Tuesday, October 13, 2015
Job Talk Advice - From the Archives
This post excavates two "job talk advice" posts that aren't tagged with "Getting a Job on the Law Teaching Market" and so might escape notice. These posts are old (in Internet time) but not dated.
I've closed comments on this post to try to minimize proliferation of comment threads; if you have thoughts or comments on these posts, please share them over at this year's Clearinghouse for Questions.
Edited 10/19/15 to add:
Another post by Orin, this one candidates' choosing whether and how to specialize in a particular area of law--the comment thread is also very good.
The first episode of C-SPAN's Landmark Cases covered Marbury. It was an interesting program, mostly a discussion between Akhil Amar and attorney Cliff Sloan, who has written a book on the case. The discussion tells the full historical and political context of the case.
I was struck by a few things. And as to all, I recognize that this program is not pitched at lawyers and law students. But if the purpose is to elevate the conversation, perhaps some better editing was in order.
How do YOU feel about guns on campus? Deterrence and academic freedom
Eight states, including Oregon, Texas, Arizona, and my own state of Idaho require public colleges to allow licensed students to carry concealed weapons on campus. The issue’s popped up a lot in just the past couple weeks. A few highlights:
- A student at Umpqua Community College killed 10 of his classmates on campus. link
- At least one UCC student, an Air Force veteran, was legally armed that day and, probably wisely, chose not to get involved because he was worried the police would mistake him for the shooter. link
- University of Texas students and professors are protesting over the new campus carry laws. link
- One of those protests is #CocksNotGlocks. Pretty much what it sounds like. link
- Four more people were shot at Texas Southern University last week. link
- Another four students were shot at Northern Arizona University last week. link
On the one hand, there’s the argument that students with weapons can shoot the bad guys, limiting the damage and deterring attacks. Indeed, as Eugene Volokh emphasizes, civilians with guns do stop bad guys sometimes. See also, David B. Kopel, Pretend ‘Gun-Free’ School Zones, 42 Conn. L. R. 515 (2009) (campus carry can deter). At the same time, as we saw at UCC, there’s limits to how much armed civilians can do to stop an active shooter because the second they pull out their own gun they risk being mistaken for the “bad guy.” See also, Shaundra Lewis, Bullets and Books by Legislative Fiat, 48 Idaho L. Rev. 1 (2011) (deterrence value of campus carry is minimal).
Also, most shootings, like those at Texas Southern and Northern Arizona, are not premeditated mass shootings, but the kind of things that arise out of arguments on campus. Campus carry laws mean more guns on campus, increasing the chances a random argument could turn deadly. It seems that the deterrence effect of concealed carry on these kinds of shootings would be minimal.
Teaching/Free Speech/Academic Freedom
One argument that is growing in prominence is that campus carry is bad for teaching. As the UT petition states, “The University must be a safe place for people of all views and backgrounds to express their views WITHOUT FEAR.” See also, Lewis, Bullets and Books by Legislative Fiat (campus carry interferes with professors’ academic freedom) The argument, in essence, is that it’s harder for a professor to express their views and maintain discipline if they are worried that students might shoot them if they get upset.
I’ve spoken with students who I knew were armed before. I can’t say that it bothered me at the time, but they were also friendly conversations. I’m pretty sure I’d feel differently if a normally unarmed student showed up with a handgun to talk about their grades! Criminal laws and campus rules about threatening behavior might apply in some of these situations, but not all of them. Ultimately, these laws are fairly new: I haven’t heard of any post-campus-carry horror stories of students legally intimidating professors/fellow classmates… yet. Perhaps only time will tell if these campus carry laws will be a pedagogical disaster or just not that big a deal.
Monday, October 12, 2015
New from Cambridge University Press and newly arrived on my desk is Religion and the State in American Law, by the late Boris Bittker, Scott Idleman, and Frank Ravitch. (Individual chapters were also contributed by Jennifer Ann Drobac and Jill Wesley, Angela Carmella, and Cynthia Lee Starnes.) Here is the CUP page for the book. I have unfortunately been unable to post much for the past few months, but it's well worth making the extra effort to bring attention to this book. It seeks to provide, as the book jacket says, "a comprehensive and up-to-date overview of religion and government in the United States, from historical origins to modern laws and rulings." The topics are broad, extending well past the standard narrow treatment of cases dominated by the Religion Clauses to include contracts, torts, family law, and a number of other areas; and the coverage is similarly catholic, ranging deep into the lower court caselaw. It is truly an impressive book and a fascinating and useful treatise. I'm not sure what the authors' or the press's update plans are, but I hope they will keep the enterprise going at least a little bit. It is also remarkably well-priced at some $37 on Amazon and $45 list--highly unusual for a book of this kind.
If I were to recommend a very short list of essential books on religion and American law, I would first recommend my books and then, after an awkward silence, more honestly and accurately would recommend this book, along with Kent Greenawalt's two-volume Religion and the Constitution and perhaps this book on religious organizations in the United States. It looks great and I congratulate the authors on their achievement.
