Wednesday, May 13, 2015
JOTWELL: Coleman on Carroll on class action reform
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Maureen Carroll's Class Action Mypoia (forthcoming Duke L.J.), which argues that efforts at class-action reform must recognize the differences among types and forms of class actions.
Tuesday, May 12, 2015
More catalyzed fans
Sports fans are certainly being catalyzed to spend money in crowdfunding efforts. But the focus of fan spending seems to be less on player recruitment and retention, the focus of our discussion, and more on one-shot efforts to handle team crises. The latest example: New England Patriots fans started a GoFundMe campaign to pay the $ 1 million fine the NFL levied against the team over the use of under-inflated balls during last year's conference championship game. In the first 22 hours, 500 people donated just over $ 7200.
Dan, Mike McCann, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.
Civil Rule 23 -- To Amend or Not to Amend?
The Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule. The Advisory Committee has created a subcommittee with a rather broad statement of purpose. The subcommittee has offered that it is open to any ideas for improving Rule 23, but it is not promising to propose specific amendments, or any amendments for that matter. Not surprisingly, a number of constituencies are interested in this open agenda. The subcommittee members have embarked on something of a listening tour. They have attended or plan to attend over a dozen conferences. (I am particularly pleased that they are coming to the First Annual Civil Procedure Workshop, an event that I am co-planning.)
While the Rule 23 agenda is not set, the subcommittee has put forth a set of proposed “conceptual sketches.” The sketches include some proposed rule language, but the focus of the subcommittee at this point seems to be on gathering reactions to various areas of class action reform. In this post and a consecutive post, I attempt to summarize these conceptual sketches. While it is impossible to do justice to the subcommittee’s agenda in a short blog post, my hope is that this piques the interest of the academic community. As we have learned from past rounds of Civil Rule amendments, the sooner the academic community weighs in on these issues, the more likely our voices are to be heard.
Below I summarize three of the seven “conceptual sketches” the subcommittee is currently considering. I will cover the others in a later post. (The full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book. In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.) Here are the first three sketches:
Move to Strike?
Accused rapist, former Florida State football star, and overall top pick in the recent NFL draft Jameis Winston filed a counterclaim (for defamation and tortious interference with business) in the federal civil action brought by his accuser (she filed in state court, Winston removed to federal court, and just filed his Answer). The pleading begins with a "Preliminary Statement" that runs 17 pages (of a 63-page document) in narrative form and recounts, in detail, all of the proceedings, statements, and evidence in the various proceedings over the sexual assault allegations. It also explicitly calls the plaintiff a liar. These pages read not like a pleading, but like the statement of facts in a trial or appellate brief.
Under the rules, this portion of the pleading is unquestionably improper. FRCP 10(b) is clear that a "party must state its claims or defenses in numbered paragraphs." And about the only thing that FRCP 12(e) Motions for More Definite Statement are still used for is challenging complaints that are written in narrative rather than paragraph form. These sorts of narrative preliminary statements are increasingly common in complaints. But they usually take up only a paragraph or two at the top of the complaint, not over 1/4 of the pleading. And Winston's lawyers realize the requirement of numbered paragraphs, since they repeat most of the key details, in numbered paragraphs, in the statement of the counterclaim in the third part of the pleading.
So should the plaintiff move to strike this introductory portion under FRCP 12(f)? It seems an appropriate move. It is redundant, since it all gets repeated, in a proper manner, later in the pleading. It is impertinent, since it gets into some direct and somewhat personal attacks. And it plays no role in the pleadings themselves, since the plaintiff need not respond to them. We also can at least speculate that Winston's lawyers intentionally drafted the complaint this way to ensure that the media noticed and reported the attacks on the plaintiff's character and credibility; the counterclaim allegations otherwise come at the end of the document (since new claims always come last in a responsive pleading) and thus likely would have been lost. The question is whether it is worth cost, especially since it has no practical effect beyond media reporting.
After the jump, a few more interesting Civ Pro features to this action that might make it a good teaching and/or testing case.
Monday, May 11, 2015
Bill Simmons and the Duty of Loyalty
ESPN rather publicly announced that it would not be renewing its contract with Bill Simmons, editor-in-chief of its sports and entertainment site Grantland, as well as writer, author, and co-producer of the "30 for 30" sports documentary series. A lot has been written about the inside details, as well as the larger ramifications for Simmons, Grantland, and sports and entertainment media more generally. There's also some interesting IP issues -- could ESPN really appoint another host for the "B.S. Report"? But I'd like to talk about the next four months, in which Simmons is still with ESPN but is essentially a lame duck. What does employment law say about this awkward interim period?
Governments do not simply encounter religious beliefs and teachings, they also do and seek (without always admitting it) to shape and manage them, their content, and their development. A recent reminder: Hillary Clinton was in the news recently when she said, in a speech, that "deeply seated religious beliefs" "will have to be changed" in order to secure broader abortion rights and access to reproductive health care and contraception.
What's Wrong with this Picture?
Saturday, May 09, 2015
Capital Punishment's Loyal Officer
It was a zinger worthy of a Presidential debate (and almost certainly just as planned). Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.
Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
The First Amendment's Burden of Persuasion
In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:
But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....
Of course, it is not only The Times that has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .
Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:
There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard . ..
Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.
Friday, May 08, 2015
More on That Times Op-Ed: Surprising, Disappointing, and Banal--But Not an "Appalling" Surrender on Free Speech
Like Howard, I reacted with surprise to the Times editorial yesterday titled "Free Speech vs. Hate Speech." And, as a liberal and civil libertarian, I was prepared by that headline to be "appalled," like Howard. That sense dissipated somewhat when I read the actual text of the editorial (an unusual event in itself for me; the time of institutional editorials by newspapers has long since passed and I generally never bother to read them). That in itself is perhaps an instructive lesson in post-Internet journalism. The clickbait style of headline writing has moved not only into the online space of ostensibly serious newspapers but into their "meat space" too; headline writers today, callow and provocative though they may be, have much more power than they used to or ought to. I come out somewhere between Howard and his civil but forceful commenters, who pushed back on his post. But I still think surprise--and, in my case, disapproval--is warranted.
Institutional newspaper editorials are generally banal. They are meant to be banal, for obvious reasons. If and when you see the Times write consistently interesting editorials, it is more likely than anything else that it will mean the Times has conceded the impossibility of surviving with a "voice of the [better half of the] nation" model and opted instead to cater to a narrow readership only. Alternatively, an interesting editorial by the Times on such a subject might signal a significant change in the center of center-left thinking, inasmuch as the Times generally aims to write editorials that reflect and flatter the center of its readership (just as a conservative-but-national newspaper would aim to write banal pieces for the center of its readership).
