Monday, August 11, 2014
Informal survey time (I raised this on some listservs last week and wanted to try a different audience):
If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.
My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).
Have at it.
Epstein and Bagenstos on Title II
I have been reading a great deal this summer on and around the Hobby Lobby case and its longer-term implications. I want to spotlight, in particular, two articles in the most recent issue of the Stanford Law Review, which features a symposium on the fiftieth anniversary of the Civil Rights Act of 1964.
The first is by Sam Bagenstos. Titled "The Unrelenting Libertarian Challenge to Public Accommodations Law," its abstract reads:
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.
The second is by Richard Epstein, titled "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Epstein's abstract reads:
On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to suppress the free entry of firms that would otherwise target minority customers in competitive markets.
The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.
The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.
Both articles are excellent and, as their authors recognize, highly relevant to the issues raised and presaged by Hobby Lobby. I do question the framing. I don't think all questioning of the expansion of the number and reach of public accommodation laws, or all views that hold that there must be some room within those laws for religious accommodation, can be described--or labeled, and having been labeled, dismissed--as libertarian. For various reasons, however, some sincere and some more strategic, those who reject this framing, and whose accommodationist leanings in this area are distinctly a minority view at present, have either held back or not fully thought through their own views. I think the time in which they could hold back has passed. If they don't want the entire discussion to be framed in terms of libertarianism vs. anti-libertarianism, they are going to have to speak up. When they do, they will have to engage with both of these fine articles.
Sunday, August 10, 2014
Kar on Contract Theory ... And A Question About "Unified" Theories of Law (Contract, at Least)
My friend Rob Kar (Illinois, left) has posted an article (the first in a series), Contract as Empowerment, a major take on contract theory that has this morning rightly earned "Download of the Week" status from Larry Solum. Rather than re-post the abstract (available from either of the above links), I'm going to excerpt Rob's own blackletter capsule of the theory:
Contract as Empowerment: All other things being equal, contract law rules should be set up to empower people to use promises as tools to meet a range of human needs and interests by inducing others to action. The law should therefore enforce contracts when two basic conditions are met: first, when a particular party has entered into a particular contract with the specific purpose of inducing another to act; and, second, when meeting this purpose depends on granting another contracting party the legal authority to demand compliance. All other things being equal, the law should not—on the other hand—enforce promises in other circumstances.
As I'm still weaning myself here from the last month's awfulness, I confess that what came to mind as I read Rob's introduction was Dan Markel's observation to me that I was often "orthogonal" to existing issues. In that spirit, then, let me be orthogonal to Rob's project, not for a minute taking away from its scholarly creativity, lucidity, thoroughness, and, as discussed below, its admirable persistence in pursuit of theory in the face of a countervailing sense of theoretical nihilism or, as Bob Scott put it at our "Contract as Promise" symposium a few years back, "lazy thinking masquerading as theory." (I really should include an emoji right there.)
Thursday, August 07, 2014
"Freedom of Religion and the Freedom of the Church"
Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church." (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.) Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously). Here's a bit:
Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.” However, he continued, “it has again taken center stage.” It seems that it has. Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”
But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?
Wednesday, August 06, 2014
SEALS v. AALS
At the Law Deans on Legal Education Blog, Richard Gershon (Mississippi) compares SEALS and AALS as conferences, identifying the pros and cons of each. Speaking as someone who regularly attends SEALS and has not attended AALS in seven years (mostly because of timing), I agree with pretty much everything he says. I do think his criticism about lost networking opportunities at SEALS because of its length are overstated--many people stay the full week (on their own dime, obviously) and many stay at least four days.
SEALS always has had the air of a boondoggle--professors and their kids playing at a beach resort for a week while purporting to be at an academic conference. But most folks balance time with family and time in the conference. There are some great panels and discussions every year and many of them are as well-attended as AALS panels I've seen (there were about 50 people at a panel on Bickel last year). In reality, people do not go to these conferences for the panels, anyway. So the real difference between SEALS and AALS may be this: When people skip SEALS panels on Amelia Island in August, they do it to play golf or jump in the pool; when they skip AALS panels in New Orleans in January, they do it to get drinks and good food. Make of that what you will.
Posthumous naming rights
Having ended our blogging shiva, I was struck by the question of what to write about to start. It seems odd to go right back to complaining about courts conflating jurisdiction and merits or fans being tossed out of ballparks. I will write a tribute, hopefully as part of a broader on-line celebration. Fortunately, I found something that combines academics, memorials, a bit of humor, and a lot of WTF.
My wife's father was a well-known academic oncologist, who spent his career on the faculty of Johns Hopkins Med School and headed the oncology center there. The tributes that have followed Dan's tragic death echo those that we heard when my father-in-law died in 2007: passionate, energetic, committed, humble, effective leader, supportive and encouraging of junior colleagues.
Last weekend, while whiling time at SEALS, Jen googled her dad. And she discovered the Martin D. Abeloff Laboratory Cancer Research Center in Tbilisi, Georgia (if you read Georgian, let me know what it says). Who knew? It seemed like a nice honor, and JHU did enough internationally that it made some sense; we figured Jen's mother just never mentioned it. Well, it turns out my mother-in-law knew nothing about it, so she called someone at Hopkins. And that person called lawyers, pointing out that no one authorized this or knows anything about this place or what they do--so neither JHU nor the family should want his name attached without knowing more. We will have to keep checking in on these sites and see if/when they remove his name.
And to bring it around to the present: Let this serve as a lesson to any law school that tries to call itself the Dan Markel College of Law.
Tuesday, August 05, 2014
Submission angsting thread, Fall 2014
It has been a semi-annual Prawfs tradition to provide a space for questions, answers, comments, complaints, and general angst about the article submission windows. (Dan spoke, and Matt still speaks, reverently of this as the time of Redyip's semi-annual return).
