Thursday, January 16, 2014
Sincere marijuana reform question: exactly what are DEA officials "scared" of?
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
Quick thoughts on personal jurisdiction
A few thoughts on personal jurisdiction following Tuesday's decision in Daimler v. Bauman, an 8-0-1 opinion by Justice Ginsburg, with Justice Sotomayor concurring in the judgment. Here is a good recap/summary.
1) I think the majority got it right. It clarified what it said three years ago in Goodyear--general jurisdiction is appropriate only if the defendant has continuous and systematic contacts that render it at home in the forum state, which usually means state of incorporation and principal place of business. The Court rejected the common lower court approach, still coming even after Good Year, applying general jurisdiction where an entity "engages in a substantial, continuous, and systematic course of business." The Court called this "unacceptably grasping," as it means any large corporation is subject to general jurisdiction pretty much nationwide.
2) The Court did leave open the possibility that a corporation could be subject to general jurisdiction in states other than incorporation and P/P/B, although there were strong hints this would be rare. The analysis would depend not only on the corporation's contacts with the forum, but also its contacts with other fora--the inquiry is whether the corporation is at home in the state--if it just does a lot of business everywhere, it is not at home there. The civ pro listserv jumped to the example of Boeing in Washington State--Boeing is incorporated in Delaware and headquartered in Illinois, but does most of its work in Washington.
Wednesday, January 15, 2014
Fontana on Jewish athletes
David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."
Tuesday, January 14, 2014
Lawsuit over George Washington Bridge closings
The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.
It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?
Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.
For Dying Out Loud
Emma G. Keller's article about Lisa Bonchek Adams' tweeting about her life with a terminal illness has prompted a firestorm of debate about privacy and dignity on the internet. Lisa Bonchek Adams' twitter feed may be visited here: https://twitter.com/AdamsLisa/status/421005045929619456. I wish I could link to Emma G. Keller's article, but I can only share with you where it used to be posted: http://www.theguardian.com/commentisfree/2014/jan/08/lisa-adams-tweeting-cancer-ethics and direct you to her husband, Bill Keller's gloss on the article here: http://www.nytimes.com/2014/01/13/opinion/keller-heroic-measures.html?_r=0.
Although Bill Keller's article appears to be attracting much of the heat in the blogosphere, it is Emma Keller's article that is worth the debate because I think it sheds light on who we are as a people. She analogizes funeral selfies to terminal illness tweeting and frames the poignant question of whether a terminally ill individual is morally suspect for "dying out loud" with some 10,000 tweets generated over Lisa Adams' several year journey.
Interestingly, the terminal illness tweeting did not appear to discomfort Emma Keller until it became more persistent, more frequent, and more disturbing. Lisa Adams' recent tweets are about treatment for intractible pain for cancer that has metasticized to several of her organs and bones.
And so it is with the dying and the old in our society. We welcome -- it seems to me -- them as brave exemplars of the fight against age and disability but file them away under disturbing and self-involved, when disability and death gain the upper hand.
You see, so far, everyone dies. Lisa Adams is narrating a part of her life. A brief visit to her twitter stream is scary though, interestingly, optional. Emma Keller is disturbed yet unable to turn away. And I give Emma Keller credit for caring enough to want to know the end game, even though she clearly does not want to know the details. But Lisa Adams does not want to just phone it in.
Lisa Adams is dying out loud. I suspect she has always lived out loud. Those who measure her attempts to make sense of her life and her highly medicalized dying, while she is living it, against the stoicism of others who have moved more quickly toward palliative care have abysmal timing.
Yet we are many of us tone deaf to the dying among us. We are a death denying people. Observing Lisa Adams' life journey may be worthwhile precisely because of the discomfort it brings.
Symposium on After Marriage at Florida State Law
I'm delighted to share the news of this upcoming symposium at FSU on January 31, 2014, entitled "After Marriage."
The symposium, “After Marriage,” explores what a national marriage equality precedent would mean for gay rights, marriage, the family and anti-discrimination law more generally. Numerous conferences and symposia have been devoted to exploring the road toward marriage equality for same-sex couples. This symposium is devoted instead to the road after marriage equality. It uses the two marriage equality cases recently decided by the U.S. Supreme Court as an opportunity to think about what the future holds for these areas of the law in the wake of marriage rights for same-sex couples. The event will bring together scholars and movement members of national prominence to explore this important and largely uncharted question.
Issues to consider might include:
- What would marriage equality on a national level mean for marriage as an institution? What would it mean for the family more generally?
- Many activists and movement members have framed marriage for same-sex couples as an end point. What if we reconceive marriage equality as the beginning rather than the end? What might it be the beginning of?
- How, if at all, would marriage equality impact other progressive movements, including the movements for economic equality, for reproductive rights, for racial justice, for disability rights, and for transgender rights?
- What, if any, consequences would there be to a Court decision in favor of marriage equality (rather than, say, a state or federal legislative decision)? How plausible and persuasive is the backlash thesis in the particular context of marriage (as opposed to, say, reproductive rights)?
Click here to view the program schedule. More information about the speakers and CLE credit and how to register or watch the webcast after the jump.
Monday, January 13, 2014
More on the Infield Fly Rule
This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.
A couple reading suggestions for students in criminal law and the Spring 2014 schedule for the NYU Crim Theory ColloquiumN.B. This post is a revised version of an earlier post and is basically for crimprofs and those interested in crim theory.
This week marks the onset of classes for many law schools across the country, and that means the first criminal law class is here or around the corner for some 1L's. As many crim law profs lament, first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most first year casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and, for a contemporary flourish, a nod to Jeffrie Murphy or Michael Moore or Herb Morris.
Murphy, Morris, and Moore deserve huge kudos for reviving the field in the 1970's and since. Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice. But for those of you looking to give your students something more meaty and nourishing than Kantian hand-waving to fiat iustitia, et pereat mundus, you might want to check out and possibly assign either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism. Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication. Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.
Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. On the heels of AALS, we had Francois Tanguay-Renaud and Jenny Carroll present last week, and the schedule for the balance of the semester is this:
February 25: Stuart Green (Rutgers) and Joshua Kleinfeld (Northwestern)
March 31: Amy Sepinwall (Wharton Legal Studies) and Alec Walen (Rutgers)
April 28: Corey Brettschneider (Brown/NYU) and Jennifer Daskal (American)
As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is now the seventh semester of the colloquium and we are grateful to our hosts at NYU and Brooklyn Law School who have made it possible. If you're a crimprof and interested in joining us occasionally, let me know and I'll put you on our email list for the papers.
