Tuesday, April 14, 2015
The Right to Privacy vs. Freedom of Expression
Most of us are in the phase of the semester where we are discussing defenses, exceptions, and limitations on the areas that are the subject of our courses. Certainly, my trademark class is grappling with cases considering First Amendment limitations on IP rights.
One recent case places the First Amendment as a limitation on the right of privacy. This New York court considered a photographer's images taken with a telephoto lens aimed inside people's homes. The plaintiff asserted violation of New York's statutory right of privacy. According to the opinion, the photographer, Arne Svenson, has exhibited the works and reproduced some images here.
According to an earlier court opinion, Mr. Svenson did not obtain consent but rather "I carefully shoot from the shadows of my home into theirs." Although some of the images do not show the occupant's faces, some did at least partially. One is a child's face that was alleged to be identifiable. According the plaintiff, the location of their apartment has been made known as well "which Plaintiffs allege compromises the security and safety of the children."
Nonetheless, the Appellate Division affirmed dismissal of the complaint, given that the art works were for expressive purposes protected under the First Amendment. As the court stated, "works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption." Further, the Court observed that "the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available." Certainly, in an era of emerging drone use, such cases are likely to arise with more frequency. If you are interested, a full copy of the slip opinion is here.
JOTWELL: Campos on Davis on standing for states
The new Courts Law essay comes from Sergio Campos (Miami, visiting at Harvard), reviewing Standing Doctrine's State Action Problem (forthcoming, Notre Dame L. Rev.) by Seth Davis (UC-Irvine) on who and when people have standing to assert governmental interests.
Prawfs and gratitude
The following contribution to the Prawfs Tenth Anniversary is by Will Baude (Chicago).
I have felt Prawfsblawg's tenth anniversary with both fondness and despair. Fondness because of what this blog and Dan gave to both the blogosphere generally and to me; despair because like so many people who knew Dan, I now know that I'll never be able to give him the thanks I owe him.
Dan invited me to guest-blog at Prawfsblawg in its first year of operation, 2005. I was already a blogger at the time, but I was not a "Prawf." I was just a second year law student who had no idea how impertinent I was. On the level plane of the internet, it just seemed natural to engage with and criticize law professors as if we were all part of a shared intellectual enterprise.
Of course this was insane. And not everybody encouraged it. As Howard has noted, many folks advise against blogging even by tenure-track law professors, even today. At the time blogging was much less respectable and I had plenty of concerned friends tell me that it was dangerous and I should quit before I got in trouble.
But not Dan. Even better, Dan also never told me *not* to stop, as if it were even in question. He just argued with me on the merits and invited me aboard, as if it were the most natural thing in the world. By nonchalantly bringing me to Prawfs, Dan subtly encouraged me to stay impertinent, and to think of the legal academy as someplace I belonged.
Of course, now I know that that's how Dan was with so many other people. When he took you and your ideas seriously it made you a little more fearless. You were a little more willing to ask an impertinent question or toss out a new idea. Often, the idea wouldn't pan out, and that was fine. But occasionally that insane idea you had turned out to be so insane that it was brilliant and true.
Monday, April 13, 2015
As many others have mentioned while reminiscing about Danny, one of his great qualities was how he brought other people together. PrawfsBlawg was only one way he accomplished this. He also made lots of introductions and organized workshops. One of the workshops he organized is called CrimFest! (Yes, the exclamation point was Danny’s.) It began as a shadow conference at the Law & Society Association’s Annual Meeting, and then eventually became a stand-alone event.
This year’s CrimFest will be held at Cardozo Law School from July 19th-21st. Registration for the conference closes on Friday May 1st. More details about the conference and how to register follow after the break.
Vischer on Big Law and the Marriage Cases
My friend and colleague (and legal-ethics scholar) Rob Vischer has a thoughtful post, "Law Firms, Marriage, and Moral Accountability," over at Mirror of Justice, in which he addresses Adam Liptak's piece in Sunday's New York Times ("The Case Against Gay Marriage: Top Lawyers Won't Touch It"). Like Rob, I think it's unlikely that Evan Wolfson's explanations for the phenomenon Liptak describes -- i.e., that there are no arguments to be made in support of Judge Sutton's decision and/or that Big Law attorneys and firms shy away from paying cases if they think they are probably going to lose -- are the correct ones. I imagine that, instead, the economics-and-public-relations considerations that Liptak describes are doing most of the work. That said, Vischer also notes an interesting connection between the ongoing debates about religion-and-morality-in-business (see, e.g., Hobby Lobby) and the questions about the extent to which lawyers and law firms should exercise moral judgment, or act in accord with an animating vision, mission, or ethos, when accepting or declining representation. Check it out.
Law and Social Change
Law has an ill-defined relationship to culture. Certainly, some legal rules seek to standardize norms in the way that the reasonable person operates in tort law or custom sets interpretive principles for contractual relations. Law may push against culture, such as the way anti-discrimination laws attempt to eradicate bias.
Further, culture can seek to change law. One recent example that caught my eye is the transport of films, TV shows and other media into North Korea via weather balloons. Among other things, these balloons carry TV shows including Desperate Housewives and The Mentalist, so that those who find the USB drives on which this entertainment is stored can be exposed to cultural information about those outside North Korea's borders. This is one way that the Human Rights Foundation is seeking to reach out to North Korean citizens to open up the government's information block.
Where do such efforts come from? Recently, Peter Lee (UC Davis School of Law) has posted an interesting piece on social innovation that is insightful for those interested in innovation, the theory of the firm, distributive justice, and/or intellectual property. In it, he contrasts the formal incentive system of the intellectual property system to:
...the altruistic motivations and public funding that drive social innovations. . . Beyond efficiency considerations, however, social innovations often play a distributive role in shifting resources to underserved communities. Social innovations address underserved markets, such as when microfinance entities provide loans to populations who do not qualify for traditional financing. Going further, social innovations sometimes provide essential goods and services to entirely neglected populations on a charitable basis.