Either way, the "Fall" submission window is open and angsting may commence.
So, if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Update: the last page of comments is here.
Shiva and Separation
My month of guest blogging in July started with a series of e-mails between Dan and me in which I warned him I was going to be teasing him about his Canadian niceness in the context of certainty. It ended (before Howard's kind offer to stick around for a while) coincidentally with the end of a shiva, the seven days of mourning following a funeral.
If this hasn't been a month of deep reflection, there will never be one. Nothing provokes my most unsettling contemplation more than the loss of someone close to me. (I wasn't an intimate friend, but close enough that I could banter publicly and privately with him, and I am indeed the person who dubbed him the "Johnny Carson of law professors" in a published article that popped up on his Google Scholar alert, and which he called the strangest citation he had ever received.) He was a nuanced and unpredictable thinker, i.e., not one of those people for whom you can expect views on issues X, Y, and Z as a result of a view of issue A. And being Jewish was something central to Dan's life, his personality, and his outlook. So I offer here some reflections (stored up over the last few weeks and provoked by the most dichotomous thing we experience as human beings - life and death) about being smart, being reasoned, being Jewish, and being sufficiently humble, epistemically speaking, to reconsider over and over during the course of one's life those things about which one is certain and one is not.
And as one more tribute to Dan, and consistent with a theme of this post, I'm going place the page separator after this third paragraph. This is something about which those who blogged here knew Dan was unyielding. You may have noticed from time to time that somebody (even Paul Horwitz) would post something very, very long, and shortly thereafter a page break would appear. That was Dan's intervention, and I learned way back in 2006 to control my own destiny by putting it there myself. Hence, continue below the break, and think of Dan when you do.
Guest prawfs, unite
An email and Kelly's comment on my prior post raised two administrative issues.
First, Dan undoubtedly extended guest invitations to people for the coming months (not sure how far in advance he went, but I imagine he had people lined up for this month and next, at the very least). So if you had already agreed to guest-blog at anytime in the remainder of 2014, please email Paul Horwitz and me; we will happily continue with Dan's schedule.
Second, if you are a past guest-prawf and would like to do so again--or even simply write a single post in Dan's honor-- please email Paul and me.
Return to blogging
We remain saddened and stunned by Dan’s tragic death, although buoyed by the overwhelming outpouring of love, respect, and appreciation for everything he achieved in his career and life, including establishing PrawfsBlawg. With that in mind, we wanted to let everyone know that we plan to move forward with PrawfsBlawg and to continue the conversation and community that Dan created. Beginning this week, the remaining permanent bloggers, along with new permanent blogger Sarah Lawsky and the July holdover guests, will resume posting. Thanks to all of you for your support.
As we move forward, we also want to think about the future of PrawfsBlawg and how to both carry forward and build on Dan’s legacy. So we welcome your thoughts, comments, and ideas on how best to continue this community and this dialogue, even in the face of our loss. I should add that you can leave remarks in the comments or email any of the perma bloggers.
Friday, August 01, 2014
The first MarkelFest!, co-sponsored by PrawfsBlawg and CoOp, on Saturday, August 2, from 8:30-? in the Seaglass Lounge (located directly off the lobby of the Omni). Beer and other drinks are $ 1 off and lounge food is on the menu. Come continue Dan's tradition of blog-sponsored conference gatherings.
Florida State College of Law will sponsor a formal memorial for Dan on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Berkeley Memorial to Dan Markel
Yesterday, a few of us got together in Berkeley to remember Dan and share stories about how he touched our lives. Some of us knew him from the Harvard days and some of us later, as a professor, a thinker, and mostly--an amazing organizer and community builder.
We spoke fondly on Dan's immense capacity to befriend and connect people, not out of self-interest, but simply because that's who he was. Several of us mentioned his enthusiasm for Jewish gatherings and his commitment to religious tradition. And we spoke fondly of the way he connected his scholarship with his commitment to values.
Some of us told stories of being new or lost in a new environment and having Dan invite them for a meal, introduce them to friends, network to help them.
Some of us spoke of Dan's openness, honesty and vulnerability, and his ability to find a spark and a connection with anyone he met based on real connection from the heart; and of his willingness to share with his many friendsa nd colleagues not only the successful and shiny moments, but also the dark teatime of the soul.
And some of us spoke of hearing Dan lecture and debating scholarship and current events with him, of his intellectual integrity and commitment to values, his ideas, and his elegant and articulate verbal skills.
Like everyone else who knew Dan, we are shocked and horrified by his violent death, and can scarcely believe someone we knew as a colleague and friend met such a terrible end. But we spoke of wanting to remember the Dan we worked with, collaborated with, and joked around with. To remember Dan in life, and to have that overshadow whatever revelations emerge in the aftermath of his death.
Because, if anything, Dan was very, very much alive. And what is remembered, lives.
Much love and many hugs to all of you.
Monday, July 28, 2014
Bay Area Memorial
Jonathan Simon, Malcolm Feeley, and Ashley Rubin have organized a small Bay Area gathering for Dan's friends at 4:30 p.m., this Wednesday, July 30, at Berkeley Law. You can email Jonathan (firstname.lastname@example.org) or Malcolm (email@example.com) for more details.
First MarkelFest! at SEALS
The first MarkelFest! will be at SEALS this Saturday, August 2, from 8:30-?, in Seaglass Lounge at the Omni Amelia Island Plantation. Drinks and lounge food are available. Continuing Dan's tradition of blog-sponsored conference get-togethers and now under a new moniker, this is co-sponsored by PrawfsBlawg and Concurring Opinions. Seaglass is located directly off the lobby of the hotel.