How Courts Evaluate Written Consent Forms
In my previous post, I talked about some of the questions raised by law enforcement use of written consent forms that I have begun to explore in recent research with Kira Suyeishi. What effect does the use of the consent form have on the interaction between the law enforcement officer and the suspect? My tentative thinking, based on research in the Miranda context and conversations with officers, is that it's not inherently more difficult to obtain written consent than oral consent. Moreover, written consent doesn't inherently signal a greater degree of voluntariness than oral consent.
Sunday, January 12, 2014
Corbin on Abortion Distortions (and What's Missing)
As I said in my last post, it's easier to meet your commitments to blog more if you go the aggregation route! To that end, and because I found it very interesting, I note that my friend Caroline Corbin, who is an excellent and prolific scholar in the law and religion and compelled speech areas, has a new paper up on SSRN. It's called Abortion Distortions; as they say in Shakespeare in Love, "Good title!" Here's the abstract:
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not.
The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
I enjoyed this paper. I agree with her point in general, and at least provisionally with her points about depression/suicidal claims and counselling laws; I am still(!) reaching my own conclusions about the mandate cases, although I don't think the corporate Free Exercise claim is as novel or impossible as some critics suggest, whatever limits ought to apply to it, but in any event I take no position on her argument in this section. It's a good, and short, read.
I'm very surprised by one element of the paper, however. This is not the first time that it has been argued that abortion tends to have distorting effects on judicial work and particularly First Amendment cases. It was a rather prominent feature of Justice Scalia's dissent in one of the abortion protest injunction cases, Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting), in which he wrote, "Today the ad hoc nullification machine [of abortion] claims its latest, greatest, and most surprising victim: the First Amendment." Similar claims have long been made that abortion works a distorting effect on First Amendment doctrine in another abortion protest decision by the Court, Hill v. Colorado, whose soundness will be tested by the Court this week when it hears McCullen v. Coakley. Forgive me if I am mistaken, and by all means correct me, but my quick read and search of Corbin's draft found no references to any of those cases or to the literature discussing them.
Of course Corbin may disagree with those criticisms, and of course the specific doctrinal issues she addresses are different, but I am surprised not to see a reference to them. This is especially true because the idea of some hot-button or significant factual/moral issue shaping, influencing, or distorting constitutional doctrine is hardly limited to abortion. Many splendid articles, including this one by Burt Neuborne, have been written about the "gravitational pull" of race on constitutional doctrine in a variety of areas. My recent (rough draft) article on New York Times v. Sullivan talks about the influence of race and the civil rights movement on that decision, and briefly references some of the literature alleging that abortion has a "gravitational pull" on the law. It seems to me that although a focus on particular doctrinal questions is understandable, there is also much value in focusing on, or at least fitting in and thinking about, how and why such phenomena occur in general and with what consequences; whether it is unavoidable and how; and just how bad (or good) these "distortions" are as a general matter. (There is such a thing, in my view, as overvaluing doctrinal coherence, or accepting its inevitable limits even if it is generally a good thing, or demanding more coherence from the Court than it can reasonably provide given the kinds of issues it deals with and their political and emotional valence.) I like the paper and recommend it to readers, and there is something to be said for modesty in scope. But I still found myself regretting these omissions. I encourage you to read this paper--alongside the other literature on this issue.
A Couple of Thoughts on Blogging
A belated happy new year, although I have posted one thing since January began. A quick apology for blogging so little in the past year and letting my colleagues, both guests and permanent members, do so much of the work. Some of the paucity has been due to personal and professional commitments of various kinds. In general, my not blogging is a net gain for both writers and readers, so an apology is probably unnecessary. But since I still occasionally get kind words from people I meet who say they effectively got to know me through the blog, I thought a word or two were due.
Anyone who has blogged for a long time knows it can be difficult to keep it up. Some of it has to do with the usual peaks and valleys of a person's life, including his writing life. A good deal of it has to do with the heated nature of many discussions and comment threads (including from professors), especially around legal education. I think there are good reasons for that, although it does not excuse absolutely any kind of rhetoric in my view. But heated discussions on any topic are more time-consuming to monitor, which I think one must, and can reach a point of exhaustion (both as to the discussion and as to the individual blogger involved) fairly quickly.
Much of it has to do with a simple desire not to be unduly repetitive. Some people manage to be both prolific and novel on blogs. Others maintain a high quantity of posts by sticking to the aggregation model ("Here's an interesting piece, news story, etc."). I tend to want to read something fully and be ready to comment on it before I link to it, and aside from being too busy to do so in a timely fashion sometimes, by the time I might be ready to post something I think the discussion has moved on and am much less willing to post at that point. And there are certainly many bloggers who don't seem to mind riding the same hobby-horse again and again: who think an issue or position is endlessly fascinating to themselves or others and worth repeating many times, or who get a charge out of high moral dudgeon in general or attacking some real or imagined Internet adversary in particular. And our "service" threads on hiring and publishing are very popular, although I'm not always crazy about them. I don't fall into those categories by way of inclination, and I increasingly think that if you don't have something that's especially worth saying to a general audience, you should remain silent. That's not very consistent with the general model of blogging, unfortunately!
