Sunday, May 01, 2016
I hit a bit of a block at the beginning of the month trying to figure out what to blawg about, which sent me down an unproductive path of trying to figure out the goal or purpose of blawgging. I never figured it out, exactly. But I thank Howard for the opportunity to give it a shot and the community-at-large for engaging with my efforts. Sometimes being a law prawf can be an isolating experience, but it's spots like this that allow us to break out of geographical and subject matter boundaries. I hope to have a chance to do it again sometime.
Friday, April 29, 2016
Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?
The Law of LAWn Signs
A final post of thanks and a quick follow up. First, thank you to Howard and the Prawfsblawg family for the opportunity to share my ideas this month. I look forward to joining you again in 2017.
In an earlier post I mentioned that our LAWn Signs idea had a potential serious legal implication after the Tenth Circuit Court of Appeals decided United States v. Carloss. At issue in Carloss was the impact of an ordinary “No Trespassing” sign on the Fourth Amendment rights of the defendant. In his dissenting opinion, Judge Neil Gorsuch criticized the majority’s position and offered his own version of what an appropriate Fourth Amendment sign might look like. In honor of him, and our larger FourthAmendmentSecurity.com project, Stephen Henderson and I went ahead and made a sign for him. So, if you live within the Tenth Circuit, this sign might actually have constitutional significance.
Complete Junior Law Prawfs FAQs Series
It has been such a pleasure to guestblog at Prawfsblawg this month and to do this Junior Law Prawfs FAQs Series on how to become a voice in one's field. I have learned so much from your comments, your Twitter conversations, and your very thoughtful emails. I appreciate the time the PrawfsBlawg community has taken to crowdsource answers to these frequently asked questions. Based on the emails I've received from other junior (and aspiring) law professors, many others are also grateful.
For ease of reference, here is the complete list of questions (with links) to the frequently asked questions we covered this month:
Thursday, April 28, 2016
Are we more like Argentina or Russia?
A question I have been mulling for a while now is whether the US is likely to make a serious attempt at some point in the future to hold former government officials accountable for sanctioning arguably unlawful interrogation techniques undertaken as part of the “War on Terror.”
The jury trial is dying. Plea bargains resolve approximately 97% of criminal cases in federal courts and 94% of cases in state courts. In civil cases, the percentage of jury trials is even lower. In federal courts, less than 1% of civil cases are resolved before a jury. In state courts, the percentage of jury trials is only slightly higher. Perhaps not coincidentally, citizens have stopped showing up for jury duty. Juror no show rates in some jurisdictions have reached 85%, leading to the postponement of serious criminal cases (including murder trials). Law students can graduate from law school, excel in practice, and become judges without ever having the opportunity to try a case before a jury. As an institution, a civic responsibility, and as part of our legal system, juries remain unloved.
I have expended some scholarly effort to change this reality. I love juries, and it is not just because I have been trying to promote the best book ever written on jury duty – Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (okay, so it is the only book written for jurors on jury duty). But, for several years now I have been trying to make juries relevant. I have written about the George Zimmerman/Trayvon Martin case, I wrote when Charlie Sheen and Donald Trump got jury duty, I have tweeted, facebooked, blogged and littered the comments section of various discussions. I even wrote a national CNN op-ed on the Fourth of July with the audacious title, “What is the Most American Thing You Can Do?” (answer jury duty). But, the reaction of every one of those attempts to recognize this fundamentally democratic and constitutional institution was pretty much nothing. My love was unrequited. I couldn’t even generate outrage. Worse than being hated, I was just ignored.
SEALS Prospective Law Teachers Workshop
Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.
If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at email@example.com. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.
Useful, Relevant Scholarship
Following up on Chris Walker’s discussion of useful, relevant scholarship, I wanted to announce that Professor Ron Wright at Wake Forest Law School has taken over the direction of the Getting Scholarship into Court Project. This project, the brainchild of Jack Chin, Margaret Colgate Love, and myself and supported by a wonderful group of Academic Advisors has partnered with the National Association of Criminal Defense Lawyers (NACDL) to identify legal scholarship that should be read by lawyers and judges involved in actual criminal cases. For several years now the Academic Advisors have selected the “Must Read” articles produced by legal scholars that would be of use to practitioners. Summaries of these articles are published in “The Champion Magazine” and distributed to thousands of NACDL members every month. Ron is now in charge of leading this project into the future.