I found that Lee's piece opens a new door on the mechanisms that foster the creation of public goods. The piece is replete with insights about the interaction between government and private entities in both the IP and social innovation spheres. He argues that these systems have much to learn from each other. This is downloadable here and certainly worth a read.
Anniversary Topic # 2: What are Prawfs and blogging like today?
Sunday, April 12, 2015
Teaching citizens to video--and to exercise the First Amendment
This PBS story from Friday discusses the "Video as Evidence" program, begun by the international human-rights organization WITNESS, to teach people how to record video of police and other public government activities. The goal is to train people to document events not only for use on YouTube and in public discussions of police misconduct, but also for effective use in court, which is where any "accountability" must occur through criminal prosecution and civil litigation. Issues include training in how to properly frame and follow images and events, as well as how to ensure authenticity and a proper chain of custody. WITNESS's primary focus is outside the United States, but the idea could and probably should be recreated here.
Saturday, April 11, 2015
Editors: Take Our Law Review Survey
As I threatened last time, I'd like to collect some data on current law review practices on the timing of the fall and spring seasons. The survey should only take a few minutes to complete. I'll ask that respondents coordinate with other members of their journal to ensure that we have only one response per journal. If you're lazy about coordinating, consider identifying your journal in the free-response box at the end of the survey. I'll keep all responses confidential unless instructed otherwise by individual respondents.
Here's the link to take the survey: https://docs.google.com/a/bc.edu/forms/d/1ClmfGOs09rdg4AxhRzbyGX3k4VjH3BU7ghMrRe93_t4/viewform?usp=send_form
Friday, April 10, 2015
Texas A&M School of Law hires nine new faculty members
The announcement is here. It looks like an exciting lineup. The four additions in intellectual property--Irene Calboli, Glynn Lunney, Saurabh Vishnubhakat, and Peter Yu--are all strong in the field. Cheers!! (or should I say something more Texan?) Anyway, congratulations!
Reflections on Prawfs at 10: interstitial ideas & serious fun
PrawfsBlawg is ten years old? Whoa. Tempus, as the Latin-speaker says, fugit. As with many of the other OGs, I recall well my first involvement with Prawfs, back in January 2006 when I was still a pre-prawf Fellow at an undisclosed location in the American Midwest. And as with most or all the others, of course, the impetus for my participation in the blog came from Dan, who I’d known since law school. Back then, blogging was still not quite accepted as a mainstream form of discourse for legal scholars, so I wasn’t entirely sure how the medium worked or what it would do for me, but I took the leap and it turned out to be one of the best decisions I made at that early stage in my career. Prawfs has been a huge positive force in my professional life, and I am certainly indebted to Dan for inviting me to get on board all those years ago.
I’ve been a bit out of the blogging loop, but when I saw the Prawfsiversary stuff developing this week, I belatedly sought and received a dispensation from the current BlawgFathers to lob in a few guests posts this month (thanks, guys). So to pick up on the proposed question, what has Prawfs meant to me? A ton, but I’ll sort it into two basic categories—one serious and one not so serious—each of which I’ll elaborate below the fold.
Except for All the Others
Except for Fenway Park, there is no green grass in New England right now. Still, I'm sympathetic to those who skim the law review submissions angsting thread, close their browser window in embarassment when a colleague happens by, and then think to themselves, "There's got to be another way."
In that spirit, I thought it might useful to our reform conversation to report my experiences with peer-reviewed econ and l&e journals. I've had half a dozen or so, of which one was constructive, pretty fast, and what I expected of a process run by fellow professionals. The others...well, some are still ongoing. Suffice it to say that it's a lot like sitting in a busy dentist's office, only for 8 to 12 months and without any good magazines.
I don't think it's unreformable. Indeed, I think a good starting place for a conversation about where to go with legal scholarship would be to talk more about which system's flaws are easier to mitigate.
So, for example, it's possible that the peer-review market could function a lot better with better information. There's almost no reliable information about how long each journal takes, on average, to complete reviews. (In fact, it's a little bizarre that a profession whose central premise is the efficiency of well-informed markets would tolerate such an opaque system.) Mandatory compilation and disclosure of that information would probably create at least some competitive pressure to bring those times down, which might eliminate at least the worst instances of needless delay. There is a site for griping about long waits, but it is surely not a representative sample. A laudable exception is AER, which reports a cumulative distribution table (see p.623) of wait times.
At a minimum, journals published by professional associations, such as ALER and JELS, should lead by example on this front. Board members, are you reading?
Thursday, April 09, 2015
Lost faith in the courts
But RFRA laws do not grant an unrestrained license to exclude or discriminate. With the exception of some state bills, which were opposed even by champions of religious accommodation and which failed, most RFRAs (including Indiana’s) do not compel any result. What they do require is balancing.
The problem is where left/liberal/progressive advocates are on judicial enforcement of individual rights right now and their attitudes towards the current Supreme Court. The assumption is that any balancing done by this Court--the Court that gave us Hobby Lobby*--will always, unavoidably, and automatically favor the religious believer against the woman or LGBTQ person being disadvantaged in the marketplace. Any balancing will be informed by the pro-religion preferences of that five-Justice majority and the claim for accommodation will always prevail over anti-discrimination statutes and principles. So saying that RFRA does not compel a result but only balancing is no comfort, because one side believes it knows how that balancing is going to come out.
* When does Hobby Lobby replace Citizens United as the single-case synonym for everything wrong with the Roberts Court?
Technology & Tailights
It's not IP, but it is on my mind. Legally justified. That cannot be the end of the discussion, as it has been up until this point. Apartheid was the law. Women not voting was the law. Jews not being able to own property was the law. Same sex relationships were (and still are in some places) prohibited by the law. Dramatic? Not really. Not any more than the videos (i.e. North Charleston shooting etc. etc.) that keep surfacing. Seems like "the law" is hampering some honest and difficult conversations about the kind of society we want to have.
Technology is revealing failings in the legal system. The fact that the current law may tolerate or encourage something does not mean we should tolerate it. Someone will, no doubt, make a legal argument that the North Charleston police officer was acting within the scope of his authority when he shot and killed an unarmed black man in the back as the man ran away. Eight shots. Bravely caught on video by an anonymous person. Who would otherwise believe what happened? Technology made a difference here. Stopped for a tail light. For others, their "tail light" was walking through a store, standing on the street, riding the subway, or standing in the playground with a toy gun.
