Tuesday, July 15, 2014
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)?
pleasure doing business with y'all
Thanks to Danny Markel and Paul Horwitz for another guest posting stint at this wonderful blog. It is always a privilege and a reminder of how incredibly fortunate I am to be part of an extraordinary community of law professors, all working hard on important research, teaching and mentoring, and thinking strategically and creatively about how to improve not only our piece of the profession, but the legal profession generally. My hat is forever off to all of you great law profs!
Quick plug for my merry little blog, Word on the Streeterville, http://deansblog.law.northwestern.edu/. There I blog about varia -- Northwestern stuff (of course), research on legal education, the blandishments of Chicago and other interesting places in the world, sports, and my favorite current topic, the ways in which law and legal education is becoming de-siloed and recreating itself as a component part of our multidisciplinary, technologically complex business world.
Legal education scholarship and its coming heyday (?)
"If a were a rich man . . ." as the song goes. There ought to be financial support heading toward legal scholars, within and outside of the academy, who are doing focused analytical work on legal education. We have many bold claims and anecdotes -- I plead guilty for offering both frequently -- but there is emerging only recently a substantial body of research that investigates and interrogates claims about legal education, and in a way that can credibly be called real scholarship, and not just polemics. Some folks explore the utility of different modalities of instruction; others looks at the connection between educational inputs and outputs; and there are those whose focus is principally on the legal profession and the ways in which modern legal education does or does not serve the objectives of modern lawyers.
This is a critical area of analysis which desperately needs more light than heat. The availability of data provided through the internet (and, albeit as an unintended consequence of USNews, a plethora of marketing materials) would seem to provide a treasure trove of information about what law schools are doing. "Soak and poke" can often do the trick; and some databases are in the works, a necessary step to developing a richer body of empirical work in this area. And periodic meetings of constituency groups -- thinking here, especially, of the remarkably vast annual AALS clinicians conference -- provides venues for the dissemination of serious scholarship on legal education.
But we ought not be too Panglossian about these developments. The incentive structure of law schools makes it hard, or at least tricky, for young scholars to map out a research portfolio in the legal education space and be properly rewarded for the effort. Indeed, for those who work seriously in this area, it is (perhaps with a few exceptions) more or less a hobby -- that is, it is what active scholars do in addition to work in their substantive fields. We should ask, self-critically, is there not room in the cathedral for scholars whose central objectives is to devote their principal scholarly attention to questions about legal education? Can promotion and other accoutrements of the academy take seriously law profs who do their primary work on these key questions?
Federalism, RFRA, and Free Exercise in the next Hobby Lobby
Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.
A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.
Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.
Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.
On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.
Wednesday, July 02, 2014
The Maize and Blue Notebook: An Introduction and Thoughts on Certainty a la Wittgenstein
Preface to “The Maize and Blue Notebook”
What we publish here (mainly after the break) belongs to that period in Lipshaw’s life following his decision to participate in the Michigan Men’s Football Experience on June 4-5, his complete rupture of his right Achilles tendon in the third (high knee running) drill on the first day, his decision thereupon to participate in the Big House scrimmage nevertheless (as evidenced at 6:15 of the linked video), surgery under general anesthesia on June 9, and recovery thereafter with a supply of generic Vicodin (the picture below left being one taken in a rare moment of lucidity).
It seemed appropriate to publish this work by itself. It is not a selection; Lipshaw wrote this on several pages of lined foolscap, undated, and left them on a table at Simon’s Coffee House on Mass Ave. near Linnaean Street when he wheeled himself off on his knee scooter to a training session at Karma Yoga the other side of Harvard Square. Coates, Goldberg, and Fried reported seeing him on a bench near Langdell Hall, but I (G.E.M.L.) cannot now recall why I am under such an impression. But there is no doubt that the pages were inserted in an acetate maize and blue cover.
G.E.M. Lipscombe, Cambridge, 02 July 2014
Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez
Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez. In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices. Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not? In Martinez, it seemed to some of us that the "Court shut this key difference from sight."
