Sunday, November 09, 2014
A former student just sent me the Columbia Law Revue video of a civ pro parody of Truly, Madly, Deeply. It's two years old at this point and I had not watched in awhile. One of the lines in it was "I'll play Neff's lawyer, fuck you like Pennoyer." This is a great line, because beyond the double entendre is the fact that Neff's lawyer, Mitchell, did fuck Pennoyer--Mitchell got the property off the default judgment against Neff and sold it to Pennoyer, who of course had to give it back to Neff. Now Pennoyer turned out ok--two-term governor of Oregon and mayor of Portland--but he did get screwed.
So here is the question for a weekend: Who in the entire 1L canon was screwed the worst? My sympathies are with Pennoyer and with Sister Antillico.
Friday, November 07, 2014
Colombo, "The First Amendment and the Business Corporation"
Following up on Paul's post about his (excellent) new paper on Hobby Lobby, I thought many Prawfs readers would be interested in this new book, "The First Amendment and the Business Corporation," by Ron Colombo (Hofstra). From the OUP:
The role of the business corporation in modern society is a controversial one. Some fear and object to corporate power and influence over governments and culture. Others embrace the corporation as a counterweight to the State and as a vehicle to advance important private objectives. A flashpoint in this controversy has been the First Amendment to the U.S. Constitution, which enshrines the fundamental rights of freedom to speech, religion, and association. The extent to which a corporation can avail itself of these rights goes a long way in defining the corporation's role. Those who fear the corporation wish to see these rights restricted, while those who embrace it wish to see these rights recognized.
The First Amendment and the Business Corporation explores the means by which the debate over the First Amendment rights of business corporations can be resolved. By recognizing that corporations possess constitutionally relevant differences, we discover a principled basis by which to afford some corporations the rights and protections of the First Amendment but not others. This is critically important, because a "one-size-fits-all" approach to corporate constitutional rights seriously threatens either democratic government or individual liberty. Recognizing rights where they should not be recognized unnecessarily augments the already considerable power and influence that corporations have in our society. However, denying rights where they are due undermines the liberty of human beings to create, patronize, work for, and invest in companies that share their most cherished values and beliefs.
Weekend Reading: The Hobby Lobby Moment
Here's an abstract of my latest piece on SSRN, "The Hobby Lobby Moment." The final version should be published and posted on the law review's website soon and I will provide links when that happens. Enjoy.
American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change.
This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them.
After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change.
Amendment One, Alas
I'm grateful to Michael for his post on Amendment One, the Alabama anti-foreign/religious law amendment. As he notes, I wrote a couple of editorials that were published in a number of newspapers and other forums in the state, urging voters to reject this amendment. At best, in my view, the foreign/religious law piece of the amendment (there is also a full-faith-and-credit provision, one that appears to be aimed at the recognition of same-sex marriages, but I did not focus on that provision) simply repeats existing law, and so was quite unnecessary. Passing an unnecessary amendment was actually worse than unnecessary, however, because this governor and administration have been adamant about saying that they would focus on the economy, not symbolic or culture-war issues. To the extent that the new law requires even a small expenditure of money to achieve a redundant purpose, it runs contrary to their stated agenda and was the opposite of a conservative measure.
At worst--who knows? Every new law contains ambiguities. This law was not especially carefully drafted and certainly contains more than its share. And, as Michael points out, there is the chance--it has happened in at least one state with a somewhat similar law, and the same idea seems to be reflected in the case he discusses--that courts will take this narrowly worded amendment and interpret it expansively and dangerously. On its face, the amendment suggests that only a particular provision of, say, a contract, will be voided if it violates public policy. But a court might cite Amendment One as a basis to refuse to enforce a perfectly reasonable foreign or religious law provision on the basis of general concerns about the fitness of the foreign or religious legal regime. Since some such provisions--those requiring husbands to grant a get, for instance--are actually protective of the potentially disadvantaged party, this would give us bad results that wouldn't be required under current law.
There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.
Four Advantages of Bumpy Laws
In prior posts, I expressed a general preference for smooth legal relationships. They often (though not always) lead to laws that better fit our underlying moral theories. Also, smooth legal relationships tend to treat similar cases similarly and may lead to better incentive schemes. (I will simply speak of "smooth laws" to mean laws in which smooth legal relationships predominate or are most salient.)