Video cameras are catching horrific acts in the United States that are reminiscent of South Africa's numerous incidents of "death by falling" during the Apartheid era. There are killings caught on camera and seemingly "harmless" speech involving racial slurs. These two are not completely unrelated.
While I value free speech, I am also mindful of the power of words. After all, words were used to condition populations to view their neighbors, friends, and family from different ethnic groups as the "other" and to eventually incite genocide. In Rwanda, the talk of eliminating "cockroaches" was a terrible, yet highly effective, strategy adopted from Nazi Germany. Just words. Just words. Words matter because they sensitize us to whether or not the person we are berating, beating, or shooting, is a cockroach, a dog, a monkey, or a human being. Will we pause before we shout, or shoot? Or are we now used to the idea of the criminal "other," such that we raise our fists, or pull the trigger, a little more quickly? If one gets used to referring to some group as "monkeys," "cockroaches," or the "N word," maybe it is just that much easier to pull the trigger. For instance, one of my friends from college who was raised in Apartheid South Africa, told me "no offense, but I just cannot think of blacks as people." He was a lovely and pleasant guy. However, that was his conditioning.
Legally justified. This cannot be where the conversation ends. Multiple killings of unarmed black men and boys have been caught on camera. When there is no legal consequence, is it possible that we get conditioned to see the killing as acceptable? Maybe this officer is surprised at what is happening to him. But for the video, he might reasonably assume that his actions would be viewed as "legally justified," even without a trial.
Prawfsblawg and friendship
I remember pretty clearly -- at least, as clearly as I'm able to remember anything these days -- talking with Danny Markel on the phone in 2005 about his invitation to join the crew at Prawfsblawg. I was a little bit nervous -- and I told him so -- about joining an up-and-running group that already seemed to have an interesting "voice" of its own and about whether the views, intuitions, and "takes" I was sharing (or imposing) at my other blog-home, Mirror of Justice, might mess up the harmony of voices at Prawfs. Danny said -- again, I feel pretty sure I won't forget this and it meant and means a lot to me -- "we're friends, and disagreement among friends doesn't mean anything's wrong."
I think this statement says a lot about Danny and about what it was that made and makes him so special to so many. We corresponded fairly often about this or that draft article or blog-post and it felt like we were often disagreeing. But, it was fun. He had a habit of calling me, just to check in, when he was on the road. (I imagine he used a lot of his in-car-time to check in with friends. Why let that time go to waste, he probably thought, on sports-talk radio?) "Hey, pal -- it's Danny" was always the beginning of a welcome and warm conversation . . . or argument.
I've blogged less in recent years than I used to, both at MOJ and here at Prawfs. I'm not sure why; I'm inclined to blame it on my side-job, i.e., driving kids around. Whatever the reason, though, my participation in and at Prawfs -- in the past and now -- is not separable in my mind from the spirit and practice of friendship that I will always associate with Danny.
What Prawfs Has Meant for Me
I was a very early reader of Prawfs. As a law clerk who wanted to join the academy, I trolled the site in the Spring of 2005 between writing bench memos, trying to construct an image of what it meant to be a law professor.
A year into my teaching fellowship, I went to my first academic conference---the Law & Society Annual meeting (it was in Baltimore that year). While at the conference, I was star-struck when I realized that one of the people in the elevator with me was Dan Markel. Realizing that this was *the* Dan Markel from PrawfsBlawg, I mustered all of my courage to engage him in conversation.
I won’t bore you all with how Danny (as I now think of him) was quintessentially himself in that elevator. I’ve already told that story many times (with others) to big crowd (and small ones) in the weeks after he died.
The Boston bombing case - spring training is over, and it'll be Opening Day soon
Accused Boston bomber Dzhokhar Tsarnaev was, not surprisingly, convicted yesterday of all 30 federal counts that he faced. As he faced a possible death sentence, the case was bifurcated into a guilt phase and a penalty phase. Various commentators noted that defense lawyer Judy Clarke essentially conceded guilt from the beginning of the guilt phase, an indication that the defense goal has been to avoid the death penalty. (Clarke took similar approaches with previous clients such as the Unabomber and Jared Lee Loughner, among others.)
This means that the legal fight is beginning in earnest with the penalty phase, where Clarke can be expected to put up a fierce defense. It's clear from the defense posture that the theory of mitigation will be that Tsarnaev was heavily influenced, if not coerced, by his older brother Tamerlin (who was killed during capture efforts).
Update (Friday): According to this story, UM reversed course and planned to show the movie at the originally scheduled time and place on Friday evening; a university official said the decision to cancel was "not consistent with the high value the University of Michigan places on freedom of expression and our respect for the right of students to make their own choices in such matters." The story also reveals that new UM football coach Jim Harbaugh is proud to be an American and does not care if that offends anyone. Glad to hear that, Coach; I was concerned.
Original Post (Thursday):
Ron Collins at CoOp (who has become my go-to person for new First Amendment news) reports on a controversy at the University of Michigan. A university organization, in response to a petition, cancelled a planned screening of Clint Eastwood's American Sniper; in response to a counter-petition started by a 3L law student, the university moved the screening to an alternate location. According to the Daily Caller, the university will show Paddington Bear instead. Collins quote Floyd Abrams as saying "Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”
The First Amendment's preferred response, Justice Brandeis would tell is, is counter-speech. And the objecting students could have engaged in all manner of it here--protest outside or around the building, take to various fora real and virtual fora to urge people not to attend, show a different, contrary movie at the same time and in a similar location. But that never seems to enter the picture; the objector's move is to jump directly to silencing the message to which they object.
