Friday, May 04, 2018

The best employment outcomes for law students

Law schools disclose somewhat granular employment statistics to the American Bar Association as a result of increased and improved transparency efforts in the last decade. Over at my blog, I've looked at region-specific figures, the overall market, and industry-specific outcomes. (In short, things are looking up this year!)

But after churning through these figures for several years, I realize that we (the writ-large legal academy) make a number of assumptions about these outcomes. These assumptions are heavily influenced by what USNWR does, what "scam bloggers" and "transparency" advocates endorse (ed.: guilty of scare-quoting...), and even by the very ABA forms themselves. When I aggregate the data, I expressly qualify that I'm making some assumptions based on what USNWR does, as it's one of the more generally-accepted practices: give "full weight" to jobs that are full-time, long-term, and are bar passage-required or J.D.-advantage; give some less weight to school-funded positions in those categories; and heavily discount (and others would outright ignore) all other outcomes.

There are raging debates about each of these categories as we try to figure out whether students have "good" or the "best" employment outcomes. Are J.D.-advantage jobs really equivalent to bar passage-required jobs? (Answer: it depends, but certainly not perfectly equivalent.) Should full-time school-funded jobs be discounted? (Answer: maybe the status of these positions has changed over the last few years, and we could use more information.)

But the one nagging question is one that's unanswerable from these debate (which, in my view, have huge amounts of uncertainty!). Instead, I think the most salient question to address the question of whether law students are graduating with the best employment outcomes. And that's a question that looks like this: "Are you satisfied with your employment outcome?"

There are huge problems with this question. Students can have dramatically unrealistic expectations. We know from survey data that a lot of entry-level attorneys are often already looking for their next job, some of them because they viewed the first job as a stepping stone, but others assuredly because of disappointment. Region, salary, debt loans, class rank--lots of things can factor into satisfaction.

Still, shouldn't we be asking this question of our graduates? If a student want to work part time, or has a dream professional (non-J.D.-advantage), or is happily enrolled in a PhD program, we'd like to know that. And if a student is in a 3-person law firm with the credentials that suggest the student has been "underplaced," we'd like to know that, too.

Perhaps schools are already internally asking these questions. Perhaps the huge problems are insurmountable, and it'd just be one more data point that only creates more questions rather than illuminates anything of too much value. Nevertheless, given that many of our other assumption of "good" or "best" employment outcomes seem to assume graduate satisfaction, perhaps there are better--if not outright direct--ways of determining that.

Posted by Derek Muller on May 4, 2018 at 12:09 PM in Life of Law Schools | Permalink | Comments (3)

Reply to Galoob's "Kolber's Teaser"

In PMR, I argued that retributivists need to believe at least nine propositions in order to inflict just punishment on a particular offender. Reasonable retributivists, I claimed, will have some doubts about each proposition, and they should multiply levels of confidence in each proposition to determine confidence in the nine-proposition conjunction.

In Kolber's Teaser, Stephen Galoob presents two main challenges. First, he argues that the nine retributivist propositions I address are not independent of each other, hence we cannot multiply probabilities to determine confidence in the conjunction. (Larry Solum, as Galoob mentions, made a similar critique.) Galoob notes, for example, that if one proposition is "The Patriots win the Super Bowl this year," and another is that "Patriots quarterback Tom Brady is named Super Bowl MVP this year," we cannot simply take the probability of each and multiply them. The reason is that the probability of these events are dependent on each other. If the Patriots win the Super Bowl, the chances Brady is named MVP increase substantially.

The short answer is that I don't make the mistake Galoob identifies. I ask for confidence in proposition #1, but when I ask about the next matter, I ask for the reader's confidence in the matter given the truth of proposition #1. For the third matter, I ask for the reader's confidence in that matter given the truth of #1 and #2, and so on for all nine propositions. Here's the math on conditional probability that makes that appropriate: "If events A and B are not independent, then . . . the probability that both events occur . . . is defined by P(A and B) = P(A)P(B|A) [where P(B|A) means the probability of B given A]." Back to football, there would be no error in saying that the probability that both the Patriots win and Brady is named Superbowl MVP is calculated by multiplying the probability the Patriots win the Super Bowl times the probability that "Tom Brady is named MVP given that the Patriots win the Super Bowl."

So the short answer is that there is no mathematical error. I'm sensitive in the paper, though, to the concern that underlies both Galoob and Solum's commentaries. Here's how I would put it: "Ok, Kolber, you can satisfy the mathematicians this way. But can we really assess the probability of, say, "wrongdoing warrants suffering given that we have the sort of free will required for moral responsibility"? Admittedly, this is challenging. There's no question that the probabilities I ask for are hard to assess, and they are probably made harder when you have to do so in a conditional way. But: (1) The substance of the matters underlying the propositions are clearly somewhat independent. You can believe we have free will but not think that wrongdoing warrants suffering. The independence of many of the other underlying matters are even clearer than for these two; and  (2) The task here is not addressed to laypeople but to retributivist theorists. They claim to have a justification of punishment. It seems reasonable to ask theorists who claim to justify punishment of individual offenders how confident they are in that claim. If they can't answer the question, at least in some approximate sort of way, then that's a serious demerit of retributivism. 

I respond to Galoob's second point after the jump.

Continue reading "Reply to Galoob's "Kolber's Teaser""

Posted by Adam Kolber on May 4, 2018 at 11:25 AM | Permalink | Comments (3)

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

"Portfolios of Beliefs" in Torts and Beyond

In PMR, I argue that our legal practices may best be described not by our beliefs in a particular legal theory but rather by the combination of beliefs we hold to varying degrees. I call these combinations "portfolios of beliefs." I focus on how these portfolios might better describe certain views about punishment and might even offer normatively appealing new options. In this post, I focus on some possible applications of portfolios of beliefs outside the criminal law, most of which are discussed in an appendix from which the following is adapted (with footnotes omitted):

There are many big debates in legal theory: Is tort law supposed to provide corrective justice or incentivize safety? Is contract law about fulfilling promises or promoting efficient economic activity? Should we interpret statutes based only on their plain meaning or consider the intentions of legislators? Should constitutions be understood in terms of their original meaning or can their meaning change over time? As with punishment theory, these questions can be addressed with portfolios of beliefs. A tort theorist might be “60% corrective justice-oriented, 40% deterrence-oriented,” and a constitutional law theorist might be “50% textualist, 50% purposivist.” Just as one can hold shares of different companies in an investment portfolio, one can hold different beliefs in varying proportions in a portfolio of beliefs. And just as stocks in an investment portfolio interact in ways that can increase or decrease total risk, so too can the constituents of a portfolio of beliefs.

In PMR, I suggested, retributivism alone might be impotent to punish but capable of doing so with a consequentialist backstop. In other words, our backup beliefs should sometimes influence our overall policy preferences. In criminal law, courts and legislatures frequently repeat their commitment to both retributivist and consequentialist goals—even though they conflict. Similar patterns of conflict are glossed over by other legal doctrines. Often, no single theory adequately captures our intuitions. At least sometimes, our  conflicting impulses can be explained by conscious or unconscious attempts to manage uncertainty. And at least sometimes, decision-making that reflects uncertainty will be superior to decision-making that blindly disregards it.

I will briefly mention three of many ways in which portfolios of beliefs could help us understand tort law. The first concerns the ultimate goal or goals of tort law. Some would say tort law should compensate wrongful injuries, some it should deter dangerous behavior, and some it should serve as a form of insurance. Some would pluralistically choose all or a subset of these goals. Each
approach advocates a different legal regime. Portfolio approaches yield still further options that have largely been unexplored. A person who is 70% confident tort law should solely concern compensation and 30% confident it should solely concern optimal deterrence may advocate different results than a pluralist who seeks tort awards of full compensation with modest upward and downward adjustments
in the direction of optimal deterrence.

Second, portfolios of beliefs can enlighten tort procedures and standards of proof. Like criminal law theorists, tort theorists must deal with uncertainty about both facts and values, and the risk-weighted severity of mistakes may influence their views about requisite burdens of proof. Tort law usually uses the rather low preponderance of the evidence standard, but in any particular case, the moral risks of one party losing might be substantially graver than the risks of the other side losing. Asymmetric moral uncertainty may sometimes explain the behavior of legal actors, and some might argue, potentially affect the way we ought to interpret rules of evidence and procedure in order to improve jury decisionmaking.

Finally, there is a puzzle as to why tort law focuses so much on negligence and only allows strict liability in limited circumstances. After all, we want to deter injuries even when they are non-negligent. Portfolios of beliefs suggest one answer: even though tort law is not generally thought to require fault, we may be reluctant to deprive people of their property rights when they faultlessly
cause injury. To the extent that we have moral uncertainty about taking the property of faultless people, we may prefer a negligence standard that generally requires fault but allows strict liability in rare contexts—as indeed we do—when the consequences of limiting tort liability to negligence are particularly serious.