Wednesday, April 27, 2016
Old injunctions and new statutes
The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.
But does it?
The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).
My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.
Am I Asking the Right Questions? (Jr. Law Prawfs FAQ)
Before turning to this final question, I was going to do one more post (on writing casebooks and treatises) to wrap up the Jr. Law Prawfs FAQ Series for this month. But after Michael Rich's courageous Hard Prawf Choices post earlier this week, I thought I'd skip to the last question I included in my initial post: Am I asking the right questions?
The short answer, I think, is: probably not. Put differently, there are "good," "better," and "best" questions, and these types of questions likely fall in the "better" camp.
Additional thoughts on Heffernan
SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.
A few additional thoughts on the decision and the case after the jump.
Tuesday, April 26, 2016
Rethinking Law Review Podcasts (Jr. Law Prawfs FAQ)
Last week I questioned the value of law review-sponsored podcast programs, predicting that they'd be the next Betamax (as opposed to the next iPad). Based on the comments, Twitter responses, and emails, a line from one of the most ridiculous and ridiculously funny new shows on TV comes to mind: "But what if it wasn't."
In particular, it seems like there are a number of really terrific law podcast series out there, including Oral Argument and The Week in Health Law. These podcast series are not sponsored by law reviews, and seem to have carved out a niche audience with field-specific content. So I'm still skeptical that just generalist law reviews doing podcasts on the diverse articles they publish would be a recipe for success, as you need to build subscriptions and an audience.
Accordingly, if I'm the editor-in-chief of a major law review, I see two main paths forward:
Monday, April 25, 2016
Hard prawf choices
A little less than three years ago, I was diagnosed with metastatic kidney cancer, a disease that does not lend itself to optimistic prognoses. I have been fortunate to be able to continue prawfing since then, but it has changed the way I understand my job and interact with my students and the prawf community.
One of my first challenges was deciding how much of my situation to share with my students. I pride myself on treating my students as much like adults as possible. So, the first semester after my diagnosis, knowing that treatment would interfere with their class schedule, I shared with them the general diagnosis (cancer) and let them know that it would require flexibility on their part. I also reconfirmed my commitment to them to do my best and to be available when I could. That semester was challenging, but the students were incredibly generous and forgiving. Since then, however, I've tended to share less and less with my students. I don't tell them I have cancer. I simply explain cancellations by pointing vaguely to medical necessity. The change didn't came about because I trust these students any less than the others, but because the process of disclosure was hard and I don't want to add my problems to the preexisting stress of law school. Moreover, my current set of treatments are not as disruptive to class schedules as the first ones were. I wonder sometimes if this is right decision -- if I value setting boundaries between myself and my students too much -- but fortunately my students have continued to be flexible and generous.
Another challenge has been whether to disclose my disease broadly. I shared things with close friends, but I didn't go fully public on Facebook for fear of losing professional opportunities. Would folks be hesitant to invite me for speaking gigs if I might not be able to fulfill them? Would schools be uninterested in hiring me? Again, I'll never know if this was the right choice or not. The hiring market hasn't exactly been active in the last three years anyway, and speaking invitations don't overflow my inbox. Obviously, though, I've now changed my mind. My change of heart came about because my priorities have changed. Honesty about an issue that has impacted me personally and professionally now trumps concerns about even short- and medium-term opportunities.
Finally, it's been interesting to change the timeframe of my planning. I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon. In the first year after my diagnosis, I was fortunate enough to get an offer to teach at an excellent school outside of the United States. Because of concerns about my access to experimental medical treatment there, I ultimately made the extremely difficult decision to decline the offer. When I did, I decided to recommit myself to my current institution, not because it's perfect, but because it gave me an opportunity to make an impact. I worked hard on curricular changes at the expense of my own research interests. I do not regret my choice, but I do wonder how things might have panned out if I had put my focus elsewhere. Service, after all, does not give rise to notoriety outside an institution like scholarship does.
