Tuesday, March 10, 2015
First Amendment suspended at Oklahoma?
The two Oklahoma University students leading the racist chant aboard an SAE party bus have been expelled, according to a statement by the university's president, because they created a hostile learning environment for others. The president emphasized that the speech "impacted the entire university community as it was also distributed on social media."
I have no idea if the students will sue, as they may just want to crawl back under their rock. But if they do go to court, no way the expulsion can withstand First Amendment scrutiny, right? "Hostile learning environment" is not a recognized category of unprotected speech, unless you can squeeze it into some pre-existing category such as fighting words, true threats, or incitement and this plainly is neither.
Wow, between Roy Moore and these schmucks, I'm on a roll this month.
Update: Eugene Volokh weighs in, reaching the same conclusion that this expulsion is improper. He focuses on several points, including that racist speech remains fully protected (outside of threats or fighting words), as do references to violence that are not immediately threatening.
Monday, March 09, 2015
I see your mandamus and raise you a class action
In response to last week's Writ of Mandamus by the Supreme Court of Alabama, the plaintiffs in Strawser have moved to amend the complaint to add some new plaintiffs and one new probate-judge defendant and to have the entire thing certified as a plaintiff and defendant class action. (H/T: Lyle Denniston). If successful, the move will allow Judge Granade to enjoin every probate judge to issue a license to every same-sex couple in the state.
It also seems to set-up a direct conflict between orders of a state supreme court and a lower federal court, although that may be more illusory than real. The arguments surrounding the mandamus recognize that the mandamus only controlled judges not under a federal injunction requiring them to issue licenses; recall that Judge Don Davis (at the time the only probate judge subject to an injunction) was ordered to show that he was under the injunction, presumably to be released from the mandamus. By those terms, if a class injunction issues, every probate judge should be given an opportunity to make that showing, after which the mandamus should give way.
25 year-old adolescents
Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?
Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later. They’re living with parents longer.
As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).
Sunday, March 08, 2015
What is the Real Takeaway of this Fine Op-Ed on Free Speech and Selma?
My colleague Ron Krotoszynski has a fine op-ed today on the First Amendment and the Selma-to-Montgomery march. I have put some key excerpts after the jump. The basic message is that modern free speech doctrine would render such a march unlikely, because in the decades since then the Court has developed a proliferating public-forum doctrine that enables courts and governments to do less to protect and "advance[ ] the First Amendment's core values." (The op-ed uses "1st," not "First," but I consider that a dreadful editing choice on the part of the newspaper.)
Judging by, e.g., Facebook reactions, I assume the takeaway for most people reading this op-ed will be something fairly conventional, along the lines of "free speech is good," "public forum doctrine is bad," and "the courts have been less protective of free speech--real free speech--since the Warren Court era." I assume somewhere in the mental picture painted, many will think of Ferguson, which Ron discusses very powerfully in the full op-ed, but Citizens United too.
I'm not sure that's the right or fair takeaway. I like Ron's op-ed quite a lot, but I think the right message to take from it, and what he reports in it, is more technical and less sentimental than that. I would be more inclined to take something like the following messages from the op-ed:
1) Legal doctrine itself is problematic--necessary, perhaps, but problematic. Courts, being courts--that is, being an institution that exists to make and then rationalize and coordinate legal decisions in individual disputes--will insist on casting their rationales for decisions in judicially manageable form. Some judges, for various reasons, both good and bad, will insist on coming up with doctrinal rules and tests right away, before all the facts in a particular area of human conduct are in; that doctrine may or may not last, and may or may not cause major problems down the line. Others will do it only after some time has passed and a number of decisions are under the judges' belt. Inevitably, though, over time, a series of more or less mechanical rules, regimes, factors, and standards will be built up. In many respects, this is a good thing. But it will ultimately be harder for judges to make sustainable unmediated decisions in individual cases, or less likely that all but a few mavericks will do so. For the most part, that's just not who and what modern judges in such a regime are.
2) Thus, if you are going to rely on a judicially interpreted First Amendment to do most of the work in setting speech rules and governing public discourse, prepare to be disappointed or underwhelmed. The age of the heroic judge will pass, and the bureaucratic First Amendment will remain in its stead. Perhaps that is a good thing, on the whole! Perhaps we think of the "age of the heroic judge" because those judges stand out in history, and because Americans are incurably sentimental, ahistorical hero-worshippers. A better picture of that era, with its few heroic judges and its many average judges giving little or no First Amendment protection at all, would conclude that free speech is better protected on the whole by bureaucratic judges, and a bureaucratic First Amendment, than by a few sweeping and imprecise speech-protective decisions issued by a few eloquent judges. The bureaucratic First Amendment at least causes more judges to issue more speech-protective decisions more often, although those decisions will often be rhetorically underwhelming and mostly mechanical.
3) This is the regime we have had since the Warren Court. Despite the nostalgia we may feel for judges like Johnson (or Fortas, in Ron's op-ed--and Fortas is certainly a model of the judge who does much and speaks powerfully, but does little that can be used readily by other judges), this model has resulted in a net gain of free speech protection. More speech is protected more often and more routinely and predictably than in the earlier model--understandably, since there is now more mechanical doctrine, each case is not so novel, and the bureaucratic model does not rely as heavily on the heroism or politics of individual judges.
But it has achieved this net gain by making free speech law broader, more applicable to more instances of speech and expressive conduct, and more egalitarian, and that has costs of its own. It applies to everyone and everything! (Corporations included.) Naturally, given its breadth--given the managerial role it gives judges across a huge swath of speech and conduct, and the need to coordinate this role in a judicially manageable fashion--it has given rise to more doctrines like government speech doctrine or public forum doctrine. These doctrines often give government (and the courts) an escape hatch, in order to make the whole enterprise more manageable for both judges and government officials. We have thus achieved manageability at a cost. Modern free speech doctrine achieves breadth and generality of protection. But it is sometimes less protective on occasions involving what we used to think of as "core speech activities." We have gotten more speech protection in more places, but less protection when and where it "really counts." After all, deciding that something "really counts" is just not a manageable, mechanical, predictable task, and certainly not one for the average judge carrying out his or her function in a coordinated system of constitutional adjudication.
Thus, we have a modern free speech doctrine that is, perhaps, better for average cases and average judges, but not especially responsive to extraordinary cases or liberating for extraordinary judges. This is not a surprising consequence of assigning the whole machinery of free speech to the judicial institution. Whether it is ultimately a good thing or not is a genuine question, and the answer to that question is a difficult one and cannot simply be arrived at via moral or emotional sentiment.
I note briefly in conclusion that much of this story is almost certainly applicable to other areas of First Amendment doctrine, such as the doctrine of the Religion Clauses, which is increasingly egalitarian and increasingly uninterested in or unable to deal with extraordinary cases or ideas. It is probably applicable to other areas of constitutional law as well.
Why does the Chinese Communist Party Suppress Speech with which It Agrees?
The Chinese Government celebrated International Women's Day today by detaining several Chinese feminists to prevent them from holding rallies to draw attention to the sexual harassment of women on public transportation. I am new here to China, having been teaching constitutional law in Shanghai for barely over a month now: It is not a big surprise, therefore, that I am baffled by the Communist Party's suppression of public speech with which the Party basically agrees and that is not directed against the Party itself.