But let me describe four reasons one might prefer bumpy laws. First, sometimes we have "bumpy needs." A legal determination simply must result in a binary outcome. For example, the Constitution mandates that the U.S. president be at least 35 years old. Nothing magical happens at 35, but it's difficult to smooth the relationship between maturity and eligibility for the presidency. You can't be a little bit president. The same principle often applies to laws that govern the operation of others laws. For example, we generally think a law should be either constitutional or unconstitutional, not 40% constitutional. Ditto for many aspects of evidence law, civil procedure, and more. (We're often too quick to assume that we have bumpy needs, even in the presidency example, but the general point remains.)
Second, bumpy laws will often be cheaper and easier to administer. Smooth laws require us to figure out where an input fell along a spectrum. That's hard and requires considerable factfinding. With bumpy laws, we make the easier determination as to whether an input was above or below some threshold. For example, it's easier to determine whether or not a person was negligent (under our bumpy ordinary negligence laws) than to say how negligent he was across the spectrum of negligence.
NBC canceled the show Bad Judge last week, because, by all reports no one was watching and the show was, well, worse than the judge. I never watched it because I could tell from previews that it was going to depict thoroughly illegal, improper, and unethical behavior as "heroic" and it would just drive me nuts.
But the Florida Association for Women Lawyers found the show even more objectionable; the group had sent a letter to NBC last month calling on it to cancel the show. It argued that the show "depicts a female judge as unethical, lazy, crude, hyper-sexualized, and unfit to hold such an esteemed position of power" and thus is "damaging to women in the legal profession." Fair enough, I suppose, although there have been shows and movies showing judges behaving similarly badly (if not necessarily sexually).
Unfortunately, the letter completely loses it near the end, arguing that the show is
dangerous to the extent those who hold preconceived notions about women judges will find their sexist beliefs reaffirmed. A misogynist who believes that women in power cannot control their sexuality, their bodies and their professional or personal conduct would have their views endorsed by this show.
It compared the show to All in the Family* for similarly having a leading character exhibit and express hateful views that confirm the beliefs of viewers holding similar hateful attitudes. Of course, this show is hyperbole (poorly done, but nonetheless) and Archie Bunker was the butt of the joke, not the heroic model to be emulated. So the letter is relying on the old "people are too stupid to get it" argument, a uniquely bad basis for restricting speech.
* Which, needless to say, will be the first, last, and only time anyone ever will compare these two programs.
But don't worry. Better Call Saul is coming soon.
Greetings from Sixth Circuit Country
Greetings from Memphis! I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy. Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby. And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.
But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should). I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace. If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.
Thursday, November 06, 2014
Good News for Whom?
As Howard points out, we just got the circuit split that Justice Ginsburg recently said in a University of Minnesota speech would trigger U.S. Supreme Court intervention in same-sex marriage, which has been blatantly lacking up to now.
This Supreme Court has recently found in favor of federal recognition of same-sex marriage, but dodged making much more law than this because of a standing issue in the other same-sex case. A previous Supreme Court characterized marriage as not a question of federal law, but this has been discounted by other courts and by Justice Ginsburg herself in oral argument in Perry.
So, now that there’s a circuit split, will the U.S. Supreme Court find constitutional support for the proponents or the opponents of same-sex marriage—which side should be popping open the bubbly tonight to celebrate the circuit split?
Here's your circuit split on marriage equality
A 2-1 decision from the Sixth Circuit, authored by Judge Sutton, with Judge Daughtrey in dissent. Media reports indicate the focus is on respecting the will of the voters and the state power to define marriage.
The Sixth Circuit remains majority Republican appointees (all by one of the Bushes), to the extent such crude measures tell us anything. So en banc seems unlikely, unless even Republican-appointed judges do not want to be on the wrong side of this. Still, it appears this is now teed-up for SCOTUS to resolve later this term.
Perhaps more later. Update: Well, the media reports are correct. Sutton's lengthy introduction, before the analysis: "And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"
Seeeking balance in uncontested elections
It seems I am not alone in my confusion and concern about states not placing unopposed candidates on the ballots, as this list of stories suggests (H/T: My colleague Tom Baker). In Oregon two years ago, people were angry about having to pay to print GOP primary ballots with only one name. And there was an interesting controversy in Indiana about three years ago. In 2010, the state passed a law removing unopposed candidates for municipal office from the ballot. In 2011, several local bodies insisted on printing ballots that included unopposed candidates, even though it then required that two additional polling places be opened, at public cost. In early 2012, a bill to repeal the 2010 law unanimously passed the state Senate, although I have not been able to find out what happened after that.