I think this editorial does embody both of these aspects, to a degree. The Times almost certainly has decided to be more aggressively progressive (not liberal--there is a difference, and the Times has become a more illiberal newspaper), in order to fend off Internet competition and adapt to market segmentation. And the editorial does embody a shift in the center of center-left opinion, which today is less civil libertarian on some issues than it used to be. But it is still a national newspaper editorial, and at bottom it is still pretty banal. As the commenters rightly observe, its headline outpaces the editorial itself, which ultimately has more to do with how it feels about the speech than with the legal rights of the speaker. It is unfortunate that feelings are such a major aspect of, and subject in, public discourse today, but such are the times. Nevertheless, the editorial, in characteristically banal fashion, does not attempt to rock the boat; it just tacks left a bit.
That said, I think the editorial manages to be both banal/disappointing and surprising....
Is public litigation better than private litigation?
The Obama Justice Department, first under Eric Holder and now under Loretta Lynch, is taking § 14141* out for a spin, opening broad investigations into an increasing number of local police departments. The most recent (and unsurprising) investigation is about to be opened in Baltimore.
* Update: Sidenote: How do you pronounce this section orally? Is it "one-four-one-four-one"? Is it "fourteen-one-four-one"? is it "fourteen-one-forty-one" (which is my preference)?
Section 14141 allows DOJ to file a civil action and obtain an injunction to stop patterns or practices of unconstitutional behavior by state and local law enforcement. In a sense § 14141 is a public counterpart to private actions under § 1983. The "pattern or practice" language of § 14141 mimics the judicially imposed standard for establishing municipal liability and the liability standards basically overlap. Both actions result in potentially broad structural injunctive relief (or a consent decree) requiring judicial monitoring of a local law enforcement agency and significant, sometimes costly changes to agency practices. Both may involve wide-ranging investigations; DOJ conducts a broad independent investigation pre-litigation, while a private investigation only can be conducted through post-filing court-supervised discovery. But this seems like a small difference. Yet there is much greater resistance to private than public litigation of this type, even though the result will be the same. Complaints about "government by judicial decree" are frequently leveled at § 1983 litigation, but not as much as at § 14141 claims.
So the objection, it seems, is not to federal injunctions against local police departments, but to injunctions entered through private litigation and at the urging/advocacy of private parties. Put differently, many people are opposed to (or at least less comfortable with) injunctions entered through the efforts of private attorneys general than through the efforts of the real attorney general. But why should that be? Both causes of action are established by Congress, so they have the same underlying political legitimacy. The resulting decree will not necessarily be different. Private attorneys general undertake the investigations for which DOJ may lack the resources, time, or political will. Consider that the amount of § 14141 activity in the Obama Administration is substantially greater than the activity during the GWB Administration.** And consider that DOJ is going into places--Ferguson, Baltimore, Cleveland--where long-simmering tensions created by longstanding (unconstitutional) police policies and practices finally exploded, creating the type of large problem that warrants intervention by the federal government. Perhaps, however, if private litigants had more leeway to pursue smaller systemic violations, they could stop them before they reach this breaking point.
** The head of the Civil Rights Division for several years of the Bush Administration is now my dean. His division preferred informal negotiated cooperative resolution or letters of understanding rather than the adversarial, confrontational approach entailed in litigation and formal decrees.
This expanded use of § 14141 makes some sense in historical context. It was enacted in 1996 1994 (sorry for the typo), so the law is less than 100 years old. The last four years of the Clinton DOJ was still trying to make heads or tails of the law. The Bush DOJ had other enforcement priorities and, as noted above, a different approach. The current Department understands how the law works, should work, and can work, along with a renewed interest on local policing that has become a flashpoint. But the question remains whether it would have become less of a flashpoint were more private litigation possible.
Thursday, May 07, 2015
Same-Sex Marriage: The (Ted) Kennedy Legacy
The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other. If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result: Senator Ted Kennedy.
The narrative goes like this:
New York Times joins ACLU in giving up on free speech
I discussed the ACLU's strange ambivalence here and here. And that is the only way to explain this strange and appalling op-ed from The Times editorial board. (H/T: Thomas Baker). Apparently, the board can recognize the difference between "hate speech" and "free speech" (it seems to have something to do with motivation). And thus the government and/or powerful institutions--such as The New York Times--can be trusted to recognize and apply that distinction between "an exercise in bigotry and hatred" and "free speech."
I am at too great a loss to pick apart the piece's reasoning and its seeming surrender of most of the underpinnings of the First Amendment doctrine that allows The Times to be The Times. I will make three points. First, the difference between Charlie Hebdo and Pamela Geller (the head of AFDI and who organized the recent Texas Draw Muhammad event) seems to be that Hebdo satirize everyone, while Geller only goes after Muslims. I guess this means that "viewpoint neutrality" applies not to government regulation, but to speakers. Second, does the board realize that, if the term existed 55 years ago, Birmingham City Commissioner L.B. Sullivan almost certainly would have described The Times' criticism of him and southern officials as "hate speech." Three, under this "bad motive" test the op-ed suggests, Hustler v. Falwell comes out the other way, carrying with it much political cartooning and satire.
Tsarnaev and Juvenile Brain Development
Despite promises in yesterday’s post that I would talk more about discretion in criminal law, a report this morning in the Boston Globe prompts today’s post on a completely different, though equally close-to-my-heart topic: juvenile brain development and criminal culpability. Yesterday, defense counsel for Boston Marathon bomber Dzhokhar Tsarnaev presented testimony essentially arguing that Tsarnaev’s punishment should be mitigated because he was young. Arguments for mercy based on the youth of the offender are hardly novel, but Tsarnaev’s defense counsel based their argument on the neuroscience of youth – particularly the impact brain development has on decision making and appreciation of long term consequences suggested decreased culpability. Yesterday the jurors in the Tsarnaev case heard testimony from Dr. Jay Geidd, a professor at the University of California San Diego and a child psychiatrist. According to the article, Geidd testified: “Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences.”