The Party leadership, after all, holds no brief for sexual harassment. They have made suppression of domestic violence one of their regulatory goals. The campus where I now teach in Shanghai has brought in feminists like Catherine MacKinnon this term to speak to lecture halls crowded with their students about the evils of prostitution in China and elsewhere, without any murmur of discontent from any party official. Moreover, Li Maizi, one of the detained feminists, is not, to my knowledge, especially anti-Party: Her public demonstrations mostly focus on the bad behavior of private males, not governmental officials -- the same bad behavior, in fact, that those officials have tried to suppress. Why, then, detain Li rather than enlist her?
There are no shortage of hypotheses explaining this odd Party tendency to bite the hand that agrees with it. The problem is that every hypothesis seems no more plausible than its opposite, and data are scarce to falsify or confirm either. Perhaps Party leaders just do not like any unlicensed private speech from any NGO, regardless of its message, because such examples could encourage wider disorder. (But why not believe that speech can reduce social tensions just as well as inflame them?) Perhaps Party leaders look on any public protest about conditions in China as a threat to the CCP's collective "face" or reputation. (But what could be a worse blow to mianzi than the detention itself and the blowback that the detention invites?) Perhaps Xi Jinping's effort to tie the CCP to traditional Chinese values has made traditional patriarchy an unspoken norm of the Party.
As I say, I really have no idea, but I am interested in anyone else's thoughts -- especially if they have something better than the just-so stories that I (or anyone else) can easily invent but not really confirm.
Can Congress use threats of conditional preemption to "coerce" states into regulating private persons?
Ilya Somin has a typically well-written and closely reasoned response to my post suggesting that, as a supporter of federalism, he ought to defend a federalism-based reading of the Affordable Care Act. Ilya's reading of New York v. United States is, however, mistaken. According to Ilya, New York holds that Congress can commandeer states by threatening to impose regulatory or tax burdens on private parties, even when those burdens serve no purpose except to act as leverage by which to induce states to regulate private persons according to federal standards.
Ilya construes too broadly New York's imprimatur for conditional preemption of state laws. Of course, New York permits Congress to offer state officials the option of escaping federal preemption of state law by regulating according to federal standards. But New York makes perfectly clear that this choice cannot be compelled. In New York's words, "[w]here Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences in the state's place" (emphasis added). In short, contrary to Ilya's claim, New York is not a nonsensically formalistic opinion that carefully limits one sort of commandeering but gives carte blanche for another functionally identical variety.
The character of this limit on coercion is a complicated question that I addressed in my earlier post. My only point here is that Ilya cannot evade this question by citing New York.
Saturday, March 07, 2015
Fair-Weather Friends of Federalism (and Nationalism) in King v. Burwell? The dilemma of supporting principles that hurt one's cause
One of the only practical benefits for federalism to emerge out of NFIB v Sebelius was the 3-vote opinion’s strengthening of the limit against Congress’ placing “coercive” conditions on federal grants in Part IV(B). Conservatives immediately began giving Part IV(B)’s definition of “coercion” to good use (in my view, being a lover of federalism). Texas and other state governments, for instance, argued that the EPA “coerced” them by imposing more onerous regulations on private industry in located in states where the state governments do not submit an implementation plan controlling greenhouse gases. Put aside for the moment the fact-specific question of whether the EPA’s greenhouse gas rules for state SIPs should qualify as “coercion” under a broad reading of NFIB. I applaud without qualification this broad reading pressed by libertarian and conservative advocates of NFIB’s anti-coercion principle. Holding private industry hostage as leverage to force state governments to carry out the Clean Air Act would clearly violate NFIB’s anti-coercion – and, more important, would violate sound principles of state autonomy, whatever NFIB might mean.
Alas, I find that Ilya Somin over at Volokh’s is, in the context of King v. Burwell, back-pedaling furiously away from NFIB’s anti-coercion principle. As explained by Abby Moncrieff’s excellent amicus brief, that principle is relevant to King in the form of an “avoidance canon.” The Affordable Care Act, on Abby’s reading, should not be construed to put state governments to the choice of either setting up healthcare exchanges are having their citizens lose access to tax subsidies. Such a choice is precisely similar to forcing Texas to choose between either carrying out the feds’ greenhouse gas policy (on one hand) or having the feds impose extra-onerous burdens on Texas’ private industry (on the other).
As I explain after the jump, Abby is absolutely correct, at least if NFIB Part IV(B) is given a reasonably broad reading. Yet I find that Ilya Somin is dismissing these worries about coercion by offering a bizarrely narrow reading of NFIB’s anti-coercion principle.
Is Ilya just another fair-weather federalist who forgot his decentralizing principles as soon as his immediate political or ideological interests cut the other way? I think that the problem is better understood as a strategic rather than moral problem: Libertarians and conservatives do not want to sacrifice their litigation priorities for the sake of general principles of federalism until they get a credible commitment from liberals like Abby that the liberals will follow suit when liberal priorities are threatened by robust decentralization. After the jump, I’ll explain how King presents a golden opportunity for such a grand bargain.
Friday, March 06, 2015
The Arias holdout
Yesterday, the jury in the Jody Arias trial split 11-1 on whether she should receive the death penalty for killing Travis Alexander. Whatever your position might be on the death penalty, this result is interesting for social psychology reasons.
Research from the Capital Jury Project suggests that when the life votes in a capital jury are at 25% or below, those jurors will fold and vote for death. When the life votes are 33% or higher, those jurors will stick together and maintain their life votes. When the votes fall between 25-33%, anything goes. (For a great discussion of the social psychology and jury dynamics that is behind all of this, see Scott Sundby's War and Peace in the Jury Room.)
Initial reports state that the jury was first evenly split but within a day had polarized to eleven votes for death and just one for life. That goes against the CJP model -- we should have expected that those six life votes would have formed a block with sufficient strength to hold together, and I don't have any good explanation for that. The fact that the lone holdout held on to her life vote also goes against the CJP model. After it got down to just her, she should have folded. That may be explainable, though.
A Strikeout for ProPublica
I am a fan of the web site/operation ProPublica. It is a source of new investigative journalism in an age in which there is too little of it, and fewer resources for it, than I would like or than society needs. Certainly it has a political tilt, but I'm fine with that; it does good work on important issues.
But its piece this week on the Federalist Society is not its finest hour. Far from an investigative piece, it is just an interview with the author of a new book on the FedSoc. I look forward to reading the book, but the piece itself is not much of a contribution. Moreover, the framing of the interview is a little silly and a little overheated. And this line from the interviewer--"The Federalist Society doesn’t even make public its membership rosters"--is worse than silly; with its vaguely ominous tones, it ought to be an embarrassment to the good work done elsewhere by PP.
I will add that what I have seen virtually none of is "investigative" journalistic work on the newer, liberal American Constitution Society. Like the Federalist Society, it is not "secret" and not especially "secretive," although I assume it is not wholly transparent either. I assume plenty of the reporting could be done via publicly available sources, and of course I cannot say what more digging beneath and beyond those sources might reveal. Nor am I making any judgments about the relative power or influence of the ACS compared to the Federalist Society. But since the ACS's apparent goals at least appear to be roughly the same as the Federalist Society's apparent goals--to grow, replicate, have influence, and create networks of power--it certainly merits more serious and skeptical journalistic treatment than it has received so far, which seems to be none at all.