Posted by Adam Kolber on May 3, 2018 at 10:44 AM | Permalink | Comments (6)

"Clerking for Grown-Ups"

I very much enjoyed writing this paper, and I hope the few people who read it enjoy it as well. It is partly a tribute to my former boss, Ed Carnes, current Chief Judge of the United States Court of Appeals for the Eleventh Circuit, for whom I clerked in 1998-1999. It is part of a tribute to him in the latest issue of the Alabama Law Review, on the occasion of his twenty-fifth anniversary on the bench. (The issue also includes some terrific papers resulting from a Law Review Symposium on Harper Lee.) But it is largely a reflection on clerking and the clerkship culture, and its influence on the wider legal, and legal academic, culture. In its own clumsy way, it is an effort to use the tribute format not for the standard (and, for the reasons I offer in the essay, perilous) encomium, but to engage in useful and critical reflections about a particular judge and about American legal culture more generally. Having praised that approach to judicial tributes here, I had no choice but to adopt it myself. Here is the abstract:

This essay is in part a tribute to my former boss, Chief Judge Ed Carnes of the Eleventh Circuit, for whom I clerked in 1998-1999. But it is largely a reflection on clerking and the clerkship culture itself, and the effects of that culture on the wider legal, and legal academic, culture in the United States.

The tributes by former clerks to judges that appear in the pages of law reviews are most likely to celebrate the judge as a heroic figure, and to exalt judges who: 1) cultivate a familial rather than a more formal and mundane relationship with their law clerks; 2) engage in judging as a "mission," seeking to advance particular (generally politically tinged) values in law and viewing other judges or courts as obstacles to that mission; and 3) treat their clerks as junior or even full partners in that mission. Law clerks who find that their clerkship is actually more mundane or workaday in its nature, that their judge does not cultivate a familial relationship with them, and that his or her vision of the judicial job is not "mission"-oriented may find that reality disappointing. Even if these workaday relationships are the norm, they are less likely to fill the law reviews than the romantic and familial vision of clerking. That vision has tremendous visibility and influence in the legal, and legal academic, culture. One reason for this may be that such judges are more likely to select for individuals who are skilled at seeking out, cultivating, and serving powerful mentors, that these clerkships are more likely to culminate in elite positions in the legal profession and academy, and that this process and vision then perpetuates itself.

In this essay, I argue that whatever rewards this romanticized vision offers, it has dangers too. It breeds a sense of lifelong clerkship, in which much of one's career, including a career in legal academia, is spent writing apologia for one's own judge or a particular kind of judge and thinking from the perspective of the judge or law clerk. Even if the work that results from that perspective is excellent, it may be immature. The American clerkship culture is one of hero-worship. It encourages an enduring adolescence and risks a failure to achieve full adulthood and independence. At its worst, it is unhealthy--for the clerks, for the professionals they become, for the judges themselves, and for the wider legal and legal academic culture. (It may also be true that "familial" clerkships have particular dangers, both for the clerks and for the judges who cultivate such relationships.) For developing a measured, independent, adult perspective on law and judging, there is much to be said for the more unsung clerkship: the clerkship in which the job is "just" a job, not a romantic mission or battle for justice; in which the relationship with one's judge is a "mere" professional employment relationship, not a familial one; and in which one receives a good education in the law but not conscious cultivation as a lifelong ally or acolyte.

It's shorter than the average law review article (a low bar, admittedly), if longer than any "tribute" has any right to be. I hope you will enjoy it just the same. There is much to disagree with in it, no doubt, but I hope it also provides some cause for useful reflection and discussion.     

Posted by Paul Horwitz on May 3, 2018 at 09:18 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 02, 2018

Cultural Appropriation, Subversive Racial Stereotypes, and Tap-Dancing (and an Amazingly Synced Mars/Ronson Mash-Up)

I should be honest right up front: This post is a thin excuse to share what I regard as an amazingly synced mash-up of stars from old movies dancing to Mars/Ronson earbug “Uptown Funk.” If you are (as I am) a devotee of Fred Astaire, Bill Robinson, the fabulous Nicholas Brothers, Gene Kelly, among many other great dancers, then you can discontinue reading, click on to the mashup link, and ignore the rest of this post.

This is, alas, an academic-ish blog, so I feel obliged to make a couple of observations about the mash-up’s larger cultural message. Since “cultural appropriation” has recently flashed up as a Twitter Moment, it seems as good a time as any to use this mash-up to distinguish the sense from the nonsense of Cultural Appropriation in America, using the concept of “tap-dancing” and the particular tap-dancing performances in the mashup of Bill Robinson, Fred Austerlitz (aka Astaire), and the Nicholas Brothers to illustrate both the sense and nonsense. Also the framing of the mashup with the Shirley Temple/Bill Robinson duo in “The Little Colonel” cries out for comment on the sometimes subversive quality of racist stereotypes for good measure — all of my comments being worth (per usual) precisely what you, gentle reader, paid for them.

Continue reading "Cultural Appropriation, Subversive Racial Stereotypes, and Tap-Dancing (and an Amazingly Synced Mars/Ronson Mash-Up)"

Posted by Rick Hills on May 2, 2018 at 10:57 PM | Permalink | Comments (6)

Lewis & Clark faculty statement on free expression

Jeff Schmitt argues that speech norms should be different in law schools, given the style and manner of legal education in compelling students to engage with disagreeable ideas. Jeff's argument is similar to Heather Gerken's argument, last summer, explaining why we had seen fewer disruptions and counter-protests in law schools. That was before Josh Blackman at CUNY and the protest/disruption of Christina Sommers at Lewis & Clark.

Last month, the L&C law faculty issued a unanimous statement that "pluralism, professionalism, and First Amendment values are all essential to our mission, and we as a faculty reaffirm our commitment to each." Worth a read.

Posted by Howard Wasserman on May 2, 2018 at 08:49 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Gig Economy, California & China

Good Morning from Beijing where I am speaking this week at several events - at Peking University, Renmin (People’s) University and the China Academy of Social Sciences. The main event is a conference co-sponsored by Yale Law School and Brookings China about the Sharing Economy. Timely questions about regulating digital platforms (the Law of the Platform), platform market power (my article with Ken Bamberger here) and the future of employment and labor law in the gig economy - which I wrote about here.

Very much related to this future of the gig economy, yesterday the California Supreme Court ruled in unanimous decision in favor of independent contractors seeking employee status from a delivery service. The case is surely drawing the attention of companies like Uber, Lyft, Amazon, Instacart, TaskRabbit and many more. I am quoted here in Mercury News about the decision. One thing we can expect is a continuing rise in class action litigation on employee classification.



Posted by Orly Lobel on May 2, 2018 at 05:29 PM | Permalink | Comments (2)

The Epistemic Challenge to Consequentialism

In PMR, I present the "epistemic challenge to retributivism." I argue that reasonable retributivists cannot have enough confidence in the debatable moral propositions that underlie retributivism to punish particular offenders given their commitment to the values underlying the beyond-a-reasonable-doubt (BARD) standard. 

Does the epistemic challenge apply to every purported justification of punishment? To some extent, yes. Consequentialists believe, for example, that it can be permissible to use someone merely as a means to an end if that end is good enough. How confident should they be in this proposition? I don't know. I think a reasonable consequentialist can be rather confident in it. But it might be hubristic to hold it with near certainty given that at least some of our moral intuitions seem inconsistent with it, and many reasonable people have claimed it is false. 

Nevertheless, I argue that there is an important asymmetry between retributivism and consequentialism. The values underlying BARD mean that it is generally thought far worse to punish someone who ought not be punished than to fail to punish someone who ought to be. The same values which make retributivists hesitant to punish absent solid proof of factual guilt, I suggest, should also make them hesitant to punish absent substantial confidence in moral guilt. I don't claim they need to believe the person warrants punishment beyond a reasonable doubt, but consistency would seem to require a heavy thumb on the scale against punishment. (So it's not that factual error and moral error are necessarily on a par. But they both must be taken into consideration.)

Similar comments could apply to consequentialism depending on the precise sorts of values the consequentialist holds. I'm open to the idea that the sort of epistemic challenge I raise applies to all proposed justifications and might lead some toward punishment abolition. Nevertheless, I argue that the epistemic challenge is weaker when applied to consequentialism because consequentialists are less likely to subscribe to the values typically thought to underlie BARD. They are more willing to use people merely as a means to an end when the end is sufficiently important. They worry both about the harm of making people suffer in prison as well as the harm of allowing victimizations to occur that could have been prevented. By treating the doing and allowing of consequences on more of a par, they will put less of a thumb on the scale against punishment than retributivists will. (Incidentally, the comparison I make here concerns moral risk. There is a very different sort of epistemic challenge to consequentialism concerning empirical facts that I am not discussing, even though it is an important discussion for another occasion.)

Finally, after the jump, I address a question that Asher Steinberg raised in the comments to a prior post.

Continue reading "The Epistemic Challenge to Consequentialism"

Posted by Adam Kolber on May 2, 2018 at 12:27 PM | Permalink | Comments (9)

Prejudice Rules and Criminal Procedure Enforcement

Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.

By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.

In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.

Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?

I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!

(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)

Posted by Justin Murray on May 2, 2018 at 11:54 AM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (6)

Call for Nominations: Harold Berman Award for Excellence in Scholarship (Law and Religion)

For the last several years, the AALS's Section on Law and Religion has conferred the Harold Berman Award for Excellence in Scholarship to junior-ish scholars who write top-shelf papers during the relevant year.  Here's the call for nominations, from Nelson Tebbe:

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

Posted by Rick Garnett on May 2, 2018 at 08:52 AM in Religion | Permalink | Comments (0)

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Online Replies to "Punishment and Moral Risk"

I'm pleased to report that the Illinois Law Review has just released five online replies to my article, Punishment and Moral Risk, including pieces by Emad Atiq, Chad Flanders, Mary Sigler, Stephen Galoob, and Chelsea Rosenthal. I am grateful to all five of them for the care and thought they have put into their replies and give special thanks to Chad for organizing everyone! I plan to offer some reactions in the coming weeks.

