decisions in the underlying merits of the litigation.
Okay, so I fell behind in my Serial assignment. Blame it on the February submission cycle. Things backed up as I worked to click “send” at exactly Feb. 16, 10:14am, because as everyone knows, that is the exact moment that maximizes your chances at a good placement. A minute too early or a too minute late and all hope is lost.
Now that I am returning to Serial, I see that Sarah Koenig recognized that I was behind and decided to drop TWO episodes last week. (Thanks, Sarah.) I’ll catch up on Episode 6 here and get to 7 and 8 in the next couple of days.
This episode was pretty good, as Koenig tries to wrap the frustration related to the counterinsurgency (COIN) mission in Afghanistan into Bergdahl’s reasons for doing what he did, and we get more insight into Bergdahl’s mental health.
Affirmative Consent—less than meets the eye
In a series of posts, I want to “unpack” the concept of affirmative consent and see what, if anything, is there.
My basic claim is this: there is much less substance to affirmative consent than almost everyone seems to assume. Most “affirmative consent” standards represent, at most, a very minor alteration of existing consent standards. (That observation might be either a criticism or a defense of the concept, depending on your priors.)
As a substantive legal standard, it does not achieve much in the way of reform, and likewise it does not create much in the way of risk of over-criminalizing conduct that many view as permissible. Many of the proponents and opponents of affirmative consent share the same faulty premise—that affirmative consent is a radical new departure from existing law. It is not.
I will focus on proposed and existing substantive legal standards for affirmative consent, rather than the procedural rules that are used. Of course procedure is extremely important (sometimes more important than the substantive rule), and some of the criticism of recent reforms falling under the “affirmative consent” banner are largely procedural critiques. My focus will be on the substantive standard, putting procedure to one side.
Why the Fourth Amendment Should Be Part of the Apple Case
The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.
Every year, I begin my Criminal Procedure class by teaching two seminal cases, Mapp and Katz. Together, the two stand for the maxims that a government search and seizure ought to be supported by a warrant and probable cause, and that absent those procedural prerequisites, courts should exclude from trial the fruits of such searches and seizures. We then spend the remaining 6-8 weeks studying the various doctrines that undercut the two rules (for good or for bad, depending on your normative outlook).
This year, I decided to begin the semester with Boyd v. United States, an 1886 case that precedes our modern-day Fourth Amendment jurisprudence. In Boyd, the Court struck down a court-ordered subpoena for an invoice in a forfeiture case involving plate glass. (Fun stuff). Among other things, the Court treated the subpoena as a Fourth Amendment "search" and held that the government could not search a man's "private papers." Although the government could seize contraband and stolen property, evidence of criminality (later dubbed "mere evidence") contained in one's "private papers" was off limits, even to a court order.
Sunday, February 28, 2016
More on libel, New York Times, and Donald Trump
I still do not believe we are in any danger of having President Trump open up our libel laws, but let me add a few more thoughts. After all, as Ronald Collins reminds us, this is SOP for Trump--in September, his attorney threatened a multi-million-dollar lawsuit against Club for Growth over ads critical of Trump.
NYT v. Sullivan arose in a period in which state officials were using civil libel suits to create something akin to seditious libel--a prohibition on criticizing government, government officials, and government policy. Heed Their Rising Voices triggered five defamation suits (including Sullivan's), seeking a total of $ 3 million; the Times was a defendant in lawsuits throughout the state seeking more than $ 300 million. Until recently, my instinct would have been that no modern-day public official, particularly a national figure such as the President (or someone aspiring to that office), would sue or threaten to sue his critics. Part of that is driven by NYT--that doctrine exists precisely to stop public officials from suing their critics. But another part is that suing or threatening to sue would make an elected official look weak, greedy, and ineffectual--his feelings are being hurt, so he is running to the principal to complain, rather than responding in the public debate.
But Trump turns every bit of conventional wisdom on its head. Rather than seeing a libel lawsuit as making him appear weak, Trump supporters would seem to look at it as a sign of strength, that he is a fighter and willing to stand up to evil newspapers. So Trump may unwittingly be showing why NYT is so important and why it is not going away anytime soon.
Claim: There is nothing wrong with politically motivated prosecutions (of genuinely guilty political candidates).
Here's an ethical hypo that isn't really a hypo at all. Suppose a U.S. Attorney from the opposite party has strong reason to believe that a leading---and very dangerous and scary---presidential candidate was guilty of a serious federal felony---if, for example, that candidate were currently embroiled in multiple lawsuits, including one by a major state Attorney General, alleging that the candidate in question had led a fraudulent scheme to bilk thousands of people of their hard-earned money with a fake "university"---allegations that, if true, would also clearly meet the elements of various criminal fraud statutes.
Should that U.S. attorney investigate, and, if s/he finds probable cause, prosecute? Even in an election year?