Erwin Chemerinsky at FIU
I am delighted that Dean Erwin Chemerinsky of UC-Irvine was at FIU this week for the Second Decanal Lecture on Legal Education. After the jump is the video of his talk to the students (it begins around the 1:30 mark), titled The Future of Legal Education.
Thursday, March 05, 2015
The Persistence of Disproportionate Minority Contact
Yesterday, DoJ issued its report on the Ferguson Police Department. Among many other failings, the report revealed the disproportionate rate at which African Americans come in contact with the Ferguson Police Department. While they account for 67% of Ferguson's population, blacks represented 85% of vehicle stops, 90% of tickets, 93% of arrests, and 88% of those subject to use of force. Black motorists are two times as likely to be searched by the police, even though searches of whites turned up drugs and contraband more often. Correcting for crime rates and demographics did not explain the disparities.
Such findings are hardly unique. Floyd v. City of New York, the stop-and-frisk litigation, has itself generated a mountain of data demonstrating a disproportionate impact of policing on individuals of color going back to 2002, again disparities that are not justified by crime rates and demographics. And the driving while brown phenomenon has been documented for at least 20 years.
Such data is deeply troubling. And it seems that there should be no better way to start addressing the problem of disproportionate minority contact than to uncover it. But recent research about the impact of race on criminal justice policy preferences suggests that documenting disproportionate racial policing might actually encourage, rather than undermine, support for the very discriminatory practices it reveals.
SCOTUS's incoherent media policies
I am on record (here and elsewhere) favoring video-recording of SCOTUS arguments. It follows that I view its current policy--same-day transcript, same-week audio, no-week video, same-day audio for certain important cases if the Justice so deign it--as a lesser approach. But even accepting the current scheme, I cannot understand the inconsistency as to what or how the Court defines as an important case meriting same-day audio. This week's arguments in King were not sufficiently important, even though the future operation of the Affordable Care Act might be at stake (at least in Red states), but next month's arguments in the same-sex marriage cases are important enough to merit audio by 2 p.m. that day.
Note that I am not complaining about the Court's move on the SSM case. I am just struck by the seeming randomness and incoherence in its definition of importance.
Teaching professionalism -- my starting point
First, thank you to the PrawsBlawg team for calling me up from Triple-A this month. Before I joined the academy, I spent a lot of time in the Army, to include several years as a student in various Army schools and three years as a professor at the Army's law school. (The Army's law school is a member of the AALS and grants LL.M. degrees to military students that already have J.D. degrees.)
When I was on the market, every hiring committee that interviewed me asked whether my Army experiences would be useful when teaching pre-graduate, civilian students. I had a few stock answers prepared. As I finish my second year at FIU, though, I have a new appreciation for some of the ways that the Army approaches teaching. I hope to share some of those insights over this month.
Looking first at professionalism, the Army teaches professionalism in comprehensive, fully-integrated way. I decided to adopt that approach and to integrate some lessons on professionalism into all of my classes. For me, the starting point was the definition of "profession." To understand what it means to be a professional or how to behave professionally, you have to know what a profession is. So, I asked the students in my current classes (1Ls in their second semester or upper-division students, all of whom have been told over and over to act "professionally") what the definition of "profession" is, and none of them knew. I suspect that most law students don't know.
Wednesday, March 04, 2015
ACLU responds to Ron Collins
So, it appears I was sort-of right. As ACLU Exec Director Anthony Romero responds to Ron Collins, the organizations Workplan excluded free expression because other civil liberties issues involve bigger, broader, more systematic challenges involving more coordinated efforts. Free expression involves one-off individual cases into which both the national office and, especially, local affiliates regularly get involved, but which are less in need of coordinated national efforts. So it is not that the ACLU has declared victory, but that the nature of challenges to free expression are different than the challenges in other civil liberties areas.
Is this a satisfying explanation?
Update: As if to prove its point that it still loves the First Amendment and is still willing to defend the liberty of loathsome speakers to say loathsome things: The ACLU filed an amicus in the dispute over the Washington NFL Team nickname, arguing that the Lanham Act limitation on "disparaging" trademarks is viewpoint discriminatory and violates the First Amendment. (H/T: Ron, who heard directly from ACLU Exec Director Anthony Romero).
Missing the signals
Ed: This post originally was published under Dan's name because I was inadvertently signed-in on our administrative password. My apologies.
The worst thing that can be said about the Supreme Court of Alabama's mandamus decision (besides its legal reasoning, which on a quick read seems wrong and somewhat intemperate) is that the court disregarded the "signals" that have been emanating from the Court since the fall (if not since Windsor itself) about the likely outcome on this issue. A question for the signalling people (Richard and others): Does a lower court act inappropriately if it ignores (willfully or otherwise) signals and insists on applying only the formally established precedent? In a way, this feels like another aspect of the question of whether lower courts should decide cases by attempting to "predict" what SCOTUS will do or by applying their own best judgment and analysis to reach what they believe is the correct result.
Experiencing practical education
The following guest post is by Michael Chasalow (USC Gould School of Law) and is sponsored by West Academic.
Given the new ABA guidelines (and the push by many State Bars) for experiential learning, I wanted to share my experiences using practical exercises as part of a doctrinal course. For many years I have included practical exercises in my Business Organizations course. I have found that students learn the material better and that they appreciate a connection to the real world. I typically divide the class into “firms” of four or five students, and give them the types of assignments they might receive as associates working on a corporate matter in a law firm. I try to limit the responses to 2-3 pages, which I find is sufficient to make the exercise meaningful, but not excessively burdensome. The assignments are intended to incorporate the most recent substantive material we cover in the course, while building some practical and strategic lawyering skills. There are a few students who balk at the extra work, but, by and large, most of my students find the exercises beneficial and appreciate experiencing how the issues we are covering in class might arise in practice. These exercises provide great opportunities for feedback both on the written assignment itself and in class when we review the exercises and give students an opportunity to present. In a large class, I use the team approach, but the exercises also work well individually. This approach has been incorporated into the Experiencing Series - a new casebook series by West Academic Publishing that includes practical exercises with substantive material. (In the interest of disclosure, I have written Experiencing Business Organizations.) I believe that a good course should include both theoretical and practical instruction. The Experiencing Series provides the opportunity to maintain the fundamentals of a traditional course while enhancing the learning experience with simulations. Regardless of how you feel about the mandate to include such exercises in the curriculum, I have found the exercises in Experiencing Business Organizations extremely useful and worthwhile, and students seem to feel that they are getting a good mix of practical experience skills along with the substantive subject matter.
Book Reviews! Hallelujah!
Thanks to Orin, I see that a new online book review, The New Rambler, has been launched by editors Eric Posner, Adrian Vermeule, and Blakey Vermeule. It describes itself as reviewing "books about ideas, including literary fiction." In addition to Posner and Adrian Vermeule, Martha Nussbaum is among the inaugural reviewers. Commence bookmarking. And, as always, I will add that given the huge number of worthy books out there, the decreasing likelihood that good academic or trade-press books will be reviewed for large audiences in places like the New York Times Book Review, and increasing questions about the use and value of blogs, it would be great if all of us did more noting and reviewing of books. Law reviews, certainly, ought to devote more print space to book reviews in my view, and definitely ought to dedicate more online space to that purpose, and some have begun to do so. Welcome, New Rambler.