Weighing against those cost considerations include the risk of voter enthusiasm, the dampening of interest (and thus willingness to vote) of supporters of the unopposed candidate, and possible down-ballot effects. On the other hand, the cost-saving concerns disappear when the ballots also contain candidates for national and statewide office and all those polling places are open anyway. For example, Miami-Dade County had to print ballots containing all the statewide offices, plus US House candidates, for the other districts that are within the county (for example, Joe Garcia's district) and the polling places within the district had to be opened. Similarly, the polling places within my district were all open and people within my district had to have ballots with all those statewide offices. Would it have really cost that much more money to include the US House race on those ballots?
None of these is of constitutional magnitude, of course, just of policy wisdom.
I am excited to be headed to Loyola University Chicago’s Fifth Annual Constitutional Law Colloquium tomorrow. They continue to line up fantastic speakers, this year keynoted by Erwin Chemerinsky. See some of you there.
The Injustice of Bumpy Laws
Whether a person has been sexually assaulted can turn on the reasonableness of a defendant's belief that the alleged victim consented. Presumably, the more reasonably one believed consent was given, the less culpable one is for proceeding with sexual intercourse. Similarly, the more reasonably one believed consent was given, the less dangerous one is likely to be. For both these reasons, the amount of punishment a person receives should be at least in part a function of the reasonableness of his belief in consent. In my terminology, reasonableness is an input into a legal decision that likely ought to have a smooth relationship with the pertinent output: amount of punishment. As the input gradually increases, the output gradually decreases. At some point, a person's beliefs are sufficiently reasonable that he no longer warrants any punishment (because he is not sufficiently culpable or because the costs of punishing him exceed the benefits).
In this instance, we seem to prefer smoothness in theory, but the criminal law's treatment is in fact quite bumpy. One person deemed just reasonable enough that consent was given may have no criminal liability while a similarly-situated person who was just a bit less reasonable may be sentenced to at least the statutory minimum. Even though both defendants are virtually alike in terms of culpability and dangerousness, they are treated quite differently under our bumpy treatment of beliefs about consent: gradual changes to the reasonableness input do not affect conviction, except at a critical threshold. At that threshold, a gradual change in reasonableness has enormous effects.
So there appears to be a deviation between our normative theories of criminal law and what the law actually does. Now, criminal law may actually be less bumpy than many other areas of the law. At sentencing, judges can smooth the relationship to some degree by giving more reasonable offenders shorter sentences than less reasonable ones. But judges are often limited by statutory minima. Such minima may have certain advantages, too, by controlling the allocation of sentencing discretion. But the value of such discretion must be weighed against the harms of deviating from our best theories of just punishment. And many retributivists are committed to never knowingly overpunishing an offender, allocations of discretion be damned.
Even in the absence of statutory minima, most of us--judges included--are simply not closely attuned to the smooth-bumpy distinction. So many would look askance at a judge that gave a very light sentence for rape, even though there must be cases that closely straddle the line between guilty and not guilty. And other bumpy features of criminal justice cannot be mended by eliminating statutory minima. For example, for every day defendants spend in pretrial detention, they usually receive one day of credit against any punishment they may subsequently receive. But what if offenders spend pre-trial time in drug rehabilitation facilities that are less confining than jail but more confining than, say, house arrest? Jurisdictions treat such issues in a bumpy manner. They either give full credit or no credit, even though there is a much smoother approach: give partial credit. We're surely used to thinking of criminal law in bumpy, all-or-nothing terms, but when you look for ways to smooth the law, you find many opportunities.
The "Anti-Foreign Law" Craze--Bills, Amendments and Decisions
In the weeks leading up to Election Day, Alabama's "Amendment One" drew a nice chunk of attention. Amendment One was yet another "anti-foreign law" initiative prohibiting state courts from applying foreign law or from enforcing any contractual provision that would require foreign law to govern its interpretation "if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States." Critics of the Alabama amendment include Prawf's own Paul Horwitz as well as Faisal Kutty. At its very best, the law is unnecessary; at worst, the law represents a persistent anti-Muslim agenda that has animated the continued push in state legislatures around the United States to consider similar provisions (I've expressed my strong antipathy for these bills in an op-eds here and here).