Anyway, I share these thoughts, because I've also learned that my life before my diagnosis was actually more unusual that my life since. Before, my life was relatively straightforward and free of complications, but I've come to realize that most lives are complicated, even if the nature of the complications differ greatly from person to person. So perhaps discussing the hard choices that complications forced on me will be useful to someone else.
The Future of Predictive Policing
The Wall Street Journal has an interesting, if reductive debate on the value of predictive policing out today. Is Predictive Policing the Law Enforcement Tactic of the Future? http://www.wsj.com/articles/is-predictive-policing-the-law-enforcement-tactic-of-the-future-1461550190.
I have been writing about the subject for a few years now, exploring first the Fourth Amendment impacts of the technology, and then the larger doctrinal impacts of big data policing. The issues are fascinating will soon be coming to a courtroom near you.
My latest article – Policing Predictive Policing – is just up on SSRN this week. It avoids the binary (good/bad) choice suggested by the WSJ debate, and seeks to situate the predictive policing debate within the work of scholars who have been thinking about predictive technologies for decades now.
For people curious about the issue, the subject of predictive policing will be a topic of discussion at the May 12-13 Penn Law Quattrone Center Symposium. https://www.law.upenn.edu/newsevents/calendar.php#event_id/52170/view/event. It was also a focus of Alvaro Bedoya and Paul Butler’s wonderfully successful Georgetown Law symposium this month on The Color of Surveillance.
Any thoughts on the draft article are welcome.
NOMOS LVI ("American Conservatism") is out
NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented. Get your copy here! My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included. Here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!
Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)
My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.
So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?
As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.
Saturday, April 23, 2016
Body Worn Cameras in NC
I expect a majority of the attention on the North Carolina General Assembly during its upcoming short session will focus on the "will-they-or-won't-they repeal it" drama surrounding House Bill 2, i.e., the bill that folks in the media insist on referring to by the maddeningly reductive moniker, "the bathroom bill." (It's maddeningly reductive because while the bill does enshrine anti-transgender discrimination in law, it also does far more sweeping harm by, for instance, eradicating any state law employment discrimination claims.) But those of us lucky enough to live in North Carolina know that the General Assembly must have more well-considered lawmaking in store for us.
With that in mind, I point you in the direction of a legislative proposal recently made by the Joint Legislative Oversight Committee on Justice and Public Safety Body-Work Camera Subcommittee. It's an interesting proposal on a question I find really challenging: to what extent should body-worn camera (BWC) footage be made available to the public? The main thrust of the bill is that it leaves disclosure up to the "head law enforcement officer" of the law enforcement agency with custody over the footage. Then, if this officer decides against disclosure, then the person seeking disclosure can file suit in NC state court to seek disclosure.
This is a limited victory for transparency with respect to BWC footage, but only because the way existing laws in NC have been interpreted make disclosure unlikely. As it currently stands, most BWC footage would likely be exempt from disclosure either because it is a confidential "personnel record" under NC law or because it falls within the law enforcement record exemption to the NC public records law. So, the proposal at least creates some avenue for disclosure.
But from the standpoint of videos of controversial police-civilian interactions, it's hard to know how the proposed approach would shake out. One thing seems certain, though: given the "squishy" standards that both the head law enforcement officer and courts are supposed to use to determine whether footage will be released, the release decision will likely depend on political expediency and not on any underlying commitment to transparency. As such, the proposal is unlikely to lead to much in the way of fulfillment of the promise of BWC that they will increase the accountability of both police and civilians.
Friday, April 22, 2016
VEEP returns amid constitutional chaos
VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.
I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.
Criminal Law Class Materials Request - Update
Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:
A Criminal Law class-materials requestConsulting the blawg-oracle: I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help. I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics. I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing. As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).Take it away! Revise my syllabus!