I'm inclined to think yes: even though it would lead to cries of "politically motivated prosecution," there's nothing particularly wrong with politically motivated prosecutions: if one wishes to run for the highest office in the land, one probably shouldn't go commit a bunch of felonies; if one does commit the felonies then run, one is fair game.* Plus, there's something grim about the idea that one can get de facto immunity from one's felonies by running for president. Especially when the candidate is, as noted, not just an ordinary political opponent, or even an extremist political opponent, but a terrifying, openly racist, demagogue.
edit: at least when the felonies are classic malum in se crimes like conning people out of their money. I might feel differently if we were talking about, e.g., victimless drug crimes.
Saturday, February 27, 2016
Things not worth getting worked up about, Part 671
Donald Trump insisting that he wants to "open up our libel laws" so media outlets can be sued "like [they] never got sued before." First, there is no federal libel law and Congress, especially Democrats, are not going to allow one to be enacted. (I still cannot tell if Trump truly believes he can unilaterally do the things he talks about; I have no doubt his supporters do believe it). Second, this is an incredibly speech-protective Court, including as to New York Times v. Sullivan, so the likelihood of the Justices overturning NYT (regardless of who replaces Justice Scalia) is precisely nil. So like much of what comes out of Trump's mouth, it cannot be taken seriously.
Which is not to say that Trump's views on free speech, especially as to public protest and dissent and the power of police to physically manhandle peaceful protesters, are not genuinely scary. They are. But the right to protest in public has become incredibly constrained, especially when protest happens within sniffing distance of the President; I doubt things would be so much different (or worse) under President Trump, only more blatant. That does not make this a good situation, only a common and unsurprising one.
Friday, February 26, 2016
A great conversation on Justice Scalia
This edition of the National Constitution Center's We the People features a conversation with two of Justice Scalia's early law clerks--Larry Lessig (Harvard) and Steven Calabresi (Northwestern); it is one of the best discussions of his work and legacy that I have heard since he passed away.
One interesting piece is discussion of whether and why Scalia became nastier in his rhetoric and tone in the later years. Calabresi and Lessig agree on two possible, somewhat related, explanations. 1) Scalia moved away from his early practice of hiring at least one liberal-leaning clerk (obviously Lessig in that term), creating something of an echo chamber; 2) As Scalia got older, the age gap between him and his clerks became greater, making them less willing or able to talk him down from his lesser instincts. Calabresi relates how he and his co-clerks would read drafts and convince him to dial it back or to step away from the opinion for the night and come back to it, presumably to tone it down the next day. But surrounded by younger and less intellectually diverse clerks, no one was counseling him back from the rhetorical edge--whether because they did not believe themselves able to do it or because they did not see anything wrong with that excess.
The point about the growing age gap is obvious, but interesting. One of the things that keeps law profs feeling "young" (even as we increasingly are not) is that we encounter a new group of 22-year-olds in our classrooms every August. So at least within the context of work, we are less aware of getting older because we are still dealing with recent college grads. (A colleague who is in his early 60s confirmed this sense). I imagine it is the same for judges, who similarly have a new group of 25-year-old law clerks entering chambers every August. But while the new blood keeps us feeling young-ish, the dynamic inevitably changes as the numerical distance grows. And if Calabresi is right that it affected how Scalia judged, it surely affects how we teach.
Victim Advocates in the Grand Jury in Police Use of Deadly Force Cases
Many critics have expressed concerns about whether local prosecutors are overly reluctant to actively pursue charges against police in use of deadly force cases. One way to address this is by giving the person subjected to the police use of force (or the family, if the person has been killed) a right to appear and participate in the grand jury process—what you might call a “victim advocate.”
Thursday, February 25, 2016
Len Strickman was the Founding Dean of FIU College of Law, serving in that role from 2001-2009 before joining the faculty for the past six years. Len is retiring and taught his final class ever this afternoon. To mark the occasion, some faculty members entered the classroom at the end of the period to applaud the end of class. This idea came from a colleague who attended Notre Dame Law School, where this was the common practice (is that still true, Rick?). It is a cool tradition and nice to be a part of.
Only 40 more years . . .
Conference Announcement: "Louis D. Brandeis: An Interdisciplinary Perspective"
Touro Law Center and the Jewish Law Institute are hosting a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.
Robot Lawyers and Inequality Part I: The Robotic Rule of Law
For a while, I’ve been worrying about the distributive effects of the invasion of legal practice by technology. But Frank Pasquale is much better at worrying about those issues than I am, and a recent post of his on concurring opinions partly replying to mine has prodded me to think about it a little more loudly.
On a naive view, AI and tools of other computational lawyering are unmitigated boons to the poor. More supplier competition lowers prices! Lower prices benefit the poor! Greater access to legal services! But the real story is much more complex.
There are two distinct worries we might have about the impact of these developments on the poor. First is a worry that Frank raised: people might use these services to oppress the poor, either by themselves accessing cheap legal services and using them to unequally enforce unequal rules against the poor, or by using these technologies to impose barriers to things the poor need. Second, it might have a substitution effect, driving out service providers who do serve the poor (or at least the lower middle class), leaving them with worse legal services than they were getting before.
Thus, this is the first part of a two-part post on the subject. After the fold, some more thoughts on the first of those issues. Later today or tomorrow, some more thoughts on the second.