For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.
Legal automation and law curriculum
Frank Pasquale has provided an extraordinarily thoughtful, informed perspective on the "machine v. lawyers" debate, a topic my Northwestern colleague, John McGinnis, has discussed at length. And, as well, it is a topic of growing interest to folks looking at the future of the legal profession and of dynamic change therein.
As an interested, but much less informed observer, Frank's caution about the "we are all going to be replaced by robots" narrative seems quite right to me. A "more nuanced" perspective, as he aptly puts it, sees the contributions of automated legal services as more limited; and, likewise, sees the comparative and competitive advantage of real lawyers as not supplantable. Good news for lawyers; and, more importantly, sensible news in light of the evidence.
That all said, even the more nuanced view he describes does point to the key role of legal curricula and law teaching to help our law students understand where automation can intersect with human activity -- that is where the calculus is "machine + lawyers" rather than "machines v. lawyers." And, indeed, the courses Frank and a small cadre of other expert lawyers teach at their respective law schools respond to this need well.
My only small contribution here is this: Law schools would do well to formulate curriculur strategies that explore in this "more nuanced" way the dynamics and dimensions of automation and its impact on legal services. The objective is not to convince our students that the sky is falling. Rather, the objective is to help them understand how best to use the products and processes developed through automation and (especially) the contributions of big data in order to prosper as lawyers and to assist clients.
Interestingly, the impact of such processes are likely to be felt at two ends of the spectrum -- wealthy clients and "bet the company" litigation where sophisticated use of automation assists the disaggregation of legal services in order to provide maximum service and, on the other end, service to middle and low-income clients where machine-assisted work can help these clients more efficiently. If this is right, then law profs -- and perhaps especially clinicians -- can structure courses and simulations to assist law students in understanding these techniques and their utility.
Some good news
I'm delighted to point our readers to the direction of the NYT oped page today, where they can find Paul Horwitz's excellent essay on the Hobby-Lobby case and its implications.
I'm also thrilled to note that Rachel Harmon's recent contribution here -- about the Riley case and the fragility of policing knowledge demonstrated by the Court therein -- was selected to be included in a Green Bag/Journal of Law series called The Post (here and here); that series showcases exemplary legal writing from the blogosphere.
Congrats Paul and Rachel!
World Cup Goals
With the elimination yesterday of the United States from the World Cup, it seems appropriate to examine a broader story from the competition: the flurry of goals. In the first round of 16 games at this year’s World Cup 49 goals were scored. Four years ago there were just 25. What accounts for this remarkable increase? There are no doubt many factors, but this post will focus on just one theory: the top players in the world have finally read and internalized my article: “Missing Well: Optimal Targeting of Soccer Shots,” 22 Chance 21 (Fall 2009).
My thesis in that article was that to maximize goals per shot a player should aim the ball halfway between the goalkeeper’s reach and the goalpost. This would generate roughly(!) equal numbers of keeper saves and shots wide. I found support for this hypothesis using player-level data from the U.S. professional league.
If players adjusted their targeting strategy accordingly between the two World Cups: (1) the percentage of shots generating goals should have increased; (2) that increased yield should have accounted for some of the added goals; and (3) the ratio of misses to saves should have moved closer to one.
Let’s take the predictions in order. On number (1), 12% of shots generated goals this year versus 8% in 2010. As to number (2), that increased yield accounted for 7 of the additional goals. The rest of the 17 added goals came from the fact that many more shots were taken: 406 this year versus 317 in 2010.
So there is still some room (7 goals) for my theory to have worked, which brings us to number (3). Unfortunately, the miss-to-save ratio actually increased between from 2.6 in 2010 and to 3.25 in 2014, farther from one. These guys are doing pretty well even without heeding my advice. Go figure!