Unfortunately, the bill passed on Tuesday. But while I'm amazed that these bills keep on passing, I've become increasingly worried that courts might be drinking the anti-Sharia Kool-Aid as well. As an example consider Sarooie v. Foster Wheeler--a recent decision from the California Superior Court that Eugene Volokh broght to my attention last week (Eugene has blogged about the case here). In a nutshell, the case raised the following question: what law should apply to an action brought in California court over injuries suffered primarily in Iran by a then-resident of Iran at the hands of an oil refinery owned by Iran? California typically uses the government interest analysis for deciding choice-of-law questions; however, instead of employing this standard methodlogy, the court instead concluded that it could not apply Iranian law to the dispute for the following reason:
Yates, the Top Ten Oral Argument Moments
Wednesday, November 05, 2014
Remember, Remember . . .
I have a hard time remembering what I had for lunch, but I do remember that, when I was in first grade (in Anchorage), my public school celebrated Guy Fawkes Day. I don't remember why, or if any explanation was provided. (This was way, way before "V for Vendetta".) It did not strike me as strange at the time, though it certainly does now. (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.) Should it? Would a public school's celebration of Guy Fawkes Day (in the mid-1970s or now) communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community? Certainly, that was long the celebration's purpose. Which is why, I suppose, General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:
As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.
In any event, I hope our friends across the pond safely enjoy their fireworks . . . without burning Pope Francis in effigy.
I read with great interest Orin’s posts last month regarding the tenure process. If I may add another question for consideration—what about the role of civility? The University of Warwick in England used lack of civility as the reason to recently suspend for nine months an English professor for inappropriate sighing, using irony, giving off negative vibes, and unfriendly body language. Some of the sighing occurred when he was interviewing job candidates. (While I’m sure this would not be pleasant for the job candidates, how does it compare to the meat market?) The professor was barred from contact with students and colleagues.
Of course, perhaps the real reason for the suspension was that the professor had become known for being critical of the use of corporate approaches in higher education. Likely in response to international public outrage, the university backed down and dropped all charges against the professor.
Criticism of the corporate approach to education is a highly problematic ground to suspend a professor. And while civility is an admirable trait too—it happens to be much more subjective. Sigh.
A memo to Senator Cruz: Chillax, dude
You may have seen the latest Ted Cruz quote, from last night's victory rally: "Give me a horse and a gun and an open plain, and we can conquer the world." I guess he was speaking about the "Texas ethos," but still. As someone who went to undergrad and law school with the junior senator from the Lone Star state, I would just recommend that he not get too swept up in his state's mythology. I searched Google images for a picture of Ted on horseback and could not find one. Let me know if I missed it.
Isn't There a Tradeoff Between Liberty And Security?
I've recently come across several prominent quotes about the relationship between liberty and security. All of the quotes deny that there is a straightforward tradeoff between liberty and security--but each does so for a different reason.
Tuesday, November 04, 2014
Election law as contextual: a universal truth? (And, happy election day to U.S. readers!)
I am grateful to Dan Markel for this chance to spend another month in conversation at Prawfsblawg. As with my last go-around, my focus is on U.S. election law. This time, however, I get to talk about election laws on an election day.
When the voting and vote counting unfold, we’re bound to see election laws and administrative practices in the news. Even if the odds-makers are proven correct in their forecast of an election day that is characterized by relatively low voter turn-out and relatively few close contests, there will be questions or controversies about the effects of heightened voter identification requirements, the counting of provisional ballots, the scheduling and ballot design for a gubernatorial run-off, and the like. Those of us who follow politics have come to instinctively associate some of these contested laws and practices with a particular effect (a tendency to expand or narrow the electorate), and with a particular political valence (a tendency to disenfranchise or dilute the votes of one or another party or racial or socioeconomic group).