Posted by Adam Kolber on May 1, 2018 at 05:17 PM | Permalink | Comments (3)

Policy questions on law school exams

I am methodical when it comes to grading my exams. I grade question by question, and often subpart by subpart, to maximize consistency of awarding points and to avoid biases from previous answers. On the first question, I'll move front to back through the stack; on the second, I'll pick a random spot in the stack, and I'll move from back to front; and I'll continue on this pace to avoid biases from recent scoring. If I offer a multiple choice component, I scrutinize the biserials and the reliability coefficient, going back over weaker questions and determining if I should throw any out.

Another thing I like to do is to scrutinize the correlation between exam parts, both the multiple choice across each essay (or subpart), or between essays (or subparts). If I get too granular, the data can get noisy, but it's a useful tool to make sure I'm grading consistently and that my questions are fairly consistent.

I've had mixed feelings about policy questions on exams. On the one hand, I fear they can turn into overly-subjective or rambling thoughts loosely related to the course. On the other hand, they can sometimes reflect a student's passion or zeal about the subject, including a deep grappling of elements of the course, that may not be apparent from the rest of the exam. I've come up with pretty good ways to grade these parts--include some clear calls in the question (pick two cases, etc.), require them to address certain elements, and award greater points for deeper analysis.

But each time I've done a policy question, I've noticed that the grading rarely lines up with remainder of the exam. If I have five essays, and one of them is a policy question, for instance, I'll notice fairly high correlations between each of the first four essays. But the correlations with any of the first four essays and the policy question will be almost nonexistent.

Back to two hands. On the one hand, this makes me extraordinarily nervous. Am I grading this element of the exam with less consistency? Are my directions unclear? (But, mostly follow the directions correctly.) Is the policy question simply too subjective? (Then again, I've gone back through answers and never found that a particular position taken earns more credit.)

On the other hand, it's usually the last essay, and some simply run out of time, which tends to make my last essay less reliable in the first place. But more importantly, the policy question is designedly doing something different from the rest of the exam. And that's the point... no? To reflect a different legal acumen than may be obvious from an issue-spotter of legal analysis? So, we might see others thrive differently on this component of the exam--particularly if they're passionate about some element of the course, or have truly thought through a great amount of the material in ways not reflected in the rest of the exam.

I'm sure others have thoughts... how have you approached the policy question? And are answers less consistent with the rest of the exam a sign the question is doing what it's designed to do, or a sign that it's a problem (and, as is often the case, rightly relegated to a slim part of the overall exam)?

Posted by Derek Muller on May 1, 2018 at 09:01 AM in Teaching Law | Permalink | Comments (10)


May is upon us, and so is the start of visits from returning guest David Orentlicher (UNLV) and newcomer Justin Murray (Climenko Fellow). In addition, Adam Kolber and Derek Muller will continue their late-starting  April stint into May.

Posted by Administrators on May 1, 2018 at 08:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

File Under "The Scare-Quoting of 'Free Speech'"

I wrote recently about a seemingly popular (in some precincts) and, so far as I can tell, quite sudden trend in public discourse, which I called the "scare-quoting of 'free speech.'" Just as arguments about freedom of religion over the past several years have involved conversation-stopping rhetorical arguments that particular religious freedom claims are actually "religious freedom" claims that do not involve freedom of religion at all, and are really part of a more or less organized campaign to achieve other interests by various more or less shadowy groups, so we are seeing the argument that invocations of free speech are not about free speech at all, but organized and strategic arguments about "free speech." As I wrote in that post, "It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path."

To repeat what I said there, I do not oppose the fact of serious arguments for revisiting and revising free speech law and principles arguing about their its scope and nature. That is because of rather than despite the fact that I disagree with them. I do oppose crude, propagandistic versions of these arguments, such as scare-quoting, which is not an argument at all but a rhetorical strategy meant to forestall opposition and conversation through meme-ification and persuasive definition. But serious arguments that candidly argue for a different approach to free speech, insofar as they are clear about the arguments they are making and represent a particular contemporary vision that must be confronted, are welcome. To the extent that they represent a genuine contemporary movement, as opposed to a fringe or relative minority view, they must be acknowledged, with respect, and confronted. Even if they represent the view of a small number of people, they should still be taken seriously if those people are likely to be influential, or if those who disagree with them (like some university administrators) are unlikely or unwilling to say so clearly, and especially if (as I believe is true) their implications are wide-ranging and would significantly affect existing law. Arguments about how big a threat free speech faces on campus, or conversely whether such alarums are exaggerated, are somewhat beside the point here. Insofar as we treat the people and groups making such arguments seriously and actually listen to and engage with what they say, we should take their arguments seriously--and if we do, we can see that they do indeed have significant law-changing potential. Whether that potential is positive or negative is precisely what that argument should be about. Although I have a definite view on that (and think in particular that many of these recent arguments display a remarkable lack of, or unwillingness to provide, historical perspective), it's not relevant here. What is important is to take those arguments seriously and, in doing so, attempt to arrive at a more precise understanding of what they are and what they imply for the law if they gain traction. That requires finding fuller and more candid versions of those arguments rather than the mere rhetorical elements of this movement, such as scare-quoting--although we should take the scare-quoting seriously, as a social and rhetorical phenomenon.  

This is the background that makes Michael Simkovic's post yesterday on Brian Leiter's Law School Reports, modestly titled "A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public," and leading with the "key takeaway" that "Many lectures about 'free speech' are not really about 'free speech,' but rather are intended to provoke a reaction that will discredit universities," well worth reading. Insofar as Simkovic is a recognized expert in particular areas--specifically, "the intersection between law and finance, with a particular emphasis on credit markets, financial regulation, and taxation"--and he has argued for the importance of relying on "experts" with "relevant expertise" rather than generalists or non-experts or those merely claiming expertise, it is fair and not especially unkind to note that his post is rather wide-ranging in its descriptions and prescriptions on subjects such as journalism, universities and their functions, and free speech. We may therefore want to examine his arguments especially carefully and skeptically. I, for one, have no idea whether Josh Blackman is "muscular" or not--he keeps declining my invitations to an arm-wrestling contest--although I share Simkovic's admiration for Blackman's calmness under the circumstances. And although I have some background and expertise in journalism and have expressed great concern over its current state, I am less willing to make recommendations about what journalists should cover. 

Regardless, the post is important, in my view, both for spelling out his arguments at length and for its representative character. As a representative argument, but one that is clearer and lengthier than the mere rhetorical strategy of scare-quoting in a post on Twitter, it will certainly be useful to my current scholarship on free speech. (My desire to offer a full examination of those and other arguments compels me to avoid stating any conclusions about his argument here. The pace of academic time, thank God, is different than the pace of public cut-and-thrust, and should be. These arguments and issues are not going away any time soon, so I don't think that delay is crucial. Even if it were, sacrificing short-term public influence for the sake of clarity and seriousness is the cost, duty, and privilege and pleasure of being an academic.) More anon, then. In the meantime, here's another one for the files, and it's a post that people interested in the issue of free speech on or off campus should certainly read and keep.   

Posted by Paul Horwitz on May 1, 2018 at 08:30 AM in Paul Horwitz | Permalink | Comments (0)

Monday, April 30, 2018

The insidious conspiracy to provoke college students into saying silly things

Michael Simkovic has a blog post describing and denouncing a plot by “a network of organizations funded by wealthy conservatives and libertarians including the Koch Brothers” to discredit universities. [UPDATE: At Professor Simkovic’s request, I emphasize that Professor Simkovic uses the term “network,” not “conspiracy,” in his post]. Simkovic’s critical piece of evidence is a speech by that master Conspirator, Eugene Volokh, who gave a talk in New York City sponsored by a libertarian think tank, the Institute for Human Studies. In his talk, Volokh advised speakers (in Simkovic’s words) to express “controversial conservative and libertarian views on campus, draw the ire of their university administrations and progressive students, and document the incidents for him so that he could publicize them through his blog, the Volokh Conspiracy, which was then distributed by the Washington Post.” By video-recording studnets’ disruptive antics, these conspirators intend to “discredit universities in the eyes of conservatives, libertarians, and moderates.”

According to Simkovic’s post, the problem with these conservative speaking events is that “[m]any lectures about ‘free speech’ are not really about ‘free speech,’ but rather are intended to provoke a reaction that will discredit universities.” Simkovic advises students and journalists not to take the bait: Do not attend the events, and these agents provocateurs will just go away.

Both Simkovic’s juxtaposition of “free speech” with provocation and his tactical advice strike me as misguided. Using speech to to provoke a foolish reaction from an audience is a core purpose of free speech. Moreover, encouraging students to boycott speakers who provoke them into silliness is a bad idea, because it conceals a problem that needs to be solved: Many of our students cannot tell the difference between an epithet that deserves to be shouted down or boycotted and a reasoned argument that requires a reasoned response.