Come remember Dan with your best tales and stories and continue his beloved tradition of blog-sponsored gatherings. Hope to see everyone there.
FSU Memoral at SEALS
Florida State will sponsor a formal memorial program on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Thursday, July 24, 2014
Rest in Peace, Dan
Our dear friend Dan was to be laid to rest today. All of us here, and so many others elsewhere, send our love to him, and our deepest condolences to his family and loved ones.
As his family has noted, memorial donations may be made to the Crohn's and Colitis Foundation of Canada; to Canadian Magen David Adom; to Shomrei Torah Synagogue; and to Harvard Hillel. If and when further information about donations becomes available to us, we will attempt to provide it in due course. Please be patient with us.
Tuesday, July 22, 2014
Memorials for Dan Markel (Updated)
So much outpouring of affection for our friend.
1) At Brooklyn Law School as we speak (it began around 5:30). It is on the 22d floor of Feil Hall, 205 State Street (building # 3 on this map). Sorry for the late notice; get there if you can.
2) Correction: The informal gathering at Harvard Hillel happened on Wednesday (yesterday). aplogies for the confusion. You can email Jill Goldenziel at "Jill underscore Goldenziel at hks dot harvard dot edu" for further information. Apparently, HLS Dean Martha Minow and the director of Hillel both indicated a desire to do something more formal in the future. Stay tuned.
3) Funeral and shiva in Toronto on Thursday. You can email any of the perma-Prawfs for more details and information on these events and on memorial tributes.
4) Florida State will sponsor a memorial at the upcoming SEALS Conference at Amelia Island on Monday August 4 from 6:15-7:15, right after a discussion group in which Dan was to participate. Precise location will be announced soon. If you plan to attend, please fill out this form.
5) Also at SEALS, will be the first-ever MarkelFest! on Saturday evening, August 2 (Time and Location T/B/D). As you know, blog-sponsored happy hours have been a regular feature at the major prawf conferences, thanks to Dan's energy and organizational skills. Steve Vladeck suggested that all such gatherings should henceforth be known as MarkelFest!(s) and we agreed.
6) Law and Society's Collaborative Research Network # 27 (Punishment and Social Control), will host a panel in Dan's memory on retribution at the 2015 Law & Society Association Annual Meeting in Seattle, May 28-31, 2015. Regular Guestprawf Hadar Aviram is co-chairing the group. Anyone whose work corresponds with Dan's or retributivism and is interested in participating on that panel can send an abstract to Hadar.
We will post information about other local gatherings and memorial efforts as we receive them.
Saturday, July 19, 2014
We Have Lost Our Beloved Friend, Dan Markel
We write this together, all of us, as a community. Our friend Dan Markel has been taken from us, suddenly and terribly. His law school, the Florida State University College of Law, will issue an announcement in due time. We do not have all the details, but our understanding is that Dan was shot and killed. Painful as it is to say that, and as little as we know, the early news reports left enough room for speculation that it seemed necessary to say that much. The terrible, senseless nature of his loss makes it all the harder to bear.
All of us here on Prawfsblawg live in different places and come from different backgrounds. What we have in common, with many others, is Dan. His network of friends and loved ones--and he had a great deal of love for all his many friends, as we did and do for him--is enormous. His boundless energy was at the center of this community; it made it run, it gave it life. We are stunned and bereaved by his loss, and our thoughts go to his two little boys, who were precious to him, and to his family. Many, many people loved him and are grieving today. Baruch dayan emet.
Chokeholds and clearly established rights
This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.
2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).
3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).
Friday, July 18, 2014
Green Bag Call for Papers: Scalia and Garner’s “Reading Law”
Theme: Reading Law: The Interpretation of Legal Texts (2012), by Antonin Scalia and Bryan Garner, was the subject of a notable review by Richard Posner: The Incoherence of Antonin Scalia, New Republic, Aug. 24, 2012. Since then, much commentary on Reading Law has focused on the clash of celebrity lawyers, rather than the content of the book, at the expense of substantive critiques of the sorts that usually appear in serious reviews of a new work. Critiques not only help consumers make choices about what to read, and what to rely on, but also help authors produce better second editions. And we do not doubt that Scalia and Garner will put out Reading Law 2d someday. So, we invite you to pick nits, and motes and beams, in Reading Law. Tell us what is and isn’t worthwhile in it, and tell Scalia and Garner how to do better next time. As part of this symposium, we will be printing the “Hirsch Report” – commissioned by Garner in response to the Posner review – in the Journal of Law, so commentary on Hirsch’s work is also welcome.
Invited topics: Any theoretical, empirical, or practical commentary that will help readers better understand the book – its correctness or incorrectness, the good or bad uses to which it might be put, or anything else useful or interesting. Please do not waste your time or ours on tiresome anti-Scalia/Garner or anti-Posner ax-grinding. Scalia and Garner will have the last word, if they want it.
Length limit: 1,000 words, including title, text, footnotes, and everything else.
Deadline: Finished works must be received at firstname.lastname@example.org by September 1, 2014. No extensions will be granted and no post-deadline tinkering will be permitted.
Selection criteria: We will select works for publication based on how original, interesting, well-researched, well-written, good-spirited, and potentially useful they are.
Marilyn Peters - Lawyer, Leader, Friend, Survivor, Hero
I just got off the phone with my friend (and former law partner) of some thirty-four years running, Marilyn Peters, a partner at Dykema LLC (Detroit, Bloomfield Hills, and the world). Marilyn is married to my friend since 7th grade at Norup Junior High School in Oak Park, Michigan and also Dykema law partner, Alan Greene. Marilyn has been a member of Dykema's management committee, manages its Bloomfield Hills office, and leads its Commercial Litigation Practice Group.