Geidd’s testimony is consistent with what every parent of a teenager knows and what many in the juvenile defense community (myself included) have argued for a long time – adolescents are fundamentally different than adults and criminal law should recognize this fact. Tsarnaev’s defense counsel is making this point in the context of sentencing – a context the Supreme Court itself has repeatedly endorsed as of late (see Roper, Graham, and Miller, all restricting or prohibiting the application of forms of severe punishment to adolescent offenders based on their immaturity). But many, again myself included, have argued that neuroscience should inform substantive criminal law as well. In my forthcoming article, Brain Science and the Theory of Juvenile Mens Rea, I argue that what is known about adolescent decisionmaking is relevant to calculations of mens rea – the state of mind element – required in all but strict liability offenses, as well as for many defenses (think self-defense for example).
Twelve Angry Men Inside Amy Schumer
If you have not seen Twelve Angry Men Inside Amy Schumer--Schumer's 12 Angry Men parody that brilliantly satirizes male attitudes about female attractiveness--check it below or wherever you can find it. The homage to what is often regarded as one of the great legal dramas is impeccable, the dialogue is hilarious, and the political messages (about gender issues and a host of other things) are clear without being didactic.
Wednesday, May 06, 2015
A vigorous defense of free speech
On Tuesday, the writer's free speech organization PEN held its annual Literary Gala and Free Expression Awards. One award recipient was the surviving staff of Charlie Hebdo, a decision that triggered some controversy, as Steve Lubet has discussed. During his opening remarks, PEN President Andrew Solomon eloquently defended Hebdo, the decision to give it the award, and general principles of free expression. Worth a read (and a viewing--his remarks begin around 3:00 on the video above).
First, thanks to the folks at Prawfsblawg for agreeing to have me. For those who don’t know me, I am a former public defender, currently teaching criminal law and procedure at the University of Alabama School of Law, and I write about criminal juries and juvenile justice issues – both of which will undoubtedly supply lots of fodder for my posts this month. Today, however, I want to turn to a matter on my mind a lot lately – police power and, wait for it, speeding.
I know with Baltimore smoldering and a host of other recent events, the conversation about police power could go elsewhere. And it will, though not right now, not in this post. I should start with a full disclosure in the past four months I have received two speeding tickets. This fact, in and of itself, might not seem that surprising. But in my twenty-plus years of driving, these are my first tickets. Sure, I have gotten pulled over before. I have even gotten the stern warnings to “slow it down little lady” (I am neither little nor, according to many, a lady). But before moving to Alabama I had never gotten a speeding ticket.
Tuesday, May 05, 2015
Do Students Perform Better When Your Test Is a "Little Bit Harder" to Read?
It's an unusual exam-time question. But according to this newly-released study, the answer is "no."
The question was prompted by a fascinating, well-publicized experiment in 2007 that found that people score higher on tests when the questions are very hard to read. When students took a particular test with a normal font, 90% made at least one mistake on the test. But that proportion dropped to 35% when the font was barely legible. The experiment received a lot of attention. It has been cited in over 130 articles, and Nobel Laureate Daniel Kahneman highlighted the findings in his 2011 book, Thinking, Fast and Slow. Malcolm Gladwell similarly emphasized the benefits of tests that are "just a little bit harder to read."
The idea that difficult tasks can "kick our brains into higher gear" is consistent with many ideas in cognitive psychology. Cognitive psychologists have identified two kinds of decisionmaking processes: intuitive and deliberative. Intuitive decisionmaking processes, called System I processes, are intuitive, automatic, and quick, encompassing the types of instantaneous judgments that permit a person to immediately size up a situation. Deliberative processes, or System II processes, describe reflective, logical, and self-conscious thinking. See Adam S. Zimmerman, Funding Irrationality, 59 Duke L.J. 1105 (2010). Kahneman and others have long suggested that deliberative processing can “override” System I processes under certain circumstances--which is why people are less susceptible to cognitive errors or biases when there are opportunities to learn from experience or when they have access to third-party expertise, like lawyers, doctors, or other specialists. For that reason, regulatory efforts to "de-bias through law" often rely on rules that encourage people to reflect or deliberate more about their choices to improve welfare.
After surveying results from over 7,000 people, however, Terry Burnham, Shane Frederick, Andrew Meyers and eight other co-authors, however, appear to have refuted this particular study. The paper appears in the April 2015 Journal of Experimental Psychology.
Scholarship Matters to the Court…in Federal Civil Rulemaking…Maybe, Kind of, Sort of
The good news: I think the Court might have agreed with academic commentary, and further, might have even responded positively to that commentary. The bad news: This response has nothing to do with the Court’s current docket, but is instead about the Federal Rules of Civil Procedure. Now, stick with me here because I think this is still good (and perhaps exciting) news. As has been covered here, members of the Court have questioned whether academic scholarship practically matters. Here is a place where I believe scholarship maybe, kind of, sort of made a difference.
As mentioned in a previous post and at the Civ Pro Blog, the Supreme Court approved and forwarded amendments to the Federal Rules of Procedure to Congress. This is the penultimate step in the federal rulemaking process. If Congress does not act before December 1, these rules will become law. The discovery amendments have been the controversial focus of the current set of Civil Rule amendments, garnering literally thousands of comments during the rulemaking process. But, I and a number of other scholars criticized the abrogation of Fed. R. Civ. P 84 and the official forms. Our arguments varied, but one thing we all agreed upon was that abrogating Rule 84, and specifically abrogating Form 11, was problematic because of the controversy over pleading requirements following Twombly and Iqbal. In short, deleting Form 11—a form that, according to the Court, remained good law after these cases—might be read as further restricting pleading under Rule 8.
Scholars commented and testified to this effect before the Civil Rules Committee. When considering these comments, the committee repeatedly noted that only academics had criticized this change. In meeting minutes (at p. 558), the Rule 84 subcommittee stated that the change had “support from practitioners” and that “[m]ost of the opposition seems to reflect continuing academic distress with the Supreme Court’s recent pleading decisions.” In the Civil Rules Committee Report to the Standing Committee (p. 60-61), the committee stated that it “has been concerned that most of the opposition to abrogation springs from the academic community.” Yet, in spite of this rather consistent criticism, the committee moved forward with its proposal as originally published.
The Court, however, appears to have agreed with the academics. In its recent approval of the Civil Rule amendments, it changed Rule 84’s Advisory Committee Note to add, in pertinent part, that “[t]he abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” This is really something. First, I have done some preliminary research, and I cannot find an example of the Court ever modifying an Advisory Committee Note when approving a federal rule of procedure. (If anyone has an example of this happening in the past, please let me know.) Second, the Court’s change directly responds to the academic concern that was raised during the rulemaking process. Now, it could be that the Court arrived at the same conclusion on its own accord. But, it is also entirely possible that the Court agreed with and responded to the consistent academic critique of this change. It is not the exact result that many of us were seeking, but it gives me some hope that our scholarship does, in fact, make a difference…maybe, kind of, sort of.