What About Podcasts? What About Media Consultations? (Jr. Law Prawfs FAQ)
We already covered Twitter and blogging this week, so I thought I'd finish the week with two somewhat related questions: First, what should we make of this emerging trend among law reviews to do podcasts concerning scholarship they publish and other legal issues? And, second, how do media consultations fit into the scholarly agenda, especially pretenure?
Thursday, April 21, 2016
Rump Courts: An Anniversary
Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).
It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.
I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.
Alta is (still) for skiers
A few years ago, I noted here on Prawfs an equal-protection / "animus" challenge that had been filed against Alta Ski Area's (a/k/a "Heaven on Earth") skiers-only policy. The Tenth Circuit has ruled against "Wasatch Equality" on state-action grounds. Here is the opinion.
The (still) irrepressible myth of Klein
SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.
Wednesday, April 20, 2016
The Trial of Teaching Law
A significant number of law professors are former trial lawyers. Trial lawyering skills if made an intentional part of the teaching method in large, first-year doctrinal classes can improve and enrich the learning experience for students.
This post explores the parallels between the two disciplines/skillsets.
So, Ladies and Gentlemen, here are ten insights on the trial method of teaching law.
Is There Any Reason Not To Be on Twitter? (Jr. Law Prawfs FAQ)
As the framing of the FAQ from Monday and today suggests, I'm somewhat agnostic when it comes to whether law professors should blog. But not when it comes to law professors on Twitter.
First, though, a few follow-up thoughts on blogging: As Will Baude noted in the comments, "the advisability blogging, even more than most of aspects of this series, is going to turn heavily on personal tastes and abilities. Blogging is certainly not *so* important as to be worth a person's spending time on it even if they find it unpleasant and time-consuming." I think that's right, though my attempt at categorizing the types of blogging to include field-specific blogging, practitioner-oriented blogging, and beyond blogging was aimed at suggesting that the pain of law blogging may be even more worth it if your goal is for your scholarship and ideas to reach policymakers, practitioners, and the public more generally. In those circumstances, Orin Kerr's observation may no longer be the case that "blogging is still an extracurricular activity instead of something that is part of the core mission of legal academics." For example, I'm guessing that's not the case for Doug Berman, Paul Caron, Noah Feldman, Rick Hasen, or Steven Davidoff Solomon, or perhaps even for Stephen Bainbridge or Josh Blackman.
With respect to Twitter, however, I'd reframe the FAQ I often get as whether there is any reason for a law professor not to be on Twitter.
Tuesday, April 19, 2016
The obligation of law schools towards law students
A question I have thought about a lot recently is what obligation law schools have to refuse to accept certain applicants on the grounds that they are unlikely to pass the bar exam.
Can An Algorithm Pick a Jury?
Right now millions of dollars are being spent to map the American electorate for political purposes. Both political parties have invested heavily in identifying, targeting, and analyzing individual voters by name, address, party affiliation, interests, causes, and even hobbies. The data game of political get-out-the-vote strategies is as sophisticated as it is creepy (if you care about privacy). If you live in a swing state, your demographics, income, past voting record, not to mention race, gender, and marriage status have been crunched by data companies in what is called micro-targeting. If you are a consumer, private data brokers know your habits, preferences, and tastes. The FTC recently released a Report on Data Brokers that is eye-opening in the extent of personal information available.
This data is obviously valuable to politicians, but what if the data – or any of the information from big data companies – were used for the other political right – jury service. What if courts could pick an algorithmically pure jury pool that actually represented a fair cross section of the jurisdiction?
Such a prospect is technically possible, but is it a good thing? Jury selection is notoriously unrepresentative with regular lawsuits challenging the jury venire as being not an accurate reflection of the community. Jury summons yields have reach embarrassingly low levels. For example, jury summons no show rates have reach 85% in some jurisdictions. The result is unrepresentative jury venires, which do not match the actual demographics of an area. And, for all those who complain about the ineffectiveness of Batson challenges, or the lack of fulsome voir dire in federal court (and some state courts), wouldn’t a big data inspired personal dossier save a lot of time and effort in selecting juries. This is what fancy jury consultants do in big cases with lots of money, why not adopt it as a regular practice. Trial lawyers would know a lot more than what they can observe (race, gender), and have a far better picture of the whole individual before them. Race and gender as rough proxies would be replaced by more sophisticated data inspired insights of big data consumerism.