Although this point is sooo 2008, Facebook is another reason. When we started blogging, some of us especially dilettantish or thin-line-between-professional-life-and-everything-else sorts thought we would mix up posts on law and law teaching with posts about how great Hem is, or why Gavin Harrison is such a great drummer, or why Broadchurch is such a funny show, or what have you. But Facebook seems to fulfill a lot of those needs, without either requiring one to blog on such matters for a slightly more professional audience or to flyspeck the post for errors of fact or tone deafness. Professors moaning about how unpleasant grading exams is, for example, is an extremely self-indulgent enterprise, even if it's a natural personal reaction. When law blogs started, that kind of thing was more common in the blogosphere. It has since rightly died down a great deal. (I should say that I got an earful from my students this week about how long professors take to grade exams, how foolishly long the grading deadlines are at many schools, how much it interferes with choosing and dropping courses, decisions to withdraw while tuition refunds are still at full-rate, and how the students themselves must and do meet their own deadlines. They were quite right and I am frequently quite guilty.) On Facebook, however, it's more possible to do that sort of thing (although I don't, I think) without anyone assuming you're engaging in anything other than a first-person description of your own life, or without airing a totally minor gripe to an audience of understandably impatient students. And you can post pictures of cats, and your fabulous meals, and hilarious memes about offensive coordinators, and news of your above-average offspring! Or curse a blue streak. Or joke about shooting your children. Given the long list of lawprof friends that one amasses on Facebook, it may be that this is equally professionally damaging in the long run. (I have only shot my children in laser tag, I should clarify.) But it is marginally safer and more intimate. So I feel free to post half-baked and/or cultural stuff there, or ride the occasional hobby-horse, while saving the most well-worked-out, non-repetitive stuff for this blog. Which means blogging a lot less, as I said. I probably ought to cut down on or cease Facebooking too. But it can be a nice outlet and is very useful for purposes of local political organizing (which Tuscaloosa always needs) and maintaining a sense of local and professional community. Plus, cats and Lane Kiffin.
Anyway, I hope to blog more this year, and I suspect that my work on a book this year (on social class and the American legal academy--write me if you're interested or have some input or insights or experiences) will give me more occasions and energy to do so, but I would also be perfectly happy with extended silences. I suppose I could add that if you miss my brand of nonsense you're welcome to send me a request at Facebook, although I assume those of you with lives have other things to do and those of you without them have already done so.
Friday, January 10, 2014
The Martoma trial begins
This afternoon, attorneys offered opening arguments in the trial of Mathew Martoma, one of the SAC Capital traders who allegedly engaged in inside trading. As I reported yesterday, evidence has surfaced indicating that Martoma was expelled from Harvard Law School in 1999. Yesterday, I speculated that this history -and his likely failure to disclose it to organizations later in his life (including Stanford Business School) would have made it very difficult for Martoma to become a criminal cooperator.
Today, we learned more about Martoma's problems at Harvard. The allegations, to put it mildly, are shocking [go to page 13 if you want to see the primary document].
Consent Forms and Affirmative Disclosure
Thanks to Dan and the other prawfs for inviting me to return as a guest! I promise to make up for a slow start with frequent posting for the rest of the month.
One thing I'd like to discuss during my visit is police officers' use of written forms to document consent to perform a suspicionless search. Many civil liberties advocates have long touted the forms as a way of reducing police abuse -- for one example, see this 1999 ACLU press release advocating written consent forms as part of a suite of interventions designed to address racial profiling. More recently, some have questioned whether the forms truly facilitate knowing and voluntary consent.
In an article coauthored with Kira Suyeishi (University of Denver '13), I looked at the ways that different jurisdictions use consent forms and the consequences of the use of such forms. Among other things, we argue that when a defendent signs a consent form, reviewing courts tend to treat the form as dispositive of the consent issue, rather than conducting a more searching inquiry into voluntariness.
Dubber's Introduction to "Foundational Texts in Modern Criminal Law"
Professor Markus Dubber has posted his introduction to a forthcoming volume called Foundational Texts in Modern Criminal Law. The book contains a series of essays on important figures in the intellectual history of criminal law--spanning Hobbes, Beccaria, Blackstone, Bentham, Kant, Feuerbach, Hegel, JMF Birnbaum, Mill, Stephen, Pashukanis, Gustav Radbruch, Wechsler, Glanville Williams, HLA Hart, Becker, Foucault, Nils Christie, and Günther Jakobs. You can find some of the primary texts considered on this very helpful page. In the cases of Birnbaum, Radbruch, and Jakobs (and I think also Feuerbach, but I am not certain about this), there are first-time English translations from the German of the works considered. There are also very interesting lesser known works of some of the better known authors. For example, do check out Beccaria's little algebraic gem, "An Attempt at an Analysis of Smuggling." The first paragraph alone is wonderful. I was delighted to contribute to this project with an essay on JF Stephen (my essay focuses on his History of the Criminal Law of England), an early draft of which is here.
Markus uses the introduction to discuss certain thematic threads in a massive work like this. Here are some of his interesting reflections (after the break) with respect to the organizing perspective of the book. I particularly appreciated his comments about developing a canon of texts in the field:
Thursday, January 09, 2014
You can't make this stuff up, prison litigation and football edition
A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs.
The man appears to be a Pittsburgh Steelers fan, who is angry that the Steelers missed the playoffs. This happened because, in the final week of the season, the San Diego Chargers beat the Kansas City Chiefs in overtime. In that game Chiefs kicker missed a field goal as regulation expired. The Chargers had an illegal formation on that kick, which was not called and which the Chiefs could not challenge; had it been, the Chiefs would have gotten to re-kick from five yards closer.
The motion argues that the league acts fraudulently and negligently in limiting the replay challenges that teams can make. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).
The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk was that many prisoners react worse when you do give their papers merits analysis and they still lose.
Today's White Collar News
I had hoped to say more about Bridgegate, including the recent news that the United States Attorney's Office in New Jersey has now offiically initiated an "inquiry," but then I was sidetracked by this report regarding Mathew Martoma's impending insider trading trial in Manhattan. As of now, Dealbook is reporting that Martoma may have been expelled from Harvard Law School in 1999 (I graduated in 1996, so I never met him), and the reported "disciplinary action" may have had something to do with a "false transcript." Business Insider's previous dossier on Martoma reports that he left HLS in December 1998 and then resurfaced several years later at Stanford Business School. (Query: Did he tell Stanford why he left HLS? And, with a hat tip to one of the commenters on the Dealbook article, would he have been required to report the results of the HLS proceeding in any application for a license or job?).
Now, whether the government will in fact seek or be permitted to introduce some or all of this information at trial is a matter I will leave alone for now. For me, the revelation offers a possible explanation for why Martoma has not yet "flipped."
A fun read on the origins of common Ashkenazi Jewish names.
A Plea for Stories...
This post is on behalf of a friend who's interested in writing a law school-based novel. (I swear it's not me; most people who know me know that I endure fiction as well as I do cats.)
In the wake of all of the media attention on law schools, a Prawf has decided that it’s time for this generation’s epic law school novel. This Prawf has no interest in writing another Paper Chase (too mean), 1L (too narcissistic) or Legally Blonde (too ditzy). No, this Prawf wants to tell a tale about what law school’s really like – the good, the bad, and the ugly.