"Older Faculty Keep on Keepin' On"
Here's an NPR piece on the phenomena of (a) the aging of tenured faculty (ed.: um, it's not just tenured faculty who are aging, right? Isn't everyone? RG: Come on, ed., you know what I mean) and (b) what seems to be the lack of interest on the part of most aging-tenured-faculty in buyout-plans and other efforts by universities to move them out. Here's a bit:
This dramatic trend foretells more than a future of campuses populated by white-haired professors in sensible shoes and tweed jackets with elbow patches. Universities say it's making it harder for them to cut costs and improve productivity exactly at a time when students and their families are balking at the high cost of a higher education.
And when those students — not to mention politicians and business leaders — are expecting a better return on that investment, the institutions say the buildup of aging faculty leaves them less able to respond to changing demand for new kinds of majors, or to declining enrollments, and that it's also blocking younger Ph.D.s from entering the workforce. . . .
. . . [O]ne real reason universities want their tenured faculty to leave is so they can be replaced by cheaper faculty who are not on track for tenure, and by part-time adjunct instructors, in the same way that private companies outsource their work to cut costs. The proportion of faculty who are part time has already climbed from 22 percent in 1969 to 67 percent today, according to the Association of Governing Boards of Universities and Colleges, meaning that the full-time tenured faculty who won't leave are already a much smaller proportion of the total than they used to be.
I wonder, would the perception among many faculty of universities' efforts to incentivize older tenured faculty -- some of whom remain productive scholars and good teachers, some of whom do not -- be different if universities were to make clear -- to provide assurances -- that the opened-up spots would be filled by younger tenure-track scholars (rather than untenured adjuncts, special-professional faculty, etc.)? Without such assurances, the universities' efforts might seem to reflect hostility to tenure itself (and the costs it involves and inflexibility it arguably creates) rather than frustration with its possible student-disadvantaging and scholarship-depressing misallocation?
Baseball and viewpoint discrimination?
As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?
In Favor of a Strong Presumption of Testamentary Capacity
Testamentary capacity is required in every jurisdiction to execute a valid will. There is little variation in what that means substantively, but significant variation in standards and burdens of proof. I have argued that someone challenging a first will should have the burden to prove incapacity by clear and convincing evidence (here). A minority of jurisdictions follow this approach, which better effectuates testators’ intent. The majority require a showing of incapacity by a mere preponderance.
Massachusetts is even worse. An appeals court there last month affirmed the denial of probate to a will on the ground that the testator lacked testamentary capacity. In re Estate of Galatis (2015 WL 5227413). In accordance with my position and the majority rule, there is a presumption of capacity in Massachusetts and the burden is on the will contestants to show incapacity. However, in Massachusetts, the burden flips to the proponents of the will to show capacity as soon as the contestants present “some evidence” of incapacity.
The proponents of the will in Galatis were unable to meet that burden. The facts illustrate how this flawed burden-shifting approach can lead to bad results. The evidence on incapacity was admittedly mixed: the panel split 2-1. Leaving the burden on the contestant and requiring clear and convincing evidence of incapacity could well have tipped the scales. And probating the will would almost certainly have better advanced testator’s intent. The challenged will was nearly identical to a draft signed by the testator eight days earlier when his capacity was not disputed. And the will contestants who took by intestacy when the will was thrown out were the testator’s cousins--the testator was a widowed only child with no children of his own.
Sunday, October 11, 2015
Lisa McElroy's "Called On"
Lisa McElroy (Drexel) has published Called On, a novel about law school that Tony Mauro calls "This Generation's One L." Lisa tells me that Dan encouraged her in this project early on and she mentions him in the acknowledgements.
Friday, October 09, 2015
Definitive Answers to Unanswerable Law Review Submission Questions
There is a quote attributed to the screenwriter William Goldman regarding Hollywood - "Nobody knows anything." I increasingly feel like this applies to article submission strategies. Everybody has their ideas about timing and titles, word counts and body/footnote ratios. Nobody knows what they're talking about. Nevertheless, this post will now definitively answer these questions for all time with no more need for disputes or discussion. You're welcome.
"The Rise of Corporate Religious Liberty": Pre-order yours today!
This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now. Just in time for Alascattalo Day!
The book was edited with skill and heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders. More than a few Prawfs guests and bloggers are among the contributors, who include Sarah Barringer Gordon, Paul Horwitz, Nelson Tebbe,Douglas Laycock, Christopher C Lund, Liz Sepper, Frederick Gedicks, Ira Lupu, Robert Tuttle, Robin West, Jessie Hill, and Mark Tushnet.
Here is the abstract for my chapter:
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Picking our free speech stories and heroes
Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).
Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.
Thursday, October 08, 2015
It's going to get pricey
Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).
Kim Davis must know that her stunt is going to get very expensive very quickly.
Rethinking Kitty Genovese
The New Yorker reviews a new documentary that screened this week at the New York Film Festival--a reexamination of the murder of Kitty Genovese, produced by and starring Bill Genovese, one of Kitty's younger brothers. The film attempts to reinvestigate the murder and the response to it. Similarly, a 2014 New Yorker story explored how the media created the "bystander apathy" narrative and how it almost immediately took hold, to the point that it actually affected the State's decisions in prosecuting the case.