So, why not let a big data algorithm pick a jury venire and provide targeted personal information about prospective jurors? I attempt to answer these questions in a forthcoming article “The Big Data Jury.” I would love to hear comments.
Bad presidents and fictional schools
I have been listening to WaPo's Presidential podcast, which offers 44 sequential weekly bios of the Presidents, running from the beginning of the year until the election. This week is Buchanan, next week is Lincoln.
But hearing about the forgettable presidents of the nineteenth century, especially in the period between Jackson and Lincoln, got me thinking about TV shows (especially sitcoms) naming fictional schools after presidents who are largely regarded as unsuccessful. Off the top of my head: Welcome Back, Kotter took place at Buchanan HS; Glee took place at McKinley HS; the Brady kids attended Fillmore Junior High; and Girl Meets World takes place at John Quincy Adams Middle School (this is an homage to the original taking place at John Adams HS).
What other examples am I missing?
Monday, April 18, 2016
The Subtle But Serious Flaw in the Supreme Court's Welch Ruling
This morning, to just about no one's surprise, the Supreme Court held in Welch v. United States that its June 2015 decision in Johnson v. United States--invalidating on vagueness grounds the "residual clause" of the Armed Career Criminal Act--is "substantive," and may therefore be retroactively enforced by federal prisoners even through collateral post-conviction review. In English, even for those prisoners whose direct appeals were already over, Welch allows them to pursue relief based upon Johnson, which could mean reduced sentences (and, potentially, immediate release) for hundreds--if not thousands--of federal prisoners. And to its credit, the Court really hustled--handing down the decision just 19 days after argument, presumably with an eye toward the one-year statute of limitations for Johnson-based claims (which runs on June 26). So far, so good.
But as I've blogged about at some length previously (and explained in a short piece in the latest issue of the Federal Sentencing Reporter), the problem Johnson raised in the lower courts had two distinct layers to it: The obvious one (is Johnson retroactive), and the far more subtle one (how can lower courts tell when new Supreme Court rulings like Johnson are retroactive). Whether because of the compressed schedule, the short-handed Court, or a more general disinclination to reach that issue, Welch says absolutely nothing about this second layer--and, in the process, does nothing to avoid the same mess that Johnson produced in the lower courts from recurring in the future.
Fitbits and the Fourth Amendment
I wanted to spend a few posts examining questions arising from my scholarship. Prawfsblawg presents an attractive audience of educated, curious readers to try out ideas. So here is a question that has shaped some of my recent thinking. What is the “smart” data coming from your Fitbit, smart car, smart refrigerator, or smart bandage to the Fourth Amendment? Should it be protected under the Fourth Amendment? Is direct interception of this information a search of “persons, homes, papers, or effects”? Is direct interception a violation of an “expectation of privacy?”
The question matters because if the smart data falls outside of these Fourth Amendment definitions, it can be intercepted by law enforcement without a warrant.
Is Blogging Worth It? (Jr. Law Prawfs FAQ)
The Junior Law Prawfs FAQ series enters its third week. The first week focused on publishing legal scholarship (responses, book reviews, and online law review essays). The second week turned to interacting with peers in one's field, including promoting new scholarship, commenting on others' draft scholarship, and increasing in-person scholarly interactions. This week's line of questions builds on last week's, but concerns interacting within one's field more generally (not just limited to other scholars in the field).
Today's FAQ asks a very common question: Especially as a junior scholar, is blogging worth it?
Sunday, April 17, 2016
Not an infield fly
On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.
[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.
Some comments after the jump.**
[**] (Yes, this is a post about baseball rules--the laws of baseball, if you will--a subject I have been writing about at Prawfs since I started here in 2007. If you do not like baseball or do not want to read about baseball on a law blog, feel free to skip the post.