AuthorPrawf is seeking your assistance and wants to hear from you about the following questions:
1) What was your very best experience in law school? It could be the time you got an A on an exam you thought you’d bombed, or the time you answered a question in class that no one else got, or the guest speaker who motivated you, or the great locker assignment you had 3L year. The sky’s the limit! The more specific, the better. If you can tell a vivid story, you get five gold stars.
2) What was your very worst experience in law school? Was it getting humiliated in class? Getting beat in the first round of moot court? Getting kicked out of your study group? The more specific, the better. If you can tell a vivid story, you get five gold stars.
3) Do you have any really funny stories of stuff that happened to you in law school?
4) As a law prawf, what is the most amusing story you have to tell about an interaction with a student? Do you have an email string or anything you can share?
5) As a law prawf, have you ever dealt with an honor code issue? Can you share details? (Obviously, many facts would be changed to protect both the innocent and the guilty.)
If you are willing to share, AuthorPrawf will gladly give you credit in the book. AuthorPrawf will also pick the very best story shared and offer a reading at your school after publication – AuthorPrawf will even pay travel expenses. Law prawfs in Malibu, Boulder, Miami, and other awesome destinations, please apply.
This could be a really fun thread, so please post your stories here if you’d like. If your law school experience was so humiliating that you just can’t post it (even anonymously among friends), email AuthorPrawf at firstname.lastname@example.org. AuthorPrawf is a law prawf and a lawyer and promises to hold all stories in strict confidence unless permission is given to use them in the book (with names and identifying details changed).
Wednesday, January 08, 2014
This could be a movie
So about a month ago, while flipping through television channels at night, I came upon a developing news story that actually surprised me. You see, last September, without any warning, two entrance lanes to the George Washington Bridge were closed. Why should this be the concern of any television reporter other than the early morning person who reports on the morning commute? Well, according to the news telecast, the two entrance lanes were located in Fort Lee; the mayor of Fort Lee, Mark Sokolich, was a Democrat who had failed to endorse Republican Governor Chris Christie in his re-election bid; and the official explanation for the closings - that New Jersey officials wanted to conduct some kind of traffic study, sounded, well, kind of fake. (Among other problems, Patrick Foye, the Port Authority's Executive Director, had no knowledge of it, and the study had not been announced in advance to Fort Lee officials - or really anyone else).
The media continued to follow the matter and question Christie about the closings. Publicly, he laughed off the entire episode as some sort of joke - because isn't it super funny when state officials interfere with interstate commerce and allegedly lie about it? But privately, Christie reportedly was not so pleased. State assembly members continued to pursue their investigation and subpoenaed documents and emails. In the meantime, two Port Authority officials who either ordered or defended the lane closures (Bill Baroni and David Wildstein) resigned, although beforehand, Baroni addressed state assembly questions in testimony - but apparently not under oath.
Well, it seems that some newly released emails today (obtained through a state assembly panel's subpoena) put to rest the notion that the lane closures were anything but political payback.
Seeking input on "must-teach" units as I start a new version of my Sentencing Law course
I am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course. I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course .
As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years. Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.
Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring. But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate. The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.
Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester. Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics. But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.
So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course. Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.
Tuesday, January 07, 2014
The Price is Right: Health Care Pricing Transparency Wars
Health care price transparency may be on its way to becoming the tag line of the year. Who doesn't like health care price transparency? The answer is almost every payor and player in our health care system is at best ambivalent about price transparency. Looking at a few recent skirmishes in our nation's health care price transparency wars helps me understand why -- first to the land of pharmacy benefit managers brokering widely diverging dispensing fees for prescription drugs distributed to the insured and uninsured and second to a group of orthopedic surgeons and residents invited to play "The Price is Right"on hip replacement hardware.
Where sports law meets contracts
In 1976, the NBA and ABA merged, with four ABA teams joining the NBA and two--the Kentucky Colonels and Spirits of St. Louis--being bought out. The Colonels owners took $ 3 million and went away. The Spirits owners--Ozzie and Daniel Silna--took a different approach. They took less cash--about $ 2.2 million--in exchange for getting 1/7 of the television revenue for the four ABA teams that joined in perpetuity. In 1976, that was not a big deal; as late as 1980, the NBA finals were being shown on CBS late at night on tape delay. All that changed when the NBA exploded in the early 1980s. Instead, the league has paid the Silnas more than $ 300 million over the past 30+ years, while regularly trying to get out of the deal. Well, it now appears they are close to a deal that will pay the owners $ 500 million to go away. That's more than $ 800 million where one side has foresight and the other doesn't (or where one side just gets lucky).
There must be a good contracts lesson in here somewhere--about expectations or mistake or something?
Monday, January 06, 2014
HuffPost Live on Utah SSM case
I appeared on HuffPost Live with Mike Sacks on Monday afternoon discussing the Supreme Court stay of the injunction in the Utah marriage equality decision. Also on the show were Michael Dorf (Cornell) and Neomi Rao (George Mason). It was a good discussion that also got into the Little Sisters case, which has a stay application (of the district court denial of an injunction) pending before Justice Sotomayor.
After the jump, one additional thing I did not get a chance to say on the Utah case:
Happy 50th Anniversary of the Oral Argument in New York Times v. Sullivan
Today is the fiftieth anniversary of the oral arguments in one of the landmark cases in the history of the Warren Court and the jurisprudence of the First Amendment: New York Times v. Sullivan. An Oyez project page with links to, among other things, the oral argument itself is available here.
I usually sit on my draft papers a bit before posting them to SSRN, but given the anniversary I thought it would be a good day to post a newly completed (rough!) draft paper of mine on the subject, despite its obvious flaws. The article is titled Institutional Actors in New York Times v. Sullivan. It was written for a symposium at the University of Georgia School of Law marking the case's fiftieth anniversary. (Alas, I was unable to attend in person; I'm sure I missed a great conference, not to mention a hell of a college town.) The Alabama Law Review will be hosting its own fiftieth anniversary symposium later this year; it's not surprising to me that two states in the Deep South, which figured so prominently in the outcome of the case, have felt duty-bound to revisit it. Here's the abstract:
"Sex offender seeks admission to Kentucky bar"
The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures. Here are the details, followed by a bit of commentary:
Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender. In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.