The next Erie/Hanna issue for SCOTUS?
The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.
This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.
Walk-off Infield Fly Rule
Great story about a Japanese baseball game on Monday that ended with a walk-off infield fly (H/T: My FIU colleague Ediberto Roman). This is a welcome new story for my hoped-for book on the IFR.
With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.
Plus, the audio teaches us that the term "Infield Fly" is the same in Japanese. Great stuff.
Monday, May 04, 2015
The Federalist Structure of Trademark Law Fosters Robust Public Debate
The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is their third guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.
In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech. But does it? In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.
Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation. Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.
The Conference Manifesto
At the New York Times "The Stone" page is Christy Wampole's "The Conference Manifesto." The "manifesto" opens with this:
We are weary of academic conferences.
We are humanists who recognize very little humanity in the conference format and content.
We have sat patiently and politely through talks read line by line in a monotone voice by a speaker who doesn’t look up once, wondering why we couldn’t have read the paper ourselves in advance with a much greater level of absorption.
We have tried to ignore the lack of a thesis or even one interesting sentence in a 20-minute talk.
Our jaws have hung in disbelief as a speaker tries to squeeze a 30-minute talk into a 20-minute slot by reading too fast to be understood. . . .
Ouch. Read the whole thing.
Welcome Change to Fed. R. Civ. P. 34 (Document Production)
Last Wednesday, the Supreme Court transmitted to Congress amendments to the Federal Rules of Civil Procedure, which will go into effect on December 1, 2015, absent Congressional action. There are a few goodies in these proposed amendments. But the one that makes me happiest is a sorely needed addition to Rule 34, governing requests for production of documents. The new rule will require responding parties to be clearer about the extent to which they withhold documents on the basis of an asserted objection.
The current version of the rule, of course, permits the responding party to object to a document request in lieu of producing responsive documents. See Fed. R. Civ. P. 34(b) (“For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”). Thus, if the request asks for copies of all communications between the responding party and her lawyer, the responding party would naturally assert a privilege objection, and that would be the end of it.
The problem is that not all objectionable requests are so cut and dry. Objections with expansive time-frames, for example, may be too broad, but that overbreadth should not be fatal to the entire request—only to the overly broad portion. The current rule recognizes these situations and instructs that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” See Fed. R. Civ. P. 34(c).
Under the current rule, it’s often unclear whether a party who objects, but nevertheless produces some responsive documents, is withholding other documents on the strength of the objection. Let's say the request seeks records going back ten years. The responding party objects to the time-frame and then produces records going back, say, three years. Does that mean the responding party has withheld seven years of records? Or does it simply mean that the responding party had nothing more to produce?
An amendment to Rule 34(c) will require parties to answer that question from the outset. The first sentence of the amended rule will read: "An objection must state whether any responsive materials are being withheld on the basis of that objection." Simple. With one sentence, the rule will now require parties to be more candid about the practical significance of their objections.
I welcome this change. It will reduce some of the discovery gamesmanship and the related need for time-consuming correspondence seeking clarification on the extent to which a party's objections served as bases for withholding documents. Bravo to the Committee on Rules of Practice and Procedure!
Unfortunately, there is no corresponding amendment to Rule 33, governing interrogatories—where responding parties also take advantage of objections to conceal whether they are withholding information. A change there would be welcome, too.
How Disability Gets Covered in the Media
My thesis in a recent article was that the relatively easy journey of the Americans with Disabilities Act through Congress (at least compared to laws like the Civil Rights Act of 1964), combined with the large universe of people that it covered, sheds light on the ADA’s inability to reach some of its more transformative goals. Part of this is the idea that most people outside the disability rights movement do not think about disability much at all, and when they do, they do not think about it in the civil rights terms that those within the movement do.
All of this has made me pay heightened attention to what stories about disability get covered, and what the coverage looks like. Media both shapes and reflects societal perceptions. One fairly consistent story line is greedy plaintiffs’ lawyers suing small businesses over access violations. Here is a recent example, complete with a cartoon of an evil gangster-looking plaintiff in a wheelchair. This is fairly representative of this coverage – people with disabilities are the bad guys, and small mom and pop businesses are the victims. I see some variation of this same story just about every month in some newspaper or other news outlet. It is not that this story does not raise an issue – there are certainly plaintiff’s attorneys who file abusive ADA lawsuits. But there is a serious lack of balance here. These articles hardly ever note that (a) the businesses are indeed non-compliant; (b) if they acknowledge that, they invariably cast these violations as minor (ask someone who uses a wheelchair why it matters that the pipe underneath a sink is insulated…) and (c) they rarely note that under federal law (the strongest in most states) does not even provide for damages, and that under the Supreme Court’s decision in Buckhannon, defendants can usually moot out any claim for attorneys’ fees by fixing the violation.
I am more optimistic about coverage in the emerging intersection of disability and technology. For example, there is an open issue about to what extent private websites need to be accessible to users with disabilities under Title III of the Americans with Disabilities Act. Courts have split, and the Department of Justice is poised to issue some long awaited guidance on the topic. More and more articles I see more contain a nuanced discussion of the issue. More important for perceptions of disability, more regularly in media accounts the ideas of entrepreneurship and innovation and disability are being linked. Creative companies find ways to serve their entire customer base, in ways that redound to everyone’s benefit.
And finally, I was surprised that the recent coverage of Major League baseball player Josh Hamilton’s relapse with drug and alcohol abuse focused on his addiction as a chronic illness, not necessarily a character flaw. (Full disclosure, I am a life-long Angels fan, and much more concerned about Hamilton’s huge contract and .739 OPS last season).
Thanks again for the opportunity to visit this month. I appreciate Howard’s and everyone’s work to keep this a vibrant community.
Mass Compensation After September 11
Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.
Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero. The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders. After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.
The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002. After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court. In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015). Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky.
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute. Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages. Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.
Sunday, May 03, 2015
During the break between the petitioner and Solicitor General arguments on the first issue in Obergefell, a protester began screaming about how the Bible tells us that supporters of gay marriage will burn in hell, it's an abomination, etc. After the guy was pulled out of the courtroom (apparently it took four officers), the Chief offered Donald Verilli an extra minute to compose himself; Verilli first accepted, then declined. As Verilli was moving to the podium to begin his argument, Justice Scalia said "It was rather refreshing, actually," which was met with laughter from the gallery. (The whole thing is at pp. 27-28 of the transcript and at the very end of the petitioner's argument on the audio).