Audio Links: Alabama Law Review Symposium on the Voting Rights Act
This past Friday, the Alabama Law Review held its annual symposium. This year, the symposium marked the fiftieth anniversary of the signing of the Voting Rights Act. The speakers discussed its past, especially the civil rights activism--not least the famous Selma-to-Montgomery march, which will be commemorated this weekend across the country and in Selma itself--that helped bring about its passage; the current state of voting rights law, with panelists discussing, among other things, both the Shelby County decision and the pending Alabama Legislative Black Caucus case; and the uncertain future of voting rights. It was an extraordinary day. The topic itself was suggested by the students themselves, not the dean or faculty; that itself was important, showing both the students' willingness to acknowledge and confront our state's troubled (and, with respect to the marchers themselves, heroic) history and their commitment to voting rights now and in the future.
The speakers, including many of the nation's foremost experts on the subject, were terrific. Audio recordings of almost all of the talks are available on the Law School web site. I regret that the keynote address, by Judge Myron Thompson of the United States District Court for the Middle District of Alabama, is not available. Judge Thompson's talk was one of the most moving and eloquent addresses I have ever had the privilege of witnessing, and the rest of the audience clearly felt the same. I will not be surprised if it ends up altering the career choices of a number of the law students who heard it. I'm grateful to the Law Review and its editors, as well as the Law School's staff, for organizing the event, and to the wonderful panelists. Here's a rundown, with links:
Mark Brandon, Dean and Thomas E. McMillan Professor of Law Paul Horwitz, Gordon Rosen Professor of Law Johnny Wilhelm, Alabama Law Review
Jack Bass, Author and Historian
Professor Kareem Crayton, University of North Carolina School of Law
Professor Richard Hasen, University of California – Irvine School of Law
Professor Franita Tolson, The Florida State University College of Law
Session V – Lunch and Keynote Speaker
Judge Myron Thompson, United States District Court for the Middle District of Alabama
Professor Pamela Karlan, Stanford Law School
Professor Samuel Issacharoff, New York University School of Law
Professor Guy-Uriel Charles, Duke University College of Law
A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries.
The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults.
But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?
Tuesday, March 03, 2015
Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.
SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.
This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action). The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction.
Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]
Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.
This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.
Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:
Relative Standing in the Arizona Elections Clause Argument
On Monday, relative standing, or the idea that standing sometimes turns on who is the best plaintiff among the available options, made a brief but noteworthy appearance during oral argument at the Supreme Court.
Financing Higher Education
Thanks to Howard and the Prawfsblawg community for hosting me this month! For some time, I have had an interest in (or possibly more accurately, an obsession with) the question of how we fund higher education--and especially the ethical dimensions of that funding issue. I hope to explore some of those questions here this month.
Obviously, funding issues are very much front-and-center in the law school world these days--but many liberal arts colleges are facing even bigger challenges. Today Sweet Briar College announced that it will be closing at the end of this academic year, though it still has an endowment of $94 million. I thought the board chair's explanation of the decision to close raised an interesting point about the priorities of a nonprofit institution:
Paul G. Rice, board chair, said in an interview that he realized some would ask, "Why don't you keep going until the lights go out?"
But he said that doing so would be wrong. "We have moral and legal obligations to our students and faculties and to our staff and to our alumnae. If you take up this decision too late, you won't be able to meet those obligations," he said. "People will carve up what's left -- it will not be orderly, nor fair."
This is a courageous stand for the chair to take; there is a temptation for self-preservation even at the expense of the larger mission of the college. But even though I think that the board made the right decision, my heart goes out to the staff and faculty who will lose their jobs.
President's Policing Task Force Report
The President's Task Force on 21st Century Policing has released its Interim Report. If you are a criminal law scholar, or someone concerned with the way policing affects our society, there is a lot to love in this 115 page trove of recommendations.
The report is dense and there is so much to say about it. For now I'll just lay out the six "Pillars" addressed by the task force: (1) Building Trust & Legitimacy; (2) Policy & Oversight; (3) Technology & Social Media; (4) Community Policing & Crime Reduction; (5) Training & Education; and (6) Officer Wellness & Safety. Each pillar comes with several "Action Items," detailed explanations, and quotes from those who testified before the Task Force.
In future posts, I plan to comment more specifically on some of the most exciting "Action Items," and on what may be missing from the report. I wonder if anyone in the Prawfs community sees a major gap in these six high level proposals?
Some Questions About Randy Barnett's Latest Ref-Working Post
With another big ACA case before the Court, Randy Barnett has a new post returning to the subject of a number of posts, by him and others at the VC, during the NFIB litigation. He charges that "the left" is newly engaged upon a "political lobbying campaign" aimed specifically at Chief Justice Roberts, consisting of a mix of flattery and threats, to secure what it thinks is the right result in King v. Burwell. I have some problems with, and questions about, Randy's post, but I want to offer a couple of caveats up front.
In broad terms, there are aspects of his post that I either agree with or find plausible. I agree that the mandate case was a trendsetter in recent Supreme Court advocacy. Without more knowledge--the behavior of the press and professoriate of the period between the 1930s and the 1960s, not to mention the Justices, does not seem entirely innocent of at least similar activity--I wouldn't call it unprecedented. But it does seem to have been influential in our own time. The mixture of academic work, social and traditional media commentary, amicus briefing, and contact with journalists, generally aimed at advocating for particular results in the case, was striking. The striking element was not the advocacy as such. It was the mixture of different platforms for making the same argument, and the sense that although some of those actors are assumed by many to serve different goals and follow different professional standards depending on the role and the platform (although those standards are much-contested), what we actually got was people like law professors writing in both scholarly and non-scholarly platforms, for uniformly non-academic reasons and in a way that disregarded those goals and standards. It was the sense, in short, that some professional actors, rather than acting as academics (or journalists), were engaged in a multi-platform political campaign.
It's not clear that this approach worked. But the possibility that it did has made it more likely that the behavior will recur. That's especially true when we combine its potential effectiveness with a number of other factors: the (perceived) high stakes involved; the number of people with at least temporarily strong views on the issues and cases; the lack of clear standards of ethical conduct for both legal academics and a widening swath of news and opinion media; the potential personal gains involved (in reputation, influence, professional advancement, and ego-boosting effects of feeling like a player); and the belief that the other side is engaging in this conduct, leading to fears of being outgunned. I think some of this same cross-platform advocacy happened in Hobby Lobby too, and is happening or will happen again in King v. Burwell.
I personally find this sort of behavior--the mixture of fierce advocacy across different platforms, including academic and journalistic work that ought to be motivated by different goals and to follow distinct professional and ethical standards--distasteful, particularly where legal academics are involved. My reasons vary, but not least among them is that I have the luxury of prizing academic virtues and standards more than I do the results of particular cases. (Of course, all legal academics enjoy the same luxury.) I'm not sure whether Randy thinks any of the same conduct occurred on the right; I also don't know whether he thinks anything other than "working the ref" is ethically problematic. I know that my answer to both questions would be "yes": it did happen on both sides, and that it (arguably, assertedly) involved "working the ref" was not its only ethical shortcoming.
That said, Randy's post raises a number of questions. (After the jump. I apologize for the length, but I didn't have enough time to write a shorter post.)