What the Binary-Scalar Distinction Misses
In a recent iteration of the Legal Theory Lexicon, Larry Solum cogently describes the binary-scalar distinction. Some legal variables take on binary values (e.g., guilty/not guilty; consensual/non-consensual), while others take on scalar values (e.g., amounts of money owed; durations of prison sentences). But the distinction is not always helpful. If you lose your negligence cause of action, you receive no money at all. If you win, you are generally owed full compensation. Though amounts of money seem scalar because they take on a range of values, they seem binary at trial: plaintiffs either receive full compensation or no compensation at all.
What matters more, though, than trying to categorize a legal variable as binary or scalar is trying to understand how legal inputs should affect legal outputs. In a recently-published essay, Smooth and Bumpy Laws, I argue that one must have a theory about which inputs and outputs are pertinent and how they ought to relate to each other. When a gradual change to an input variable causes a gradual change to an output variable, I call that a "smooth" relationship. (Think of a dimmer switch that gradually increases room lighting.) By contrast, when a gradual change to an input sometimes causes no change to an output and sometimes causes a dramatic change, I call that a "bumpy" relationship. (Think of a traditional light switch. As you gradually move the switch, it has no effect on room lighting until you cross a particular threshold. Then, the lighting changes suddenly and dramatically.)
What matters most about the relationship between level of caution and amount of damages is that it's bumpy: reductions in level of caution have no effect on damages owed, until you cross the threshold of negligence. At that point, a small reduction in level of caution dramatically increases compensation owed. (The relationship arguably becomes smooth for a certain range of values when punitive damages kick in. Put that aside for now as punitive damages are not available in run-of-the-mill cases.)
Monday, November 03, 2014
Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.
Feels Like Coming Home
I'm happy to be back here at Prawfsblawg. I've got some new thoughts about copyright and trademark law to try out on you and a few teaching ideas to share. The blawg won't be the same without Danny, but I have faith it will continue to be a home for interesting discussions and helpful feedback. I've certainly participated in the former and received the latter due to my association with Prawfsblawg. I'm sure Danny would want us to soldier on to the best of our collective abilities, making sure that intellectual honesty continues to trump partisanship, for the most part, in new and more interesting ways. I'm looking forward to the conversations.
Returning to Prawfs and Remembering Dan
I'm excited to be guest-blogging again at Prawfs. Like many have expressed over the past few months, guest blogging this time around is far more personal after the Dan's tragic death over the summer. Since then, I find myself thinking about--and quoting--Dan often; I share his advice with students and colleagues alike. And participating in the community that Dan created is a reminder of the extraordinary world he created--of which many of us are the beneficiaries.
So with that, I look forward to another month here at Prawfs. I plan to spend much of my stint here talking about my favorite topic--the intersection of religion and private law. So here comes a month of religious contracts, religious torts and religious arbitration. Looking forward to comments!
Sunday, November 02, 2014
Executive Power Restrained -- the South African Experience, and Thanks
Given the recent dialogue here about executive power, but on a very different sub-topic, I thought it would be worth mentioning that the South African Constitutional Court has issued several decisions that have used strong judicial review to limit executive power in situations where corruption may be involved. The rulings are extraordinary from an American perspective. In the first case, Glenister II (2011), the Court actually invalidated the existence of a new national anti-corruption prosecutorial entity, as being insufficiently independent to satisfy general constitutional requirements of promoting democracy, fighting corruption, etc. The Court also controversially relied on international anti-corruption conventions. One reason the Court was skeptical of the new entity was that the African National Congress dominated government had effectively disbanded a more aggressive and powerful national anti-corruption entity in troubling circumstances, so the Court was finding the replacement body to be insufficient. In another case, Democratic Alliance v. President of the Republic (2012), the Court invalidated President Jacob Zuma's selection of a national prosecuting authority, a Mr. Simelane, based on allegations that Simelane had demonstrable integrity problems, and based on the President allegedly not paying heed to these problems. I have authored a short article on these cases and a few others that can be found here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476649 In the U.S., there would have been standing and political question problems in both situations so these are bold decisions.
I mention these decisions in part to show how national high courts do not always have to be overly deferential to executive power assertions even in delicate situations. On a final note, thanks to the folks at Prawfs Blawg for letting me participate again. Also, special thanks to Ilya Somin for the interesting Korematsu debate. For those who want another perspective on our debate, take a look at Professor Eric Muller's post on the question (he is certainly a preeminent Korematsu-Hirabayashi expert). http://www.thefacultylounge.org/2014/11/the-kende-somin-debate-on-justice-thomas-and-korematsu-and-hirabayashi.html And God bless Dan Markel, his family, and friends.