Laptops in class (again)
For those of you who are keeping (as I am) a file or folder for the increasing number of pieces covering the "laptops in the classroom" issue, here's another item, from Weekend Edition.
Friday, April 15, 2016
Attorneys' Fees and Departmentalism
The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.
Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.
Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.
At Least Two More Cheers for Counter-Clerks
The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."
There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.
None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.
A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach.
After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting.
How Can I Increase In-Person Scholarly Interaction with Limited Resources? (Jr. Law Prawfs FAQ)
In her meta response to this Junior Law Prawfs FAQ series, my colleague Deborah Merritt suggested, among other things, that we should "[r]educe the number of scholarly presentations that require travel." She further explained:
Workshops and conferences are terrific ways to promote scholarly exchange, but we have more than is prudent. These sessions are expensive for schools to host, and frequent faculty travel disrupts class schedules. And let’s not forget the major effect that air travel has on global warming. We could cut scholarly travel modestly, replacing some of it with online interactions. We could prune, moreover, in a way that preserves junior and diverse voices.
Like Howard, I agree with some of Debby's proposals, including encouraging both shorter and online forms of scholarship and balancing our scholarly modes. But I'm just not convinced that the benefits of this less-travel-for-conference proposal justify their costs. In fact, I see in-person scholarly interaction (especially with the senior scholars) as a vital part of developing a voice in one's field.
But, as Debby notes, we live in a world of (perhaps increasingly) limited resources, so such in-person interactions may be becoming less common and more precious. In response to this post I'd love to hear more about how others have leveraged existing resources to create meaningful, in-person scholarly dialogue.
To get us started, here are ten best practices I've seen in my first few years here:
Thursday, April 14, 2016
Remembering Dan at Harvard (Updated for Change of Venue)
Please note the Change of Venue: The entire event, including the Minow/Feldman conversation, will take place at Harvard Hillel, 52 Mt. Auburn Street.
To sign up for Shabbat dinner in memory of Dan Markel, please sign up at http://guestli.st/404715
To make a donation in Dan’s memory, please do so at https://donatenow.networkforgood.org/danmarkel
"Drunk Outlines": Marbury v. Madison
Evolving Scholarly Benchmarks?
Reposting this because for some reason the comments button was off.
I have found the Jr. Law Prawfs FAQ series quite interesting and thought I would add my own question. What is the new normal for pre-tenure scholarly output? How many articles (or equivalent) are required for tenure?
I have co-chaired our Appointments Committee for two years now, and have been able to see the incredible array of talented applicants. The rise of VAPs, Fellowships, and apparently very self-directed law students (who knew they wanted to teach before law school) has meant that many aspiring law professors have written two or more law review articles before going on the teaching market.
So, my question is: Does this early output impact later scholarly output once candidates become full time professors? I would imagine most law schools have not upped their formal tenure requirements in the last ten years, so has there been an informal change/expectation? If the formal tenure and retention standards require three published articles, does that really mean four or five now? Has there been any noticeable change? What should be the new normal? And, before you respond, “it depends on quality, not quantity” and “it depends on the school,” (both are true, no doubt), let’s put some concrete numbers behind it. How many articles did you write before tenure? How many are average pre-tenure at your school? And, we can assume that the quality is up to snuff.
JOTWELL: Lahav on Prescott & Spier on Settlement
The new Courts Law essay comes from Alexandra Lahav (UConn) reviewing J.J. Prescott and Kathryn Spier's A Comprehensive Theory of Settlement (forthcoming N.Y.U. L. Rev.), which offers a broad understanding of settlement within civil litigation.
Aaron Nielson and I just posted to SSRN a draft of our new article, Strategic Immunity, which is forthcoming in the Emory Law Journal. This is the second based on a data set of circuit court decisions dealing with qualified immunity. Aaron did a nice post about the article over at the Yale Journal on Regulation blog earlier this week. The draft is available here, and the first paper is here. Comments are welcome!