Tuesday, July 01, 2014
Rotations...and Happy Canada Day
Friends, it's the first of July and therefore a great day for all the Canadians now ruling the American legal empire. Congrats to Sujit, Austen, Trevor, Gillian, et al. It's just sort of shocking that Eduardo's not Canadian in light of his overall sensibility, but perhaps being up in Ithaca now will simply accelerate his asking for what must be his birthright.
Anywhoooo, it's time to welcome back Frederick Vars (Alabama), Jeff Lipshaw (Suffolk) and Eric Miller (LLS) to the conversation for the month of July. Big thanks to all our June contributors, some of whom will linger as they get their last kicks in.
Last, keep your ears and eyes open for there will almost certainly be a Prawfs happy hour coming up at the SEALS conference in Amelia Island the beginning of August. Peace out!
Winning the World Cup was the Worst Thing to Happen to the English. It Won't Be So Bad for Americans.
I hope you're enjoying the game. In celebration of American football fever, and anticipating the Fourth of July, I though I might share a few thoughts on the World Cup.
Jurgen Klinsmann was right. Team America will not win the world cup. Worse, the American Soccer Outlaws new chant, "I believe that we will win," is worse than self-delusion. It fails to understand the spirit of the World Cup. Only 8 teams have won the world cup, and 12 of the 19 tournaments have been won by 3 nations: Brazil, Italy, and Germany. For everyone else, the challenge is not to win, but to do better than they did last time they qualified, or to do better than, on paper, they should. By that standard, the US team has already "won."
It is a slow climb to soccer nirvana, plagued by precipitous falls (Spain). The World Cup spits in the eye of progressives. Few teams make it to the Cup; fewer past the first round (Scotland, one of the two founding nations of international football, never has, despite fielding some world class teams). To demand to win, to expect to win: only three nations have a history at the cup that entitles them to that sort of bravado, and one of them is ignominiously out.
The curse of the English is that, having won a World Cup, they now expect to win every time they enter, and are disappointed every time they fail (to be fair: were it not for Russian intervention, they wouldn't have won in 1966). Every four years, the English subject themselves to the torture and recriminations either for not qualifying (1974, 1978, 1994), or for exiting almost uniformly in the quarter finals. A mediocre fanbase, living out its end of empire fantasies on the world stage, unable to move on. They are the Alexandra Forrests of the soccer world. America, don't let this happen to you! Embrace the World Cup spirit, celebrate the journey, in the knowledge that there really are moral victories despite your team losing (Mexico; Ivory Coast).
Georgia Law Review Symposium on NYT v. Sullivan
The Georgia Law Review held a fine symposium on the fiftieth anniversary of New York Times v. Sullivan, titled "The Press and the Constitution 50 Years After New York Times v. Sullivan." I was sorry not to be there in person but delighted to contribute to it. The issue is now out; alas, I don't think the articles are available on the Law Review's website, but they should be on the usual databases shortly. (Another, equally superb symposium was also published in another law journal; both feature valuable contributions by Sonja West of the University of Georgia.)
Inconsistency About Inconsistency at the End of Term
One of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. An accusation of tu quoque may demonstrate inconsistency, but it doesn’t prove much else.
In that spirit, I’d like to make a tu quoque charge of my own – against Justice Ginsburg.
Hiring Committees 2014-2015
Please share in the comments the following information related to the 2014-2015 law school faculty hiring season:
Additionally, if you would like to share the following information, candidates might find it helpful to know:
I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)
You can't make changes to the spreadsheet directly, so please post the information in the comments, or email me directly, slawsky *at* law *dot* uci *dot* edu.
Additionally, in 2011, someone very kindly submitted a spreadsheet of addresses of a subset of law schools, if folks want to create their own mail-merge. You can download it here. (If anyone wants to update or expand it and send me a new version, that would be awesome.)
Originally posted: July 1, 2014. I will bump this post periodically.
Monday, June 30, 2014
The Strange Bedfellows of Harris v. Quinn
First, this quote from the president of the National Right to Work Foundation is just incorrect:
"We applaud these homecare providers' effort to convince the Supreme Court to strike down this constitutionally-dubious scheme, thus freeing thousands of homecare providers from unwanted union control."