“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.
Stay in Utah SSM case
SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.
Sunday, January 05, 2014
Primed for Hope
Thanks to all at Prawfsblawg for the opportunity to guest blog here this month.
Prompted by Prime Healthcare Services's end of the year and under the wire closure of its acquisition of Landmark Medical Center in Woonsocket, Rhode Island, I thought I might begin with a few observations on the changing nature of hospital ownership in the United States. There could not be a more telling example of what is happening in hospital conversions (the transformation from not-for-profit to for-profit or investor-owned facilites) than in considering the acquisition activities of Prime, an investor-owned Ontario, California-based chain of 25 hospitals.
Prime's nationwide expansion strategy is interesting because its distinctive business model may soon arrive at a distressed community hospital near you.
Prime buys genuinely distressed hospitals. No, I don't mean merely struggling hospitals but distressed hospitals. A distressed hospital is a facility so financially troubled its board of directors or governing authority has determined it must either be closed or sold.
I have written elsewhere about the economic and social implications of hospital closure but what you need to understand today is that hospitals rarely fold quietly. Whether it is wise in all circumstances to prolong the life of an acute care hospital is seldom considered at the community level. The overwhelming presumption is that all hospitals are health-promoting, job-creating, community welfare-enhancing institutions. And Prime acknowledges this with its corporate tag-line: "Saving Hospitals, Saving Jobs, and Saving Lives."
Friday, January 03, 2014
Rotations and AALS Sundry
Happy new year everyone! It's a snowy day here in Manhattan, but the AALS conference is still slated to unfold this morning.
A few minor programming announcements. First, domestically here at Prawfs, I'm delighted to both welcome back Ann Marciarille (MO) and Nancy Leong (DU) to the conversation here and to express thanks to Miriam Baer (BLS) for staying along for the ride in January. Greetings and welcome back!
Also, Eric Posner is now officially unhinged-- he is doing some awesome blogging over at his new website, Ericposner.com. Needless to say, I am hoping that Eric will abandon his solo blog and instead join our ranks here at PrawfsBlawg, where there's a larger and more passionate market for his posts observing, among other things, the graphical relationship between pomposity and the social value of legal scholarship. Eric, by way of this public invitation, let me reassure you that you can cross-post your graphs and apercus.
Even more importantly, with respect to the NYC law prof world, let's talk about boozing and schmoozing. Tonight is the annual Prawfs/Concurring Opinions Happy Hour. It will take place at the Bridges Bar in the NY Hilton, where the AALS conference is taking place, and the fun will begin around 930 and continue until all the cats are dead.
Second, in addition to the typical foofaraw happening at the Hilton, the Fed Soc is hosting its free shadow faculty conference (schedule here). I'll be there later this afternoon to present a 7 minute version of my paper with Howard Wasserman and Michael McCann called, Catalyzing Fans.
Third, since I'm on the executive committee for the Scholarship Section of AALS, I want to alert readers to the very cool panel we've put together, starring, among others, Prawfs' very own Matt Bodie. Here's the info:
Many law professors publish exclusively or primarily in law reviews. Others make different choices and author books, write essays, draft amicus briefs, prepare comment letters to regulators, or blog. Some do a combination of the above. Panelists will discuss why they have chosen to disseminate their ideas outside of the conventional law review format. Why write a book? What kind of scholarship is more appropriate for a book as opposed to a series of articles? When should one try to draft an amicus brief, or prepare a comment letter to a regulator? The panel will be asked to discuss choices they have made in deciding how they disseminate their ideas and try to influence lawyers, colleagues, policy-makers and others.
The panel includes:
Speaker: Douglas A. Berman, The Ohio State University, Michael E. Moritz College of Law
Speaker: Matthew T. Bodie, Saint Louis University School of Law
Thursday, January 02, 2014
No scholarly system is perfect
A while back, the blawgosphere was abuzz with discussion of the problems with law reviews and legal scholarship. Courtesy of Jim Pfander (Northwestern) comes this editorial by several neuroscientists identifying a raft of problems in scientific scholarship, including plagiarism, image manipulation, and data manipulation and fabrication (the latter is blamed in part on the tendency of scientific journals to publish only "positive" findings). This is not to suggest that the law review system is necessarily better, just that everything has its own problems.
Tuesday, December 31, 2013
Happy new year!
I am not particularly clairvoyant, but I harbor little doubt that, just like this year, 2014 will usher in major and minor developments in various areas of law and law enforcement. Happily, there will be time to think (and write) about all of these matters tomorrow. Until then, spend some time with friends or family, and be sure to enjoy what is left of 2013. Happy new year!
End of year enforcement trends
With the end of the year closely approaching, it appears that several major corporations either have resolved or are about to resolve government investigations of their employees' violations of the Foreign Corrupt Practices Act. Among them:
Hewlett-Packard, whose Polish and German subsidiaries allegedly committed a number of crimes in connection with transactions in Poland, Russia and other countries.
JP Morgan, whose Chinese subsidiary is under investigation for public sector transactions that may have come about as a result of hiring under its "sons and daughters" hiring program. JP Morgan's New York headquarters reportedly had no knowledge of the program.
Archer Daniels Midland (ADM), whose Ukrainian subsidiary entered a guilty plea in connection with its violations of the FCPA in regard to securing certain Value Added Tax refunds (you can read more about the guilty plea here). Although charged in an SEC complaint, ADM itself will not be criminally prosecuted for it subsidiary's violation, due in part to its voluntary disclosure of its subsidiary's wrongdoing, its extensive cooperation with the government's investigation, its agreement to implement changes in its compliance program (which reportedly was too decentralized) and provide the government with compliance reports for the next three years.
I'm sure there are more out there, but these came to mind as I was perusing various news outlets and blogs. The ADM resolution is interesting because it combines the corporate parent's criminal non-prosecution agreement (NPA) with its offending subsidiary's criminal indictment and guilty plea. (To be exact, it is in fact a "criminal information" that was filed; for all practical purposes, the information and indictment are identical, except that the defendant's waiver allows the government to file the information in court without seeking a "true bill" from the grand jury).