Monday, March 02, 2015
Stuntz’s Presence In Yates
Last week, the Court decided Yates v. United States, the red grouper case, by a 5-4 vote in favor of the defendant. I’ve blogged about Yates and its oddities before (here and here). In this post I’d like to focus on a connection between Yates and the scholarly work of the late Professor William Stuntz, particularly his work on checking the "pathological" politics of criminal justice. Though he is nowhere cited, the opinions in Yates call to mind Stuntz’s critique of overcriminalization and prosecutorial discretion as well as his suggested solutions, including expanded due process protections.
Entry Level Hiring: The 2015 Report - Call for Information
Time once again for the entry level hiring report.
I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.
Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
This report follows in the tradition of Larry Solum's excellent work over many years.
All PrawfsBlawg entry level hiring report tagged posts.
[Originally posted 3/2/15]
The Dress, Justice Holmes & Erie
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Observing Veteran Teaching
First - thanks to prawfsblawg for the invitation. This site was instrumental in my learning of many ropes when I first began teaching. It helped me through "the market" and my first submission season. More importantly than that, it was a place to find people talking about all manner of things that interested me, including professional development as teachers.
That's where I'm going to start. At Loyola (Los Angeles), where I teach, I have the pleasure at least twice each semester of tenured faculty members visiting my class. Each time, they write up a report about what they saw, share it with me, and then we'll have a discussion about the class. Each time, I've received very helpful feedback. This is, I understand, a standard practice.
But another good way to learn about teaching is to watch other teachers teach. So that's what I'm doing this semester. I've asked around for permission to attend different classes, and every single colleague has said "whenever you want." By semester's end, I will have sat in on about 10 classes. The vast majority will be taught by tenured professors. They'll be lecture classes, clinical seminars, and doctrinal classes with an experiential bent. It's already been valuable to see veterans run a classroom discussion in ways that I have and ways that I haven't, in ways that I might, and in ways that I probably won't ever. It's also been illuminating to experience the classroom from the back of the room and see how things like writing on the board or pacing the front of the room (or not pacing) look and feel to the students, and to see how students react to different techniques.
So it occurred to me that in addition to being observed by tenured faculty each semester, new teachers (doctrinal, clinical, skills, fellows, VAPs, etc.) should probably observe tenured/veteran teachers each semester, at least once. But I don't know that I've ever heard anyone say that this happens, at least not as a requirement. Does anyone's school require such a thing? If so, how does it work?
Sunday, March 01, 2015
Recommending Highly The Black Box Society by Professor Frank Pasquale
This is my last post for this stint (my third) on Prawfsblawg and I want to thank again for inviting me Howard Wasserman and the others who are doing the work of keeping going what Dan Markel, ZT”L started.
I also wanted to share a very interesting, well-written and important book that I’ve been reading this month by PrawfsBlawg alumni @frankpasquale called The Black Box Society: The Secret Algorithms that Control Money and Information. (Amazon). Professor Pasquale is a professor at the University of Maryland Francis King Carey School of Law School of Law. In this book, Frank explains in clear, non-technical English what exactly is going on behind the internet technology we use every day. He explains how the sites we access on the internet are not just collecting information from us, but are selling it to others who are using that information in shaping the information we get back. So, and this among the more benign points, what you get when you run a Google (or other) search is probably very different than what I would. Google is not an automated index nor is a database like Lexis or Westlaw. Moreover, the information collected isn’t just shaping the advertisements we see on the screen, it’s controlling our access to jobs, credit, insurance, security clearances, and housing. As he explains, “you can’t form a trusting relationship with a black box.”
What makes the book of special interest to law professors is that it doesn’t just present the issue, it addresses the lack of legal restraints in the United States to regulate (or even monitor) the information private companies collect and the ways they use it. Frank makes a strong case, as he has in his scholarship, for the role of regulation not just in promoting transparency, but in regulating behavior. As he explains, “If credit scores can be regulated, why not the scoring systems used by digital advertisers and employers?”
Whether we directly use the internet to apply for credit, insurance or jobs, those offering these things to us have full access to extensive data about what we like, what we do, and how we are likely to behave. For example, they know whether we are willing to pay above market price for convenience. We are, he tells us, voluntarily opening our entire lives to commercial organizations who not only lack any obligation to keep our confidences, whose business model is to package and sell them.
While we were worrying about the government listening to our phone calls, we didn’t notice that “the state’s immense powers of compulsion and enforcement can now be enlisted in support of the black box technologies of the search, reputation, and finance sectors.”
I commend the book to you highly, as well as his NY Times Op-Ed overview but in the event you need more convincing, please see what others have said in Science, The New Republic, Slate, and The New York Times.
Thanks, and Happy March!
Happy March, everyone. It’s one of only two months that are also verbs, plus we get March Madness, spring break, and maybe even spring itself. I’ll believe that last part when I see it—we had snow here in Alabama a few days ago, and there’s more in the forecast this week.
With this first post, I mostly wanted to thank Howard, Paul, and everyone else in the PrawfsBlawg family for the invitation to guest blog. But I also had a quick question for my hosts about the Prawfs slogan/tagline: “Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit In A Kind Of Boring Way Until Recently -- Since 2005.” It’s one of the better ones out there (though for pure poetry it may run a close second to “The Internet’s largest image depository of crappy and awesome taxidermy”). I’m a big Prawfs fan, so I’ve never found it boring. I’ve often wondered, though: was there some particular event or creative decision during the blog’s illustrious first decade that allowed it to escape the bonds of its “Kind Of Boring” early history? A new font, maybe? Or more cat GIFs? The end of the writers’ strike?
Anyway, I’m looking forward to spending some time in this delightful, purple-tinted corner of the internet. And I’ll try my best not to drag the blog back to whatever “Kind Of Boring” past existed before “Recently.” Thanks again!
[Updated to reflect that May is also a verb.]
Why Do Peer Review?
A recent post by Steve Bainbridge raises a nice issue: how should we think about peer review? Traditional peer-edited legal journals have established procedures (JELS pays honoraria and blinds; JLS pays but doesn’t; JLEO has fantastic peer comments, etc). But in the last five years, most of the top student-edited journals have moved to some kind of peer system – and many of us are now routinely asked, after a student-led process, to review for publication. That peer review is never paid, and very often professors are asked to review for journals that have never accepted them. *cough. Yale Law Journal I love and hate you. cough* That can frustrate even non-curmudgeons. Why do it?
- For institutional credit. I’m aware of no school that gives formal credit for these student-edited peer reviews. Are you? If so, what does it look like?
- For Law Review credit. One explanation I’ve heard for doing a review for, say, Harvard Law Review, is to motivate them to feel that they owe you at least a rejection on your own work, instead of a magnificent silence. In my experience, there’s some truth in this: doing peer review gives you the email of an AE, and credit with that person. I routinely have succeeded at being at least read by a journal I’d just done peer review with. I haven't yet moved from a read to an acceptance. But I did get a personalized email from HLR once. It mentioned that they had an unusual number of great articles that cycle, which meant that they couldn't publish even good work like mine. I thought that was nifty! Of course, the credit isn't merely transactional: being a peer reviewer means you are an “expert” in the field, which should provide your article some kind of halo effect. Of course, this feeling is a quickly depreciating asset, and never rolls over from year-to-year. Use it or lose it!
- For the love of the game: For those of us who think that student journals should move exclusively to double-blind review, with faculty participation is a veto, participating is a price we should gladly pay. The problem is that the system isn’t perfectly constructed. Law journals should insist that peer comments will be conveyed to authors – this makes the comments much less likely to be petty (“cite me!”) and more likely to be constructive.