A Republican Senate Majority and Partisan Conflict
As the New York Times editorial board observed recently, the prospect of a Republican Senate majority may make for even more gridlock in Washington. Other political observers think that we may see less obstruction, as Republicans assume greater responsibility for governmental decision making.
But whether or not Republicans in Congress should be held accountable, they likely will not be. Voters view the president as being in charge of the government and will reward or punish the president’s party accordingly. As Justice Robert Jackson wrote in Youngstown, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”
At any rate, we won’t solve our gridlock by condemning the radical right. We will suffer from high levels of partisan conflict as long as we have a winner-take-all electoral system. As long as Democrats and Republicans can hope to gain control of the levers of power, they will fight for control.
If we want a bipartisan spirit, we need reforms that encourage cooperation rather than conflict. And the best way to do that is to ensure that political power is shared—and always will be shared—by elected officials across the political spectrum. We’ve recognized the need for power sharing across social divides in Afghanistan and Iraq. We should do the same for our own country. For more discussion along these lines, see here.
As I wrap up my stint on PrawfsBlawg, I’m grateful for having had the opportunity to share my ideas with a very thoughtful readership. And as I continue to read the insightful posts of PrawfsBlawg’s many terrific contributors, I am grateful for the daily reminders of Dan Markel’s exceptional legacy as a legal scholar.
Saturday, November 01, 2014
Thanks for having me back. It's November, so let's pretend these posts count toward my NaNoWriMo goals. This month, as we wrap up our classes (for me, tax and family law), I will be blogging about education issues. I will also blog about some items related to my research agenda—the property transfers families make—that have appeared in the news and in my forthcoming articles. One of these articles has benefited from the generous attention and edits of Dan Markel, in whose memory I am guest blogging this month. He is missed.
With October over, my guest-blogging stint is done. Thanks for reading and commenting. Because I was guest-blogging in Dan Markel's memory, I'll end with a sad reminder. It has been several months since Dan was murdered, and his killer has not yet been brought to justice. May that change soon.
Thanks to our October visitors, who may be sticking around a few more days to say good-bye.
For November, we welcome back Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington). And Richard Re (UCLA) continues his semester with us.
Friday, October 31, 2014
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."
Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.
* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.
Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.
Ebola and Korematsu
Ebola is an unprecedented public health crisis, but quarantine falls squarely within a long tradition of preventive detention: depriving liberty not to punish past wrongdoing but to prevent future harm. In a recent article(here), I argue that the government has resorted to indefinite preventive detention only in response to fear of an undeterrable Other. That conclusion (descriptive, not normative) is based on case studies of the Japanese internment, the Oklahoma City bombing, the War on Terror, both phases of sex offender commitment, and the Virginia Tech shooting.
In my formulation, Otherness is perhaps the most elusive concept. By it I mean being a member of an identifiable and devalued minority group. Affected Others have included Japanese-Americans, Arab non-citizens, sex offenders, and the mentally ill. But the Ebola quarantine teaches that Otherness is not required for short-term, as opposed to indefinite, preventive detention. Fear of an undeterrable virus is enough.
Tenure standards and recruiting
A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?
A "Call for Annotations" from The Green Bag
Call for Annotations: “The Adventure of the Norwood Builder”
Our annual Almanac & Reader always has three main features: (1) exemplary legal writing, (2) chronologies of interesting moments in law and language, and (3) entertaining tidbits relating to some theme that we hope you will enjoy. The theme for the 2015 Almanac is “The Adventure of the Norwood Builder” – a Sherlock Holmes mystery set in 1894 and published in 1903. One of the tidbits will be a freshly annotated edition of the story, based on the 1905 U.S. edition in The Return of Sherlock Holmes. (It is available on our website.)
How to submit an annotation: Email us a Word document with the passage from “Norwood Builder” that you want to annotate, and the annotation included as either (a) a footnote to your document if the annotation is just text or (b) a separate attachment if the annotation is an image (photograph, chart, or whatever). If your annotation involves assertions of fact or law, include citations to – and quotations from – appropriate authorities. Thus, for example, it is not enough to say, “The will drafted by McFarlane was invalid because English law in 1894 required two disinterested witnesses and he had only one.” What law? What did it say? Where are the cases supporting your interpretion? Do any go the other way? Similarly, if “the Anerley Arms was a going concern in 1894,” we will need to see some record or contemporaneous report of its operations in 1894. You get the idea: We are giving “Norwood Builder” the law review treatment.