We worked and raised our kids (all about the same age) in parallel, in suburban Detroit houses a couple miles from each other (actually, a little irritating to my wife Alene who on vacations or when dining out had to listen to the other three of us going on and on about Dykema crap).
She was also diagnosed with stage IV stomach cancer earlier this spring and is doing her chemo now. Her blog, "EatChantChemo," is a narrative of friendship, hope, love, survival, and some helpful tips on healthy eating.
Not only is she one of the most alive people I know, she is personally responsible (let's get our priorities straight here) for Michigan's victory (and therefore ensuing national championship) in the 1998 Rose Bowl because she went into the bathroom at our house in Charlevoix just before Michigan started its final drive, Michigan got a first down, and we didn't want to jinx things, so we didn't let her out for something like seven consecutive first downs and the final punt.
Please read the blog and recall Deuteronomy 30:19: "I call heaven and earth to witness against you this day, that I have set before you life and death, the blessing and the curse; therefore choose life, that you may live, you and your seed." Seems to me this is one amazing person's narrative of choosing life.
Since Prof Nancy Leong's request for investigation by the bar of an anonymous lawyer received a good deal of attention on the front end, it's only fair, it seems to me, to note that the lawyer in question reports that the bar decided to "proceed no further" on the matter. I have not seen any formal materials, I should say, including either the request for investigation or the bar's communication; I'm passing on the report but can't verify it. (Except as a matter of custom, I don't think that lawyer has any "right" to anonymity, incidentally, although I think there can be value in online anonymity, in general though not in all cases. In any event, I'm otherwise occupied and not currently inclined to do any detective work.) At least based on what I had read online earlier, I tend to think this is the proper resolution, although I also think and have said that there is a difference between writing anonymously because you have cause for concern that even a fairly, if vehemently, offered opinion may have adverse employment consequences, and writing anonymously because you want to be vulgar, personal, intemperate, and sometimes worse without any professional consequences. As a practical matter, I think there are sometimes good reasons for anonymity, although almost never, if ever, for law professors writing about the law; as a matter of personal honor, I think those who opt for anonymity should be doubly insistent on not saying things they would be, or ought to be, ashamed of saying in their own name. Anonymity, such as it is, should be treated by the anonymous speaker as a protection, not a perverse incentive.
[NOTE: The post reflects a couple of updates, including: 1) referring to a request for investigation rather than a bar complaint; 2) noting that I have not seen the record; and 3) noting that my view is therefore tentative, and based on the rather extensive earlier writing on the subject, including by the principals.]
Thursday, July 17, 2014
Marriage equality in Florida
Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.
Several quick thoughts:
1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.
2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.
3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.
4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?
Kolber on Dichotomies in Law ... And Just Another Few Words on the (False) Dichotomy of Theory and Practice
Apropos of my comments about "dichotomy skepticism," frequent Prawfs guest Adam Kolber (Brooklyn, below left) dropped me a nice note about his recently published California Law Review article Smooth and Bumpy Laws on the same topic. Here's the abstract:
Modest differences in conduct can lead to wildly different legal outcomes. A person deemed slightly negligent when harming another may owe millions of dollars. Had the person been just a bit more cautious, he would owe nothing. Similarly, when self-defense is deemed slightly negligent, a person may spend several years in prison. Had the person been just a bit more cautious, he would have no criminal liability at all. Though the law must draw difficult lines, the lines need not have such startling effects. We can adjust damage awards and the severity of prison sentences anywhere along a spectrum.
A legal input and output have a “smooth” relationship when a gradual change to the input leads to a gradual change to the output. The prior examples are not smooth but “bumpy”: a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all. The law is full of these bumpy relationships that create hard-to-justify discontinuities.
In this Essay, I discuss the relative advantages of smooth and bumpy legal relationships and explain how the choice of an input-output relationship differs from the choice between rules and standards. I argue that smooth relationships will often create less “rounding error” than bumpy relationships by more closely approximating our underlying moral norms.
Adam's approach to this issue is infinitely more practical than my own - the goal of the article is to set forth a template for creating law that does a better job of not being binary where the consequences of actions are not themselve binary but fall on a continuum of harm or fault. It's a terrific piece (with over 400 downloads on SSRN); I'd see Larry Solum's "Highly Recommended," and raise him one "Download It While It's Hot!
Perhaps to beat a dead horse, but below the break I want to return to theorizing about the false dichotomy between practice and theory (NB: it's a horse that doesn't want to die, seeing as how in 1793 Kant published his essay "On the Old Saw 'That May Be Right in Theory But It Won't Work in Practice'", and we're still debating it here).
Wednesday, July 16, 2014
What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision
The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)
Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.
Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:
"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."
"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."
"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts." But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time."
A few points here.
Two (more) op-eds on Hobby Lobby
Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby." Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium. So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again. First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune. Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context. The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration. The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.
Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch. Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece. It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision. If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.
"Something That U Post Instead of Doing Passably Original Sophisticated Thinking," or, a Reprise of "So, A Rough Cartoon Always Says Much"
For some reason the significance of the controversy over refresh rates and their effect on Paul Caron's blog rankings didn't kick in for me until late last night, and all I could think about that EVERYBODY in that thread (at least who wasn't anonymous) was male, and was there some gender significance to the fact that it was only men who seemed to be so concerned about issues of measurement? (I'm not going to throw stones from my glass house; I confess to knowing exactly how hits you will get for "lipshaw % pinosky" under "Secondary Sources/Law Reviews & Journals" in Westlaw Next.)
As usual, Dan Markel got right to the heart of it with this comment: "Of course, since Prawfs doesn't engage in auto-refresh, it suggests further that on Paul's rankings (which should have a Roger Maris type asterisk on the LawProf Network ones), we're totally kicking ass ;-)."