Bainbridge argues against mixed peer review systems, but none of his objections strike me as particularly relevant if the process is "student-screen, peer-veto." That is how I understand the system to work at SLR, YLJ and HLR. I don’t know about Chicago – I would’ve thought their selection involves a maximizing formula and ended with a number.
Welcome to March and to our March visitors, some of whom have already begun posting. It is very exciting to welcome several first-time guests: Kevin Lapp (Loyola-LA), Kate Levine (NYU's Institute of Judicial Administration), Cassandra Burke Robertson (Case Western), Adam Steinman (Alabama), and my FIU colleague Eric Carpenter. We also welcome the return of David Hoffman (Temple), one of the original Prawfs.
Thanks to our February visitors, some of whom will be sticking around for another month.
Friday, February 27, 2015
It's white, no blue . . . aaaah
Doesn't this illustrate everything that Dan Kahan, current GuestPrawf Dave Hoffman, and others (including me) have been saying about video evidence? If no one can agree on the color of the dress,* how can anyone agree on whether the force used was excessive or whether the protesters were peacefully gathered and marching?
* It's light blue and gold.
Fr. Theodore M. Hesburgh, R.I.P.
Not just my own University of Notre Dame, but also American higher education and, in many ways, the country has lost a truly great and really good man, "Fr. Ted" Hesburgh. You can learn a lot more about his work and life here. And, the Washington Post's obituary is here.
Fr. Hesburgh was retired by the time I arrived at Notre Dame, but I did have the chance to meet and talk with him several times, including in connection with the University's education-reform efforts. I remember him expressing surprise, and a bit of irritation, when I told him back in 2000 that vouchers and school-choice were still controversial and politically challenging. "I thought L.B.J. and I took care of that back in 1965!", he said. "There are a few details still being worked out," I assured him. God bless Fr. Ted.
Teeth Whitening for Lawyers
Thanks to prawfsblawg for having me and to Dan Markel for having been such a welcoming presence when I first entered academia a few years ago. Most of my posts will focus on areas of criminal law/procedure, but today I want to look at Unauthorized Practice of Law (UPL) rules (proscribing who can practice law, usually defined incredibly broadly, and enforced mainly by bar associations) in the context of a recent Supreme Court decision.
In North Carolina State Board of Dental Examiners v. FTC, decided on this past Wednesday, the Supreme Court ruled that North Carolina's dental board could not restrict non-licensed teeth-whiteners from beautifying North Carolinians' smiles. This case may have more impact on lawyers, and particularly bar associations, than you might think. The Court relied heavily on an earlier ruling holding that bar associations, who used their UPL rules to prevent nonlawyers from providing "legal" services, came under the ambit of the Sherman Act.
Despite that ruling, bar associations continue to apply UPL rules to inhibit competition not only from nonlawyers who wish to appear in court (traditional lawyer activity) but to those who wish to fill out simple contract forms (to purchase a home for instance), or advise a friend on her will. I, and other more prominent scholars, have argued that these rules are not only anticompetitive but also do a great disservice to the 3/5 of American plaintiffs who appear pro se because they cannot afford an attorney, not to mention the millions more who forgo advice on transactional arrangements for the very same reason. The mantra from bar associations is that these rules protect the public interest, but, as in the N.C. dentist case, it is often hard to see whose interest is protected other than the professional degree-holders.
I am curious to see whether this recent case will revive challenges to UPL rules. I am also curious to hear arguments from those who believe UPL rules actually do serve the American public.
It's Been a While
Hi folks. It's a bittersweet pleasure to come back to Prawfs, which was my first blogging home as an academic. I joined the academy in 2004 and blogged here for my first year. I last was on the site as an author in 2005 - October 31 to be precise - the day I left for CoOp. 2005! Remember? When applications were up, SSRN was new, and blogging wasn't stagnant?
Actually, I'm not sure that last bit is true. Yes, law professor blogging has come to taken on an increasingly navel-gazing tone - more posts about socks, rankings, rankings of socks, and sometimes lateral moves. But at the same time, contrary to my predictions, blogs haven't by-and-large consolidated; most of the blogs around in 2005 are still chugging along, and one blog - Volokh - has clearly made a serious, sustained, and substantial contribution to the world in its role in motivating ACA litigation.
Dan Markel believed in this medium. Among other things, he was the first to see that junior law professors would want a place to anonymously gripe about submissions and hiring. I argued often -online and off-that Prawfs fora are almost entirely bad for the profession. I still think I'm correct, but Danny was right to see an unmet demand for community across our various, isolated, schools and subject matter specialities. Danny was a connector. Like so many of you, I feel his loss still in missed connections, phone calls, sometimes presumptuous stories, and scholarship. And like so many of you, I remain astonished by the lack of action in his case. Danny's scholarship was, in some way, about the social costs of crime. It's ironic that his death provides such a clear example of theory in action. Law professors spend so much time on innocents in jail that they sometimes forget to account for the human costs of crime unsolved.
In any event, this month I'll try to engage with these topics, as well as those more evergreen: JD/PhDs (good, bad, scam?); skills education (and its relationship with employment); the problem with p-values; and, of course, promoting an article I've out for submission.
Thursday, February 26, 2015
At CoOp, Ron Collins discusses the ACLU's new 2015 Workplan: An Urgent Plan to Protect Our Rights, which listed 11 "major civil liberties battles" that the organization plans to focus on--none of which have anything directly to do with the freedom of speech or of the press. Ron wonders why, given the ACLU's history and founding purpose. He emailed ACLU Executive Director Anthony Romero about this and was told Romero intends to respond.
I look forward to hearing Collins report on Romero's response. But let me offer one possible (if not entirely accurate) answer: We won. There are no "major civil liberties battles" to be fought or won with respect to the freedom of speech. Yes, we still have situations in which government passes laws or does other things that violate the First Amendment and those must be fought in court. But the First Amendment claimant wins most of those cases and much of the doctrine seems pretty stable at this point; it simply is a matter of having to litigate. Importantly, these do not (or at least do not appear to) reflect a systematic assault on free speech rights across wide areas of the country on a particular matter. There is no overwhelmingly adverse legal precedent that must be changed (compare surveillance), no overwhelming series of incidents highlighting the problems (compare police misconduct), and no systematic assault on a right by political branches or other majoritiarian institutions (compare Hobby Lobby; reproductive rights; voter ID).
The only "major battle" arguably to be fought on the First Amendment is over campaign finance. But the ACLU is famously divided over that issue, with past leaders fighting among themselves and divisions within the current leadership. The rules governing public protest have evolved to overvalue security at the expense of the right to assemble and speak in public spaces, especially at singularly important events (political conventions, meetings, etc.). But there are so many variables at work there, it is hard to see how to create a battle plan on that.
Wednesday, February 25, 2015
Crime, Policing, and CompStat: An OVB/Endogeneity Exacta
Continuing my examination of the Brennan Center report on crime and incarceration, I want to turn my attention now to its treatment of CompStat and policing. The report finds, based primarily on Steve Levitt’s prior work, that policing is responsible for about 0% to 10% of the crime drop in the 1990s and very little in the 2000s; conversely, using city-level data, the report suggests that CompStat contributed to 5% to 15% of the drop in city-level crime. The report quite likely understates the effectiveness of policing and overstates the effectiveness of CompStat.