The home health care workers are still subject to the "control" of the agreement between the union and Illinois. They just are exempted from the need to pay dues.
Second, I found this quote to raise some interesting issues:
"We celebrate knowing that Illinois moms linked arms and refused to be bullied," stated lead plaintiff Pam Harris. "Families in Illinois can relax knowing their homes are safe from being a union workplace and there will be no third party intruding into the care we provide our disabled sons and daughters."
Again, the homes will remain a "union workplace" -- she just won't be paying for it. Perhaps more importantly, shouldn't there be a third party intruding into the care she's providing to make sure she's doing a good job? The state is paying Harris to do the job of caring for her son -- it remains free to intrude as much as it likes. If anything, the union "intruded" by being an advocate for the workers against the state. The "union as intruder" meme is a very strange one in this context.
One last point: Harris is being paid by the federal Medicaid program to care for her disabled son. Are some of the people cheering Harris's victory the same ones fighting tooth and nail against Medicaid expansion?
UPDATE: And one more point, from Paul Secunda: The three named plaintiffs who were in the bargaining unit were Theresa Riffey, Susan Watts, and Stephanie Yencer-Price. (Slip Op. at 7) Watts, like Harris, cares for her own child. Harris was a member of a different unit -- one that had not voted in favor of unionization. The Court agreed with the Seventh Circuit that their claims were not ripe. (Id. at 39 n.30) So Harris never even felt the "union intrusion" in the first place.
Two Options for Illinois After Harris v. Quinn
Although the pundits were right that Justice Alito penned the majority decision for Harris v. Quinn, the assumption (that I shared) about a broad opinion was incorrect. Yes, the opinion attacks Abood, but in a passive-aggressive way: it criticizes the decision for a whole section while ultimately only failing to extend it to "partial" public employees. My guess is that Abood is largely safe but may be chiseled away at over time. Of course, Abood is not safe as to the home health care workers, since the Court ruled that the First Amendment prevented the state from agreeing to any form of mandatory dues as to those workers.
The home health care workers will presumably remain unionized; the only change is that workers like the petitioners in this case will choose not to pay any dues. How many more will join them is an open question. But the free-rider problem may make it difficult for the union to maintain its level of services to all the employees in the unit. If Illinois wants to provide an economic model for unionization that is something akin to the now-unconstitutonal system, here are two possibilities:
- Make all home health care workers into full Illinois state employees. Despite all the hostility towards Abood, the Court's decision rests solely on the home health care workers status as partial state employees. And from the outside, it is a strange distinction: the state looked like it was trying to have its cake and eat it too. Now that the Court is forcing the state to choose, it could choose to make all home health care workers into state employees. What would change? The state would have to take away some of the control that the customer currently has and place that with the state. This move has independent benefits: since the government is paying for the services, the government shoud arguably exercise more control and oversight over those services. People like the petitioners in this case--people who are paid to care for their own loved ones--will likely not like this move. But they are in a strange position to begin with: Pamela Harris, for example, is employed by her son, for whom I would imagine she is at least one of his guardians. If the putative employer--the care-requiring customer--is often not in a position to exercise oversight of the employee, the state should arguably step in and provide more oversight.
- Allow for members-only bargaining. Caregivers like Pamela Harris only receive the benefits of the union-negotiated terms and conditions of employment because the state requires the union to represent all the employees in the bargaining unit. Illinois could lift this requirement and only apply the collective bargaining agreement to the actual members of the union. Such an approach to unionization would be a real anomaly in the U.S., which is premised in the public and private sector on exclusive representation. But if certain workers do not want to bear the costs of organizing, then they should be free from its fruits as well. Since members-only bargaining fits better with a consumerist, free-to-choose philosophy that runs pretty strongly in this country, you may see more experimentation with that model. This group of workers would be a logical place to start.