Each point of annotation should add to the reader’s understanding or enjoyment of the story, including but not limited to its legal aspects.
We will give credit where it is due: Annotations to our edition of “Norwood Builder” will appear as footnotes and illustrations. Each footnote will identify by name the author of that note. Each illustration’s caption will identify by name the contributor of that image.
Length limit: There is no length limit, but please be reasonable.
Deadline: Finished works must be received at firstname.lastname@example.org by December 24, 2014.
Criteria: We will select works for publication based on how useful, interesting, well-researched, well-written, and good-spirited they are.
Thursday, October 30, 2014
An Anatomy of the Death of the Kibbutz: Review of Amos Oz, Between Friends
My grandmother Dora and her sister Batya were the sole survivors (so we thought, years later, a brother would emerge in Ukraine) of their family, having both moved to Palestine before the war. But Dora and Batya could not have had more different paths in their new life in the new state of Israel. Dora married into a prominent family and raised her kids in the vibrant bubbly urban culture of the young white city, my beloved Tel-Aviv. Batya married a devout kibbutznik, Yekush, a true believer as Amos Oz might describe him, and they raised their kids in kibbutz Ein Hahoresh (below is a picture of children of the kibbutz’s infirmary bathing in the sun in the 1940s). Poet Abba Kovner, a longtime member of Ein Hahoresh, wrote a poem about my uncle Yekush, a ballad of wonder of a man who was a thirsty intellectual, an antique collector, a historian, and the lifelong garbage collector of the kibbutz, never wanting another job but the essential one he had. Yekush was unique even for his time in his humility and selflessness. Even at the peak of the idealist era, human nature meant that there would be conflict and tension within the close-knit collectives of the new state. Envy, resentment, ego, discontent, doubts, cynicism, and more simply, human nature, would eventually bring an end to the dream of the kibbutz. Yes, kibbutzim still exist today but mostly by name only. The kibbutz as a utopian vision and an institution, the purist combination of socialism and Zionism, has ceased to exist. The kibbutzim of today no longer have communal infant dorms; parents are allowed to kiss their children good night and tuck them in. The kibbutzim of today can no longer order their young adults on when and where to go to college. The kibbutzim of today are basically privatized rural gated communities with differential wages and private property.
Last week, I finished Oz’s latest, Between Friends. I read it in English, which I usually don’t do with books translated from Hebrew but that was the copy I had. The translation is good but even the title inevitably misses the key point of the book: Friends, haverim in Hebrew is also the word for members. Between Friends is an interwoven collection of short stories of the members of the fictional kibbutz Yekhat. They are all haverim because they are all members of the kibbutz but they are most certainly not all friends. They are occasionally friends, but also enemies, lovers, ex-lovers, bullies and, most frequently, simply strangers. That they call one another Haverim, friends, makes the loneliness, betrayals, and disillusionment of camaraderie sharper. Yekhat’s funny guy, who is also the distraught dad of a bullied child (and a stamp collector like my uncle Yekkush) quotes Levi Eshkol who said that a person is only human, and even that, only rarely.
A Mistake Regarding Korematsu
Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu. Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes. Here is what Ilya wrote:
"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/
Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps. http://korematsuinstitute.org/institute/aboutfred/ Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.
Gun Control Targeting Dangerous Symptoms
Scholarly productivity, generational change, and empirical data
Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.
* Who also chides me for not bringing data to bear in my original post.
** For what it is worth, she did not find them inversely correlated.
But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.
I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.
Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.
On Being Sued, 3
In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.
So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it.
One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.
Wednesday, October 29, 2014
The "New Normal" and Generational Change
Howard's interesting post below on whether there is a "new normal" for law school tenure standards brings up a broader subject: The different scholarly productivity expectations among law professors over time. In the last generation or two, expectations have changed considerably. Here are some broad-brush thoughts on that shift.