"The Religious Geography of Town of Greece v. Galloway"
I have a new paper up on SSRN. The article, "The Religious Geography of Town of Greece v. Galloway," is forthcoming in the Supreme Court Review. Two notes:
1) Although I take a position on the case itself, the main point of the paper is simply to urge law and religion scholars to make greater use of the literature on geography, and specifically on the geography of religion. Scholars elsewhere in the law have done very interesting things with geography; indeed, the paper was inspired by a talk by Richard Thompson Ford, who among other things wrote an important paper on the relationship between law, geography, and race. Some writers on law and religion have been similarly influenced by geography, and influential in turn: I was particularly indebted to various articles by Adam Samaha, Richard Schragger, and Mark Rosen. But I think church-state law--which often involves matters of jurisdiction, sovereignty, scale, and other matters for which geography is relevant, and whose leading metaphors, such as the "wall of separation," often betray the importance of space and place in this area of law--is especially open to geographical analysis, and that much more work of this sort can be done in our field. In addition to the book by Roger Stump that I linked to above, there is quite a fertile literature on the geography of religion, including its impact on the history of American church-state law, as in this book, and its contemporary relevance, as in this book. Whatever my colleagues think of my answers, I hope they will do more to make geography an important element of the questions they ask.
2) How pleasant it was to turn to a nice, uncontroversial area of church-state law! Compared to the heated current controversies over religious accommodation, working on legislative prayer felt like a trip to the spa. I have a small, in some ways tentative piece on the Indiana RFRA debate coming out in Commonweal Magazine; the online version is here. As with the Galloway article, I take a position in this piece, but for the most part my own preferred resolution is secondary and I make clear my view that a variety of reasonable positions and resolutions are possible. (That this is so is, to me, one reason, although not a dispositive one, why we should be open to the notion of judicial balancing here.) The main topic is my deep disappointment with some aspects of the public debate so far, which has exhibited all the subtlety, care, and calm that one would expect of a discussion that has played out on Twitter and the many online sites whose main purpose, other than generating clicks, is to rally the already-persuaded.
Critical Consciousness & Law as an Engine for Social Change: 60 years to Brown
This week at USD law school we held an event celebrating 60 years to Brown v. Board of Education. Building upon my article The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics published a few years ago in the Harvard Law Review, I spoke about the debates in the decades post-Brown about the role of law and lawyers in representing social movements and bringing about meaningful and sustainable social change. I tried to explore the importance of Brown not only for racial equality but more broadly for contemporary social movements and lawyers in their struggles justice and progress. I argued that Brown tells us much about both the promise and the limits of litigation and the broader role that lawyers can and must play in social movements. I tried to link the questions about the limits of law and legal cooptation with the contemporary challenges facing legal education as well as recent cases, such as Elaine Pao vs. Kleiner Perkins. Below the jump I included my remarks from last night.
Wednesday, April 08, 2015
Productivity Metrics for Legal Scholarship
As I wrote last week, some universities are using Academic Analytics to assess the academic productivity and excellence of their various departments. As promised, this post will offer a few metrics that are more effective than the metrics currently used for other disciplines.
Before I set out those metrics, I want to offer a few qualifications. First, Academic Analytics claims only to quantify faculty scholarship. Law faculty are usually assessed based not only on their scholarship, but also on their teaching and service. So while this post will focus only on metrics for assessing legal scholarship, we should also think about how to quantify faculty’s teaching and service contributions.
Second, it is worth asking what these metrics are supposed to capture. Put differently, why are university administrators seeking this data? I don’t know the answer to this question. I suspect, however, that they are, at a minimum, looking to do the following: (a) ensure that the faculty in all of their departments are meeting a minimum level of productivity; (b) determine which of their departments are performing well as compared to other departments across the country; (c) determine which departments are underperforming; (d) make marketing, funding, and organizational decisions that reward departments in category b and reform (or perhaps punish) departments in category c.
Third, while university administrators may choose to use this data to assess their departments, law school administrators may wish to use this data to assess their individual faculty members. While the university compares its department to departments at other universities, law schools could use the data to compare faculty members either to other faculty at the same school or to faculty at peer institutions.
Finally, I am personally ambivalent about quantitative assessments of faculty. Quantitative assessments give us some concrete way to measure scholarship, but I don’t think that these quantitative metrics can serve as a substitute for a qualitative assessment.
Now some proposed metrics.
Where are June and Wong?
Back on December 10, the Supreme Court heard arguments in US v. June and US v. Wong, which together raised whether the limitations periods for bringing claims against the United States under the Federal Tort Claims Act were jurisdictional and not subject to equitable tolling. (I covered the cases for SCOTUSBlog). Four months later, the cases remain pending--one of only two cases from that sitting yet to be decided and despite the Court having quickly and unanimously disposed of the other jurisdiction case from that sitting.
The obvious conclusion is that the Court is divided. The Court has generally been unanimous in its run of jurisdictionality cases over the past decade and almost always finds the issue to be non-jurisdictional. One glaring exception is John R. Sand, which involved the jurisdiction of the Court of Claims over an action against the United States (and thus on which the U.S. has waived its sovereign immunity). So while statutes of limitations ordinarily are not jurisdictional, tying them into a waiver of sovereign immunity potentially alters the analysis. My initial reaction to the argument was that the Court would treat the periods as non-jurisdictional fairly easily; the four-month delay has me rethinking the easy part, if not the conclusion.
Ten Years After: How Blogging Has Changed
For an indication of how blogging has changed in the last ten years, I wanted to highlight two posts. The first one is from Dan Solove, entitled "Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?" It garnered 8 trackbacks(!) and 98 comments from mostly law professors who mostly used their real names in a heated and respectful debate on the issue. It was a real moment of connection for me, as an issue that I had talked about with folks individually was now the subject of real debate between many contributors who had strong opinions. It demonstrated that blogs could offer opportunities to engage and connect on a level that hadn't really happened before -- not with so many people, on such a particular issue, in real time.
Sadly, I think that model has not carried forward. There are perhaps a variety of reasons, but Kate Litvak provides a convincing set of explanations in her 2006 piece, "Blog as Bugged Water Cooler." The forum is too public for sensitive, controversial information, and anonymous exchanges don't have the same meaning. I also note Dan's comment to the Ph.D post: "this site won't be host to swipes at scholars and/or their work in the comments and without serious arguments attached." I appreciated Dan's zealous protection against negativity, particularly anonymous, unsupported negativity. But it did mean that perhaps folks were less likely to divulge critical information when it was critical of someone.