Continue reading "The insidious conspiracy to provoke college students into saying silly things"

Posted by Rick Hills on April 30, 2018 at 10:53 PM | Permalink | Comments (26)

Symposium: Futures of Legal Education (All Posts)

All posts from the symposium can be found here. (Apologies for the delay in posting this round-up).

Posted by Administrators on April 30, 2018 at 09:23 PM | Permalink | Comments (0)

Exclusive Submission: Dickinson Law Review, Volume 123

The Dickinson Law Review is now accepting exclusive submissions for Issue 1 of Volume 123. All articles submitted to the Law Review between now and May 11, 2018, at 11:59 PM Eastern Time will be evaluated and considered for publication by May 18, 2018. If you have previously submitted an article to the Dickinson Law Review, you must resubmit the article for consideration in this review.

By submitting an article via this exclusive submission track, the author agrees to accept an offer of publication, should one be extended. Articles that receive offers of publication will be published in Issue 1 of Volume 123.

To submit, please email your article manuscript in Microsoft Word format, along with your CV, to Please title the subject line “2018 Exclusive Submission Track.”

Posted by Administrators on April 30, 2018 at 05:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, April 29, 2018

A Serious Law Review Article about Law Review Articles

As the debate about the value of law review articles continues on this blog, on Twitter, and in other reaches of social media opinion-sphere, I wanted to draw attention to Barry Friedman’s new article Fixing Law Reviews that was just published in the Duke Law Journal (April 2018).  It is worth a read and will perhaps be an impetus for some needed changes.    

Posted by Andrew Guthrie Ferguson on April 29, 2018 at 09:37 AM | Permalink | Comments (9)

Saturday, April 28, 2018

U Va Law bans non-students from library during exams

Story here (forwarded to me by a colleague with the subject line "Glad I'm Not a Dean"). Nothing wrong with that policy on the surface--many schools do that to ensure that law students have sufficient study space during the high-stress period. The potential problem is that the policy change was enacted in response to white-supremacist leader Jason Kessler using the library, which triggered a wave of protests, public forums, and demands for the school to take action. So what happens with a content-neutral policy enacted for blatantly viewpoint-discriminatory reasons?

Posted by Howard Wasserman on April 28, 2018 at 11:03 AM in First Amendment, Law and Politics, Teaching Law | Permalink | Comments (7)

Friday, April 27, 2018

When crim pro hypos come alive

If you teach criminal procedure, you probably teach about the Sixth Amendment and the Strickland ineffective assistance of counsel standard.  Essentially, the Supreme Court has held that to find a Sixth Amendment violation for constitutionally bad lawyering you need to show deficient performance and prejudice

And, because we criminal procedure professors are teaching a bunch of future lawyers it is usually fruitful in class to play around with the concept of “deficient performance.”  What should be the constitutional floor for lawyering (recognizing that you have another person’s life and liberty on the line).

In my class I reference the “sleeping lawyer” case that arose out of the United States Court of Appeals for the Fifth Circuit around 2000.  Calvin Burdine was facing the death penalty with a lawyer who slept through some portion of the trial.  It was actually hard to tell how much he slept because the trial record was silent (silence being a direct consequence of the lawyer sleeping and not objecting).  A three-judge panel initially upheld the death penalty, but after columnist Bob Herbert wrote a scathing editorial in the New York Times entitled Medieval Justice the case got renewed attention, and ultimately the en banc court reheard the case and reversed.  Sleeping in a death penalty case is understood to be deficient performance.

So, what happens when one of the best lawyers in the country -- a lawyer who’s hourly fees are so high he is one of America's richest lawyers, and who has won some of the most celebrated criminal cases in history (Michael Jackson etc.) falls asleep in the middle of trial (technically 30 minutes during the judge reading back prior testimony to the jurors).  That is what apparently happened in the Bill Cosby retrial this week during deliberations.  (I can’t confirm the facts but there were several news reports even as the story became overshadowed by the bigger news of the guilty verdict.)     

But, for law professors interested in crim pro hypos… Is this deficient performance (putting aside the prejudice issue)?  Shouldn’t it be more deficient if you are paying more for an attorney than most people could dream of affording?  If it is not deficient performance then why?  A presumption of competence based on wealth and reputation?  Can a well-compensated super lawyer ever be deficient?    While here the sleeping did not seem to interfere with the actually lawyering (the judge was just reading back the testimony), what if it had happened in other stages?  

Now that Cosby has been convicted will this be an issue for appeal? 

Posted by Andrew Guthrie Ferguson on April 27, 2018 at 01:03 PM | Permalink | Comments (8)

Why Moral Risk Presents a Challenge to Retributivist Punishment

As we grow up, it really feels like we make choices as first movers. It feels like I decided to drink coffee this morning in a way that was not simply the result of atoms crashing into each other in ways determined long before my birth (or determined by physical laws and random subatomic behavior). But rather than make an argument here about free will directly, I instead ask how confident you are that we have free will. Keeping in mind that no one has defended free will to widespread satisfaction over the last several hundred years, it seems hubristic to believe in free will with very high levels of confidence. Consider then your percent confidence that we have free will and make a little note to yourself about it. 

Now assume that we really do have the sort of free will that can generate moral responsibility. How confident are you that we ought to respond to moral wrongdoing by punishing/making wrongdoers suffer? Is it not possible that harming someone who harms others fails to improve the situation? Is it not possible that our urges to make wrongdoers suffers are misdirected, just like many other urges that we learn to control? Consider your confidence, then, assuming that we have free will, that wrongdoers deserve to be punished/suffer for their wrongdoing and write it down.

When we punish, we mostly only consider offenders' recent criminal deeds for which they stand formally accused. We give relatively little consideration to what they deserve across their entire lives. Some people may have suffered so much, one might think, that additional suffering only pushes their situations further from what they deserve rather than closer. Or, they may have done so many good deeds that we would more accurately give them what they deserve by not punishing them than by punishing them. Would it be better to consider what people deserve by considering their whole lives rather than just their criminal history? Taking the propositions in the prior paragraphs as given, note your confidence that it is possible and sufficiently practical to assess the relevant background history of a defendant’s deeds and life circumstances in order to assess what he deserves. 

In order to punish under a relatively pure version of retributivism, you need to believe all three of these propositions (i.e., that people can be morally responsible, they deserve punishment/suffering for their wrongdoing, and we have the right data to measure desert). So we can express your confidence in the conjunction by multiplying (because I asked you to consider the probabilities conditioned on the truth of prior propositions). If you were relatively confident in each proposition, say 90% confident, your maximum confidence in the conjunction is .9 *.9 *.9 = 73%. Is that good enough to punish someone? Well, if forensic evidence yielded 73% confidence that a defendant committed some crime, would that be high enough to convict and punish? No need to decide yet. In Punishment and Moral Risk, I walk through nine propositions that one must believe to retributively punish a particular offender. As you can imagine, if you're realistic in your estimates, confidence in the conjunction drops rather quickly.

But how confident must retributivists be that punishment is justified?  If they're less than 50% confident, then they believe it more likely the person does not deserve retributive punishment than that he does. But a 50% requirement seems far too low. Most retributivists believe in the beyond-a-reasonable-doubt (BARD) standard. The values underlying that standard seem to reflect the view that it is far worse to punish someone who ought not be punished than fail to punish someone who ought to be. So, though I can't give you an exact number, the values underlying retributivist commitment to BARD suggest retributivists should be rather demanding in their overall confidence that a person deserves to be punished. I claim that, given reasonable ways of filling in the nine propositions I offer, retributivists (of relatively pure varieties) will generally lack sufficient confidence to actually punish a particular offender.

I'm pleased to report that the Illinois Law Review will be publishing an online symposium early next week that responds to the claims I make in the paper. More about that and the five contributors to it next week when the symposium is published!

P.S. Last week, I wrote a post on the "bumpiness" of criminal attempts which took issue with some of Doron Teichman's claims on the subject. I thank him for his thoughtful reply in the comments to that post. 

Posted by Adam Kolber on April 27, 2018 at 06:20 AM | Permalink | Comments (28)

Thursday, April 26, 2018

Predicting Legal Puzzles

New technologies offer puzzles for law professors trying to sort through established doctrine and traditional legal principles.  In the criminal justice space, new surveillance technologies offer endless challenges to ideas about expectations of privacy, police power, and associational freedoms.

If you write in the space, you take note of those scholars who have an almost prophetic (predictive) talent to see the future before anyone else does.  David Harris (Pitt) and the late Andy Taslitz always seem to write about problems in policing literally a decade before the issue hits the news and the rest of the legal academy.  In my early days, I literally did individual preemption checks to see whether Professors Harris and Taslitz had already written about my next new idea. 

Others – too numerous to name – have written about future problems only to see them become present problems facing us today.  As one part of this post, I would invite you (in the comments) to suggest legal academics who you think have this prophetic talent.  

After the break, I will talk about by own stumble into an accurate prediction.

Continue reading "Predicting Legal Puzzles"

Posted by Andrew Guthrie Ferguson on April 26, 2018 at 10:49 PM | Permalink | Comments (2)

Adler on same-day audio

Jonathan Adler argues that nothing bad happened after the Court released the Trump v. Hawaii audio the same day and there is no reason not to make same-day audio the regular practice.