That narrative remains sticky. In my 1L Crim Law class, we read an early New York Times story about the murder (The Times and editor A.M. Rosenthal was the great engine of the apathy narrative) for a discussion of the law/morality divide and when liability should attach to inaction. At a Torah study a few weeks ago, a participant referred to this story, and its common narrative, to illustrate some principle about how the Torah commands us to treat people.
Never mind that the best understanding of the story (as discussed in both of the New Yorker pieces and in the film) is that several neighbors did try to help. This includes at least two who called the police (police records show one call and that the response to that call was that the police were aware of the attack, suggesting at least one earlier call).
A few new themes emerge from the film and from the review.
Wednesday, October 07, 2015
EPA Required to Muscle Out Invasive Zebra Mussels - Can it Be Done?
This Monday as I was preparing to teach my Tuesday Biodiversity seminar, in which we were to discuss invasive species, the Second Circuit issued an important Clean Water Act opinion. For years the EPA had been avoiding the significant challenge of dealing with invasive species routinely dumped into our nation's waters by cargo ships. When the ships load and unload their cargo, it is necessary to balance the weight of the ship by filling or emptying massive tanks of water within the vessel. This water (called ballast water) is typically drawn into the tanks in one location and expelled in another, carrying along numerous stowaway species ready to invade new territory. This practice has introduced many microscopic pathogens, but the poster child is undoubtedly the zebra mussel, which has taken over the great lakes ecosystem. In addition to causing ecological harm, the zebra mussels have cost hundreds of millions of dollars to the companies whose industrial water pipes have been clogged by the Asian mussels.
The Clean Water Act makes it unlawful to discharge a pollutant into the nation's waters without a permit. The EPA has no discretion to exempt categories of discharges from this permitting requirement, as the DC Circuit held way back in NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). More recently, in 2008, the Ninth Circuit struck down the EPA's attempt to exempt ballast water from the CWA requirements, in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008), a case I had just happened to assign for this week's class. So, I was pleased in more ways than one to see the Second Circuit issue its opinion in NRDC v. EPA just 24 hours before our class met to discuss this very issue. Having failed in its attempt to exempt ballast water entirely from permitting requirements, EPA had generated a lenient Vessel General Permit, which the court this week struck down as a violation of the CWA. The permit failed to be strict enough both as to technological requirements for treating ballast water and as to limits on the invasive species discharged.
While exciting for environmentalists, this ruling will be quite challenging for the shipping industry. Many of the most cutting edge technologies for killing everything in ballast water tanks is easier to design into new ships than to add via retrofitting older ones. Of course, we have a very serious invasive species problem, so to address it, step one is obviously to stop introducing them. There is no question that this red light is incredibly valuable to the environment. What is less clear, though, is whether we can ever actually accomplish the underlying goal of such regulation, which would be to restore the ecosystem and stop the economic harm. In forcing the EPA to regulate ballast water, the Northwest Environmental Advocates Court noted that "[o]nce established, invasive species become almost impossible to remove," in part because they can become so successful absent their natural predators.
So this decision raises the important question of what's next. Assuming we can cut down on the continued delivery of invasive species into our waterways, will we maximize the value of that effort and sacrifice by also working to eradicate the massive population already present? Can we do this?
What We Are Really Worried About When We Worry About Climate Change
I'm not a big fan of "climate change." By that, I don't mean I think the science behind climate change is bad (it's not). And I don't mean that climate change is not important (it is). But as a water law and policy scholar, I feel like there is an expectation that my work reference, or tie back into, climate change. And I think that is backwards. Climate change is a bad framework within which to talk about sustainability challenges in general. When we worry about climate change, what we're generally worrying about is water. And "climate change" just fails to capture that worry in a way that motivates the public and policymakers. I think we would get more traction with the public and policymakers if we framed the problem around water rather than climate.
Podcast on Entry-Level Hiring Market
What Does Versatility on a Faculty Mean?
In the dictionary, the word versatility is sometimes defined as "capable of or adapted for turning easily from one to another of various tasks, fields of endeavor, etc." On a law faculty, we all know that some of our colleagues happen to be very versatile. And that some happen to be more versatile than others. For example, we have all heard a particular colleague described as "a great utility infielder." That phrase -- utility infielder -- is used to refer, I think, to a person who is able -- and, more importantly, willing -- to teach a wide range of different courses, courses that indeed may not relate well to one another. Or sometimes, the phrase means that someone is willing to pick up a course without much prior notice, and run with it.
Here is my question: What do we mean when we refer to a colleague a being versatile? This could mean, of course, that this person is willing to teach a wide range of courses, or perhaps has willingly taught a wide range in the past. For example, there are senior scholars out there who have spent their careers circling through a wide range of first-year courses as a service to their schools, not to mention many upper level courses too. Howard Katz at Duquesne has taught five out of the six standard first-year courses -- torts, contracts, criminal law, constitutional law, and property. This is in addition to other subjects that are of interest to him, like land use. Jeff Rachlinski at Cornell has taught administrative law, business organizations, contracts, behavioral law and economics, civil procedure, environmental law, international environmental law, law and psychology, sustainability, natural resources, psychology and the law, torts, and a few other subjects. That's an amazingly wide range. I have been asked to teach torts, contracts, and civil procedure - though I don't normally write in any of these fields. But does that mean I am versatile or spreading myself too thin? And what about senior scholars like Katz, Rachlinski, and others who have moved around the curriculum like this?