Jeffrey Toobin argued that the real ugly part was not the outburst, but Scalia's "shameful" joke. According to Toobin's article, expanded upon in this Political Scene Podcast, what Scalia found "refreshing" was that someone inside the courtroom was finally making the real argument against same-sex marriage--moral condemnation of homosexuality and LGBTQ people--rather than the sterile and ultimately incoherent arguments about accidental procreation and "biological moms and dads." Scalia was not joking; he was endorsing the viewpoint expressed by someone intentionally disrupting the proceedings and regretting that viewpoint's absence from the actual proceedings. Toobin even suggested that the response was not real laughter, but shock at what Scalia had said.
Honestly, it never occurred to me that Scalia was suggesting that this was the "real" argument that he wished would be made in the case. I heard this as genuine laughter rather than shock at Scalia's provocativeness (the advantage to being able to hear the argument, not just read it). It certainly is unusual for a justice to comment on courtroom protests, much less through a joke--and perhaps it is inappropriate. Perhaps Scalia meant that the protest broke the tension of the argument. If so, we can note that Scalia never finds the anti-Citizens United protests "refreshing," suggesting he simply was reacting to the rare protester who is not on the opposite side of an issue as he is. And that, too, might be inappropriate.
But was Scalia really "endorsing" the views expressed? Is Toobin right about this? Or is this another example of simplistic and reductivist coverage of the Court? And am I being too forgiving of Scalia?
Friday, May 01, 2015
Many thanks to Howard, Paul, and the rest of the gang for allowing me to gust blog this month. And please don't forget to register for CrimFest!
Welcome to May. Thanks to all our April visitors, as well as those who chimed in for our Tenth Anniversary Mini-Symposia (I think Dan would have appreciated the ideas that were shared). And I still owe a post from the final week.
Questioning the Law School Debt Narrative
Given the strong feelings that discussions about the value of legal education triggers, I have been reluctant to blog about the so-called law school scam. But a story about a recent law school grad and his debt that is making rounds in the national media has me truly puzzled. This story, which has been picked up by the New York Times, among others, reports about a 2010 graduate from Ohio State’s law school who graduated with $328,000 in student debt. As someone who financed her own education through a combination of student loans, work study, and other financial aid, I am puzzled how this individual accumulated so much debt.
A quick search of Ohio State’s webpage tells me that an out-of-state student should expect tuition and other expenses to total just under $65K a year, and so three years of law school education and other expenses should result in approximately $195,000 in debt. Yet media outlets are repeating this $328,000 number without questioning why a student would incurred an amount of educational debt that is so much higher than the cost of attending law school for three years. The New York Times, for example, reports that this particular law school graduate’s $328,000 debt “includes some undergraduate loans,” yet the story is clearly focused on the high cost of legal education. But, in light of the information that is readily available from Ohio State, one presumes that this student’s debt from law school should make up no more than 60% of this overall educational debt.
Don’t get me wrong, legal education is expensive. At many schools it is probably more expensive than it needs to be. And I can’t imagine how devastating it must be to incur significant debt to obtain a law degree, and then find yourself unable to obtain employment as a lawyer. But I really wish that the media’s reporting on this issue were more nuanced. Many reporters seem so devoted to the narrative that legal education is not worth the sticker price, that their reporting on this issue no longer seems objective.
Anniversary symposium: What's next?
During the time I was dithering and wool-gathering in response to the call from Howard for the third round of anniversary posts -- topic: what has changed in law teaching and for law schools -- the subject for the next round was announced: What about the future?
Will a lot of law schools close? (Will a bunch of new online or other alternative legal-education institutions open?) Will tuition and debt loads continue to increase? Will the yearly number of law graduates come (roughly) into line with the yearly number of legal and "J.D.-advantage" jobs? Will law schools' programs of legal education change dramatically (e.g., move to two years, or incorporate significant new experiential-learning requirements, or . . .)? Will the expectations and practices of legal academics regarding teaching loads and scholarship evolve significantly? Will law schools -- as a result of the answer to the last question -- be nudged out from the heart of research universities' academic missions? Will we see more law-school deans and high-level administrators coming from law practice or the business sector (instead of from law faculties)? Each of these seems like an important question and, with respect to each, I have to confess that I just don't know.
My hopes are that "the law" will (continue to?) be regarded as, respected as, and in fact a "learned profession" that is meaningfully connected to public service and social goods; that engaged and committed students will pursue legal education because they are attracted to a vocation in such a profession; that access to this profession will be available (which means, among other things, "realistically affordable") to a wide range of students from diverse backgrounds and with diverse interests; that law schools' programs and law professors' activities (teaching, scholarship, and service) will be consistent with and supportive of this way of thinking about what "the law" is; and that at least some excellent law schools will remain fully integrated with excellent research universities. I have a strong sense that, in order for these hopes to be realized in the coming years, more than a few non-trivial changes are needed, and needed pretty soon. (And, of course, whether these hopes can be realized is not entirely within the control of law schools.) But, again, I wish I had more confidence that I knew exactly what those changes are.
Will Legal Blogs Survive, or Die Out?
A month and a day into our tenth anniversary, I come finally to address a question that came up in a conversation this winter with the great election law blogger Rick Hasen, one that for me at least motivated this week's concluding subject: Will legal blogs fade away and die? With the usual risks involved in summarizing someone else's views offered in casual conversation, I will say in short that Rick was skeptical about their future, and eloquent on the subject.
Over the course of the past month, some of my posts have supplied some of the reasons underlying this pessimism. Rick offered some of them, and others are simply my own personal perspective. 1) A decade wears out any blogger. 2) If you're not just aggregating, or if your subject matter is not highly constrained to a specific subject, the wear-out factor can be even greater. It helps if you have particular hobby-horses that you don't mind returning to again and again. But that's not true for all of us; some of us like writing, particularly on certain issues, but are not much driven by a cause or mission and thus don't see much virtue in repetition (although that doesn't stop me). 3) Group blogs help spread the burden, but create organizing and administrative costs (borne here almost entirely by Howard, with my gratitude). And not every group- or guest-blogger contributes equally. Certainly I have not, in the past couple of years, whether the reason has been understandable or not. 4) For many, the tone and nature of the comments (and some of the posts!) adds to the sense of exhaustion. And while such a tone evidently draws one set of commenters, it may turn off and turn away other, quieter but larger, segments of the audience. I understand that views vary on this. So be it; this is mine. For what it's worth, while I consider much of the degradation of content and tone to be related to a particular subject-matter, I think it's present on both sides of the debate, as a recent local discussion suggests. 5) The existence of other fora, such as Facebook, where one can satisfy some of one's own desire to write or communicate on current legal issues and other matters, to a large but limited audience. 6) The availability of other social media--Twitter most prominently, but perhaps there are others--that may draw a larger audience, although they have other sorts of limitations or constraints. 7) Perhaps, to some degree, the availability of other sites--HuffPo and so on--that are constantly hungry for material and may draw off some of the writers who would otherwise guest on blogs or create one of their own.