There may be state or federal issues with either of these choices; I do not know, for example, whether the state could legally reimburse the home care workers differently depending on whether they joined the union or not. But there is a fair amount of flexibility in public-sector labor law, and it will be interesting to see what new approaches states develop in the face of Harris.
Holy Hobby: Two Grim Hobby Lobby Thoughts
Today's odious decision will probably yield lots of interesting commentary from constitutional law experts. I only have two thoughts about this, and they both come from a fairly personal place.
In December I will become eligible for a U.S. citizenship, and this year has been a time of self-inquiry and internal deliberation whether to pursue it. While I think it's better to choose something for its merits, and not for the shortcomings of the alternative, I constantly find myself drawing comparisons between the Old Country and the New Country. What complicates this is that my experiences of the old Country are muddled by nostalgic harkening to a welfare-state past that never was, even in Israel. And this morning is particularly grim, because it reminds me of two things that horrify me in present-day Israel (beyond the obvious): the increasingly messianic kowtowing to Ultra-Orthodox reactionaries and the complete and total collapse of the welfare state. I would not leave any of those things behind by choosing to make the United States my permanent home.
The latter, in Israel, is a direct consequence of copying the United States. Netanyahu has pushed and advocated for fiscal policy that disenfranchises the poor, impoverishes the middle class, and sells the country wholesale to tycoons, mafiosos, or both. The free-market ideology that drives these policies, which also drove thousands of my friends to the streets in 2011, is a direct import from the United States. The deception involved in the idea of an entirely unregulated free market is infuriating, and today's decision is a case in point. In a strong economy with less inequality and stratification, in which employees have more bargaining power, even without a reasonable, progressive single-payer health policy, this horrific decision could push people to vote with their feet and not work for employers who impose their cryptofascism through denial of health benefits. But in this economy, what choice do employees have?
But as to the former--the insidious creep of religious interests into daily civic life--while both Israel and the United States mix church and state in unsavory ways, they do so in very different ways. Most of Israel's population is secular; the government is comprised of primarily secular people. But the multi-party system means that religious parties hold an immense amount of bargaining power. This is why, for 65 years, Ultra-Orthodox men have not served in the army (we'll see how the change is effected); this is why, as we were reminded only yesterday, Israel does not offer public transit on Saturdays; and this is why outrageous acts of marginalization against women occur in an alarming frequency. Religion intrudes on a secular Israeli's life on a daily basis.
But there are ways in which the religious creep into daily life in America is more insidious. Because here, when we can imagine variations in the gender or color of the president, one cannot even imagine a president who will calmly say he is not religious and does not attend a church. Even with a reported decline in religious identification, an astounding four-fifths of Americans still identify as religious. The atheists I meet here are angrier and more militant than anywhere else in the Western world - for good reason: they are the minority. While in Israel religious people are visibly "otherized" via their apparel or appearance, in the United States those distinctions are more difficult to draw, making public conversation about religion difficult and confusing. And yes, that means that the idea that an employer (human, corporate, you name it) would bring his or her religious beliefs into the business becomes less unthinkable and, after this morning's decision, entirely sayable.
People will be writing today about single-payer insurance, and about corporate personhood, and about overturning Citizens United, and about contraception and health, and those will all be important conversations. For me, personally, this morning is a grim reminder that rampant, soulless capitalism run amok and blind respect for freedom of religion at all costs are as unpalatable and dangerous here as they are in the Old Country.
This is a rather grim farewell post from Prawfs, I concede, but my month is up. Thank you, Dan, for hosting, and to all of you, for reading and commenting.
Catalyzing Miami Heat fans
LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.
This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.
Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.
Sunday, June 29, 2014
Principles and political preferences in the First Amendment
Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.
Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.
In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.