Posted by Howard Wasserman on April 26, 2018 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Stand in the place where you work

I began using a standing desk about five years ago, when my colleague Eric Carpenter joined the faculty from the military, where he used a standing desk. About 5-10 people now use standing desks, including one who bought herself a treadmill desk. I bought StandStand, a portable standing desk invented and crowd-funded by Luke Leafgren, a professor at Harvard.

This story reports on recent studies suggesting that the cognitive benefits gained from walking (which might explain why I pace when teaching) are gained by standing while at your desk. Maybe while keeping my classroom laptop-free, I should give students the option of standing in class.

Posted by Howard Wasserman on April 26, 2018 at 04:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, April 25, 2018

Cosmic injunctions

Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and  "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.

I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.

Posted by Howard Wasserman on April 25, 2018 at 08:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

What is Moral Risk?

Suppose you're rather sure that eating meat is perfectly fine. Indeed, you're 80% confident that non-human animals have no right to life and no great harm occurs when they are slaughtered for food. So you can go on eating meat, right? Not so fast. It would only be rational to consider what follows given your 20% confidence in the possibility that you're wrong. Plausibly you might assess the moral harm of being wrong as quite severe. If you're wrong, let's assume you believe, slaughtering animals for food is a great evil, perhaps almost as serious as slaughtering humans for the same reason. 

So here's how things look to our hypothetical person: He's 80% confident that eating meat provides some pleasure and nutrition and is not a significant moral harm. But he's also 20% confident that eating meat is a great evil, not far from being as serious as murder-cannibalism. Now it seems irrational for him to eat meat. If I was 80% confident that opening a box would yield $10,000 for me but 20% confident it would explode and kill me, I'd better not open the box. It's not worth the risk. Why should we analyze these problems any differently when they involve prudential considerations (money vs. explosions) than when they concern moral considerations (pleasures/nutrition from eating vs. harms akin to murder and cannibalism). So, even if our hypothetical person is rather confident that eating meat is perfectly fine, it might be irrational for him to eat meat anyhow, given his levels of confidence and his weighting of the relative harms. That's what makes moral risk important. In our deliberations, it seems that we should consider not only what we believe is moral but what risks we are taking about what is moral as well.

What does this have to do with the law? In a just-published article, I argue that moral risk should lead us to be very skeptical of retributivist justifications of punishment that claim we should punish people because they deserve it for past wrongdoing. Most retributivists find it far worse from a moral perspective to punish an innocent person than to fail to punish someone who is guilty. This asymmetric weighting of moral risks leads them to require a rather higher standard for factual guilt (the beyond-a-reasonable-doubt standard). But as I'll discuss in an upcoming post, I don't think we can plausibly have sufficient confidence in retributivism to overcome the rather high level of confidence that retributivists seem to demand in order to punish. In the meantime, here's Dan Moller on abortion and moral risk and here's Alex Guerrero on moral risk and eating animals.

Posted by Adam Kolber on April 25, 2018 at 04:07 PM | Permalink | Comments (19)

Sponsored Post: Teaching Bus Orgs in the real world

The following post is by Michael A. Chasalow, Director of the Small Business Clinic and Clinical Professor of Law at USC Gould School of Law, and is sponsored by West Academic.

A successful Business Organizations course needs to cover a broad range of material that involves a number of new concepts while keeping students engaged. After several years of teaching, I developed several hypotheticals that connected “real world” scenarios to the substantive material. (Eventually, these hypotheticals developed into the foundation of my Experiencing Business Organizations book.) I have found that practical exercises provide context to substantive material that can be somewhat dry and allow students to engage as “lawyers” rather than passive students. On the other hand, I do not believe that practical exercises alone are sufficient to teach Business Organizations.

Continue reading "Sponsored Post: Teaching Bus Orgs in the real world"

Posted by Howard Wasserman on April 25, 2018 at 01:22 PM in Sponsored Announcements | Permalink | Comments (0)

Navigating accommodations and pedagogy

Like many on Prawfs and elsewhere, I've dabbled with laptop bans in the classroom. (For me, I'm deeply uncertain about what the "right" answer is and won't rehash those discussions here.) But I'm aware of situations where a professor has banned laptops only to receive a word from the accessibility services office that a student (or more than one) requires an accommodation--the ability to use a laptop.

And like many on Prawfs and elsewhere, I've wondered about whether I ought to record classes (e.g., to provide opportunities for students with legitimate reasons for absences to hear the material, and to allow students with long commutes to re-listen to class discussion) or not (e.g., to protect the privacy of students and maximize classroom candor, or to prevent incentivizing classroom absences). But I'm aware of situations where a professor has refused to record lectures only to receive a word from the accessibility services office that a student (or more than one) requires an accommodation--the ability to record lectures.

Gone are the days where accommodations were limited to things like time-and-a-half on the exam. A much deeper understanding of students' needs, coupled with much more sensitive university accessibility offices, has given rise to many more accommodations over those available even a decade ago. Some greater contemporary accommodations, like service animals, don't really have pedagogical impact.

But, at the same time, I can't help but start to wonder how to handle these accommodations in relation to pedagogy. If I allow laptops or record all lectures, then it's a moot point. But what if I want to ban laptops or if I don't want to record classes?

I think some of my concerns have been about how students might react. That is, they don't know which students have extended time or other exam-related accommodations because there's a level of privacy inherent in that process. But a student with a laptop in a class where everyone else can't use them stands out--in part, it may call attention to the student with an accommodation (an undesirable result, to be sure), or, in part, it might be a lack of student sensitivity to accommodations (which, perhaps, I or others could communicate more effectively). And a student who gets access to recordings is in the same boat--I have to tell the class that I'm recording the lectures (even though the students generally don't get access to them), but at least they can't single out the students with the accommodation, but the same lack of sensitivity is an issue. (Or, more crudely, a complaint that the system is "unfair" to them if they want to type or listen to recordings.)

So, my temptation might be to forego any kind of pedagogical decisionmaking and go with the path of least resistance--record, type, whatever you'd like. But that strikes me as suboptimal, especially if I'm convinced (and, I should note, I'm not totally convinced in any of these arenas) that I ought not do it.

Maybe there's a third way--working with the accessibility services offices to develop more nuanced accommodations that avoid these concerns: win-win or something like that. But I'm not sure those kinds of options would be available, and it would involve me second-guessing the decisions of professionals who've weighed student requests carefully.

So... I don't know. It's something I've been grappling with. Have any of you struggled with these issues? If so, have you reached any better resolutions than I have?

Posted by Derek Muller on April 25, 2018 at 12:53 PM in Teaching Law | Permalink | Comments (4)

What to cover and when

There is a connectedness among the pieces of the law-school curriculum, one that may have increased as we have expanded course offerings, eliminated required courses, decreased hours (at least in 1L), and varied the types of offerings. Sometimes this is personal--I used Fed Courts to cover stuff (such as the Grable line) I cannot get to in Civ Pro and Civil Rights to cover stuff (all of § 1983 and Bivens) I cannot get to in Fed Courts. Other times it is broader, as some courses rely on other courses for foundation and connection--we want students to know crim law and procedure before we send them to work in a prosecutor or PD office.

And sometimes this touches not only on what we teach in doctrinal classes, but the order in which we teach it. There is a never-ending debate in the Civ Pro world about whether to start with pleading and the FRCP or jurisdiction (and then whether subject matter or personal). I am in the former camp, initially because the person I learned Civ Pro from is in that camp and now because I believe it is the best approach, although I see the merits to the alternative. My FIU colleague who teaches the other section of Civ Pro begins with Pennoyer. In Evidence, I begin with Relevancy and do not reach Hearsay until the final month of the semester, again because that is how I learned the material. My FIU colleague who teach the course reaches Hearsay much earlier in the semester.

I was speaking with my colleague who runs our outstanding Academic Excellence Program, working with marginal spring 1L and fall 2L students (this program is a big reason for our Bar-pass success). He links his support class to particular doctrinal classes--Civ Pro for spring 1L and Evidence for fall 2L; the special extra assignments and close support he provides are for writing assignments linked to those classes. And this difference in order of coverage is causing him some headaches. If he assigns a question on Hearsay or P/J or discovery early in the semester, only half the class will know the material from the doctrinal course.

I am not sure how to resolve that problem. I have considered reasons for teaching in the order I do, as do my colleagues, and I doubt either of use will convince the other. Order, it seems to me, affects how I teach the material and changing the order changes how I teach. I can teach Hearsay a certain way because, by the time we get there, my students have a basic understanding of relevancy; I can teach Personal Jurisdiction a certain way because, by the time we get there, my students have a basic understanding of what a civil action and what it looks like. Again, my colleagues would say the same in reverse.

But our choices, however well-founded, have downstream effects.

Posted by Howard Wasserman on April 25, 2018 at 09:25 AM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Tuesday, April 24, 2018

I only want to see you working on your Civ Pro test

Zimmer as Trustee for the Kin of Prince Rogers Nelson v. Trinity Medical Center, a wrongful death action in Illinois state court by Prince's Estate against the hospital and doctors in Moline, Illinois that treated him, and failed to recognize a possible overdose, about a week prior to his death, and Walgreen's, two Walgreen's stores, and several Walgreen's pharmacists for prescribing him medications improperly.