I submit that versatility in a colleague can also extend beyond teaching. There are some scholars who are versatile in their research and publication interests, and perhaps in the service obligations that they pursue as well. In law professor hiring, we seem to prefer specialists, but shouldn't the dean office value versatility just as much - or perhaps even more? I'm curious to know what others think. In the comments, I invite readers to tell us more about (a) how we should define versatility on a faculty, (b) what it is, exactly, that law schools should value about a person's versatility, and (c) the ways that versatility in colleagues, however defined, should be rewarded.
Examples would be helpful, of course.
Should the Umpqua shooter's mother be liable?
Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0
Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?
Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:
[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . . Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation. This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.
Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law. [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases. [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths. [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing. It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer. [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.
Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.
I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!
Eugene Volokh doesn’t understand suicide (PAS, Part II)
In his blog yesterday, Volokh wrote:
“[I]f you really want to commit suicide (and there’s good reason to think that people who use a gun to try to commit suicide — as opposed to, say, pills — really do want to commit suicide) but can’t get a gun, it’s not hard to find alternate reliable means of killing yourself.”
First, few people “really want to commit suicide”---in the sense of having a strong, fixed desire to die. Most suicide attempters deliberate for mere minutes or hours. And the vast majority of survivors go on to die of something other than suicide. Presumably, Volokh would agree that people who jump from the Golden Gate Bridge also, in his terms, “really want to commit suicide” (given the lethality of this method), but one study of attempt survivors found that after a 26-year follow-up period 90% died of natural causes or were still alive. Suicide is generally impulsive. If someone has access to a gun, the impulse is almost always fatal. Even a short delay finding an “alternative reliable means” can make all the difference.
Volokh supports his quoted assertion with a 2004 report. Fair enough, but if he had updated his research, he might have discovered my co-authored article examining the impact of waiting periods and other purchase delays on suicide. Using state-level panel data for over two decades and controlling for a host of other variables, we find that purchase delays are associated with a significant reduction gun suicide with no evidence of substitution to non-gun suicide. And this is not just an isolated study. It has been well-established for many years that restricting access to lethal means is an effective way to reduce suicide (2006 JAMA review).
Tuesday, October 06, 2015
JOTWELL: Walker on Cyr on judicial appointments in Canada
The new Courts Law essay comes from Janet Walker (Osgoode Hall), reviewing Hugo Cyr, The Bungling of Justice Nadon's Appointment to the Supreme Court of Canada.
Covering a colleague's class, or The Substitute
This morning, for the first time since I began teaching fifteen years ago, I covered a colleague's class. This presented some interesting issues, both substantively and stylistically, as to how much the class should sound like me and how much it should sound like my colleague?
Substantively, it presented the challenge of getting up to speed on the content. While I teach the same subject, I do not teach the same cases and my overall approach to the material is very different. I teach certain concepts differently or with different emphasis and in a different way. So I know I did not (and could not) run the class with the same confidence in the questions I ask, the points I make, and (certainly) my responses to their questions. There also was the question of base knowledge to be expected from the students. I cover material in a different order than my colleague. So I know what the class already knows (or should know) by the time I reach this topic in my own class; I was less sure of what these guys knew.
Stylistically, one big question was whether to use my colleague's PowerPoint slides, since that is both what she wants to do and what the students expect. I chose not to; I would not know how to interact with them, so they would have been more of a distraction than a help. The students were great about it--probably about 1/4-1/3 volunteered at least once. But it was like being a substitute teacher--everyone not knowing quite what to do with me, what to expect from the class, or what they were going to learn. I tried to make the class "mine," to the extent that is possible with a group of students who signed up for a different style of class.
Fortunately, no one threw spit balls.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 6, 2015, for one-year fellowships to begin in August or September 2016. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.
Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $76,378) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2016, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Monday, October 05, 2015
Hail Marriage and Farewell
I have uploaded my recent essay on Obergefell to SSRN here. A quick abstract:
This essay on the Obergefell decision highlights the opportunity it presents to get states to retreat from the moralistic conception of marriage that the Supreme Court reinforced when it extended marriage rights to same-sex couples. The paper identifies and discusses what some states were considering in the lead-up to Obergefell -- and exposes how marriage-skeptics and those engaged in "massive resistance" to same-sex marriage rights can work together for a future of marriage, cleansed of its religious, gendered, and bourgeois history and manifestation.
Precommitment Against Suicide (PAS, Part One)
People who fear suicide ought to be empowered to protect themselves. That is the core idea in my recently published article in the Boston College Law Review, Self-Defense Against Gun Suicide (pdf, no log-in required).
More specifically, my proposal is to allow individuals to confidentially put their own names into the federal background check system to prevent gun purchase during a suicidal crisis. There would be an option to change one’s mind and have one’s name removed after a delay period.
There are good reasons to think this proposal would save many lives:
● There were 21,175 firearm suicide deaths in the United States in 2013.