And I thought, "You know, he's right, and I did a post awhile back on one of those blogs whose ass Prawfs is kicking, and I ought to refresh it here where a lot more people will see it." That post had its origins in my friend Joan Heminway's interesting things to say about the private-public distinction in securities law over at Business Law Prof, another Law Prof Network blog whose ass Prawfs is kicking.*
The point there (and again here) was to highlight my usual instinct for avoiding the import of a serious presentation and jumping immediately to the trivial and irrelevant, it having never dawned on me until Joan pointed it out that the Crowdfund Act of 2012 was really the CROWDFUND Act of 2012.
My cartooning skills are not up to what they were in my productive peak thirty-five to forty years ago during my brief stints at the Michigan Daily and the Stanford Law Journal,** but I was inspired to grab a sharp pencil and some paper and sketch the not very funny but unbearably clever cartoon at the left.
* Disclaimer: I am an editor on two blogs, Legal Profession Blog and The Legal Whiteboard, within the Law Professors Blog network, and every couple years Paul Caron sends me a check with which my wife and I can splurge for dinner at a restaurant that makes your keep your silverware for the next course. I have no idea how the refresh rates work.
** This was the student newspaper, not the law review, something I noted on my resume for many years.
Tuesday, July 15, 2014
Weird Al teaches English
And Slate evaluates the rules he espouses in the song. Someone said this could be the new generation's "Conjunction Junction."
Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public
Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.
This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.
The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.
Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.
She identifies two sources of cognitive bias as particularly problematic in the Fourth Amendment context: (1) perception bias, which is the degree of hostility or aggressiveness that a subject attributes to a target varies based on the target’s race; and (2) attention bias, which is the speed with which an observer notices the conduct of a target based on the target’s race. Importantly, African Americans are perceived as more hostile and attract attention more quickly than their white counterparts. Perception and attention bias operate no matter what the race of the observer.
Perception and attention bias have important Fourth-Amendment side-effects: they render officers more inclined to perceive the same equivocal conduct as suspicious when engaged in by African Americans rather than whites.
JOTWELL: Levy on Bray on declaratory judgments
The new essay for JOTWELL's Courts Law comes from Marin Levy (Duke), reviewing Samuel Bray's The Myth of the Mild Declaratory Judgment (Duke L.J.). Sam's article is terrific and both it and the review essay are worth a read.
Intentions, Compliance, and Fiduciary Obligations
This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. “Contractarianism” configures fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.
The paper is available for download here from Cambridge University Press: Download -LEG-S1352325214000032a.
The citation will be as follows: Stephen R. Galoob & Ethan J. Leib, Intentions, Compliance, and Fiduciary Obligations, 20 Legal Theory 106 (2014).
Monday, July 14, 2014
Wechsler vs. Black Will Be the New Black
Based on what I have been reading in the past month or so, allow me to venture a small, perhaps obvious prediction: The next five years, leading up to the sixtieth anniversary or so, will see a cottage industry of articles revisiting, reassessing--and refighting--two classic law review articles: Herbert Wechsler's Toward Neutral Principles of Constitutional Law, and Charles Black's The Lawfulness of the Desegregation Decisions. These will be treatments of a live issue, not just the typical anniversary pieces or historical assessments. And I suspect it will become evident that we have made fewer advances on these issues than is generally assumed.
Practice Experience vs. Scholarly Chops in Legal Academia - False Dichotomy?
Over at Faculty Lounge, Brian Clarke mentioned me (in an kind way) in the process of picking at a particularly popular scab right now - the balance within faculties between practice and scholarship chops. (It's a lot easier to make an extended comment in TypePad than in the comments, and I don't want to hijack Brian's thread, so I'm closing comments here, and invite commenters to head thataway.)
I've written at some length in prequel, full-length feature, and sequel about being a tenure-track or tenured law professor after significantly more practice experience than is the norm. (Think of them as "Rise of 'Retire and Teach'" and "Dawn of 'Retire and Teach'", then decide as between practitioners and academics who gets to be the humans and who gets to be the apes. I have dibs on Caesar, the chimpanzee raised by humans. Do what you want with that metaphor.)
Brian's plea is for balance across the faculty between, on one hand, what Larry Solum described as "the normative turn" in legal scholarship - that mix of theory and interdisciplinarity that critiques rather than merely elucidates doctrine - and, on the other, an orientation toward the real-world practice of law.
I've come to believe more and more that we need to treat analytical dichotomies with a grain of salt. There are zillions of reasons why we have to set arbitrary lines within continuums or family resemblances, particularly in the law (e.g., to be protected as free exercise, something either is or is not religion). But those lines tend not to do a great job of cutting reality at the joints, as it were; hence the Munchausen's (or Agrippa's) Trilemma of casuistry in working back and forth across and resetting thoses lines. Indeed, one of those continuums between practice and scholarship relates to instrumental advocacy, on one hand, versus academic argument, on the other, something I talk about in the Retire and Teach sequel.
But after the fold are some observations in no particular order.
Last year 46 leapt to their deaths from the Golden Gate Bridge. Last month the relevant government district approved a funding plan for a $76 million suicide net.story
Is the net likely to save lives? There are reasons to be skeptical: there are plenty of other places to jump from in and around San Francisco. And there are other ways to commit suicide---firearms being the most common and most deadly.
On the other hand, the research on suicide suggests that the net probably will save some lives.research Most suicide attempts are impulsive. Erecting any hurdle may deter the attempt. No other structure in San Francisco is as attractive as the Golden Gate Bridge, where there have been an estimated 1,600 suicides.story And switching to a gun in California is relatively difficult: there is a 10-day waiting period to purchase a firearm. Most suicidal crises pass more quickly than this.