All of these taken together, but perhaps especially 6, as well as 1-2 and 5, offer some reason for pessimism about the long-term future of legal blogging. At least they suggest that, having first drawn an audience and to some degree outlasted some other media that served some of these purposes (remember the magazine Legal Affairs? Kind of?), blogs and bloggers now must again retrench, reconsider their individual missions and approaches, and either switch to, incorporate, or face competition from alternative social media.
I am in some ways less pessimistic than that. I don't think a lot of blogs are about to disappear. But I do think that it is a possibility. And I very much think that what will tell the difference will be the degree to which blogs and bloggers, or prospective bloggers, adapt their current setup to be more driven by and connected to other social media. And it is quite possible that many existing bloggers, and certainly some of the people who would otherwise have helped staff and rejuvenate the existing blogs, may choose instead to devote themselves to other media, not blogs. It may be that the second possibility is greater, and more perilous to the blog enterprise, than the first.
Although I don't forecast a sudden disappearance of blogs, it does seem likely that some will continue more for the sake of soldiering on than out of a renewed burst of enthusiasm. I could be quite mistaken--it might be just a trick of perspective--but certainly, and notwithstanding the greater impact some of them are having on current legal/political debates, I think the heyday of the legal blogs seems to have passed, or at least that the best of them are more fallow and/or routine (like Raymond Chandler's description of drinking tea) right now. Of course there is a chance that, with a first wave of blogs having popped up and a great number of them having faded long since into oblivion or desuetude, the same thing could happen to another round of blogs, some of them long-lasting ones. Orin (and Rick agrees with him) offered some reasons on this site a while back why this might not happen. There are still gains, often indirect ones, to be had by blogging. We'll see. But, again, it's at least possible that some blogs will simply fade out.
I have mixed feelings about this. But I think, on this anniversary occasion, I will say a few words about three or four of the things I have liked most about blogging, and about this particular blog that our friend Dan established, lest they get lost in the mix.
Why is Glossip hard?
The following is by Corinna Lain (Richmond).
I’ll be guest blogging in June, and am very much looking forward to sharing ideas and, hopefully, generating conversation then. But after listening to this week’s oral argument in Glossip v. Gross, the lethal injection case currently before the Supreme Court, I feel the need to share now.
And here’s what I can’t figure out: why is this case hard?
Thursday, April 30, 2015
The Perceived Value of a Law Degree
One of the topics for the mini-symposia is what the future holds for law schools. This led me to think about how law schools communicate to the public that a law degree is still useful.
There has been a lot of discussion about the changing nature of legal education. Responding to studies, like the Carnegie Report on legal education in the United States and Canada, law schools have been under pressure to make law school more “practical.” Coupled with the economic crisis that affected the legal industry and the media’s critique of legal education, we have all read that law school applications are down and that some schools are shrinking class sizes.
One can predict doom and gloom for law schools. However, it seems to me that higher education is under attack in general. One doesn’t have to look far to find articles and books advising students to skip college to start a business instead, or documentaries critiquing the business model for higher education in the United States.
Law degrees may not offer the security of the days of old, but what non-STEM (Science, Technology, Engineering, Math) field does? Perhaps the general response from law schools has been too narrow. Maybe it is partly driven by the US News & World Report Rankings methodology, to the extent that the post-graduation employment statistics are affected by whether the position requires a law degree.
The future of law schools probably depends, in part, on the perceived value of legal training. I do not mean to suggest that law schools should not be responsive to the changing times. Yet, I wonder whether the defense of legal education could not be more robust. A law degree is essential if you want practice law. However, as we all know, legal education can be valuable even if you do not plan to practice law. The flexibility of the law degree is, arguably, one of its advantages. Unlike surgical training, for instance, legal training gives you skills that are transferable to other fields. Maybe (like some of the students I have encountered) one intends to run a business, to go into politics, or to have a career in diplomacy. If so, having a law degree may be highly useful, even if it isn’t essential. Isn’t that a good enough reason to go to law school?
Upon further review . . .
I am rethinking my two posts on what happens in the lower courts outside the Sixth Circuit if the Court rejects marriage equality in Obergefell. I stand by my earlier suggestion that state officials will go back to the district court to dissolve the injunction.
But on further consideration, I am not sure this is significant or even necessary. And the reason goes back to the limited scope of the actual injunctions. None of the cases involved class actions; all were individual plaintiffs (generally 3-4 couples). Thus, when SCOTUS denied cert., state officials were obligated by the injunction only to issue licenses to the named plaintiffs, which they did. They were not obligated by the injunction to issue licenses to anyone else and no one else was entitled by the injunction to a license. So it is not the injunction that obligates state officials in California, Illinois, Utah, etc., to issue licenses to same-sex couples--it is the circuit precedent and the knowledge that they will be sued, enjoined, and made to pay attorneys' fees if they do not issue the licenses to new couples.
So there is no pressing reason for Scott Walker to get the Wisconsin injunction dissolved after Obergefell, at least in avoiding issuing new marriage licenses, although he will do it anyway. The injunction is not imposing any current obligations on him.
Shutting down the forum
When government opens a traditional or designated public forum, viewpoint-based restrictions are virtually per se unconstitutional and content-based restrictions must survive strict scrutiny. The risk is that, faced with having to permit objectionable speech in the forum, government will shut down the forum altogether for all speakers or redefine the designated forum to remove the objectionable speech from the forum's scope. These restrictions receive less (at times no) constitutional scrutiny. And the result is a dramatic decrease in the overall amount and level of expression.