Looking Ahead to Harris v. Quinn
Only two Supreme Court cases remain to be decided this term: Hobby Lobby and Harris v. Quinn. Based on a breakdown of the authors of opinions thus far this term, Amy Howe at SCOTUSblog believes that "Justice Alito, who has not yet written a decision from January, will be writing in Harris." As kind of a pre-cap to the ruling, here are some quick thoughts on what an Alito opinion in Harris might mean:
- First, check out Charlotte Garden's discussion of Justice Alito's questions in oral argument and his majority opinion in Knox v. SEIU Local 1000 to get a sense of why unions are worried about an Alito opinion.
- Not to be too cynical about the ordering of opinions, but the coverage of Hobby Lobby is likely to hide Harris under its shadow. If Harris is as revolutionary as some folks fear/hope, it would make sense to give it some political cover.
- The most sweeping version of the opinion would likely prohibit states from signing on to any agreements that require their public employees to pay any level of funds to a union. Knox clearly hinted at such, saying that mandatory dues were "an anomaly" that the Court had "tolerated" but perhaps for not much longer. This change would be a big financial blow to unions, as it would allow any employee to opt out of any payments to the union. But I have not seen many folks talk about the next step if public jurisdictions were required to be "right to work." Namely: would some states then relax the duty of fair representation requirements on unions, and/or allow for members-only bargaining? Under our current system, everyone in a "fair share" jurisdiction has to pay at least bargaining costs because they are all represented by the union. But states could change their own public labor laws and provide that a union need only represent those employees that are members. The NLRA requires unions to represent everyone in the bargaining unit, but there is no federal "public NLRA" governing state and local employees. So states could say, "We will only bargain with the union as to those employees who are in the union. Whatever benefits the union secures will only go to union-member employees." Will states actually want to do this? I'm not sure -- it would be messy. But if states want to provide their employees with the opportunity to unionize, a members-only system would certainly be more economically sustainable than a system allowing employees to free-ride off union negotiations.
- A decision prohibiting agency-fee agreements would be a blow to federalism. The individual states pursue a variety of different labor-relations regimes based on their own statutory and agency HR approaches. States should be free to arrange these relationships within historically acceptable models of employee-management relations. Jutsice Powell's dissent in Garcia v. San Antonio Metropolitan Transit Authority argued that state and local services such as “fire prevention, police protection, sanitation,and public health” are “activities that epitomize the concerns of local, democratic self-government." Public employees provide these services. States should be able to provide for a majoritarian system of employee representation that requires some minimal level of payment for the negotiation services that the union provides. But if they are denied this opportunity, do not be surprised to see a variety of new and different models being proposed and enacted at statehouses across the country -- models that may require employees to actually join the union if they want the benefits that the union provides. So perhaps the ultimate result of a "right to work" opinion would be that employees will feel more of an economic compulsion to join the union (and pay full dues) than they did when they could refrain from joining the union but still enjoy the fruits of representation.
Friday, June 27, 2014
The Supreme Court Reads Law Reviews
Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it's worth noting how frequently recent Supreme Court opinions have been drawing on law reviews -- and I'm not just talking about yesterday's cite to a certain Professor Elena Kagan.
From Posner's recent long and fascinating interview:
"I've changed my views a lot over the years. I'm much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason, published in 1992, which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. I've become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn. That shook some of my faith in economic analysis. And developments in psychology have required qualification of the "rational choice" model of economic behavior. So my views have changed a lot. You don't want a judge who takes a position and feels committed to it because he thinks it's terrible to change one's mind."
I remember Posner's Holmes' lectures at HLS a bazillion years ago, when he suggested that it's not likely that philosophers will be able to change the moral positions of many people who read their work. I'm wondering if in light of the identified changes above, he would change his mind about *that* and attribute any of the changes to having been persuaded by normative legal/political theory--maybe having Martha Nussbaum as his friend and colleague has had some effect too. Anyway, it's an interesting array of things to have changed one's mind about, and I guess the fact that Posner changes his mind publicly is a reason I quite like him. One of my intellectual heroes, Jeffrie Murphy, made a noble career out of changing his mind, seemingly every six months, about matters of punishment theory. Posner's public volte-face (or other admissions) strikes me as the self-laceration we academics should all be willing to inflict when the situation warrants.