Continue reading "I only want to see you working on your Civ Pro test"

Posted by Howard Wasserman on April 24, 2018 at 08:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Book Review Roundtable on Kathleen Brady's "The Distinctiveness of Religion in American Law"

Last Spring, the Program on Church, State & Society at Notre Dame Law School (more here) hosted a small roundtable conference dedicated to Kathleen Brady's then-new book, The Distinctiveness of Religion in American Law:  Rethinking Religion Clause Jurisprudence.  Each participant wrote a short reflection on the book -- a kind of "admission ticket" -- and these reflections (along with Brady's response) formed the basis for the day's conversations.  I'm pleased to report that the "tickets" have been collected in the November 2017 issue of the Journal of Law and Religion.  They are, if I say so myself, really interesting.  Take a look!


Posted by Rick Garnett on April 24, 2018 at 11:06 AM in Religion, Rick Garnett | Permalink | Comments (0)

Monday, April 23, 2018

Re-Engineering Humanity

I just got my copy and started reading Brett Frischmann and Evan Selinger's (with foreword by Nicholas Carr) new book Re-Engineering Humanity and its fantastic. It shows how perhaps more than being worried of AI taking over we should worry about how AI is changing us and what we believe is at the core of our humanity: free will, social engagement, creative independent thought. Here is a synopsis:

In this wide-reaching, interdisciplinary book, Brett Frischmann and Evan Selinger examine what’s happening to our lives as society embraces big data, predictive analytics, and smart environments. They explain how the goal of designing programmable worlds goes hand in hand with engineering predictable and programmable people. Detailing new frameworks, provocative case studies, and mind-blowing thought experiments, Frischmann and Selinger reveal hidden connections between fitness trackers, electronic contracts, social media platforms, robotic companions, fake news, autonomous cars, and more. This powerful analysis should be read by anyone interested in understanding exactly how technology threatens the future of our society, and what we can do now to build something better.

Brett is coming to San Diego this week so I can't wait to host him here for a faculty workshop this Thursday, and then immediately drag him in return to a book talk I am giving in the afternoon at UCSD. (by the way - my book You Don't Own Me just came out this week in audio for all you audible lovers - 11 hours, or listen to it in double speed!).



Posted by Orly Lobel on April 23, 2018 at 04:50 PM | Permalink | Comments (2)

Sunday, April 22, 2018

Universal injunctions in Trump v. Hawaii and Chicago v. Sessions

SCOTUS hears argument on Wednesday in Trump v. Hawaii on the constitutional and statutory validity of the third travel ban, including (perhaps) the validity of the universal injunction. Marty Lederman explores the scope-of-injunction issue; he concludes that if the court reaches the scope question, it may be entirely dicta. A Supreme Court decision declaring the ban constitutionally invalid will, in almost all cases, result in the government suspending enforcement across the board. So the Court passing on the scope issue will have no practical effect.

Meanwhile, a divided Seventh Circuit panel affirmed the universal injunction as to the sanctuary-city-funding regulations. Sam Bray critiques the ruling at the VC. I will be spending the coming week updating some writing on the subject.

A few thoughts after the jump.

Continue reading "Universal injunctions in Trump v. Hawaii and Chicago v. Sessions"

Posted by Howard Wasserman on April 22, 2018 at 05:59 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Saturday, April 21, 2018

More on PowerPoint

As one of the "Oh, I never use PowerPoint" people Derek mentions, I wanted to add on to a couple pieces of his post. Derek says he uses PP for three things: 1) The text of a rule or statute; 2) Visualizing a concept such as a flowchart; and 3) Photos and other AV material. And he and I teach some of the same classes.

First, not using PowerPoint is not the same as "simply sp[eaking], lectur[ing], engag[ing] in Socratic dialogue." While I (proudly) never use PP, I fill the dry-erase board with flow charts, key terms or phrases, hypothetical problems, and occasionally statutory text, especially if I want to break the pieces of the statute down. I recall a SEALS panel on using AV in class and one of the speakers presented his slide for the Erie flowchart. It was the same flowchart I use, just with more color and boxes and permanency. But the dry-erase board allows me to interact with the visuals, circling and underling things as we go, something that is impossible on the sterile slide (even with a laser pointer).

Second, the drawback to putting text on a slide is that students stare at the slide instead of the text in their books. I want them to learn to read and highlight or underline or mark-up the text as they go, by having the text right in front of them and being able to work with it. I have been aware this semester of how much students jot down what they hear about a statute in their notes and use the remembered language from their notes, rather than going back to the precise text and textual language. This is important when we are jumping around to multiple rules and they have to figure out how to read the rules together and fit them as parts of a whole. I prefer to read the rule together, with everyone looking in her own book, rather than presenting it in one spot for all.

Continue reading "More on PowerPoint"

Posted by Howard Wasserman on April 21, 2018 at 05:47 PM in Civil Procedure, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (9)

Friday, April 20, 2018

It's time to have the talk... about PowerPoint

Few things are more ubiquitous and less discussed in legal education than PowerPoint. It inspires obsessive use and targeted hate.

I use PowerPoint with varying degrees of regularity in the classroom (and while I'll focus on that here, some of the discussion points are fruitful for consideration for academic talks, too). (As an aside, I typically used Prezi, a more dynamic open-canvas environment than PowerPoint, but given the decline of Flash and Prezi's move toward more PowerPoint-like features, I may be abandoning that platform soon.) And I use it for basically three things. (I'll use PowerPoint as a shorthand for basically any audio-visual display in the classroom, but PowerPoint does come with its own stigma and faults.)

First, the text of a rule or a statute. When I teach Civil Procedure or Evidence, I'm displaying the text frequently. It's quite valuable, I've found, when students break into small groups to work on a hypothetical, or when I'm walking them through a hypothetical--the giant actual text of the rule miraculously helps them pay attention to the words. (I'll very rarely use a quotation from a Supreme Court opinion that establishes a common standard.)

Second, a visualization of some concept, like a mind map or a flow chart. It's designed to synthesize dense material into a digestible format.

Third, photographs, audio-video components (more on that below), or other ways of bringing certain concepts to life. (I've even resorted to the occasional meme.)

In all three, I very rarely churn through a series of slides. Most would linger for minutes, if not most of the class.

Now, some might never use PowerPoint--or, at least, while they might occasionally put up a YouTube video, but wouldn't call such an exercise "using PowerPoint." Some might take a more moderate approach to using PowerPoint to outline topics in class or mention case names & titles to anchor discussion.

But then there are the PowerPoint, in my view, over-users. That might include churning through 20 or 30 slides in a single 60- or 90-minute class. There might be large blocks of text, sometimes summarizing a case, sometimes big chunks of law. There's a temptation to read through it, right off the screen. Students may start transcribing the content furiously on their laptops.

And the visuals. Oh, the visuals. Color schemes, clip art, busyness.

I thought I'd share a few things to think about and ways one might improve the use of PowerPoint. There are the great critics like Edward Tufte, and I can hardly add to them. (I confess, I sometimes violate these principles myself, so typing them out is designed to give me some structure.) This also requires knowledge of far more than PowerPoint--you need to be aware of the location where you are presenting as much as, if not more so than, the software itself.

Continue reading "It's time to have the talk... about PowerPoint"

Posted by Derek Muller on April 20, 2018 at 12:53 PM in Teaching Law | Permalink | Comments (0)

A Digital Fix to Alleviate Some Angsting Stress?

If the number of comments a thread receives is any proxy for interest in a subject, the Prawfsblawg angsting thread has to be one of the most popular semi-annual traditions.  I will confess to occasionally checking it, although it rarely provides comfort during submission season.  The general theme is usually one of impotent ignorance — of having no idea what is happening or the odds of a successful placement.  

I completely understand the angsting phenomenon and spent some time this Spring thinking about how better information flows might make the process less stressful.  It occurs to me that the potential of digital platforms like Scholastica could ease some of the angsting stress by providing more information about the decision-making process of the journals.  

As an author, here are the pieces of information I would like to have during the submissions season: (1) has my article been downloaded/read; (2) how many slots are open in the journal; (3) is my article still under consideration for acceptance.  Those three questions tend to line up with the three main causes of submissions stress: silence, strategic expediting, and rejection.

Continue reading "A Digital Fix to Alleviate Some Angsting Stress?"

Posted by Andrew Guthrie Ferguson on April 20, 2018 at 11:14 AM | Permalink | Comments (2)

Gundy and Non-Delegation: Which of Several Non-Delegation Doctrines Should Apply to SORNA?

Marty Lederman recently asked me in a comment to an earlier post on Gorsuch’s concurrence in Dimaya how I thought Gundy v. United States should and would be decided. For those who are not hopeless Non-Delegation Doctrine dorks, SCOTUS recently granted cert in Gundy to hear argument on the question of whether SORNA (the federal Sex Offender Registry Law) violates the so-called “non-delegation doctrine” (NDD) by delegating to the Attorney General the decision about whether SORNA should apply retroactively to persons convicted of covered sex offenses prior to SORNA’s effective date.

In other words, Gundy is one of those exciting cases in which SCOTUS might actually revive a moribund constitutional doctrine that has been flitting ghost-like through the US reports since 1935, making a noise but not a difference in the outcomes of cases. Although the prospect of resurrecting the dead naturally draws a crowd, I think that revival of the NDD is unlikely. Despite Justice Gorsuch’s enthusiasm for it, the NDD writ large, as a general legislative duty to cabin executive power with an “intelligible principle,” is a non-starter. The problem is that the NDD contains no intelligible principle for determining when a statutory principle is intelligible. SCOTUS would have to be immune to irony to confer on itself unbridled judicial discretion to decide whether an agency has unbridled executive discretion. In its lack of intelligibility, one might say that the NDD is a doctrine that violates itself.