● Buying a gun is associated with an increased risk of suicide. One study found that the suicide rate among recent gun purchasers was 57 times the overall rate, which translates into hundreds of suicides each year.
● Most suicide attempts are impulsive. One study of survivors of firearm suicide attempts found that a majority had suicidal thoughts for less than a day.
● Some who had signed up for the proposal would probably attempt suicide without a firearm, but the other common means of attempting suicide are much less lethal.
● Surviving an attempt usually makes all the difference. The vast majority of suicide attempt survivors go on to die of something other than suicide.
For citations and further support, see www.StopGunSuicide.com.
In subsequent posts, I plan to dive deeper into this proposal. If you’re already persuaded, please sign my petition at change.org.
Sunday, October 04, 2015
Today is the 10th anniversary of my first post on Prawfs. I started the day after the Harriet Miers nomination -- the nomination that launched the blawgosphere. I was only a guest blogger, but then this happened, and Dan invited me to stay on permanently. It has been a wonderful experience. I cannot imagine where I would be right now in my career without Dan and Prawfs. Blogging here enabled me to be a part of the national conversation with other scholars (and future FTC commissioners) on the controversies of the day. It got me to meet (and cyber-meet) a lot of really interesting law profs through book clubs, the Research Canons Project, open-source casebook conversations, everyday blogging, and the Prawfs (& cosponsors) Happy Hours that Dan masterminded. I never made a PrawfsFest!, which I really regret, but as part of the Prawfs community I met a lot more folks than I ever would have met otherwise in the academy.
The last few years have been tough for law students, law schools, and law profs. And the last year has been particularly hard as we continue to mourn Dan's absence. The Prawfs community has stayed strong in Dan's memory, and I know the site will continue to offer a place for "raw profs" young and old to meet, greet, tell us a little about themselves and their work, and make connections with the national community.
It is with sadness, then, that I tell you that I am leaving PrawfsBlawg. I will be joining the Conglomerate to do more blogging on corporate and employment law issues. I haven't done much blogging in the past year, and I haven't done much subject-area blogging in much longer than that. And I've probably done too much blogging about law schools and the issues they face. If you're interested in some of my bigger picture perspectives, you can check out "Funding Legal Scholarship" and "Law Students and Legal Scholarship," both of which started as blog posts here. (And I continue to think that AALS should be a bigger player here, even in the face of Dean Rodriguez's naysaying.)
So this is a goodbye -- at least in my capacity as "perma-prawf." I look forward to Prawfs sticking around for at least a few more decades, serving as a place for folks in the law school universe to share ideas, concerns, and sentiments. And I look forward to participating in that community. Thanks to everyone here for their hard work and generosity of spirit. And one more "thanks" to you, Dan -- you are the root for all that has followed.
Saturday, October 03, 2015
"Landmark Cases" on C-SPAN
C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.
Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.
Friday, October 02, 2015
The UCC Shooting
Yesterday's mass shooting hit me close to home. Literally: I grew up in Oregon. My thoughts are with the families and friends of the victims.
People sometimes assume mental illness is involved in every mass shooting. It is too soon to say with respect to the UCC shooting, but the association is generally overstated (here). I have argued that restrictions on gun ownership and purchase should target dangerous symptoms, not diagnoses or treatment status (here).
While mass shootings may dominate headlines, gun suicide kills many more people in this country, roughly 58 per day. I plan to post several items this month about an idea I have to reduce gun suicide by empowering individuals to restrict their own access to guns. No government mandates. My hope is that this voluntary approach can side-step the gun-control-gun-rights deadlock.
Thursday, October 01, 2015
Two Truths and a Lie
Thanks to everyone at Prawfsblawg for the opportunity to be a guest blogger. You will get your fill of water law in the coming weeks (seriously – brace yourselves). But my introduction to Prawfsblawg came when I was just beginning to think about leaving practice to become a law professor. I searched the internet for advice, and much of the most helpful advice came from Prawfsblawg. As it is hiring season, I thought I would begin my stint as a guest blogger by trying to give back what little I can to the forum that provided me with guidance when I was going on the market.
At several parties or events that I have been to, people play the game "Two Truths and a Lie" as an ice-breaker. Each person says three things about themselves - two truths and one lie. Everyone then guesses which is the lie. For example: My grandmother was a bull rider in rodeos. Mel Brooks yelled at me on the set of "Space Balls." I once was an extra on “Saved by the Bell,” but I was fired because I couldn’t stop looking at the camera. (I'll let you to guess which is the lie). More after the break.
I thought I would do a variation on "Two Truths and a Lie" about law school hiring. I want to discuss two things that candidates may hear a lot that are actually true, and one thing that I think is false. As I was preparing to go on the market, I would get a lot of advice, and some of it would be presented as conventional wisdom. Now, in my third year on the tenure-track and my second year on an appointments committee, I feel like I have a better sense of what parts of the conventional wisdom are actually true (despite my skepticism at the time), and which I have found to be false (or at least not true enough to be part of the conventional wisdom). Let me know if you agree or disagree in the comments, or if you can think of other pieces of conventional wisdom about the market that are either surprisingly true or probably false. And just to head off some criticism - I am not saying what I think should be true or false. I'm just saying what I think is true or false. More after the break.