Sunday, July 13, 2014
Refresh Rates and Traffic Rankings in the Law Prof Blog Network
Blog Emperor Paul Caron has the latest law prof blog traffic rankings up over at TaxProf Blog. If you look over the stats closely, you'll notice that all of the members of his Law Professor Blogs Network are up between 35% and 350% in traffic over the last year, with most of the blogs increasing between 100% and 200%. At the same time, I have noticed my LPBN pages automatically refreshing when I leave the window open.
So I guess I'll lay out my views straightforwardly -- I don't see any real reason to have auto-refresh other than to boost traffic. I suppose that if I wanted to just open up the blog and let the auto-refresh do my work for me, I could be assured of getting the most recent content. But if I leave the window open to a blog, it's often because I am in the midst of working my way through the past blog posts and want to come back to it -- not to have to figure out where I was. It makes viewing a video over time impossible, as well (as Caron himself notes). And if I'm on the page of a particular post, I suppose I might like the refresh to show any new comments -- but that's a pretty niche desire. What's more likely, perhaps, is that a lengthy comment will get "vaporized" by the refresh rates, as this comment thread indicates. (A great post & comment thread, BTW!)
So is the refresh innovation a real improvement in the blogging experience, or just a way to boost traffic?
The risk to catalyzed fans
As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.
This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.
Friday, July 11, 2014
Over-Criminalization and Under-Funded Defense
Last year on this site, I initiated a petition to restore adequate funding for federal criminal defense. That petition garnered signatures from over 200 law professors. The state of affairs remains bleak. My friend and former colleague, David Patton, head of the Federal Defenders of New York, testified today before the House Judiciary Committee’s Over-Criminalization Task Force. Here is a link to his written statement1 and here are two excerpts:
“My office . . . represents indigent federal defendants in the Southern and Eastern Districts of New York. . . . We have a total of 39 lawyers. For those same two districts, there are approximately 300 federal prosecutors in the criminal divisions of the United States Attorney’s Offices. That is a nearly 8 to 1 ratio even though we represent more than a third of all defendants.” (p.7)
“Last year my employees and I took 12 days of unpaid furloughs – more than two weeks of not being paid – pay that will never be recouped. I was also forced to lay off several staff members and leave many positions vacant when others voluntarily left. Our clients and the cause of justice suffered in ways that cannot be measured.” (p.7)
Refereeing, Timekeeping & Floyd v. NY
One of the founders of this blawg has wondered, in private, about the fairness of the soccer timekeeping procedure. In soccer, the referee is the ultimate arbiter of time. The rule that trips up non-soccer aficionados, and perhaps Americans used to a separate timekeeper, is the fact that time is added on after 90 minutes based on delays during the game. The result is the same as in other sports, such as basketball or American football; but the way that soccer goes about it is slightly different—clocks don't publicly stop and start, and a sideline official announces how much "extra time" is added on at the end of each half.
The worry that was raised was one of excessive power. The thought is that, in soccer, there is room to cheat that is not present in public-timekeeping sports. In part, I think this is a cultural phenomenon rather than one specific to soccer. Other team sports, including all the non-American forms of football—rugby football (union and league), association football, Australian Rules Football—and field hockey, cricket, and so on, vest the power to keep time and enforce the timing rules in the same official: the referee/umpire. Where the Americans go for a separation of powers, these other teams do not. So the problem is not that the umpire has a an additional power from a timekeeper, nor that umpire has a different duty (to add on time as delays occur). Rather, the power and duty to keep and enforce time consolidated in same official, rather than separated among different officials, and that power is not open to full public scrutiny.
While separation of powers is a genuine concern, I think the real worry is the lack of publicity, given the consolidation of power in one official. Without the ability to scrutinize timing, the referee's ability to bend the timekeeping rule is greater than in public timekeeping sports. I'll explain how this timekeeping rule implicates Floyd after the jump.
For many years a large chain-link fence has separated a public housing project in New Haven, Connecticut, from a more affluent neighboring town, Hamden. New Haven “discovered that the fence, long assumed to sit on Hamden property, actually was built on land owned by New Haven. That allowed New Haven to tear down the fence without Hamden’s approval.” (NYT, 7/12/14).
But what about adverse possession? One answer is that New Haven has governmental immunity. “A public entity may claim immunity from adverse possession, however, only to the extent that the property against which a claim has been asserted is held for public use.” American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 77, 574 A.2d 796 (1990). Public housing is public use.
Don’t be fooled by the word “use.” In this context, it must mean a purpose, not actual or active use. If New Haven was actually using the land under the fence, Hamden wouldn’t have been able to establish the elements of adverse possession and no governmental immunity would have been necessary.
Thursday, July 10, 2014
Policing Sports: Basketball Referees are Lawless, and Soccer Referees are Lawful
Two of my interests are association football ("soccer") and policing. And I think the former provides some interesting insights into the latter. Soccer, and games in general, encapsulates relatively simple and law-like system of rules. Games are all the more law-like when enforced by referees and umpires. For the most part, the tradition when legal folks talk about umpires is to treat them as judges. I think that is—if not a mistake—then a little simplistic. The role of umpires and referees can be a little tricky, and somewhat culturally specific.
To illustrate the point, consider a phenomenon identified by Mitchell Berman as "temporal variance" in refereeing. The idea of temporal variance is a simple one: "at least some rules of some sports should be enforced less strictly toward the end of close matches." The justification is that "in the final moments, games should be won or lost by the players and not the officials.” The basic idea is that, at the moments when games are most likely to be decided, referees should "just let 'em play" and not insert themselves into the contest.