P.S. In related Posner-watching, I couldn't help but notice his reaction in Slate to Orin and by extension to Riley v. California, which amounts basically to: "Pfft. What's the BFD? I wrote that opinion two years ago."
Update: I just came across this sharp response to the Posner piece in Slate by Will Baude.
Harmon on the fragility of knowledge in the Riley (cellphone and 4A) case
Prof. Rachel Harmon from UVA had an interesting post to the crimprof listserv that I thought warranted broader exposure, so with her permission I'm sharing it. (Rachel asked to also thank UVA law librarian Kent Olson for his help with the underlying research).
In light of the likely significance of the Court's opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.” Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support.
Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up. LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.” But that sentence has appeared unchanged since the first edition of the treatise in 1978. And LaFave’s support for the proposition is itself pathetic. It comes in a footnote which reads: “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).”
Because I’m crazy, I pulled Taylor and the Model Code too.
Cultural Thoughts about McCullen
I've now finished reading McCullen. I should preface this by saying I'm not a free speech expert (and am actually not all that interested in the doctrinal minutiae). My perspective on this comes from having lived in other cultures for most of my life and being somewhat of an outside observer of American culture, even after more than a decade here.
Coming from a culture that regulates speech more strictly, I'm often aghast at the concessions American constitutional law makes for people with hateful, non-world-improving speech, as well as with its broad definition of "speech". But I think the legal culture here is just different.
I say "legal" culture because, ironically, where I came from there may be less doctrinal legal protection in the books, but there's a lot more street confrontation in action. It's not always fun, but it's not necessarily a bad thing. I confess that, having lived here for a while, my instinct upon hearing the decision, like that of many of my friends, was to say, "well, yes, there's a right to free speech, but there's no right to have a captive audience for my speech." But I've realized another thing about American culture that pertains specifically to the audience of such speech: compared to other places in the world where I've lived, the US is very nonconfrontational. With the obvious exception of the Internet, people here tend to abide by "if you don't have anything nice to say, don't say it at all" and "be nonjudgmental" more than in other countries. There's something ironic about this avoidance and non-confrontational practices in a country whose speech doctrine is so expansive. You can talk, but because of the way things really are, you'll likely talk to the void. Because of this culture of avoidance, I often notice that my students find it really difficult to listen, in class, to opinions they dislike, and they later show up at my office traumatized by what they heard. Obviously, personal taste and confirmation bias make it an unpleasant experience for us to hear things that we disagree with, but in the long run, avoiding these conflicting messages isn't good for us, either. It makes us less engaged in the public sphere and it really limits the fruitful interactions we could have if we deigned to speak more with people with whom we disagree. Granted, there's a big difference between hearing this message when I'm going about my daily life and hearing it when I'm about to undergo a physically painful, emotionally difficult medical procedure that will irrevocably alter the course of my life after a making decision I've likely agonized about. But I suspect that, in the grand scheme of things, less trigger alerts, less protections, and less buffers will make us stronger people. There's a way in which free speech works for the audience as well as for the speaker--it expands our horizons beyond our comfort zone and makes us into better social citizens.
Two book recommendations McCullen readers might appreciate, both of which are very sensitive to the broader political and cultural context:
Josh Wilson, The Street Politics of Abortion
Laura Beth Nielsen, License to Harass
Acknowledgement Fun - Klum Mit Gornisht
Here in Tel-Aviv, brunching with my life scientists girlfriends at my beloved port, I hear lots of fun stories from their part of the campus. This morning they shared with me a piercing acknowledgement in a paper published in the prestigious journal Gene:
Dan Graur wishes to thank the ‘‘Klum mit Gurnisht’’ Section of the Israel Science Foundation for their consistent support in the last 17 years.