How to Remember a Scholar Who Dies?
Thanks to the Prawfs gang for having me back. It's a pleasure to be here again.
I'd like to blog a little this month about the quirks of the legal academy. For my first post, I want to tip my hat to the wonderful Al Brophy, who is one of the most thoughtful members of our profession. Though Al is a denizen of a different blog, he has for years done something that deserves our attention. When a scholar passes away, Al not only mentions it on his blog, but he also engages with that scholar’s work. If a recently departed scholar wrote a book, for example, Al will discuss it and often post a picture of the book's cover. And he always ensures that this discussion is engaging and thoughtful. I find these posts to be deeply moving. Though I may never have met the former scholar, I often find myself, after reading one of these posts, going to Amazon and buying one of his books. Al’s “memorial” notices (I’ll link to several here, here, here, here, here, here, and here) remind us of what's important in life, and perhaps in death, too. I say that because I can think of no better way to celebrate a person’s life than by reading his words.
How should the legal academy remember a scholar who dies? We seem to have these ways:
(1) The Book Dedication: Many of us will dedicate a book to a colleague who passes. It’s a great honor when this is done. It is, perhaps, a reason to write books.
(2) The Symposium: In academia, we use a Festschrift to honor a respected person during his or her lifetime. A comparable event held posthumously is a Gedenkschrift. Commonly, we will hold a symposium honoring a life’s contributions.
(3) The Scholarship: Law schools often name the scholarships that they give to their students in honor of their former long-serving faculty members.
(4) The Endowed Chair. Many law schools have chairs named after longtime faculty members to honor and remember their years of service after they pass.
(5) Name a Prize … or a Classroom ... or a Building: Naming a prize after someone is also common, as might be naming a classroom or something similar of the sort.
These are the ways I can think of, and you are welcome to add to my list. We owe thanks to Al Brophy for doing something over the years that I have always found to be thoughtful, caring, and decently humane. And thanks to his colleagues over at The Faculty Lounge, and on other blogs, for doing the same.
Case Western Reserve Law Review is still accepting submissions!
Before I sign off after my extended guest-blogging stint (thank you, Howard Wasserman et al.!), I wanted to let you all know that my school's law review, the Case Western Reserve Law Review, is still accepting submissions for publication in this volume (i.e., late spring). If you have a finished article you'd like to submit, please email it directly to the Editor-in-Chief, Jonathan Fagan (jonathan.fagan[at]case.edu), and mention this notice from Prawfs.
Thanks for all your comments, and hopefully I'll be back again soon!
U.S. v. Klein returns to SCOTUS
I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.
Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.
I'm just writing to thank you for an enjoyable month of blogging. I very much appreciated all of the thoughtful comments and lively back and forth. I look forward to doing it again in the future!
Happy October. A farewell and thanks to our September guests, who may have a few final words.
And welcome to our October guests: Returning to Prawfs are Eugene Mazos (Wake Forest), Deborah Ahrens (Seattle), Andrew Siegel (Seattle), and Fredrick Vars (Alabama). And joining us for the first time are Rhett Larson (Arizona State), Andrew Kim (Concordia), and Kalyani Robbins (my colleague at FIU).
Wednesday, September 30, 2015
The Anti-Privacy Activities of Anti-Choice Activists
Undeterred by Planned Parenthood President Cecile Richards's recent smackdown of a disingenuous Representative Jason Chafetz (R-Utah), anti-abortion activists are using many tools in an expanding arsenal to attack a woman's right to choose. One of those weapons is invading women's privacy.
Many are familiar with the anti-choice movement's traditional tactics: lobbying state governments for tighter restrictions on women's health options, attacking doctors who help women terminate their pregnancies, and protesting in front of women's health clinics. The Supreme Court has made the protest option very easy: Last year, the Court struck down a Massachusetts law that created a buffer zone around abortion clinics to prevent protesters from harassing women seeking health options.
Tuesday, September 29, 2015
Libertarians and Abortion Restrictions: Where's the Outrage?
A group of small businesses are under relentless attack in this country. In virtually every state of the union, hostile legislatures pass increasingly demanding regulations, many so onerous that they threaten to drive them out of business. Of course, like many such restrictions on commercial entities, they are justified in the name of health and safety. But there is no evidence that these reams of regulations actually do advance any purported state interest in health or safety, nor have legislatures even attempted to find any such evidence. What’s more, these businesses are engaging in a constitutionally protected activity.
That’s right—I’m talking about abortion restrictions. In particular, so-called TRAP laws (Targeted Regulations of Abortion Providers) that include requirements that abortion clinics meet certain health and safety standards that are either arbitrary or unnecessary for the sorts of procedures that they perform. One recent, and widespread, manifestation of TRAP laws are those that make abortion clinic licenses depend on the ability of their physicians to secure admitting privileges at local hospitals (discussed in these earlier posts: I and II). Courts have repeatedly found that these laws supply no safety benefits and that there is virtually no evidence to support states' claims that they protect women's health.
This seems like precisely the sort of legislation that libertarian groups should be calling out.