Subsidiary indictments are neither new nor unique (particularly in the FCPA context). They have been in existence for some time now, and as the case with ADM, they often represent some negotiated settlement between the offending corporation and the Department of Justice. Indeed, it would be interesting to know what percentage of the convicted foreign firms that were the source of Brandon Garrett's relatively recent study (discussed here), and the convicted firms that formed the focus of Gabriel Markoff's study were in fact subsidiaries entering negotiated guilty pleas.
Given that NPA's and deferred prosecution agreements (DPA's) have been on the receiving end of much criticism (including my own), one cannot help but wonder if the ADM model - NPA/DPA for the parent, plus criminal indictment for the sub - will become the norm for most high-profile corporate prosecutions in 2014 and beyond. If it does, I doubt it will quell criticisms of corporate prosecutions, from either the right or left.
Monday, December 30, 2013
Prawfs/Co-Op Happy Hour Details
For those of you wandering into NYC the next few days for AALS, here's the critical news: the annual Prawfs/Co-Op Happy Hour will be this Friday at 930pm until midnight (at least) at the Hilton "Bridges" Bar. See you then and there, and please pass it on! As you'll see from Yelp, we're apparently prioritizing location and big pours in our selection of venue.
In the meantime, greetings and hugs for the New Year from Tel Aviv. See many of you soon, I hope.
Law School Hiring, 2013-2014 - Reminder
Please submit information about hiring (e.g., callbacks, a school that isn't hiring, etc.), here, on Thread Two of our Law School Hiring information. The information will be gathered on this spreadsheet.
I will post the "offers" thread, but not until February at the earliest.
[Update, 1/2/14: Link to spreadsheet fixed.]
Sunday, December 29, 2013
What effect pleadings?
The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.
So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:
1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.
2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.
Saturday, December 28, 2013
Teaching Criminal Procedure in a changing world
As I ready myself for teaching a new semester of Criminal Procedure I (often known as the "investigation" course, as opposed to the Crim Pro II "adjudication" course, which ostensibly covers everything from "bail to jail"), I cannot help but think how much the course -- and my syllabus - has changed in the last year or so, and how much it is likely to change over the next 24 months.
Concluding on a high note: student papers highlight diversity of important marijuana law and policy topics
I was eager and excited to teach a law school seminar this past term focused on marijuana law, policy and reform in part because I have come to see how many diverse and dynamic legal and policy issues are raised and impacted by states legalizing medical and recreational marijuana use. Last week, my students providing a fitting final demonstration of this reality when they turned in their final papers. Below I provide the titles of the seminar papers submitted for this course:
You’re Fired…Maybe: How the Legalization of Recreational Marijuana Will Affect Employee and Employer Relations
The Anonymous Online Black Market
The Pliant Majority: Cognizing the Attitudinal Shift Toward Marijuana Legalization in America
The War on Federalism: Battleground Medical Marijuana
Federal Sentencing in Marijuana Offenses: How Should Federal Judges Reflect the National Changes in Policy When Sentencing Marijuana Offenders?
Marijuana or Xanax: the Lesser of Two Evils
Marijuana Policy and Immigration Law: Policing Borders, Blurring Lines, and Reforming Policies
Privacy Concerns Within the Ever-growing Marijuana Industry
Responsible Smoking – A Guide to Police Powers in a Recreational-Use State
Nuestra Voz Entre La Hierba: the Latino Vote and Marijuana Reform
“Weed Here, Get Your Weed Here!”:The First Amendment and Advertising Legalized Marijuana
Keeping the Flashing Lights On: Using Civil Forfeiture to Fund Law Enforcement by [Not] Punishing Drug Offenders
Additional Revenues for the City of Detroit and State of Michigan: An Initiative for Legalized Marijuana within the City of Detroit
Legalize and Tax Marijuana: The Path to a Better Fiscal Future for Ohio
A Guide to Marijuana Reform in the Buckeye State: How and Why Ohio Should Lead America’s March Towards Marijuana Legalization
Starting a Retail Marijuana Business: Colorado or Washington?
As these paper titles highlight, students used their final papers as an opportunity to explore employment law, cyber-law and markets, public opinion trends and minority voting patterns, privacy law, federalism, the First Amendment, federal sentencing and civil forfeitures, immigration law, and health law as well as the array of tax and business issues that surround marijuana reform policies and practices. (Once I finish grading all the papers, I am planning to post some or all of them in this space if I surmise there is reader interest.)
In some future "wrap-up" posts, I hope to discuss more broadly what I thought worked best (and did not work so well) in my development of this seminar. I also want to discuss a bit why I think I should probably wait until late 2015 or early 2016 to teach a course like this again.
Cross-posted at Marijuana Law, Policy & Reform
Wednesday, December 25, 2013
More on stays and injunctions, marriage equality edition
Last month, I wrote about when courts will or should stay negative injunctions ("this law is unconstitutional, stop enforcing it") pending appeal, pointing to marriage equality as a case in which a stay ordingarily would be appropriate. Well, perhaps not. Following last week's district court decision invalidating Utah's ban on same-sex marriage, both the district court and the Tenth Circuit declined, without explanation, to stay the injunction pending appeal. This means that, once state offices open after Christmas, same-sex couples will be able to get married in Utah.
Mike Dorf has a nice a take on this decision--he calls it legally and morally correct, but still wrong. Dorf makes the same argument I did about chaos and confusion (and, he adds, heartbreak) if marriages recognized in the interregnum are then declared invalid if the district court is reversed on the merits on appeal. In Dorf's view, this case came down to the likelihood of success on the merits prong--just as the Texas abortion case did last month--which here cut against issuing the stay. In light of Windsor, the state is not likely to prevail on the merits on appeal to the Tenth Circuit or SCOTUS; bans on same-sex marriage simply cannot stand. That overcomes any concerns for (or real risk of) chaos and heartbreak. Nevertheless, Dorf argues that decision not to stay still is wrong, just because one never knows what SCOTUS will do or when. I agree, which is why I would argue that risk-of-chaos should play a larger role than likelihood of success in cases such as this.
The next move could make for a fun Christmas. Step one is a petition to the Tenth Circuit Justice, Justice Sotomayor; she can either decide on the stay herself or refer the matter to the full Court. If she denies the stay, the state could file a renewed application with any Justice of their choosing. Since it is Christmas, Justice Kagan may be the easiest one to find.
Merry Christmas to all who celebrate.