So revival of the NDD writ large seems unlikely to me. But what about the NDD writ small? After the jump, I will offer a few thoughts about whether SCOTUS might revive a mini-NDD based on the various non-delegation canons described by as Cass Sunstein ‘way back when. These canons include the ideas that (1) agencies do not get deference for their interpreting statutes to be retroactive and (2) prosecutors do not get any deference for their interpretations of criminal law (as Scalia asserted but did not really explain in his Crandon concurrence). SORNA delegates to the Attorney General the power to impose an arguably retroactive effect with an arguably criminal statute. Perhaps the SCOTUS can and should create a mini-NDD to deal with this specific sort of delegation.

Continue reading "Gundy and Non-Delegation: Which of Several Non-Delegation Doctrines Should Apply to SORNA?"

Posted by Rick Hills on April 20, 2018 at 01:29 AM | Permalink | Comments (2)

Thursday, April 19, 2018

Must the Law Be as All-or-Nothing as Leo Katz Claims?

In Leo Katz's characteristically excellent book Why the Law is so Perverse, he argues that the law is often all-or-nothing because many phenomena that appear to stretch along continua, like becoming a person or dying or giving consent, are better understood as discrete events. He does not go so far as to "defend the either/or character of legal doctrines," but he purports "to show why any efforts to change things are doomed" (p. 157). He claims that "most of the time either/or can’t be avoided, or more precisely, that if we tried to purge a doctrine of it, we would find that either/or has simply migrated to another part of the doctrine or has been replaced by some other, far more troublesome feature" (p. 157). In short, he writes, "we can only affect where a sharp discontinuity will occur, not whether it will occur at all" (p. 157). (Some of you may remember that Katz shared many of the insights in his book over the course of a week at the Volokh Conspiracy.)

In a recent article, I challenge several of Katz's arguments. I aim to show that many phenomena which appear to stretch along continua could indeed be treated as such by the law or at least treated in a less all-or-nothing manner than they are now. After the jump, I excerpt just one example where I argue that death need not be understood in the discrete terms Katz proposes.

Continue reading "Must the Law Be as All-or-Nothing as Leo Katz Claims?"

Posted by Adam Kolber on April 19, 2018 at 02:44 PM | Permalink | Comments (13)

Speeding cases

Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."

I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).

Posted by Howard Wasserman on April 19, 2018 at 07:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?

SB 827, the California bill that would have preempted many local zoning restrictions near public transit, has just gone down to defeat. Part of that defeat was the result of opposition from advocates of affordable housing, many of whom remain skeptical that zoning’s limits on market-rate housing reduce the supply of affordable housing. These advocates reason that market-rate housing in high-demand cities does not benefit poorer households, because poorer households cannot afford it. Sometimes such advocates go further to argue that increasing the supply of new market-rate housing actually leads to gentrification, because such housing attracts wealthier residents who bid up rents. To paraphrase Field of Dreams, if you do not build it (i.e., new market-rate housing), they (i.e., wealthy households) will not come.

Is this anti-market theory of gentrification an accurate picture of reality? The debate, nicely captured by this article posted on YIMBYwiki, has recently become a fierce scrum of claim and counter-claim. On one hand, attributing rent increases to new market-rate housing might be like attributing rainstorms to umbrellas: On this view, high demand driven by jobs causes rents to increase, and new construction just follows along, mitigating rather than exacerbating rent increases. If new market-rate housing is not built, then more rich people will just place higher bids on existing units, accelerating gentrification. (The process by which new housing affects rents on existing housing is known as “filtering”: Vox has a typically wonky but clear explanation). On the other hand, if people like living next door to rich people, then market-rate housing could conceivably raise rents on nearby lots through a so-called “amenity effect.” And maybe demand for housing is highly segregated into different, non-competing markets such that rich people only bid on new units and will not bid up the prices on existing units when new market-rate housing is constrained by zoning.

As a guide for the perplexed amidst this cacaphony, I recommend a recent literature review by my colleagues, Vicki Been and Ingrid Ellen, which suggests that (1) increasing zoning restrictiveness seems to lead to higher rents (see pages 7-8 of their paper) and (2) existing housing tends to “filter” upwards if new construction is restricted by zoning, because rich buyers tend to shop among both new and existing units, bidding on formerly cheap bungalows and brownstones when Zoning eliminates new luxury units. The best view of the facts, in sum, seem to suggest that Left advocates of affordable housing should be enthusiastic about reducing zoning restrictions as part of the solution to our housing crisis.

Yet I am pessimistic about many activists’ being persuaded by the evidence. After the jump, some dour speculation that Left activists’ beliefs about housing markets might be similar to conservatives’ beliefs about climate change, resistant to data because of prior ideological commitments and the imperatives of recruiting political allies.

Continue reading "Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?"

Posted by Rick Hills on April 19, 2018 at 04:32 AM | Permalink | Comments (14)

An even more unusual role

I have written before that Justice Thomas rarely assigns majority opinions, given seniority and the Court's ideological breakdown. Well, according to Slate's Mark Joseph Stern, Tuesday's opinion in Sessions v. Dimaya marked the first time in 25 years on the Court that Justice Ginsburg assigned a majority opinion, when Justice Gorsuch provided the fifth vote with the Ginsburg/Breyer/Sotomayor/Kagan block. That fifth vote, if it comes, usually comes from the Chief or Kennedy, both of whom are senior to RBG. In addition, Stern (citing Adam Feldman) says this was the sixth time a female justice assigned an opinion; the other five were by Justice O'Connor, who usually did not get to assign because she was in a majority with Chief Justice Rehnquist or Justice Stevens.

The assignment power remains an interesting future project. I have to figure out the different empirical routes that must be explored.

Posted by Howard Wasserman on April 19, 2018 at 12:35 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, April 18, 2018

Anika Singh Lemar on why, despite SB 827’s defeat, states might still enact laws preempting NIMBY local zoning

[Editor’s note: SB 827, state Senator Scott Wiener’s effort to attack NIMBY zoning that has driven California into an acute housing crisis, just died in the state senate. For those of us who believe that excessive zoning is strangling our cities and segregating our population into regions of wealth and poverty, this is a terrible defeat for good policy. But there’s a silver lining: Bad policy provides good opportunities for great law review articles that try to fix them. In this spirit of trying to take comfort in scholarship during dark zoning times, I am posting Anika Singh Lemar’s guest-post on her outstanding article analyzing why state-level interest groups lobby against excessive local zoning. While those lobbying efforts could not quite do the trick with SB 827, Anika’s post and article both suggest that the future is not necessarily grim. Here’s Anika’s post, below]:

In an article forthcoming in the North Carolina Law Review, I argue contemporary state-level efforts like SB 827 to liberalize zoning are the progeny of earlier state laws requiring local governments to approve LULUs. Small-scale renewable energy infrastructure, family day cares, group homes, and mobile homes are LULUs which, in a substantial number of states, enjoy protection from local zoning. Examining the state legislative history behind these protected LULUs, I argue that while NIMBYs have lots of political power on the local level, they can be beat at the state level by a coalition that, surprisingly, typically includes state employees.

Continue reading "Anika Singh Lemar on why, despite SB 827’s defeat, states might still enact laws preempting NIMBY local zoning "

Posted by Rick Hills on April 18, 2018 at 07:53 PM | Permalink | Comments (0)

Are Criminal Attempts Bumpy?

The law draws hard-to-justify lines around vague words. Those lines can lead to dramatically different consequences. In Smoothing Vague Laws, I argued that problems caused by legal vagueness can be eased in many instances by "smoothing" the law. If, for example, you have merely "prepared" to commit a crime, you have no criminal liability. When you cross the line from preparation to "attempt," however, you can have substantial liability--at least the mandatory minimum sentence for the attempt. If the attempt has no mandatory minimum, it's possible that a judge will sentence in a smooth fashion. But I suspect that judges don't think about sentencing in a smooth way. Though there should presumably be cases where a person gets a modest sentence for attempted murder or attempted rape because the crime falls right around the border between preparation and attempt, I suspect such sentences are rare because judges focus on the bumpy names of offenses rather than their often smooth underlying facts.

Doron Teichman takes issue with this discussion in his interesting recent article. Teichman argues that criminal law already uses inchoate crimes to adjust punishment to confidence in guilt in a relatively smooth fashion. For example (p. 776-777):

By adding or removing objective elements to a crime and by relaxing or enhancing the mental state associated with the crime, the state can make the prosecution’s case harder or easier to prove. . . . Furthermore, the punishment attached to these evidentiary crimes can be set lower than the punishment attached to the primary crime they aim to deal with to account for the added evidentiary uncertainty associated with them. The emerging picture is of a de facto evidentiary graded penal regime. Defendants whose guilt can be proven beyond a reasonable doubt are subject to the full punishment attached to the original crime, while defendants whose guilt is more difficult to prove are convicted of the lesser crime and are subject to a milder penalty.