Monday, September 28, 2015
Conference on Cyberharassment at New York Law School
Many members of the Prawfs community might find this interesting:
This weekend, Oct 3-4, I am hosting the First Annual Tyler Clementi Internet Safety Conference at New York Law School. The conference brings together political leaders, academics (Danielle Citron, Frank Pasquale, and Ann Bartow will be speaking!), lawyers, educators, policy makers, parents, and students to discuss how to combat cyberharassment, which overwhelmingly affects women and members of the LGBTQ community. With keynote addresses from Congresswoman Kathleen Rice (D-NY) and Congressman Mark Pocan (D-WI) and participation from business leaders at AT&T, Microsoft, and Twitter, alongside lawyers doing the hard work on the ground to represent victims of online harassment, the conference will be a great way to push the conversation on cyberharassment.
Most notably, at the conference, NYLS and I are launching what I hope will be a groundbreaking program: the first ever law school pro bono clinic that will provide free counsel to victims of cyberharassment. We are excited to partner with AT&T, which is the presenting sponsor of the conference, and many other partners (Microsoft, Twitter, NYLS, K&L Gates's Cyber Civil Rights Legal Project, and CA Goldberg Law PLLC).
The conference is free and breakfast and lunch with served both days (and CLE is available for lawyers). Please register if you would like to attend. Let me know if you have any questions (firstname.lastname@example.org).
Monkeying around with copyright law
PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.
The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.
One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?
Teaching Like It's 2015
As I mentioned in my previous post, there are tools and methods available to us as law teachers to structure our time in the classroom so that it involves more students more actively more of the time. [We can also send them out to deal with the needs of our local, national, and international communities through activities such as law school clinics, externships, and public service, but that's another blog for another day]. One more disclaimer: all of this should be done as part of thoughtful course design.
This entry will highlight two techniques that can increase student engagement without requiring major restructuring of the law school class. Both are designed to get the focus off of the professor and on to students' active participation.
Lower Courts on Supreme Court Signaling
Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act's contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.
Sunday, September 27, 2015
Teaching Like It's 1801
Let's think about law school teaching. Start by watching this video, A Vision of Students Today. (Please bear with me and suspend your objections that it's not specifically about law school). It was created by Kansas State Professor Michael Wesch (Cultural Anthropology) and his 200 students. And it's a pretty powerful indictment of education structured in a way that students are passive receivers of information. I realize (hope) that these students' experience is not a perfect fit for law school (they are undergraduates, and their average class size is 115), but I still think this has some lessons for us as law teachers. (For more from Professor Wesch, you can watch his TED Talk about moving students from "knowledgeable" to "knowledge-able" and the ability of students to create and share knowledge here.)
Our goal is to instill knowledge, skills, and values in our students in a way that encourages them to continue to learn on their own and that enables them to transfer what they learn to new settings (i.e. later classes and their professional careers). Educational theorists are very clear that active rather than passive teaching environments are best able to accomplish that goal, and that students who understand the relevance of what they are learning are more likely to retain it. Technology can be a tool in accomplishing that goal (the first chalkboard is attributed to a Scottish headmaster in 1801), but what's most important is what happens in the classroom -- interaction, discussion, reflection, engagement. Do our law classrooms look much different from the Harvard of Christopher Columbus Langdell, or the Kansas State classroom in the video?
The Socratic Method, at its best, involves active student engagement. But how often does it degenerate into a lecture punctuated by occasional questions? And even when excellently deployed, in a large classroom it is only an active experience for the students being called on -- we rely on the rest of the class to participate vicariously by imagining how they would be answering the questions. I'm not arguing that we should ditch it -- but do think we need a large dose of alternative teaching methods.
Consider the critique offered by the video:
- in large law school classes, do we know our students' names? (tips to help are here)
- do our students do the assigned readings from their multi-hundred dollar casebooks?
- do we make it clear how what we teach is relevant to their future lives and careers?
Consider, too, the results of the students' self-survey (and this video was made in 2007 -- it can only have gotten worse since then):
- they read far more on web pages and Facebook than in books
- they write far more for emails (and text messages) than for classes
- they deal with multiple competing time demands and believe they need to multi-task
- they worry about the impact of their student loan debt
If our law school walls could talk, what would they say? The good news: there are a number of teaching options that get us beyond nineteenth century methods. My next blog entry will provide some ideas and resources that I hope will be helpful.
Thursday, September 24, 2015
Justice and fairness v. procedure
Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:
Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).
Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.
Settlement in Tolan v. Cotton
Last year, SCOTUS summarily reversed a grant of summary judgment against a plaintiff in a § 1983 action, concluding that the district court had impermissibly resolved disputed facts in defining the factual context for purposes of qualified immunity. I wrote about the case, arguing that, through some procedural confusion, it might indicate a new scrutiny of this sort of sub silentio fact-finding on qualified immunity.
SCOTUS remanded the case to the Fifth Circuit to reconsider whether other, undisputed facts supported qualified immunity; the Fifth Circuit sent it back to the district court. In September, the court granted summary judgment in favor of the city and sent the individual claim to trial, commenting that SCOTUS would not "be satisfied if we didn’t take this case to trial." After one day of trial, the case settled for $ 110,000, a typical outcome for cases that do not go away on summary judgment and a typical settlement amount for a claim involving serious-but-not-life-threatening injuries. (H/T: Jonah Gelbach of Penn).