My understanding is that a generation or two ago, the usual scholarly expectation in law schools ran something like this. First, getting an entry-level teaching job didn't require any scholarship. Instead, by the time a person came up for tenure, he (and it was almost always a "he") had to produce an article or two. The lawprof job was more focused on teaching than scholarship, so an article or two was enough to get tenure. Consider now-Justice Stephen Breyer commenting on tenure standards at Harvard back in the late 1960s:
Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.
Today, the idea of a tenure-track professor at Harvard asking “How can I possibly write an article?” seems exceedingly strange. The norm today is very different. By the time a law professor today at any ABA-accredited school comes up for tenure, she -- and fortunately, the professor often is a "she" -- probably has been writing consistently for several years. A typical professor up for tenure might have the following post-J.D. writing on her resume:
Kentucky Law Journal: Exclusive Submission Window
Photo ID Laws and Voter Suppression
My colleague, Mike Pitts, has posted his latest analysis in a series on the impact of Indiana’s photo ID law, the law that was upheld by the U.S. Supreme Court in 2008. (The earlier papers also are posted on SSRN.) Pitts draws three major conclusions:
First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.
Of course, photo ID laws in some states have more stringent provisions, so may have a greater disenfranchising impact.
Tenure's "New Normal"
Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?
The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*
* So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.
Yates, A Fishy Case
Next week, the Supreme Court will consider whether a fisherman violated an anti-obstruction provision in Sarbanes-Oxley by throwing illegally caught fish overboard. The case is Yates v. United States, and it's a weird one.
Tuesday, October 28, 2014
Elections and Gerrymanders
With Republicans poised to retain, and probably increase, their majority in the U.S. House of Representatives, expect political observers to criticize the partisan gerrymandering of House districts. The GOP likely will win a disproportionate number of seats because in many states, representation in Congress does not correlate well with the voting strengths of the parties. In Indiana, for example, Republican candidates for the U.S. House of Representatives outran Democratic candidates by a 53-45 percent margin statewide in 2012. Yet Republicans hold 78 percent and Democrats only 22 percent of Indiana’s House seats.
Observers are correct when they worry about the mismatch between voting strength and representation. But partisan gerrymandering is not the main culprit. Even if electoral mapmakers drew simple, compact districts without looking at voting data, representation would not correlate well with voting strength. Why is the conventional wisdom about partisan gerrymandering wrong? If partisan line drawing is not the main problem, what is?
JOTWELL: Vladeck on Richman & Reynolds on the appellate court crisis
The new JOTWELL Courts Law essay comes from our own Steven Vladeck, reviewing William M. Richman & Willliam L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford 2013).
What can you tell about a law school by its building?
I did think about suggesting a list of the "Least Impressive Law School Buildings in the World" but I've never actually been in one outside of the USA so I'm perhaps unqualified. And there's always a danger when working in a 41-year-old state-constructed Law Center that your own abode could show up on such a list, sending the College's Architecture Committee into a tailspin. It may be that one in fact comes to work in a piece of "visual indigestion" (see below), but no one likes to admit that.
These days, with law applications down, most college kids don't have to leave their dorm rooms to get in-person visits from multiple law school deans looking to find them the perfect forward-leaning experiential student-centered program. Or you can take an on-line building tour on some schools' web sites.
But some will still trek out for a campus visit. For what should they be looking?
Monday, October 27, 2014
Ebola: A Problem of Poverty rather than Health
Undoubtedly, the death toll in West Africa would be much lower if Guinea, Liberia, and Sierra Leone had better health care systems or if an Ebola vaccine had been developed already. But as Fran Quigley has observed, Ebola is much more a problem of poverty than of health. Ebola has caused so much devastation because it emerged in countries ravaged by civil wars that disrupted economies and ecosystems.
Ultimately, this Ebola epidemic will be contained, and a vaccination will be developed to limit future outbreaks. But there are other lethal viruses in Africa, and more will emerge in the coming years. If we want to protect ourselves against the threat of deadly disease, we need to ensure that the international community builds functioning economies in the countries that lack them.
Our humanitarian impulses in the past have not been strong enough to provide for the needs of the impoverished across the globe. Perhaps now that our self-interest is at stake, we will do more to meet the challenge.
State Courts Choosing to Follow Federal Precedents
Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:
One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.
Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:
Should Apprendi Apply to Substantive Reasonableness Review?
A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here's some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court's denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.
Saturday, October 25, 2014
The Ebola "Czar"
In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?
Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.