The original Yiddish expression is of course Gurnisht mit Gurnisht (nothing with nothing) but here the Hebrew word for nothing makes up the first part of the phrase. Another story going viral in their academic circles these days: a huge blow-up between two PIs has led one of them to remove the other's name as a co-author from their joint article and replace it with the name of one of the Chimps in her lab for submission to the peer-reviewed journal.
Thursday, June 26, 2014
Is there such a thing as "experiential" scholarship? I asked this question to some of my colleagues during a recent lunch. I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like. I was curious if others thought there was any correlation.
After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends." The discussion boiled down to three observations:
Brishen Rogers has a great, long post at CoOp considering why soccer (or futbol, if you like) never caught on in the United States. He somewhat piggybacks on David Post's VC post from last week.I was always actively antipathetic towards soccer, partly because I did not understand how the overall game worked (beyond "kick the ball in the goal" and "stop using your hands"). I started watching more in recent years, when my daughter took up the game for a few years, and I have to admit to feeling pretty down on Sunday night. I also knew we were not going to beat Germany (although that may be the pessimism that comes with being a Cubs and Northwestern fan).
I like a lot about what Rogers and Post propose; I'll add a few additional points in the gaps.
First, I want to defend the "too little scoring" explanation for soccer's relative unpopularity. The counter to that (which Rogers offers) has always been "look at baseball," which can be just as low-scoring as soccer (especially now that fewer players are juicing). But we need to tweak the comparison by recognizing the differences between soccer and baseball. Even the lowest-scoring baseball game involves a series of one-on-one encounters between pitcher and batter, each of which has a "winner" (batter gets on base or batter is out) and each of which marks a step towards the ultimate result and the ultimate victor in the game; the winner of the game is based on the sum total of those individual encounters. More importantly, baseball is untimed--the point of the game is to score the greatest number of runs within the 27 outs each side is given. So each team has two simultaneous goals--to both score some runs and to get the needed 27 outs in order to win. So we should not say "well, baseball and soccer both have a lot of 2-1 games," because that 2-1 baseball game also had the 27 outs the team needed to win the game resulting from those individual encounters. Relatedly, do not ignore the effect of ties. In baseball, the aggregate of those individual encounters--and getting both runs and outs--is guaranteed to get us to a victor.
McCullen and intermediate scrutiny
The Court in McCullen v. Coakley invalidated Massachusetts' 35-foot buffer zone around abortion clinics. The Court was unanimous in the judgment, but not in the reasoning--the Chief (surprisingly, sans pithy quips) wrote for the Court; Justice Scalia concurred (angily) in the judgment, joined by Justices Kennedy and Thomas; and Justice Alito separately concurred in the judgment.
The point of departure was whether the buffer zone was a content-based restriction subject to strict scrutiny or whether it was content-neutral subject only to intermediate scrutiny. The majority held the latter, because on its face the legislature was concerned with public safety, patient access to clinics, and the unobstructed use of public sidewalks and roadways, none of which have anything to do with the content of the (anti-abortion) speech regulated; the majority did not rely on the rationale from Hill v. Colorado of a state interest in protecting clinic patients from having to deal with unwanted speech. Justice Scalia insisted the law was content-based, largely for the reasons he insisted the buffer zone upheld in Hill was content-based (Scalia is still fighting that case rhetorically). The law did not survive intermediate scrutiny, because there were alternative ways to ensure safety and access that would have been less speech-restrictive.
Wednesday, June 25, 2014
Standing and defendants
In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action. (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).
Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.
In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).
But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.
So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.
SCOTUS: No Cellphone Search Without Warrant
Chief Justice Robert's Op. Ct. analyzed phone searches in the context of the Search Incident to Arrest exception to the warrant requirement, comparing a phone search to a search inside a pack of cigarettes in Robinson. Robinson, you'll recall, extended the Chimel doctrine to all containers within the "grabbing area" of the suspect. But given the newness of the technology, which the framers (duh) could not anticipate, the court thankfully is unable to find "guidance from the founding era" and turns to reason and pragmatics.