JOTWELL: Erbsen on Klerman & Reilly on forum selling
The new Courts Law essay comes from Allen Erbsen (Minnesota), reviewing Daniel Klerman & Greg Reilly's Forum Selling, which discusses how particular courts make themselves attractive places for parties to forum shop. The article and the review essay are worth a read.
Tuesday, February 24, 2015
Another twist in the march to marriage equality
Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).
First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.
Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.
Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.
Yale's proposed faculty-conduct code
Inside Higher Ed has the story, here, about what at least some faculty at Yale University are calling "a 'curious' and 'confusing' proposed faculty conduct code threatening undefined sanctions for a mishmash of transgressions." (It strikes me that "mishmash of transgressions" could be the title of a David Lodge book, or maybe a sequel to Lucky Jim.) Here's just a bit from the piece:
The draft, which is not publicly available but which was obtained by Inside Higher Ed, says it seeks to summarize those principles and “provide examples of conduct that falls short of the professional behavior they require.” It continues: “The examples of conduct listed here are not exhaustive, and if a faculty member’s behavior violates the faculty’s shared principles, he or she may be subject to sanction whether or not the behavior is specifically described below.”
Examples of sanctionable behaviors include “arbitrary and capricious denial” of access to instruction or academic resources, failure to contribute to the “teaching mission” of the university “reasonably required” by a faculty member’s program and the failure to meet “reasonable deadlines” in evaluating a trainee’s work or providing career support, such as letters of recommendation. The document does not specify what kinds of sanctions might be meted out. . . .
Do Law School Exams Encourage Bad Legal Writing?
Do law school exams teach lousy legal writing? I am thinking of the “issue-spotting” exam in which the student is expected (or thinks that he or she is expected) to touch on as many issues as possible to demonstrate that he or she did her time in the course, taking notes, briefing cases, and soaking up information. Typically, such exam answers consist of lots of points hurriedly raised and rarely resolved or argued effectively. Such answers often adopt an indecisive “one-hand-other-hand” style of a bad bench memo, noting that there are opposing arguments on a point but not making any effort to evaluate whether and how one argument is better than another.
These symptoms of a certain type of exam answer writing also seem to be characteristics of bad legal writing by young attorneys starting out as associates, at least according to senior partners that I canvassed a couple of summers ago, in an effort to learn how to improve NYU’s legal writing program. The most common complaint was that new hires’ emails, memos, and draft briefs did not make an argument for a particular position. Instead, the novices summarized too much at too great length without arriving at any plain bottom line. “Don’t they know they we’re paid to be advocates?” one lawyer complained. “Clients pay for answers, not encyclopedias,” said another.
Law students, however, pay to take issue-spotting exams. And sometimes I think that this genre corrupts their legal writing later, by causing them to slight the ranking and evaluation of arguments in favor of the spotting of issues and the quick summarizing of arguments without really evaluating them.
I’ve tried to move away from the sort of exam that induces this response from students, and I am inclined to think that, at least with the right sort of exam question, the following piece of advice from Howard Bashman on writing effective appellate briefs should apply to exam-writing as well:
Experienced appellate advocates agree that raising too many issues on appeal hurts, rather than helps, the appealing party. Raising one to four issues on appeal is best; raising a few more issues than that is acceptable when absolutely necessary. In United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982), the Third Circuit endorsed Circuit Judge Ruggero J. Aldisert's statement that "when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them." It does not suffice merely to raise an issue; be sure also to include argument on the point in the argument section of your brief.
Monday, February 23, 2015
John Oliver on electing judges
Obviously, I would disagree with the part that suggests Roy Moore is defying federal courts or federal orders. But the rest, as it highlights the ridiculousness of electing judges and the perverse incentives that creates, just sings.
Sunday, February 22, 2015
Real-Life Exam Questions: Do They Require a "Flipped" Class?
For the last few years, I have given a set of "real-life" exam questions to my students in NYU's required Legislation & Regulatory State course. My basic method is to check the NPRMs pending in the Federal Register for tough questions of statutory interpretation. I also call up my friends working in city, state, or federal agencies to ask for help identifying some tangle of statutory ambiguity -- ideally one with a term that, if taken literally, would defeat the obvious purpose of the law. Faster than you can say King v. Burwell, I can generally get a genuinely impossible statutory mess cooked up by Congress. (For some truly impossible problems arising out of some statutes on energy conservation, you can download my 2014 LRS exam question) The "real-life" context poses some challenges for the exam question writer. Realism requires a completely open universe of materials -- all of the relevant precedents (and they have to decide what's relevant), all of the relevant rules and statutes (ditto), all of the relevant and important comments on an NPRM at regulation.gov. (As an act of mercy, I boil down the key comments in a cover memo). These conditions require me to come up with problems on which there are no publicly available briefs or judicial opinions. Hence, my recourse to NPRMs and pals at agencies.
The open universe presents two big challenges for my students: relevance and reading comprehension. Based on years of training, students sometimes waste space spotting (but not resolving) issues and displaying gratuitous erudition, larding up their answers with recitals of law that, despite their accuracy, are unnecessary for solving the specific problem. Likewise, the complex, nested clauses of multiple statutes can induce basic reading errors (overlooking a "not," for instance), causing large sections of some answers to be nonsense. Figuring out which knowledge is relevant and which, gratuitous is an important skill (especially in a world of stricter pages limits on briefs and limited judicial attention span. So is careful parsing of complex statutes. But neither of these basic skills have much to do with understanding foundational principles that stand in the background of any interpretative problem -- federalism, Presidential versus congressional authority (sources of various substantive canons like Gregory v. Ashcroft or Chevron), the adjustment of powers between past and present Congresses (canon against implied repeal), and so forth.
So I am wondering whether I need to flip my class -- pre-record the lecture on the foundational question (say, textualism's relationship to the enforcement of legislative deals) and spend class time having teams of students work on some real-life practice problems with tangled statutes and oral arguments from volunteers, just to help them read more accurately and write and speak more to the point. Despite plugs from distinguished teachers like Deborah Merritt, I am a bit worried about taking the plunge. In particular, I cannot help but think that "flipping" creates tensions between the teaching of micro-skills (e.g., how to parse ten nested clauses of two different statutes or come up with a a pithy, telling phrase to capture why an apparently relevant canon adverse to one's client is inapplicable to a specific set of facts) and foundational principles. After the jump, a bit more on this challenge of "flipping" and a plea for advice.
The 2016 U.S.News Rankings Are Still Not Out Yet--Getting Ahead on the Methodology of the Law (and Business) rankings
We are fast approaching the date that U.S. News issues it’s graduate school rankings. According to Robert Morse, chief data strategist for U.S. News & World Report, the official date is March 10th but they usually leak faster. Paul Caron at Taxprof blog is, of course, already on this and will probably be first out of the box with the analysis when the time comes, so I thought it might be helpful for those who want to prepare to interpret and explain them to read ahead on the methodology the magazine will use. (this could also be a good time to learn how to set a Google Alert or some other automatic notification method ) There have been some substantial changes in the law methodology over the past several years—so if you haven’t checked this out recently you might be surprised. I also had a look at the methodology for ranking business schools because those seem to have much greater fluctuations than law schools—and indeed found some interesting information I don't know how to evaluate. Out of the 435 programs U.S.News contacted for information, 285 responded but only “127 provided enough data needed to calculate the full-time MBA rankings.” I leave the interpretation to others, but if my math checks out, they’re only ranking about 30% of the accredited programs.