Update 12/27: Andrew Koppelman adds this tidbit: The Utah AG did not request a stay as alternative relief in its original pleading, which has been common practice in marriage equality cases. (Koppelman's post links to a transcript of the stay hearing in the district court, where the court says he did not enter a stay because no one requested one and the AG seems confused that the court did not enter a stay sua sponte). This explains the procedural rush over the stay, although I doubt it ultimately would have made a difference.
Tuesday, December 24, 2013
Some of you will spend tomorrow with friends or family, possibly exchanging gifts. If you do, be sure to check out this oldie but goodie. Some of you (like me) will spend tomorrow en route to somewhere else, marveling that the airports aren't nearly as empty as you thought they would be, perhaps because everyone else has figured out that flying on Christmas Day is cheaper. And finally, some of you (including, perhaps, Justice Kagan) will spend tomorrow devising routines of your own, which in turn may come to acquire a cult-like status. Whatever you do, have fun, be merry and enjoy some well-deserved rest!
Monday, December 23, 2013
NYC's newest data tool
In the final days of his mayoral term, Mike Bloomberg has announced the rollout of a new database available to the public, known as the Data Analytic Recidivism Tool, or DART. DART compiles "recidivism" data on all offenders arrested in NYC in 2009. I place the word "recidivism" in quotes because the DART database tracks all individuals who were initially arrested in 2009 in NYC, including those who were not necessarily convicted of anything. Accordingly, the city appears to be labeling (untentionally?) as "recidivist" any person who was arrested initially in 2009 and then re-arrested again within that year. This is not the definition of recidivism used by the Bureau of Justice Statistics, which tracks recidivism among released offenders.
NYC's new DART database ostensibly enables researchers to establish correlations between repeate arrests and certain crimes and offender characteristics. As explained by the official press release:
DART enables users, including criminal justice professionals, program planners and researchers to select a group of defendants based on factors like age, prior criminal history and details about their criminal cases. DART will then produce a graph displaying three different one-year re-arrest rates for the selected group, including the percentage re-arrested for any crime within a year; the percentage re-arrested for a felony within a year; the percentage re-arrested for a violent felony within a year; and a comparison to the citywide average.
Out of curiosity, I decided to visit the DART website and try the database. Here's what I discovered:
Sunday, December 22, 2013
Green Bag “Exemplary Legal Writing 2013” Honorees
The Green Bag’s special board of advisers on good legal writing (which includes distinguished members from the state and federal judiciaries, private law firms, the news media, academia, and elsewhere) has selected the following works as exemplars of good legal writing from the year just passed. They will appear in the 2014 edition of the the Green Bag Almanac & Reader. (For the books, that means excerpts.) Congratulations to all.
Opinions for the Court
• Frank H. Easterbrook, Silverman v. Motorola Solutions, Inc., 2013 WL 4082893 (7th Cir. 2013)
• Susan Illston, In re National Security Letter, 930 F.Supp.2d 1064 (N.D. Cal. 2013)
• Brett Kavanaugh, Vann v. U.S. Department of the Interior, 701 F.3d 927 (D.C. Cir. 2012)
• Raymond Kethledge, Bennett v. State Farm Mutual Automobile Ins. Co., 731 F.3d 584 (6th Cir. 2013)
Concurrences, Dissents, Etc.
• Rosemary Barkett, U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012)
• Elena Kagan, American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)
• Mark S. Massa, Indiana Gas Co. v. Indiana Finance Authority, 992 N.E.2d 678 (Ind. 2013)
• Milan D. Smith, Jr., Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. 2013)
• Randall Kennedy, For Discrimination: Race, Affirmative Action, and the Law (Pantheon Books 2013)
• Margaret Klaw, Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer (Algonquin Books 2013)
• Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press 2012)
• Vanessa Banni-Viñas, Correcting a Ballerina’s Story: The Truth Behind Makletzova v. Diaghileff, 53 American Journal of Legal History 353 (2013)
• John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale Law Journal 522 (2012)
• Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 California Law Review 1445 (2012)
News & Editorial
• Jess Bravin, In Mississippi, a Gray Area Between Black and White, Wall Street Journal, March 16, 2013 (updated March 28)
• Jack Chin, Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman, PrawfsBlawg, prawfsblawg.blogs.com, October 21, 2013
• Brandi Grissom, Trouble in Mind: How Should Criminals Who Are Mentally Ill Be Punished?, Texas Monthly, March 2013
• Stephen B. Kaplitt, Letter to Richard D. Trenk (June 17, 2013)
• David Keating, Letter to Senator Richard J. Durbin, Center for Competitive Politics (September 16, 2013)
• John G. Roberts, Jr., 2012 Year-End Report on the Federal Judiciary, Supreme Court of the United States, Public Information Office (December 31, 2012)
• Stephen E. Sachs, Jeffrey S. Bucholtz, and Daniel S. Epps, Brief of Professor Stephen E. Sachs as Amicus Curiae, Atlantic Marine Construction Co. v. U.S. District Court, 134 S.Ct. 568 (2013)
Friday, December 20, 2013
Rehnquist Weighs In on Law Reviews in Franks v. Delaware
I came across an early discussion of the role of law reviews which I had not seen before, so I pass it on. In Franks v. Delaware seven justices voted to allow challenges to searches based on false police affidavits; the Court noted that there was "widespread opposition to the flat nonimpeachment rule from the commentators, from the American Law Institute in its Model Code of Pre-Arraignment Procedure, . . . , from the federal courts of appeals, and from state courts." The court listed the positions of the courts in an appendix, and cited a dozen or so notes and articles. The order of authority is surely interesting, as it puts student notes before circuit courts.
Justice Rehnquist dissented for himself and Chief Justice Burger. They objected to the majority's use of scholarship: "The signed articles and student law review notes which the Court refers to in its opinion are not there, I trust, to be considered en bloc or by some process of counting without weighing. Presumably, to the extent that their reasoning commends itself to the courts which are committed to decide these questions, that reasoning will find its way into the opinions of those courts; to the extent that the reasoning does not so commend itself, the piece containing the reasoning does not weigh in the scales of decision simply because it appeared in a periodical devoted to the discussion of legal questions." 438 U.S. 154, 186-87 (1978). Obviously, if the majority had agreed with this analysis, citing the judicial decisions would have been be sufficient. I suppose the majority found it telling that no scholar came out the other way; one of the authors they relied on in support of finding police perjury reviewable was the late Professor Joseph Grano, who Erwin Chemerinsky recognized as "one of the leading conservative acadmic voices in constitutional law and criminal procedure."