If you've been following the World Cup, you'll know that (even though valid) "just let 'em play," when stated as a rule of good refereeing practice, is a peculiarly American viewpoint. Both the Ivory Coast and Mexico were eliminated on last-minute penalties, ones that were pretty soft. The effect of enforcing the rules (assuming both penalties were at rightly awarded) was decisive. But, I'm about to argue, in awarding the penalties, the referees were acting more-or-less like judges; in turning a blind eye to these types of infraction, basketball umpires act more-or-less like police (or prosecutors). What's worse, they act like lawless police or prosecutors. What's worst of all, lawyers and judges often encourage the police to take a lawless attitude towards the law.
Wednesday, July 09, 2014
A recent survey found that 29% of Americans could not “name any of the specific rights that are guaranteed by the First Amendment.”survey1 Some concluded from this that “Americans have failed their 2014 civics test.”reaction
Perhaps true for those 29%, but should we care? An April 2013 survey of likely voters found that 99% think the right of free speech is important to them.survey2 It seems Americans know that there is a right to free speech---many just don’t know that its source is the First Amendment.
Knowing about the right but not the source will obviously be good enough if they decide to file a pro se complaint. Alleging a “free speech” violation, or even just the underlying facts, puts everyone on notice that the First Amendment is implicated. “[T]he rules of notice and fact pleading permit a complaint to omit citation to precise legal theories or statutory provisions so long as it alleges facts sufficient to give rise to those theories.” Cardiovascular Surgery of Alexandria, LLC v. Kerry, No. 10-1003, 2011 WL 672244, at *5 (W.D. La. Feb. 17, 2011).
Tuesday, July 08, 2014
A General Counsel's Advice to A Law Firm - Circa 2004
Nothing promotes de-cluttering one's office like a move or new furniture. A colleague is retiring; I bought his table and standup desk, and gave up the humungous thing they gave me when I showed up. It meant tossing lots and lots of stuff I never look at anymore (and goodbye hundreds of reprints - may you recycle into something far more valuable).
I found the notes from a talk I gave in Chicago to a 2004 meeting of the firm then called Piper Rudnick - a combination of Piper Marbury of Baltimore and Rudnick & Wolfe of Chicago soon to absorb Gray Cary, and thereafter to merge with Dibb Lupton of Great Britain to become the behemoth DLA Piper.
At the time I was the general counsel of Great Lakes Chemical Corporation. Piper had done a lot of our work under the various EPA-administered statutes that regulated household and other chemicals - TSCA, RFRA (the one dealing with rodenticides and fungicides, not the one dealing with religion), etc. It had succeeded in securing more work through a "Preferred Provider Program" our terrific Associate GC, Joanne Smith, organized. In Chicago, I was on a panel with the general counsel of AON, a senior lawyer from Boeing, and one other I can't recall now. I do remember it was a big room with a lot of people in the audience.
Ten years later, there isn't much here that I'd change - other than I wouldn't have notes on lined paper but would instead have used the Speeches app on my iPad. A reconstruction of the talk from my notes follows the break.
[Cross-posted at The Legal Whiteboard and Legal Profession Blog.]
Thoughts on Work-Life ImBalance from Those Left Behind
Friends, I suspect many of you recall the world's light dimmed in the aftermath of Andrew "Taz" Taslitz's untimely death earlier this year. Andy made the world brighter through his ebullient spirit, infectious laughter, and tireless work on behalf of improving the criminal justice system and the lawyers thrust into its maw.
Since it's summer time and many readers of the blog are just beginning their teaching careers, I thought I'd share a post of Taz's widow, Patty Sun. This is reproduced with her permission from Facebook:
Determining the effect of video
Just coincidentally, three stories are simultaneously in the news involving potential police misconduct caught on video. The recordings are after the jump (these are partial, although fuller recordings of some are available):
1) A California Highway Patrol officer (Erik Estrada never did this) takes a woman to the ground on the side of the highway.and repeatedly punches her, including in the head. The video was taken by a passing driver. The matter is under investigation.
2) A South Carolina state trooper arrests Sam Montgomery, an NFL player, for driving more than 25 m.p.h. over the speed limit. The officer threatens to TASE Montgomery for not cooperating. This is dashcam video. The trooper was suspended for failing to treat Montgomery with the expected courtesy.
3) A Lafayette, Indiana police officer shoves a man in a wheelchair with two hands, causing the chair to tip over and the man to go sprawling on the sidewalk. The shove occurred after the man rode over the officer's foot while departing an encounter with the officers, who had been called to the scene when the man allegedly told officials at a school that he had a gun. The department sought to fire the officer, but a civil service board reduced the punishment to a 30-day suspension without pay, demotion, and probation. This is dashcam video.
These three stories tell us a few things about video and its role in parsing events.
Monday, July 07, 2014
Last week, New Jersey Governor Chris Christie vetoed a bill that would have reduced the maximum size of a gun magazine from 15 to 10. Christie claimed that it would not have reduced gun violence: “Nor is it sufficient to claim that a ten-round capacity might spare an eleventh victim.”nj.com
But Christie did more than veto the bill. He offered in its place a new standard for involuntary civil commitment of people who may not be deemed dangerous, “but whose mental illness, if untreated, could deteriorate to the point of harm.”nj.com A similar proposed expansion of the civil commitment standard is pending in Congress (H.R. 3717).
The merits and demerits of the magazine size and civil commitment bills are beyond the scope of this post. I want only to observe that expanding civil commitment to prevent violence falls within a long U.S. tradition of preventive detention. Other targets have included Japanese Americans, terrorists, mobsters, and sex offenders.my article Most directly on point, Virginia also broadened its civil commitment standard after the Virginia Tech massacre, but didn’t spend the money needed on beds to give the change any practical effect.
Is Rote and Mindless Legal Practice Our Standard?
Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.
I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.
My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.