Back to the law school rankings—
There a few things of note—a change I didn’t hear much about last year is that “for the first time” the “the lawyer and judge survey” which is weighted by .15 comes from names that “were provided to U.S. News by the law schools themselves. This change resulted in a much higher lawyer and judge survey response rate than in previous years.” This should be of considerable benefit to schools whose reputations don’t extend far beyond their regions.
Another thing of note is that placement success, weighted by .20, was adapted to reflect “enhanced American Bar Association reporting rules on new J.D. graduates' jobs data” so that , “Full weight was given for graduates who had a full-time job lasting at least a year where bar passage was required or a J.D. degree was an advantage. Many experts in legal education consider these the real law jobs.”
However, “less weight went to full-time, long-term jobs that were professional or nonprofessional and did not require bar passage; to pursuit of an additional advanced degree; and to positions whose start dates were deferred. The lowest weight applied to jobs categorized as both part-time and short-term and those jobs that a law school was unable to determine length of employment or if they were full time or part time.”
It’s also interesting to hear about how the specialty rankings are put together:
I knew that the “specialty rankings are based solely on votes by legal educators, who nominated up to 15 schools in each field. Legal educators chosen were a selection of those listed in the Association of American Law Schools' Directory of Law Teachers 2010-2011 as currently teaching in that field. In the case of clinical and legal writing, the nominations were made by directors or members of the clinical and legal writing programs at each law school.”
Giving Authoritarianism Its Due: Teaching "Western Values" (Like Hobbes' Unlimited Executive Sovereignty) in Shanghai
I am spending the Spring Term teaching U.S. Constitutional Law at NYU's Shanghai campus, a product of a partnership between NYU, East China Normal University (ECNU), and the Shanghai municipal government. One common and completely natural reaction to this program is suspicion that, by dealing so closely with a government not famed for its protection of academic freedom, NYU is somehow selling out its values in order to get a foothold in the Chinese market for higher education.
This February, Yaxue Cao posted one such expression of suspicion on her "China Change" blog: Boiled down to its essentials, her post asked whether Chinese money and oversight caused faculty members to self-censor ourselves or otherwise change what we teach to suit Chinese authorities. In response, I shared my syllabus with Yaxue and, in our ensuing email exchange, I explained that, while I could not speak for anyone else at NYY-Shanghai, I myself am teaching exactly what I want with the usual lack of oversight enjoyed by any prof teaching at NYU in Washington Square. AS an example of my unhindered freedom, my course requires the students to compare U.S. and Chinese constitutional rules and concepts, and, as background for this comparison, I assign "sensitive" documents like the infamous "Document Number 9," an internal Chinese Communist Party document urging careful controls on the infiltration of "western" ideas like constitutionalism, freedom of speech, and civil society into universities and newspapers. Very 敏感, as CCP officials are prone to say.
I am not, however, taking my freedom as an opportunity to preach "western" ideas of constitutionalism (whatever they might be) to my students. Instead, I am inclined to take the CCP's principles about constitutional government seriously and remain agnostic about whether their authoritarian system is better or worse than the American system of speech libertarianism, competitive political parties, and separation of powers. As part of this agnosticism, I have divided my students into two teams, the "Maoist Leftists" (mascots: Mao and Lenin) and "Western Liberals" (mascots: Locke and Madison) who are assigned the job of trying to persuade the Central Political and Legal Affairs Commission of the CCP either (depending on their team) to adopt or reject American-style judicial review, limits on executive power, and limits on subnational discrimination against non-residents (the so-called hukou system). The Maoist Leftists' task of making the case against "western" constitutionalism is just as important as the Western Liberals' job of defending this congeries of concepts. I take Hobbes, Filmer, Fisher Ames (telling Jefferson to mind his own business on the Alien & Sedition Acts), and Lincoln (suspending habeas corpus and telling Taney to go to hell) just as seriously as Locke or Madison in this course.
Why give authoritarianism its due in this way? After the jump, I give my reasons, which are, in brief, that the true experience of a liberal education is to be skeptical about liberalism.
Saturday, February 21, 2015
A tribute to Judge Morris S. Arnold
After law school, Nicole Stelle Garnett and I had the pleasure and privilege of clerking for Judges Morris ("Buzz") and Richard Arnold, in Little Rock. Judge Richard passed away a few years ago. Last week, though, the Arkansas bar hosted a really nice tribute-event for Judge Buzz, and Nicole was able to attend, along with a bunch of former clerks. With her permission, I'm sharing -- and highly recommending -- the short presentation she gave (Download Judge arnold). In a nutshell: "The law matters, even the mundane can be magical, and the government doesn’t always get to win."
Friday, February 20, 2015
Levels of Generality in Means/Ends Analysis
It is a familiar lesson of U.S. constitutional doctrine that the outputs of decision rules will sometimes depend on the level of generality with which their inputs are defined. This theme is perhaps most evident in substantive due process doctrine: Defining a liberty interest in broad terms can increase the likelihood of its qualifying as “fundamental,” just as defining the interest in narrow terms can reduce that likelihood. But generality levels can make a difference in other areas of the law as well. A “right” may be more likely to qualify as “clearly established” for purposes of a qualified immunity defense if we characterize that right broadly rather than narrowly, a “matter” may be more likely to qualify as “of a public concern” when the matter itself is defined abstractly rather than specifically, a “power” may be more likely to qualify as “great substantive and independent” (and hence not implied by the enumerated powers of Article I) if the power is described in general rather than specific terms, and so forth. In these and other contexts, the outcome of a doctrinal inquiry can depend not just on the content of its evaluative criteria (e.g., what does it mean for a right to be “fundamental”?, what matters are and are not of “public concern”?, what does it mean for a power to be “great substantive and independent”?, etc.), but also on how one defines/describes/characterizes the objects to which those criteria apply (e.g., what is the “liberty interest” whose “fundamentality” is at issue, what is the “matter” whose “public-concerned-ness” we are evaluating?, what is the “power” whose “greatness”/“independence” we are measuring?, etc.).
Crime, Lead, and Abortion (Bear With Me on OVB)
Continuing my examination of the Brennan Center report on crime and incarceration, I now want to consider whether the failure to include measures of lead exposure and abortion rates introduce serious concerns of omitted variable bias. In my previous post, I suggested that omitting inflation and consumer confidence probably didn’t raise many concerns since it is unlikely those variables had much impact on crime.
Here, I want to argue that omitting changes in lead exposure and abortion rates is also likely not particularly problematic, though perhaps a bit more so than dropping inflation and consumer confidence.
Given that abortion and lead are thought to be two of the most important causes of declining crime in the 1990s and 2000s, it clearly can’t be for the same reason I wasn’t bothered by the failure to include inflation and consumer confidence.* Instead, for these two variables it seems unlikely that there is a strong correlation between either of them and incarceration rates (though I note at the end that there could be a slightly attenuated one). As I explained before, the bias from OVB grows with both the size of the direct effect of the omitted variable (lead, abortion) on the outcome variable (crime), and with the correlation between the omitted variable and the variable of interest (incarceration). If either is low, the bias is low.