The other post is "Submission Angsting: Spring 2015." There are (at this moment) 1,447 comments on the post. The posts are mostly anonymous, but they share a real community of participants who are going through a stressful process and are sharing useful, finely-grained information. The topic is uber-particular and not very interesting to the average law student or even law profs who have not submitted anything this cycle. But journal editors and prospective journal authors can use the info to muddle their way through a somewhat dysfunctional process.
I think these two posts reflect a lot about what has changed in the last ten years of law prof blogging. But I don't really know what it says about the future.
Hello and Happy Anniversary
Greetings. My name is Michael Waterstone, and I am returning to PrawfsBlawg for a guest blogging stint. I’m looking forward to being back and blogging on disability law and other issues.
I thought I would start with a short answer on the first anniversary topic, “What has PrawfsBlawg meant to you?” I don’t blog often, and to be honest, don’t even necessarily read blogs all that regularly. But to me, Prawfsblawg always went hand in hand with Dan Markel. I met Dan when he came out to Loyola Los Angeles for a workshop. Ever entrepreneurial, Dan had arranged to meet people at Southwestern after his talk at Loyola. My wife teaches at Southwestern, and I was heading over there, so I offered to give Dan a ride. Like anyone who came into Dan’s orbit, we became friends, and would meet at conferences at other events for lunch or a drink.
We are in a profession that can be isolating, and Dan was a master at making it less so. He helped forge an online community through real world connections. Dan delighted in and excelled at relationships. Apart from his scholarly contributions and blogging prowess, Dan was one of the most thoughtful people in the academy. I tend to keep old e-mails (probably a bad habit, especially for someone who served as Associate Dean…), and in my shock and sadness at Dan being gone, I have from time to time gone through my correspondence with him. When good things happened in my life, Dan was always quick with praise and encouragement. But when bad things happened, Dan was also always there, offering friendship and comfort. I miss that very much. And when things were hard in Dan’s life, he was brave enough to seek out the support of his many friends.
When I think about Dan, the poem “Character of the Happy Warrior” by William Wordsworth comes to mind, particularly the opening:
PrawfsBlawg and a scholarly career
I came to Prawfs relatively late. I first met Dan at a PrawfsFest! in Miami in fall 2006 (having been a VAP at FSU a few years prior, I knew many of his new colleagues and that facilitated the introduction). I did an extended guest stint in fall 2007 (the blog was about 2 1/2 years old) that turned into a slot as permaprawf the following spring. And seven years later (ten for the blog), here we are.
In thinking about this topic, my recurring thought is that Dan and this blog enabled my scholarly career. Some significant portion of my academic reputation (draw your own conclusions on what that may be) has been established through this blog and what I have written here. Several past, present, and future scholarly projects have begun as single or multiple posts; I was able to work out ideas in the early stages by writing them here and to obtain feedback from readers. I have written more words about more topics and ideas than ever would have been possible had Dan not given me this opportunity. Some have been about legal education, some have been related to my core scholarly interests, some have been on topics in which I am interested and have thoughts (or questions), even if not the full interest to pursue as larger projects; many of these are ideas that I never would have written, much less presented, but for this medium. Prawfs has offered a scholarly and creative voice and outlet that I never would have exercised or had the opportunity to exercise otherwise.
I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle--the more you use it, the more you are able to use. Rather than distracting from "real" scholarship, being on this site has allow me to fulfill the need to do "other stuff" while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).
I cannot remember what I did with my writing and my writing time before Dan invited me to join Prawfs. And I cannot imagine where my career would be without it.
New Tulsa Law Review Books Issue
Thank God for the Tulsa Law Review, which is carrying on the long tradition of running book reviews in legal academic journals. As I've complained before, fewer law reviews are doing so these days. And it's too bad. That's especially true because it seems to me like an unusually fertile time for law books, and thus for book reviews. Notwithstanding this post, I think a lot more books are emerging from the legal academy these days, both with academic presses and trade presses, and more and more from relatively junior professors (who, having come through doctoral dissertations or fellowships, are not exactly starting from scratch anymore). I'm delighted, and there's a lot of good stuff to read these days. In many ways, it's much more exciting than anything happening in the law reviews. Go figure. If nothing else, law reviews that maintain web supplements ought to be using that space to include more book reviews, by profs and students. Thank goodness some new sites are filling in the gap a little. In the meantime, kudos to those major journals--Michigan, Harvard, Texas, BU in a slightly different ways, and a couple others--that are carrying on the tradition, and I hope more places will join them, cite counts be damned.
Tulsa's annual book review issue format is fairly new and professors Ken Kersch and Linda McClain are running it. It's terrific, and the new issue is very interesting, with great books and great matchups of book to reviewer. Here's the table of contents, with links to PDFs of the reviews themselves. Full disclosure-cum-sales-tactic: There's a review of my book, First Amendment Institutions, which makes a lovely gift for Administrative Professionals' Day, in the issue. The book is what it is, but the reviewer, John Inazu, is top-notch and a hell of a book author himself.
Ten Years With Prawfsblawg
Thanks to Howard and others, including some original Prawfsblawggers, for leading off our anniversary month. I am personally stunned--stunned and delighted? stunned and depressed? stunned and old? well, let's just stick with stunned--that it has been that long.
It's difficult to spend any time being retrospective about Prawfs without ending up reflecting on two or three main subjects. First, last, and always is our friend Dan, whose idea, vehicle, and labor of love this blog was. Second is pondering what has changed about law-blogging in the last ten years, especially the last four or five. And the third, not to be too grim about it, is whether law-blogging has much of a future.
I find the second question most interesting. I have had doubts in the last couple of years--not so much about blogging's future in general or about its future, although I have been pushed to think more about this lately, but about its role for me certainly--and about the nature, quality, and value of online writing altogether. That is one reason I have blogged less lately, although there are other and better ones. But I'll try to say more about this question over the next few weeks, as--I hope--various other Prawfs folks also chime in with some reflections on the blog and their experiences with it.