And here is the abstract:
Wednesday, April 13, 2016
Jews, politics, and the next generation
I take no position on this opinion about the policy and politics of Bernie Sanders' appointment of Simone Zimmerman, a sharp critic of Israel's West Bank policies and supporter of the BDS movement, as director of Jewish outreach. Instead, let me offer the following:
Update: On Thursday, the campaign suspended Zimmerman, so it could investigate a year-old tweet in which she lambasted Netanyahu, then closed with "Fuck you, Bibi . . ."
1) It strikes me as surprising that the first serious Jewish presidential candidate (let's stipulate that Barry Goldwater no longer self-identified as Jewish) needs a director of Jewish outreach. Did Obama have a director of African-American outreach or Bush a director of Christian outreach? But Sanders' identity has not alone rallied the Jewish vote the way Obama's identity rallied the African-American vote. (Full disclosure: I am supporting Clinton because my desire to win the general election trumps both my religio-ethnic identity and my purest policy preferences).
2) It strikes me as even more odd (if not ironic) that there is a belief that a Sanders presidency would be bad for the Jews. Moreover, it seems entirely because of Sanders' apparent policy preferences with respect to Israel. This reflects what I believe is an unfortunate conflation of Judaism, Israel, and the policies of the Israeli government.
3) Michelle Goldberg's Slate piece argues that hiring Zimmerman reflects a division of policy and politics. It jibes with the preferences of the younger voters, including Jewish voters, who support Sanders and who are likely to oppose the Netanyahu government and its policies. It does not jibe with the preferences of older (and more numerous) Jewish voters, who tend to support Israel's policies, aligning more closely with AIPAC's positions on Israel (even while largely voting Democratic).
The dynamic feels roughly analogous to a similar evolution with respect to Cuba here in Miami. An increasing portion of the younger generations of Cuban-Americans (many of them first- and second-generation) are less hawkish as to Cuba and the Castro regime, and more open to normalizing relations, than their parents and grandparents, many of whom lived and suffered under that regime.
Ferguson's Fault Lines
Ferguson's Fault Lines: The Race Quake That Rocked a Nation, edited by Kimberly Jade Norwood (Wash. U.), has been published by the ABA. I contributed a chapter on body cameras; there also are contributions from a host of legal and non-legal academics. Recommended, as they say.
AALS Recruitment - An International Perspective
I thought I would bring the international perspective to your attention. This year, I attended AALS and made 10 offers....Seven of ten candidates accepted my offers and will start at the University of Surrey Law School from June to September 2016. I also recruited several people from the UK, but found the oversupply of incredible talent at AALS very useful for building up our Law School. We will attend again this year looking again to make several appointments.
Out of the 3 candidates who declined our offers, two decided to chance VAPs in the USA....However, one young star who declined our offer instead took a post in the Economics Department at at the University of Warwick in the UK.
Some of those we hired are listed on our Philosophy and Public Affairs Institute page.
Why bother measuring the gravity of crimes?
In my previous post I argued that the factors used to measure the gravity of the crimes investigated by the International Criminal Court (ICC) could also be used to measure the gravity of crimes investigated and prosecuted in domestic systems and compare them to the crimes investigated by the ICC. The main response I got was something like "ok, but why would we want to do that?" Today, I will try to answer that question.
How Should I Respond to Requests to Read Draft Articles in My Field? (Jr. Law Prawfs FAQ)
A significant part of my first few years on the faculty has consisted of reading articles from scholars in my field. Perhaps in part because I transitioned straight from private practice, I felt way behind when I arrived and took the advice of mentors to spend much of my first year just reading articles in my field -- time that, looking back, was very well spent.
As I started in interact more in my field, however, the requests to read and comment others' drafts started trickling in and now I spend a lot of time reading and commenting drafts. I am guessing I'm not alone here. Although I've gotten faster at reviewing drafts, it still requires a decent chunk of time, and even more to do so well.
That leads to my Jr. Law Prawfs FAQ for today: Especially for junior scholars, how should one respond to requests to read drafts of articles in one's field?
Tuesday, April 12, 2016
Entry Level Hiring: The 2016 Report - Second Call for Information.
This a reminder of the Entry Level Hiring Report.