Sunday, July 06, 2014
A Football Epiphany About Teaching Transactional Complexity
As the author of the preceding post under my name noted, in recognition of the significant birthday constituting the forty-seventh anniversary of my bar mitzvah, my wife took me up on one of my long-time fantasies and enrolled me in the men's football camp at the University of Michigan. (Note: for those concerned about gender equality, the men's camp, raising money for prostate cancer research, had 73 participants. The women's camp, raising money for breast cancer research, and which followed two days later, had over 500 participants.)
It turned out the most significant aspect of the experience was not my completing a pass in Michigan Stadium while wearing a boot on account of the ruptured achilles tendon incurred in the third drill.
No, as discussed following the break, it was the "aha" moment about my own teaching of transactional complexity that occurred in the first "team meeting."
Saturday, July 05, 2014
EPA's Decentralization of Policy-Making: The Obama Administration varies regulation with citizens' willingness to pay for it
It is probably bad form to brag about one's students, but it is worth a breach of etiquette to publicize their work. With his permission, therefore, I am posting Joe Kolatch's outstanding paper on the EPA's proposed rule on energy utilities' water intake systems, written for my Federalism Seminar. (Download Joe Kolatch 316b Paper) Aside wanting to publicize Joe's work, I want to publicize an interesting example of the EPA's apparently endorsing a theory of decentralization more frequently associated with conservatives -- the idea that the level of environmental regulation should vary with a subnational community's willingness to pay for it. Conservatives sometimes give the Obama Administration guff for alleged command-and-control centralization in environmental regulation. But, as Joe notes, the EPA's proposed section 316(b) rule is an example of environmental federalism for which (if you like that sort of thing -- I do) the Obama Administration deserves some credit.
The EPA's proposed rule implements section 316(b) of the Clean Water Act by setting standards for the "entrainment" of critters by water cooling systems used by energy utilities. Utilities suck up billions of gallons of water from river to cool their machinery, and critters that get sucked up with the water are cooked as they are "entrained" through the pipes. Utilities can avoid such slaughter of river fauna by installing cooling towers with self-contained systems of water -- but the cost of such towers runs into the billions. Do the benefits of saving larvae and small fry justify increasing citizens' electric bills?
EPA's proposed rule says, "it depends on the citizens." According to the EPA's survey of residents' willingness to pay for environmental quality, tastes for environmental protection vary a lot from jurisdiction to jurisdiction, ranging from a high of $2.52 for a percent reduction in critter mortality in the Pacific region to only 75 cents in the Southeast. So the EPA proposes that each state be permitted to conduct their own cost-benefit analysis to strike their own balance between environmental protection and cheaper energy.
This approach to environmental law is music to my federalism-lovin' ears. According to Wallace Oates' Decentralization Thereom, there are big welfare gains to be had from varying regulation to suit the people affected by the rules. Moreover, as Joe notes, any state agency lacking the personnel to crunch the data on local citizen preferences and critter kill rates can either just adopt the blanket "cooling tower" rule (i.e., maximal protection) or ask the EPA for technical assistance: Scale economies in scientific information, therefore, do not require a nationally uniform standard.
Anyway, take a look at Joe's paper -- an admirably succinct, clear, and intelligent summary and analysis of an important but obscure case of environmental federalism.
Thursday, July 03, 2014
Two Kinds of Federalism in Hobby Lobby: Does state corporate law define federal free exercise rights?
As Howard Wasserman and Michael Moreland both note, Hobby Lobby's limits on the ACA and similar legislation will not impede state legislatures from forcing employers to provide benefits to their employees, because Boerne insulates state employment and insurance regulation from RFRA challenges. Michael Moreland in particular notes that such a strategy of giving states more power than the feds to resolve questions of religious liberty might be consistent with an overarching vision of federalism under which the Constitution decentralizes "deeply contested moral questions" to reduce the animosity and gridlock that a national debate would inspire. In effect, Blue States and Red States are each invited to resolve the question of employers' religious autonomy in their own way, subject to some minimum outer constraints on state laws that either unreasonably burden or benefit religious practices.
As I have noted before on this blog, using federalism to decentralize the definition of liberty and equality is an under-appreciated way to give equal concern and respect to opposing sides in the Culture Wars, each of which have plausible views about the scope of constitutional liberty. The blogs and twitter feeds ring with indignation and exultation about Hobby Lobby, as if there were some plainly correct way to define the religious autonomy of private organizations. The truth, however, is that the relevant text of RFRA is semantically vacuous and canons of construction for filling these semantic gaps are contested and conflicting. The invective hurled by each side at the other is more a tribute to the intensity of their convictions than the persuasiveness of their logic: It is a patent fiction to pretend that Congress ever really reached any consensus about the proper scope of employers' religious liberty in RFRA. Absent such a congressional consensus, one might urge a narrow scope for contentious federal statutes like ACA by adopting a broad reading of RFRA and thereby giving each side a chance to test its vision of religious liberty at the state level. Hobby Lobby did not urge any such federalism-based argument for its narrow reading of ACA, but such a federalism canon strikes me as the strongest argument for the result that the majority reached.
But one might reasonably reply that it is easy for me to be gooey-eyed about Hobby Lobby's benefits for federalism, given that I am not nuts about the idea of using mandates on employers to deliver health insurance. Is there any theory of federalism more comforting to the friends of ACA's employer mandate? There might be -- in Hobby Lobby's reliance on states' law of corporations to define proper corporate purposes.
A Return to Substance?
In all the discussion of preparing lawyers for practice, one aspect that is missing is whether we should train lawyers to know the law in a particular area. For some core subjects, American law schools do not produce students who know the law in any deep sense. Would we be better aiming for deep knowledge of core subject areas? Could this be the academy's most genuine contribution to making lawyers "ready for practice" (an amourphous concept at best)?