Tuesday, April 07, 2015
The Irony of Justice Stevens’s Immunity Amendment
Justice Stevens is one of the most famous and persistent critics of the Supreme Court’s broad view of state sovereign immunity. So it was no surprise when his 2014 book Six Amendments proposed a constitutional amendment on this subject. Yet there is something quite surprising about Stevens’s proposal: if read according to its terms, it might not have any significant effect at all. Exploring this possibility turns out to be an interesting way of testing our intuitions about text and purpose in this area.
Monday, April 06, 2015
University of South Carolina joins the mob
There may be more to this story than is reported here about the University of South Carolina suspending a student for writing a racial slur on a dry-erase board in a study room (as part of a list of complaints about the school). Based on the facts we have, this move is even more egregious than the expulsions at Oklahoma. The Fourth Circuit does not apply Tinker to universities; there is no remote possibility of this being a true threat, fighting words, incitement, or otherwise unprotected speech; and there is no suggestion that using the dry-erase boards in a study room is against university policies (so this cannot be likened to defacing university property). The school simply insists that "racism and incivility" are not tolerated and that the honor code requires everyone to "respect the dignity of all persons" and to "discourage bigotry." Those are all great ideas. But an institution that is subject to the First Amendment cannot further those values by removing from its community anyone who does not share them.
Again, however, if the student is not inclined to sue, the university's power grows.
Entry Level Hiring: The 2015 Report - Second Call for Information
This is a reminder of the Entry Level Hiring Report. The numbers will be low this cycle, but the spreadsheet as it stands as of April 6 is certainly not anywhere near the final list.
If you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
(Comments are closed on this post in order to drive comments to the original post.)
Collins on Prawfs' Anniversary
The following is by Jennifer Collins, Dean at SMU, formerly at Wake Forest, Dan's (and Ethan's) co-author, and among the first Prawfs contributors.
Happy anniversary, Prawfsblawg! It seems impossible that ten years have passed, and even more impossible that we are celebrating this anniversary in the absence of our dear friend and founder, Dan Markel. Somehow Dan managed to rope me into being one of the early guest bloggers on Prawfs, in large part because it was simply impossible to say no to him. I will confess I was not very enthusiastic about blogging at the time – I was pre-tenure, living in a new city, juggling three young kids, and frankly afraid to put any posts out into this new medium that were not carefully crafted and exhaustively reworked. But Dan made me brave, and for that I am profoundly grateful. He was forever bursting with ideas and so eager to engage them, and he helped me realize that it was more important to be part of the conversation than to hang back and wait until every post or article was perfectly polished before jumping in. Dan was a connector, a thought-provoker, an indefatigable source of energy and ideas. The privilege of working with Dan and Ethan Leib for so many years on our project on criminal justice and the family will forever be one of the great joys of my professional life. We certainly did not always agree during those many hours of working on our articles and on our book, but Dan always made the disagreements fun. Indeed, he approached every facet of his life with generosity, creativity and joy, from being a parent to being a blogger to being a professor. As so many of us do, I miss him terribly. As Dan would have said, happy bam-bizzle, Prawfs-swizzle!
Happy 10th Anniversary Prawfsblawg and Thoughts about Dan Markel
As Howard suggested, I thought that I'd sketch out a few thoughts about Dan. I've never met him, but to me he represented the academy in all of the best senses of the word. He was a symbolic figure to me, someone who was open minded, a truth-seeker.
Every single email that I received from Dan was an invitation to participate in intellectual discussion. His emails to schedule guest spots on Prawfsblawg were captioned something like "Get onto the Prawfsblawg Love Train," which always made me laugh and made it less scary to blog, somehow. He was encouraging of fellow prawfs to use their voices. If you write, you realize how crucial it is to have these people in the field.
Dan's posts on Prawfsblawg always seemed to cut through the noise to figure out the truth, the law, and justice in the largest sense. Although I didn't know him, his writing evidenced a person who was a great human being and intellect. In addition to the existence of creating a platform, he was an active voice in his own right. He wasn't someone who said "do as I say, not as I do." He modeled his ideals by living them.I still remember the shock of last summer finding out on Facebook that he was no longer with us. It seemed so profoundly unjust. It still does.
Anniversary Topic # 1: What has PrawfsBlawg meant to you?
So, here is the first topic: What has PrawfsBlawg meant to you?
Feel free to discuss anything within this broad subject. Some topics might include: What was your initial exposure and experience with PrawfsBlawg and what did you think? What were your first experiences blogging, whether here or elsewhere? How, where, and when did you meet Dan? What do you remember about Dan's early blogging work?
Again, if you would like to contribute, email your post to Paul (firstname.lastname@example.org) or me (email@example.com).
Sunday, April 05, 2015
Getting law right on "BCS"
Friday, April 03, 2015
Contemplating Academic Analytics for Law Schools
There is a recent trend in higher education to standardize assessment of faculty’s academic achievement across disciplines. For example, a company called Academic Analytics markets itself as providing university administrators “with objective data that administrators can use . . . as a method for benchmarking in comparison to other institutions.” As its website explains, it measures productivity and excellence by quantifying:
- the publication of scholarly work as books and journal articles
- citations to published journal articles
- research funding by federal agencies
- honorific awards bestowed upon faculty members
Because it is seeking to assess academics generally, the metrics that Academic Analytics uses are not necessarily well suited to assessing law faculty. For example, the number of faculty members with a grant and grant dollars per faculty member (two data points that the company uses to quantify research funding) are not particularly good measures for law faculty because many law schools do not encourage their faculty to obtain grants. Similarly, the number of faculty members who have published a book may not be as good of a metric for law faculties as in other disciplines.
Looking at the academic analytic metrics, I’m contemplating how it is that one might attempt to construct an instrument that would assess law faculty productivity and excellence.