Wednesday, September 23, 2015
Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg
Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).
Tuesday, September 22, 2015
Piling on Judge Posner
Cue the outrage: Judge Posner is in the news again for researching facts outside the record and using those facts in judicial opinions. His earlier research included issues of donning and doffing work clothes, dreadlocks in prisons, guns and danger, a traveling would-be preacher and campus geography, and a rabbi involved in a dispute with Northwestern University. Unlike some judges who do research but don't disclose it, Judge Posner is forthright about his research, discussing it at length in chapter 5 of his book, Reflections on Judging.
Although federal judicial ethics rules (Canon 3(A)(4)) are implicated when judges do their own fact research, in practice the propriety of the research tends to come down to whether judicial notice would be proper. For adjudicative facts (generally what Judge Posner is researching), judicial notice is only proper under the rules of evidence if it can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." F.R. Evid. 201. (There is no exception for "background information," although such research might meet the requirements for adjudicative facts, or be mere harmless error). Especially at the appellate level, fact research can also mess with the burden of proof, the prohibition of judges as witnesses, and the requirements for admissibility of treatises under the hearsay rule.
Some of Judge Posner's research is entirely proper under those requirements. Some is not. And unless you count the availability of a motion to reconsider, it fails the procedural requirement of Rule 201: "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." One of the concerns about independent judicial research is the loss of an opportunity to argue that the "facts" the judge finds are wrong, or are not indisputable, or have been misapplied. In addition, Judge Posner uses some of his research to draw inferences, and that is an area where an opportunity to be heard is especially important. In U.S. v. Boyd (the gun case) for example, research about the nature of ammunition and the location of buildings was used to infer that shooting a gun into the air at 3 a.m. in downtown Indianapolis created a "substantial risk of bodily injury to another person." In the traveling preacher case, Judge Posner drew a conclusion about the comparative desirability of speaking locations from Google's view of the college campus. The research involves not just "facts," but also inferences from those facts, and so research done at the appellate level, outside the record, with no opportunity to reply, can be particularly troubling.
But hold on a minute. . . .
JOTWELL: Vladeck on Hart & Wechsler
The latest Courts Law essay comes from our own Steve Vladeck, reviewing the new Seventh Edition of Hart & Wechsler's The Federal Courts and the Federal System. I am a Low, Jeffries, and Bradley person myself, but Steve's review at least makes me want to take a look.
Monday, September 21, 2015
Encouraging Jury Service
In Civil Procedure, we spend a lot of time teaching students how to determine when the Seventh Amendment provides a right to juries in civil trials, but very little time talking about how juries actually function and why they are important. In studying post-trial motions, we focus on debates about whether small amounts of circumstantial evidence are sufficient to create a fact issue and whether apparently aberrant verdicts allow the imposition of a new trial. The result can be that law students, despite legal training, share the public's general misconception about jury competence, which in turn may make them avoid jury trials as lawyers and encourage clients to fear juries.
But whatever we do in law school, the prejudice is out there. Bad joke: the problem with juries is that people who serve on them are too stupid to get out of jury duty. It's disrespectful to the many people who understand that jury service is important to the rule of law, an important political right, and personally rewarding. It also ignores the substantial body of empirical evidence that juries mostly get it right.
Nevertheless, the nugget of truth that makes the joke work is that sinking feeling we get when we receive a jury summons, and the reality that many jurisdictions have very high no-show rates. The system would function better if summoned jurors would appear and if the pool of potential jurors better reflected a cross section of the community. Are there measures that court systems could take to increase participation? Absolutely. Many are identified in the ABA's Principles for Juries and Jury Trials (Principle 2). This blog entry will focus on three ways to get more people to the courthouse.
Sunday, September 20, 2015
Deparmentalism, popular constitutionalism, and constitutional politics
Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.
Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.
Saturday, September 19, 2015
Lederman on Kim Davis
At Balkinization, Marty Lederman discusses whether Kim Davis is violating the district court order, issued when she was released from custody, prohibiting her from interfering with the efforts of deputy clerks to issue marriage licenses to all eligible couples. Lederman questions whether some changes Davis has made to the forms--removing her name, the name of her office, the name of the county, and the position of the deputy clerk--constitute interference.
I trust Marty's analysis. But then we have two questions. The first is whether there is interference (and thus contempt) if the altered licenses are deemed valid, as the governor announced last week. The other is whether, even if Davis is interfering and thus is in contempt, Bunning will jail her, given the circus that surrounded it the last time.
Friday, September 18, 2015
Burnham on Dismissing Indictments
James Burnham has a new Green Bag piece on dismissing indictments, and it's deservedly getting attention. In a nutshell, Burnham argues that the way that federal courts review indictments has facilitated over-criminalization. By simply reading a federal rule according to its terms and bringing criminal practice in line with civil procedure, Burham believes that federal courts can take a significant step toward curbing ever-expanding criminal liability. (By way of disclosure, I know Burnham from my law firm days and commented on a draft of his piece.)
Sixth Circuit denies Kim Davis another stay
The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).
The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.
It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.