If you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
(Comments are closed on this post in order to drive comments to the original post.)
April is a happy time. Not simply because the first rays of Spring sunshine are reflecting off my window, but because the gloomy clouds of rejection have floated by with the passing of the February/March submissions season. Every year, I tell myself I am not going to let the rejections get to me. Every year, it seems to turn out pretty well. But, the process of daily rejection, of hourly email obsession, and general grumpiness are as regular as the seasons.
And maybe, just maybe, it is for the best. Being a law professor is easily one of the best law jobs in existence. The work is creative, meaningful, and exciting. The job is respected and respectable. Professors maintain a privileged autonomy and control that cannot be found in many professions. With such an honored place in the world, one might imagine the temptations of egotism, arrogance, and elitism would corrupt us to become full of ourselves (I know…).
Which is why those first dings from 2Ls who have skimmed the abstract of a year and a half of exhaustive legal research are so important. Those rejections remind us of the arbitrariness of life (and success). They are humbling, random, and completely opaque. Yet, those automatic pleasantries referencing the fact that “our article was not selected out of the 3000 articles they receive every year” teach a fundamental lesson: life is unfair, unlucky, and life will continue if you persevere.
It is a lesson I think a lot about when I talk to students. Why does one student get a clerkship and another does not? Why does one get that Fellowship or dream job? Life is not a meritocracy. Sometimes the best student is recognized. But, sometimes something else wins out. Sometimes it is hustle, a well-placed phone call, or a quirky connection. Sometimes it is just a bit of good luck. But, through it all comes a good dose of regular rejection, and then carrying on.
So, I think there is a bit of justice in law professors spending a month facing daily rejection every year. I think it is a good lesson in humility and resilience. Sometimes all the work in the world results in a 7:00 am rejection (thank you Scholastica for providing the option of a fixed time for daily rejection… it helps me brace for the experience), and sometimes you meet your stated goal. The lesson to be learned and later taught is how to face rejection and overcome. How to look into the face of 29 of the top 30 journals rejection emails and say, “I only need one.”
So, next time you check your email (four minutes after the last check) to see if anyone has emailed with an offer of publication and find nothing, or worse the dreaded “the journal has made a decision” email, remember that the world is filled with rejection, but the lesson we should be embracing and teaching is resilience.
Monday, April 11, 2016
Over the last few years, I've taken to writing about emerging tech and criminal law. As a childhood fan of science fiction, it's fun to get to think about technologies that are similar to those I read about as a kid. In particular, I have a blast thinking about how the law will or should handle what I predict will be very-near-future technologies. So, for instance, I've written about algorithms taught through machine learning techniques to identify individuals who are likely to be presently or very recently engaged in criminal activity (e.g., an algorithm that says that that guy on that street corner is probably dealing drugs, or that this on-line sex ad (and whoever posted it) is probably related to human trafficking).
At the time I wrote the piece, there were no algorithms that exactly fit what I describe. There were computer systems that identified individuals in real-time as they engaged in activities that human operators had already decided correlated to criminal activity, and there was research ongoing using machine learning to identify activities that correlate to criminal activity, but no one had put the two together. As I saw it (and perhaps it is the sci-fi fan in me), it was just a matter of time before the two came together to create the kinds of algorithms I discuss.
A source of frustration for me when I presented on the topic, then, was that inevitably one of the first questions I'd get would be whether the technologies I discussed really exist. I'd explain what I just said in the prior paragraph, but nonetheless I'd feel defeated in some sense, like my legitimacy had been undermined. And I can see many reasons for the questions: curiosity, to understand the technology better through an example, and skepticism about the validity of discussing something that doesn't exist, to name a few.
But the questions still bothered me. And they got me thinking: To what extent should we talk about the legal implications of things that we believe are about to happen, but which haven't happened yet and therefore may never happen? What is our obligation as scholars to prove that our predictions are correct before engaging in legal analysis? Is this obligation higher in some areas of law, like criminal procedure, that traditionally have not been consistently forced to adapt to technological developments, and lower in areas of law, like intellectual property, that have?