Deterring Adolescence: A Friday Farewell Post
A brief final post on deterring adolescence, inspired by a story on Slate about four teens charged with child pornography for filming themselves having consensual sex and tweeting a video of it. The police chief said the charge will "send a message to others that kids shouldn’t be involved in this type of behavior, and hopefully this will serve as a deterrent.” If only that were so, prosecutions like this might make some sense. But there is great support for the idea that the criminal law provides very little deterrence when it comes to young people. Their impulsivity, tendency to offend in groups, preference for immediate rewards, and discounting of the future mean that the possibility of getting caught and getting punished plays little role in their decision-making calculus. In the words of Christopher Slobogin, the deterrent force of the criminal law is "literally an afterthought" for adolescents.
This has important consequences in all sorts of arenas, within and beyond criminal justice. The lack of a meaningful deterrent effect of criminal law is one reason (among many) why I argued that DNA collection from juveniles should be reconsidered. In short, we can't regulate adolescence out of adolescents. They don't respond to the incentives baked into the law the same way that adults do. In this important time when juvenile justice norms are being rebuilt, we must use what we've long known and what we newly know about young people to make for smarter policy. This is especially true when, as now, contact with the criminal justice system and criminal records can have such devastating, permanent impacts on lives.
Like my other April guest bloggers, I wanted to thank Howard and Prawfsblawg for giving me a chance to share thoughts on adolescence every couple of days. I even got a few comments to some of my posts, and made a couple of new friends in the process. This is a wonderful community, and I am thankful it exists.
Happy Passover, Happy Easter, Happy Spring...and thank god for fair use
liberty and parody...
Short, last post to highlight a disturbing Fourth Circuit case that illustrates how much excessive police invasion and violence our system is willing to tolerate (even when it means disturbing a jury verdict). In Kane v. Lewis, the Fourth Circuit overturned an award of $250,000 to the father of a young Maryland man who was shot by a SWAT team. Yes, the man came out of his room with a knife (found sheathed on the body later). One plausible explanation for that? SWAT conducted a middle-of-the-night raid of his apartment, with no "knock and announce." What basis for the subpoena that led six SWAT officers to break down his door? Trace amounts of marijuana found in his trash. The search led to more (but not much more) of the same.
And, with that uplifting conclusion to my PrawfsBlawg stint, I'd like to thank Howard for the opportunity to join the Prawfs community and all those who contribute to the site for their posts.
So long, farewell...
I know it’s April, but I wanted to overstay my welcome just a bit to say thanks once again to Howard, Paul, and the entire Prawfs community for letting me guest-blog here this month. I enjoyed it.
Happy pesach, y’all!
Final Thoughts on Fiduciary Duty in Higher Education
As my month of guest blogging comes to an end (how did it get to be April already?), I wanted to close with a final thought about fiduciary duty in higher education. Financial pressures bring these issues to the fore. At Appalachian School of Law, we see board members accused of having “breached the fiduciary duty to the law school, to the students and to the public” by refusing to consider a merger or move out of Grundy. At Sweet Briar, a county attorney in Virginia has filed suit to stop closure of the school, alleging that the board should have considered other options including “a new fund-raising campaign, admitting more international students, stepped-up recruiting at private girls' schools with equine programs (a strength of the college), restructuring the curriculum, or stepped-up recruiting of wealthy students.”
A Law Review Survey
We did a survey on prawfs a few years ago about the availability of law review slots for the fall season, and the results were pretty useful...at a minimum, they disproved the naysayers (me) who had been claiming there was no fall submission season. I'd like to field another survey instrument, aimed a bit more broadly at law review submission timing and related factors. Let's crowdsource it. Below the jump, I list some questions I'd like to include in the survey. Please feel free to suggest additional questions, kibitz the wording of the existing questions, etc. This will probably be an on-line, mostly multiple-choice, format.
I want to keep the survey around 10 questions or fewer so editors can answer without much hassle, so also let me know which of the questions and suggestions you think are most/least interesting.
I'm aiming to send around the survey at the beginning of next week, and post results at the end of the month. Law review editors, feel free to e-mail me to request a copy of the survey (see the link to the right for an address).
Intellectual Property Musings
Thanks to Howard and the rest of the Prawfs for the opportunity to guest blog this month! Since I write about international intellectual property, I am mostly going to share my musings on intellectual property (IP) topics.
Taylor Swift's decision to trademark the phrase "this sick beat" from her popular song, "Shake It Off," has garnered some attention in recent weeks. Some folks think that this is a smart business move while others think it is just silly. However, it raises questions about the purpose of trademark law, as noted by law professor Mark Lemley during his NPR interview.
Should Taylor Swift be able to lock up "this sick beat" so that she can commercialize it? Branding is increasingly important, not only for famous artists and large commercial enterprises, but also for professionals like doctors, and for public organizations. The more interesting question for me is how the public perception of IP rights might be affected by whether we focus primarily on the entitlement of the IP owner or on other purposes of trademark law and IP laws in general. Tied to this general theme, I will be chatting more about IP, "progress," and human rights over the next several days.
Thursday, April 02, 2015
Dipping my toes back in the water ....
Hello readers! I think it's been several years since I last guest-blogged at Prawfs, a period of time coinciding with my almost complete loss of interest evaporation in law/general blogging and a possibly obsessive interest in running. (Perhaps it's moving to Oregon that stimulates the latter.) I won't blog about running, but potential topics include public misconduct investigations*, terrorism/national security, and the usual prawfy sort of ruminations.
* We've got a fascinating ongoing situation here in Oregon, not unlike the downfall of former Virginia Governor Bob McDonnell, where John Kitzhaber won re-election in November 2014 (his fourth term overall, though not consecutive) and then resigned amid an ethical and criminal investigation of alleged influence peddling involving his fiancee. I've been following this matter closely enough that it actually rekindled my interest in law blogging.
Tagging In . . .
Many thanks to Howard and the other folks here at Prawfs for inviting me back to blog. I’m really looking forward to the mini-symposia, and I also plan on blogging about a few different issues that have come up since I last blogged here years ago . . .
Where have you gone, Mary Beth Tinker?