The latest example comes from New York and the ads on its trains and buses. Last week, Judge Koeltl of the Southern District of New York held that MTA violated the First Amendment in rejecting a billboard from the American Freedom Defense Initiative, a pro-Israel/anti-Islam group that engages in highly provocative rhetoric in ads on public transit facilities (the latest ad featured a purported quotation from Hamas-connected media saying "Killing Jews is Worship that draws us close to Allah"). Judge Koeltl held, correctly, that MTA's ad spaces constitute a public forum, the ad was neither fighting words nor incitement, and rejecting the ad did not survive strict scrutiny.
I’ve seen the future, and…
The following contribution to the Mini Symposium# 4 is by Margaret Ryznar (IU McKinney).
I’ve enjoyed reading the anniversary posts and planned to contribute. However, by the time I completed article submission season, end-of-semester tasks, and my tax filing, I noticed that we were up to a difficult question—what does the future hold?
It’s a question with many aspects to it, but in a way, we have already seen the future, and it’s increasingly heavy on technology. Technology assists us in every way, from the way that legal services are delivered, the way law teaching is done (powerpoints in the classroom, entirely online course programming, etc.), and the way legal research is disseminated (Westlaw, SSRN, online journals).
Wednesday, April 29, 2015
A new wrinkle on now-invalid injunctions
A colleague at an Oregon-based school offers a different twist on what happens to Article III-final injunctions if the petitioners lose in Obergefell: What happens if the relevant state actors (the Governor or the AG) favor same-sex marriage and decline to file the motion to dissolve the injunction? This would be most likely in Oregon and California, where state officials declined to defend the ban or appeal the district court's decision invalidating it. This, my colleague suggested, might offer state officials a "weird way" to get around their own state's laws.
I can see four possibilities, although I would like to hear more (or hear why my three are wrong).
Some Results from the Law Review Submission Practices Survey
Several drafts of my final exam ago, at the beginning of the month, I sent around a survey of law review submission practices. Our response rate was lousy, and we have no way of knowing how representative the responses thus far are. (Editors: still want to fill out the survey? You can go here, and I'll post updates at the Law & Economics Prof Blog). But, for they're worth, here's what we learned.
First, there will be a fall season.
6. When do you expect to begin reading submissions for the fall cycle?
|a. Before Aug. 1||6||42.9%|
|b. Aug. 1 - Aug. 15||7||50%|
|c. Aug 16 - Aug. 30||1||7.1%|
|d. Sept. 1 - Sept. 15||0||0%|
|e. After Sept. 15||0||0%|
7. What portion of your available slots remain open for summer and fall placements?
|b. 1 or 2 slots||3||20%|
|c. Less than a third||3||20%|
|d. Between one-third and two-thirds||6||40%|
|e. More than two-thirds||3||20%|
A few more thoughts about Johnson and vagueness
As my previous post indicates, I’ve been closely watching this Term’s void for vagueness case, Johnson v. United States. I’m interested in the case because I am working on a larger project about the void for vagueness doctrine. As part of that larger project, I’ve been reading some older scholarship on the topic. As those of you who follow this area of the law probably know, one important law review article on the vagueness doctrine is Anthony Amsterdam’s 1960 student note in the U Penn Law Review. In that note, Amsterdam demonstrates that the Supreme Court’s vagueness doctrine is an inconsistent mess. He provides a number of examples showing that the Court is inconsistent in its decisions whether a statute is so imprecise that it violates due process.
There is an observation in the Amsterdam article that has me wondering about how the Court will rule in Johnson.
"Slogging Through the Likes of Alabama"
In his hopeful post on the oral argument yesterday in Obergefell v. Hodges, Dale Carpenter writes, in an early passage in the post:
At first, I took Justice Kennedy’s observations to reflect a general methodological Burkeanism that should hang over all of constitutional law. That’s the way Judge Sutton used it. If that’s how Kennedy is using it–if he really means that we should wait-and-see for some indeterminate percentage of millennia before enforcing a principle as constitutional law against vestigial democratic resistance–then it’s time for the gay-marriage movement to put the corks back in the champagne bottles and fire up for a generation or more of legislative slogging through the likes of Alabama.
As I live and teach in the likes of Alabama, I thought I'd add a comment on this. This is another long, below-the-fold post, so I'll offer a summary, which breaks down into three propositions. 1) He's right, of course, in general terms. 2) Nevertheless, there are both generational changes at work here and, especially, a strong streak of libertarian thought among some conservative Alabamans that, if advocates of LGBT equality spoke to it, would certainly help speed things along in moving toward changes here as elsewhere. 3) So far, regrettably, to the extent that well-funded national-elite LGBT groups have started directing their money and efforts at states in the Deep South, their approach has not been especially tailored to the state; it's just been a local version of the national campaign. One doesn't expect a lot of flexibility and responsiveness from well-heeled DC-centric juggernauts. But it's still too bad. By really listening and adapting their campaigns to those local views that might give them some leverage, they might shorten the "slog." [EDIT: A colleague reminds me that the preferred demonym (a new word for me, I confess) is "Alabamian," not Alabaman; I had some recollection as I was writing that there had been a dispute over which to use and just chose one--the wrong one, alas. I am leaving the error in here and through the rest of the post, partly for the sake of time and partly so that my error, despite my living here for some nine years, can be held against the rest of my analysis if people choose.]
Robin West on "The Freedom of the Church" and the social contract
Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights: Exiting the Social Contract." She is responding to, inter alia, this paper of mine and this paper by Steve Smith and dealing with issues that Paul Horwitz and many others have addressed in recent years. Here is the abstract of Prof. West's paper:
In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.
All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders. In my own contribution, responding specifically to West, I write:
Fontana and Braman empirically test the countermajoritarian difficulty
David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.
Anniversary Topic #4: What does the future hold? Prawfs and Other Blogs
I suppose that if I didn't believe that there was a future for Prawfs, I wouldn't be blogging here. I'd be off somewhere not reading this. I think that Twitter, Facebook, and blogs have their strengths. None of them is a replacement for the other.
In the broadest sense, I wonder if our vocabulary needs different words for "blogs,"the way that different Northern languages have hundreds of words for "snow." As a few examples, there are very high profile super-blogs, commercialized blogs, highly personal blogs, and blogs that are adjunct to major newspapers. After all, a blog is a platform. Any blog's authors, commenters and readers define its purpose, and re-define it continually. Perhaps prawfs will always need blogs as a centralized place to present and consider different ideas on their own pace, a place to try to make sense of things as they unfold. Where law schools are geographically distant, blogs are one way to find out what others are thinking about issues that many of us have in common. Mediums that limit discussion to the 140 character format, or in a format that folds in ads and odd timeline re-shifts, are less conducive to those types of discussions.