There is much more to Teichman's argument, but pertinent to this post, he concludes that "contrary to Kolber’s assertion that the law of criminal attempts is bumpy because at one moment a defendant 'has no criminal liability whatsoever, and just a moment later, he has sufficient criminal liability to receive several years’ incarceration,' viewed in its entirety, attempt law turns out to be rather smooth."

I have four replies. First, some disagreement on these matters might be attributable to differences in expectations about smoothness and bumpiness and how one quantifies them. For example, I too have noted evidentiary smoothing possibilities, especially around plea bargaining (p.678-680; 874-75), while Teichman, for his part, acknowledges that attempt law can be somewhat bumpy in his n.204. So two observers looking at similar data may still draw different overall conclusions. Second, your view might depend on whether you focus on individuals versus the system as a whole. The combination of preparatory crimes and attempt law may create some evidentiary smoothing systemwide, as Teichman notes. But in any particular case, dramatically different results follow if jurors have reasonable doubts versus an iota passed that standard. Such situations may be relatively uncommon on a systemwide basis but can still be very bumpy for particular individuals (and are perhaps not so unusual in cases that actually go to trial). Third, many scholars distinguish two aspects of attempt. One is the amount of actus reus which may gradually increase as a crime progresses. The other is seriousness of intent (which may be evidenced by a defendant's statements) that doesn't necessarily change or change as much as the attempt progresses, especially when intent is very strong from the get-go. Does punishment vary with confidence in the mental state or in the expectation the acts would continue to completion? Is punishment somehow keyed to both even though they change at different rates? 

Finally, and most importantly, I have emphasized that when speaking carefully, we should identify smooth and bumpy relationships between a particular input and a particular output. If Teichman is right about matters of evidence, his conclusions about the smoothness of attempt are still too broad. Even if amount of punishment is smoothly related to confidence in guilt, there are other relationships that may or may not be smooth. Many seem to think that culpability gradually increases as one progresses along a criminal path (and perhaps harm caused as well if an attempt grows increasingly threatening over time). If they're right, punishment isn't simply about discounting expected future crimes based on our confidence they will be committed. If I'm 75% confident a defendant arrested for attempt was going to commit a crime that warrants 100 units of punishment, he wouldn't necessarily warrant 75 units now. After all, the person who does complete the offense likely engaged in additional bad acts with additional culpability that the defendant never committed, and that matters to some people. So whether or not the evidentiary relationship Teichman considers is smooth or bumpy, there are other pertinent relationships as well. (Special thanks to Doron Teichman for taking up the smooth/bumpy issue in his article which I highly recommend!)

Posted by Adam Kolber on April 18, 2018 at 02:32 PM | Permalink | Comments (6)

What is a heckler's veto?

Paul's post about reexamining the doctrine surrounding the heckler's veto, in response to some comments on this post, leads to an open question: What is a heckler's veto and what is the doctrine surrounding heckler's vetos?

The phrase "heckler's veto" appears only 12 times in the U.S. Supreme Court's database, often in dissents or in passing, including in two non-free-speech cases. None involves the paradigm cases, which I think are the following: 1) Police arresting or restricting a speaker because the people around him become violent and threaten to hurt the speaker or damage property (this is TerminielloFeiner, and the Nazis in Skokie); 2) Laws setting a legal standard that burdens a speaker because of actual or anticipated audience reaction (this is Forsyth County); and true no-platforming, in which a university denies or rescinds a speaker invitation or permit in response to threats of disruption. Close to the center are cases in which police or other authorities do nothing and allow the hecklers to attack or otherwise physically disrupt the speaker (there might be a DeShaney problem here, unless the speaker can show the failure to act was because of his speech). The point is that overnment must do something (or refrain from acting for a speech-discriminatory reason) to create the veto. The doctrine is clear--such vetoes are impermissible,* at least outside of narrow contexts (such as the community standards prong of obscenity or the "disruption" concern for student speech) or if there is a compelling interest in not having to spend hundreds of thousands of dollars on security.

[*] Although Feiner famously came out the other way, the prevailing view is that this no longer is good law.

The question--and there is no Supreme Court doctrine on this--remains if and when literal heckling, as a form of expression, becomes a heckler's veto without government action to halt the original speaker. Is it a heckler's veto if police or government officials do nothing and two speakers talk over one another until one gives up or is unable to proceed? We have to answer that question before we can figure out whether the heckler's veto doctrine must be reconsidered, because it is not obvious how that doctrine applies to these situations in the first place.

Posted by Howard Wasserman on April 18, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, April 17, 2018

Is Gorsuch’s Dimaya concurrence the opening shot in a bid to revive the Non-Delegation Doctrine?

Eugene Volokh has noted that Justice Gorsuch’s concurrence in Sessions v. Dimaya looks like a “cross-over sensation,” because Gorsuch joined four liberal justices in ruling against the deportation of an immigrant. There is, however, a deeper signal buried in Gorsuch’s concurrence: By refusing to draw any distinction between civil and criminal cases insofar as VFV is concerned, Gorsuch seems to be reviving the non-delegation doctrine as a basis for striking down statutes. If the VFV doctrine applies, as Gorsuch says it does, “in civil cases affecting a person’s life, liberty, or property” and “criminal cases involving relatively modest penalties,” then it might also apply to any statute containing terms ambiguous enough to trigger Chevron.

Such an expansive version of VFV would fit with Gorsuch’s famously skeptical view of Chevron in his Gutierrez-Brizuela concurrence. So maybe the concurrence is best read as an opening bid to revise Chevron and/or the non-delegation doctrine, fulfilling his implied promise, in Eric Posner’s words, to “join Justice Thomas as one of only two justices to seriously oppose the administrative state in the last 50 years, at least.”

Just for the record, I do not think very much of Gorsuch’s attack on Chevron. It seems to rest on one of two equally odd views that (1) statutes should not have gaps to fill, or (2) only judges should fill them (i.e., “say what the law is”). (For an excellent analysis that spells out the weaknesses of such a position, see Asher Steinberg’s excellent post on the Yale JReg blog). As for the non-delegation doctrine, if constitutional doctrines could be void for being excessively vague, then the NDD would qualify — as, indeed, would the VFV doctrine itself. I do not see five votes for reviving a doctrine that paradoxically gives judges uncabined discretion to forbid agencies from exercising uncabined discretion.

Since the SCOTUS granted cert in Gundy, however, we will find out soon enough whether Gorsuch can persuade any of his colleagues to join him on his quixotic mission to expand dramatically the courts’ exclusive role in saying what the law is. If Dimaya is any indication, then Gorsuch might be trudging down a lonely path: Although Justice Thomas is supposed to be skeptical about the administrative state, Gorsuch could not get Thomas’s vote for the proposition that the Due Process clause requires civil statutes to be clear enough to give citizens notice of their contents.

Posted by Rick Hills on April 17, 2018 at 11:13 PM | Permalink | Comments (7)

What about Calpurnia, Tom, and Scout?

The legal dispute over Aaron Sorkin's in-the-works stage adaptation of "To Kill a Mockingbird" took another turn on Monday when Producer Scott Rudin (and his production company, Rudinplays) filed suit in the Southern District of New York against the Harper Lee Estate. This sent me running for the pleadings in this and the Estate's action in the Southern District of Alabama, thinking it might make a nice exam question for Civ Pro. It turns out the Estate filed an Original on March 13 and an Amended Complaint on April 6. What changed?

Paragraph 38 of the original pleading cites to a March 5, 2018 letter from the Executor to Rudin and alleges that the Estate informed Rudin that the play "derogates or departs from the spirit of the Novel and
that it alters five of the Novel’s characters--Atticus Finch, Calpurnia, Tom Robinson, Jem Finch, and Scout Finch." Paragraph 38 of the amended pleading cites to the same letter and alleges that the play "derogates or departs from the spirit of the Novel and that it alters several of the Novel’s characters, including Atticus Finch and Jem Finch."  So I guess the representation of Cal, Tom, and Scout is not problematic enough to warrant declaratory relief.

Posted by Howard Wasserman on April 17, 2018 at 10:51 PM | Permalink | Comments (0)

Foley on appointing a special master in the Cohen case

At the Election Law Blog, Ned Foley questions the potential appointment of a special master to review and determine privilege of the materials seized from Michael Cohen. He concludes:

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case. If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).

I would add two things in support of Ned's conclusion. First, one reason this is a "politically charged case" is that the President has been relentlessly attacking the Department of Justice, including over the seizure of Cohen's documents.There is an unfortunate irony, and perverse incentive, that the President's attacks on the prosecution politically charge the case so as to require special procedures.

Second, DOJ uses filter teams, not a special master, when reviewing materials seized from congressional offices for possible Speech-or-Debate-protected materials. Such cases are at least as politically charged as this one, with the added bonus that they implicate the Separation of Powers when the executive investigates the legislature.

Posted by Howard Wasserman on April 17, 2018 at 02:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

A Further Defense of Criminal Justice Books...

One more reason to write a book as a law professor - you could win a Pulitzer.  Congratulations to Professor James Forman Jr. (Yale) for winning a Pulitzer Prize for his book "Locking Up Our Own: Crime and Punishment in Black America."  It is a terrific book and a well-deserved honor.

Posted by Andrew Guthrie Ferguson on April 17, 2018 at 09:38 AM | Permalink | Comments (2)