Recent incidents of universities expelling students for racist or offensive speech have included an interesting feature--none of the students seem inclined to sue or otherwise contest the punishments as violating the First Amendment. The two guys from Oklahoma have been on a Regret Tour, seemingly apologizing to every African-American they can find (including random Oklahoma legislators). A story described one of them as having "withdrawn" from OU (interesting language given that OU President David Boren made it very clear that he had expelled them). The University of Maryland went after one student for sending racist emails and the student left, at least for a semester, by "mutual consent." This despite the fact that most commentators believe, doctrinally at least, that expulsion for the speech in these cases violates the First Amendment.
One explanation is that the social norms against racist and other offensive speech have so taken hold that people "caught" engaging in such expression do not want to own or defend it in public. Given the social reproach that they are subject to, ordinary people (as opposed to truly hateful sociopaths such as Fred Phelps) no longer want to fight for the right to say what they did or for the underlying principle that offensive speech is protected. They instead run and hide to let the storm blow over. From a social standpoint, it perhaps is good for norms of equality to take hold.
From a legal standpoint, however, it is unfortunate. Legal rights are lost if not exercised and defended or if those who violate those rights are not called to account. In this context, that requires the speaker to challenge the punishment in court. Moreover, the reluctance to sue increases the power of university officials to impose constitutionally suspect punishment. As one emailer put it, a university president can impose any punishment he wants, "effectively daring the frat members to call his or her bluff."
I have no evidence for this notion, but I wonder if the students are not essentially settling--they agree not to sue, they step away from school for a semester or two, then they are allowed to return once things have quieted down.
Some necessary background
Greetings again, prawfs readers. It's been a while since I posted in this space. Partly that is because I've been standing up another blog (more soon on that front). But partly it's because I didn't know how to write this post.
Mark Lemley's "Faith Based Intellectual Property"
I'm still processing a draft posted yesterday by Mark Lemley, "Faith Based Intellectual Property," here at ssrn. Like many of Mark's pieces, it is a clear, succinct read. In it, he points out that "IP rights are a form of government regulation of the free market designed to serve a useful social end—encouraging innovation and creation." The paper cites numerous pieces of empirical research conducted over the past several decades by both legal and economic scholars concluding that these goals have not been well met.
Faith Based Intellectual Property asserts that a divide, of sorts, is occurring in the field of IP scholarship, between those who write that, despite such scholarship, IP is justifiable as a legal constraint on creativity for other reasons. According to the piece, "this retreat from evidence [is called] faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief." Lemley writes that non-utilitarian support for the system ignore important evidence and represent difficulty for the system as a whole. As he states, IP "intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first."
His conclusion goes further--that "we have nothing to say to each other." To explain:
I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others.
Undoubtedly, it's an important piece, will foster discussion and further thought.
Wednesday, April 01, 2015
Ongoing conflicts over campus speech
Short story in the Chronicle of Higher Ed on various new controversies over offensive speech on college campuses, including at Oklahoma, Penn State, Maryland, Bucknell, and Mary Washington.
I would suggest the last two paragraphs, involving three students expelled for using racist epithets on the campus radio station, captures the disconnect and the inherent contradcition (yes, Bucknell is private and can do whatever it wants as a First Amendment matter, but it illustrates the prevailing attitude towards expression):
In an interview Tuesday, Bravman, Bucknell’s president, said that he and his university strongly support free speech and due process. He would not comment on the context of the language, but said that no matter the context, the three students crossed a line.
“There’s no question about that,” Bravman said. “This was hate speech. We own the station and the equipment, and the students were acting as agents of the university. They violated our community standards, and that’s really what this comes down to.”
Welcome to April. Thanks to our March visitors, some of whom may be sticking around for the remainder of this week to tie-up loose ends.
And welcome to our April slate of visitors--Carissa Hessick (Utah), Tung Yin (Lewis & Clark), Amy Landers (Drexel), Brian Galle (BC, headed for Georgetown), Michael Waterstone (SouthwesternLoyola-LA, still visiting at Northwestern), and Jan OseiTutu (my FIU colleague).
In addition, April 2015 (the 5th, specifically) marks the ten-year anniversary of PrawfsBlawg, which DanZ"L launched as a forum for junior ("raw") law profs with this simple post. It has changed over the years as we all have grown with the site (only Richard is pre-tenure among the PermaPrawfs), while hopefully continuing to fulfill its goals. To that end, April will include a series of week-long mini-symposia on topics related to blogging, law teaching, and other matters near and dear to Dan and to this community. And, of course, it offers an opportunity to reflect on our continuing loss. We welcome guest commentaries and contributions, particularly from those who were involved, connected to, or engaging with Prawfs and with Dan a decade ago.
Paul will announce topics later this week and our first symposium hopefully will begin next Monday. Anyone wishing to contribute can email their posts to Paul or to me.
Tuesday, March 31, 2015
Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?
In a nutshell, a 5-4 conservative majority (the usual suspects, but for Breyer and Kennedy switching sides) held that Medicaid providers may not pursue suits for injunctive relief against state officers who allegedly violate the "equal access" provision of the Medicaid act because (1) the Supremacy Clause itself doesn't provide a freestanding cause of action; and (2) even if such a cause of action has traditionally been available in equity, Congress displaced such remedies when it enacted Medicaid in 1965 (or, at the very least, when it codified the equal access provision in 1989). [Full disclosure: I co-authored a brief on behalf of former HHS officials as amici curiae in support of the Respondents.]
As a result, the only way to enforce the "equal access" mandate--one of the most significant substantive requirements of the Medicaid program--is for the Department of Health and Human Services to withhold Medicaid funding from violating states, something the Department neither has the ability nor the inclination to do. But whereas I had warned in an earlier post that a bad result in Armstrong could mean doom for Ex parte Young (which I elsewhere described as the sleeper Federal Courts case of the Court's October 2014 Term), the hyper-specific focus on the equal access provision in both Justice Scalia's majority opinion and Justice Breyer's concurrence almost certainly reduces the precedential effect of today's decision. The only downside (for anyone other than Medicaid recipients and providers, anyway), is that it does so at the expense of any shred of credibility--reigniting the debate over the virtues (and vices) of "this train only" analyses.