If blogs are quieter now (are they?), I suspect that being in law schools in a time of crisis is one plausible explanation. People are busier/in meetings/building programs/speaking to press/doing scholarship/at a recruitment event/etc. in ways that have taken precedence perhaps. Regardless, I think it's healthy to re-assess direction from time to time. That's part of building a future.
What if SCOTUS rejects marriage equality?
I have not yet read/listened to the Obergefell arguments (I plan to get to it as soon as I finish writing this), although I have read some reports. I am fairly confident the Court will declare that SSM bans are invalid (and I am kind-of confident it will be a 6-3 vote).
But for now, suppose the Court goes the other way and holds that the Fourteenth Amendment does not guarantee marriage equality and does not require states to recognize out-of-state same-sex marriages. After the jump, I want to consider four procedural questions: 1) What do the states do where same-sex marriage has come via federal court order that has become final (including all the cases in which SCOTUS denied cert. last fall, as well as California); 2) What do the states do where a district court judgment invalidating the state ban is pending on appeal but was not stayed? 3) What happens to the same-sex marriages that have been entered in those states where the federal decision has gone to final judgment? 4) What happens to the same-sex marriages that have been entered in those states in which the district court decision is on appeal but has not been stayed (e.g., Florida and the four couples in my beloved Alabama)?
Tuesday, April 28, 2015
Aesthetic sports rules
Slate's Hang Up and Listen devoted its first segment to the (problem?) of a Hack-a-[Blank], thr strategy of intentionally fouling a poor free throw shooter away from the ball throughout the game. They discuss whether it works, whether it spoils the game, and what, if anything, can or should be done about it. The best solution is probably to give the offense the option of getting the ball out of bounds instead of taking the free throws (there used to be a similar rule in international basketball). By not making the bad shooter take the free throws, the incentive to keep fouling goes away.
So if this (or some other rule change) came about, should we understand it as a limiting rule grounded in cost-benefit disparity, a la the Infield Fly? As I wrote about soccer's offside rule, I don't think so. Instead, this would be a purely aesthetic rule, designed to make the game look better and be more enjoyable to watch. To be sure, there is an aesthetic component to the logic of the Infield Fly Rule; that rule disincentivizes teams from intentionally failing to catch easily playable balls, which is unappealing to watch. But the chief concern is the cost-benefit imbalance, of the defense getting two outs instead of one and the runner being unable to stop it. That is missing with Hack-a-[Blank], because the offense can overcome the strategy by making the free throws or rebounding the miss. Nevertheless, the game becomes unappealing when it involves nothing more than intentional fouls on DeAndre Jordan 25 feet from the basketball and a parade of missed free throws. So the rule change may seek to limit strategy solely in the name of the aesthetics of the sport.
CALL FOR PAPERS: The ADA at 25: Implications for People with Mental Disabilities
The AALS Section on Law and Mental Disability, along with the co-sponsoring Section on Disability Law, are looking for papers or abstracts of presentations for a panel on the ADA at the 2016 AALS Annual Meeting. At author's choice, selected papers may appear in the Law & Psychology Review. The Call for Papers appears below the fold.
F. Gregory Lastowka
It is with deep regret that I write that law prawf Greg Lastowka is no longer with us. He passed away yesterday. His home institution, Rutgers, has published this announcement here. He will be greatly missed by all who knew him and his extraordinary work.
The Linguistics of Certiorari Dismissal
Like many colleges, my undergraduate institution did not offer a pre-law major. So those of us who knew we wanted to go to law school had to find some other discipline as a major. I chose linguistics. I had lived abroad as a child, which made me interested in how other languages worked. And I liked the introductory linguistics courses more than I liked the introductory English and history courses that I took.
Much to my surprise, I’ve found the little linguistics that I learned in college has been useful later in life. The linguistics “school” that my thesis advisor belonged to sought to discern patterns in written and spoken language. These patterns were not the grammatical rules we memorize in junior high, but instead a complex web of intuitive rules that sometimes carry with them various meanings. For example, baseball aficionados say that a batter “flied out,” rather than saying that he “flew out.” Linguists interpret this deviation as an indication that the terms “fly ball” and “to fly out” have taken on their own independent meanings aside from the constituent words that were used to form them originally.
So imagine, to my delight, when I recently had a conversation about how to create the past tense of the common Supreme Court term “DIG.” The Supreme Court will sometimes, after granting certiorari in a case, decide that there is some reason that the Court should not decide the case after all. The Justices will dismiss the case as improvidently granted --- hence the acronym “DIG.” So how does someone use that acronym to indicate that a case had been dismissed on those grounds in the past? Happily, there is a law review article which gives us the answer (look at footnote 4). Rather than using the term “dug,” the Supreme Court Justices apparently use the term “digged” in spoke language, and scholars use the written form “DIGged.” Made my day . . .
Monday, April 27, 2015
Natural Rights and the "Human Right" to Intellectual Property
I am picking up from where I left off in my prior post on human rights and intellectual property. My concern with embracing a human right to intellectual property arises from the possibility that it will lead to more expansive intellectual property protections. I would tend to agree, therefore, with the report by the United Nations Special Rapporteur in the field of cultural rights (mentioned by Lea Shaver in her comment), which characterizes copyright as distinct from the human right to authorship.
Human rights are generally understood to be natural rights. If one accepts this proposition, how does treating intellectual property protection as a human right relate to the natural rights intellectual property scholarship? The intellectual property and human rights conversation is primarily an international intellectual property conversation. However, the natural rights framing of intellectual property rights is primarily a domestic intellectual property conversation. Both of these frameworks are based on natural rights theories, yet they appear to reach opposite conclusions. With some exceptions, proponents of natural rights justifications for intellectual property tend to support more expansive intellectual property protections. On the other hand, proponents of a human right to intellectual property speak of “balance” and of using human rights frameworks to respond to excessive intellectual property rights.
One might be inclined to dismiss the theoretical foundations for intellectual property as irrelevant to the practical aspects of intellectual property law. However, the framing of intellectual property rights can impact the way private citizens, including judges and policy makers, view intellectual property protection and infringement. Gregory Mandel’s study on the public perception of intellectual property rights, for instance, found that individuals who view intellectual property rights as natural rights tend to support more expansive intellectual property protection. This is consistent with legal scholarship that takes a natural rights approach to intellectual property. My inclination, then, is that distinguishing between copyright protection and the human right to the moral and material interests arising from one’s literary or artistic production is a step in the right direction.