Great news to share
Though I don't typically traffic in such information when it's done so ably by friends on other blogs, I'm delighted to announce (from the CDG airport) that two close friends of the Prawfs community were recently appointed to important decanal positions at major law schools.
First, my former co-author and friend, Jennifer M. Collins, was selected to be the dean of the SMU Dedman School of Law in Dallas, TX. You can read more about it here.
Second, another friend, and fellow Canadian, Austen Parrish, was selected to be the new dean at Indiana - Bloomington's Maurer Law school. Austen had previously been interim dean at Southwestern and in an earlier part of our career, we had the chance to break bread in glorious Vancouver at UBC, along with Trevor Morrison. Trevor's already set the trail for BC-niks heading up important law schools, and you can see his sharp assesssment of Austen at the bottom of this law porn press release over here.
Thursday, December 19, 2013
This recent Seventh Circuit case is mainly about substantive First Amendment/public-employee law, but it has a neat hidden pleading component. The plaintiff was a guidance counselor and girls' basketball coach at a high school outside Chicago; he was fired when he self-published a book on relationship advice titled "It's Her Fault" (the title kind of gives away the content). The Seventh Circuit affirmed a 12(b)(6) dismissal of his First Amendment claim; although his speech was on a matter of public concern (contra what the district court had held), he lost out in the Pickering balance because the school could reasonably believe he no longer could function effectively as a school counselor.
Here is where it gets Civ Pro-ish. The plaintiff apparently tried to make a detailed pleading; it quoted at length from the book and the written charges that the school board adopted in firing him and attached both the book and the charges as exhibits to the complaint. The court of appeals relied on these exhibits in affirming dismissal. The plaintff argued that a court only should perform a Pickering balance on a full record, and the court agreed that ordinarily Pickering is more appropriate after an opportunity for discovery. But in this case the court felt comfortable deciding on the complaint alone because it was so detailed. Everything needed for the analysis--the book and the board's stated reasons for the firing--were right there in the complaint. In other words, the plaintiff pled himself out of court, by including adverse allegations. Of course, had he provided less detail or not included those exhibits, the school board would have argued that there was not sufficient factual content to show that his speech was protected.
So what should a plaintiff do?
Wednesday, December 18, 2013
Michael Steinberg, whose trial I have been blogging about for the last couple of weeks, was convicted today of conspiracy and several counts of securities fraud (ie, insider trading). The jury had been out for only a day before it returned its verdict- apparently coming to a conclusion rather quickly given the length of the trial. I have much to say on this, but will leave it for tomorrow and later days, as I am currently trying to work my way through a ton of exams.
Meanwhile, I cannot help but wonder if this trial's outcome might change Mathew Martoma's mind and cause him to turn against his former boss and seek an eleventh hour cooperation agreement- if that's even possible, given the timing. Jury selection in the Martoma trial is slated to begin January 6th.
Via Paul Caron. I know the rankings are the root of all evil, but they remain the coin of the realm (at least for the moment). And the recognition for FIU is always welcome.
Monday, December 16, 2013
Green Bag to a Good Home
From page 1 of the forthcoming Autumn 2013 issue of the Green Bag:
The Green Bag (the whole enterprise, that is – journals, books, works of scholarly artistry, etc.) no longer has a home at the George Mason University School of Law.
Details of that parting – mostly comic and ironic (and a bit sad) – are not important. But two things must be said. First, we did not lose the support of GMU because the Green Bag or anyone associated with it did anything naughty (we were good citizens, but sometimes even good citizens and good friends part ways). Second, this episode should not be taken to indicate that GMU is anything other than a superb and strong school (it serves its students and the communities of which it is a part extremely well) and a fine place to work (one Green Bag editor is a longtime member of the GMU faculty, and proud of it). We are grateful for our years associated with GMU and we hope to maintain a cooperative relationship.
In any event, there is no need to worry. The Green Bag is not in desperate need of new digs, because its primary institutional home in recent months has been (and currently is and, we hope, will remain) the renowned and kind law firm O’Melveny & Myers LLP.
But it is important to us that our operations match our outlook – one foot in the world of law practice and one foot in the world of legal academia. The Green Bag is at its best when our influences and our most important resources – authors, advisers, collaborators (including readers, of course), and editors – come from both worlds. So, if you think your law school might be a good academic home for the Green Bag, please drop us a line at email@example.com.
Sunday, December 15, 2013
Learning the language of law
Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence--"failure to state a claim upon which relief can be granted," "proof sufficient to support a finding," "meet the burden of production on the non-existence of the presumed fact" . . . it goes on. (In fairness, I'm sure people can find similar examples in their own specialties).
My question is how much should that language matter, both in class discussion and on the exam? How much precision should we demand of student answers when it comes to stating the legal standards and rules and important lingo. Is it enough that the student gives us the "gist" of the standard when we understand what they mean? Or should we demand that they be precise, especially when (as with my recently completed Evidence exam) they have the rules in front of them (in which case imprecision just shows unwillingness/inability to engage with text, which is separately problematic).
For example, I gave a question with a rebuttable presumption (rear-end collision is the rear driver's fault); the plaintiff offered evidence that a rear-end collision occurred, the defendant offered testimony that he was going along with the flow of traffic when the plaintiff stopped in the middle of the road for no reason, with no cars in front or around her. One student wrote the following: "Because this is a rebuttable presumption, the defendant could offer evidence to rebut the basic facts or the presumption; he did the latter." Now, I know what the student meant (I think) from the context of the sentence and she is correct, although she did not use the proper term. At the very least, she would look really uninformed if she said this in a brief or in open court.
So should she get full credit? Or should we insist that full credit comes not only from applying the concepts, but also from stating them precisely and accurately--from using the right language.
Friday, December 13, 2013
Lawyers and Nigerian princes
Amazing. The Disciplinary Board had argued before the Iowa Supreme Court that his conduct was "delusional, but not fraudulent"--he honestly believed he was going to get $ 18 million for his clients. He just did not do sufficient due diligence (including internet searches) before bringing clients in on the adventure. The Court suspended his license for one year, a less severe sanction than the Board had recommended.
Somehow, no doubt, law professors are to blame.