Thursday, September 17, 2020

Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform, September 25-26, 2020

The following post is by Michael Serota, who is a Visiting Assistant Professor at the ASU Sandra Day O’Connor College of Law and a Deputy Associate Director of the Academy for Justice.     


Why does the criminal law care about mental states, and do they have a role to play in criminal justice reform?  Come join the Academy for Justice and the Arizona State Law Journal next Friday and Saturday for an extended conversation about mens rea policy and reform. 

The discussions will revolve around a collection of papers that will be published in a special symposium issue of the Arizona State Law Journal.  Topics that will be covered include: strict liability, felony murder, complicity, intoxication, mental illness, willful blindness, ignorance of wrongdoing, malice, hate crimes, statutory interpretation, and the politics of mens rea reform.  For balance and diversity of perspective, every conference panel will include a mix of criminal law scholars and practitioners.  To maximize the opportunities for group discussion, conference panelists have pre-recorded video presentations.  

All aspects of this event are open to the public.  The event will be broadcast via Zoom webinar on September 25-26, 2020 from 9am to 3pm PST.  To attend,  please register here.  The conference papers and presentations are available on the conference website, which has additional details—including a list of the more than 30 scholars and practitioners participating in the event.

Additionally, the Academy for Justice is sponsoring two different student competitions in conjunction with the event.  More details about those contests (please share with your students!) can be found here.

Posted by Ethan Leib on September 17, 2020 at 12:32 PM | Permalink | Comments (0)

Monday, September 14, 2020

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Posted by Howard Wasserman on September 14, 2020 at 09:58 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Two Pieces on Algorithms and Institutions

This is a good time to be writing about institutions, which I have done for some time--and a depressing time for those who think institutions are valuable and are watching them suffer in real time, as much from the inside as the outside. Via the invaluable Arts & Letters Daily, here are two recent pieces on the effects of metrics and algorithms on two "First Amendment institutions." 

The first, from the LA Review of Books, is by Mario Biagioli, a professor of law and communication at UCLA. In it, Biagioli discusses new and old forms of academic misconduct, largely but not exclusively around publication and citation practices, and their relationship to various forms of ranking or influence metrics. (The focus here is on other disciplines, especially the sciences and social sciences, not on law. I would be interested in seeing a similar piece from him about legal academic practices, although I think the difficulty here would be getting people to see some practices as academic misconduct, or at least institution- or discipline-damaging conduct, rather than as baseline or even commendable practices.)

The second is an essay in The Walrus by Russell Smith, a former columnist for The Globe and Mail. It discusses the effects on newspapers of algorithms tracking reader interest in various stories, including the looming presence in newsrooms of large screens monitoring "engagement, in real time, with the stories currently on the paper’s website"--where "engagement" means something other than any meaningful definition of the word--and their effect on editorial judgment and resource allocation in the major press. (Any online reader of the New York Times, whose decline as a quality newspaper is steady, remarkable, and far-reaching in its effects on the business and content decisions of the institution, can see the traces of these practices daily. They are evident not only in the devotion of prime space to things like recaps of late-night monologues, but in the practice of using and testing different and increasingly clickbait-y headlines for same op-ed pieces and other stories. This is the kind of practice that major media organizations used to worry about rather than engage in with seemingly untroubled enthusiasm.)

I recommend both pieces, dispiriting though they may be.  

Posted by Paul Horwitz on September 14, 2020 at 09:36 AM in Paul Horwitz | Permalink | Comments (0)

Call for Papers: Akron Law Review

Akron Law Review seeks articles for a symposium on Criminal Justice Reform. Relevant Relevant topics
include exploring new and existing ways of holding police accountable; collateral consequences of conviction; and recent efforts in and new ideas regarding bail reform.

Submissions should be sent to [email protected] by October 15, 2020.

Posted by Howard Wasserman on September 14, 2020 at 09:31 AM in Law Review Review | Permalink | Comments (0)

Saturday, September 12, 2020

Testing the Koufax Curse

In anticipation of the High Holy Days, the Forward has published a summary version of my longer study of Jewish players' and teams' performance on Yom Kippur.

Posted by Howard Wasserman on September 12, 2020 at 10:58 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Continue reading "Cancel culture as a circle of baseline hell"

Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (14)

Thursday, September 10, 2020

Bostock, Cline, and the SCOTUS's Repression of Textualism's Unresolvable Contradictions

This week in “Legislation and the Regulatory State,” I taught General Dynamics Land Systems, Inc. v. Cline and Bostock v. Clayton County. Reading these two opinions together reveals a truly weird omission in Bostock: Neither the majority nor dissenting opinions in Bostock cite or discuss Cline. This is such an extraordinary omission that it cannot be an accident. It is, instead, most likely the jurisprudential version of Freudian repression: Cline is the earlier traumatic precedent that exposes painful contradictions at the heart of textualism, so it is conveniently ignored for the sake of preserving the illusion, believed by some to be necessary for the “rule of law,” that “plain” text somehow can be construed without attributing to it some statutory purpose.

Consider, first, how Justice Souter’s majority opinion in Cline seems to provide near-perfect support for Justice Kavanaugh's argument in his Bostock dissent that the narrow ordinary understanding of "discriminate...because of sex" trumps the phrase's broad literal meaning. Cline held that "discriminat[ion]...because of...age" in ADEA did not include General Dynamics' discriminating against Dennis Cline in favor of older workers, because the ADEA did not cover discrimination that favored older over younger workers. Cline reached this conclusion despite the fact that, "[i]n the abstract, the phrase is open to an argument for a broader construction, since reference to 'age' carries no express modifier and the word could be read to look two ways." The literal meaning of "age," however, did not govern, because that broad reading "does not...square with the natural reading of the whole provision prohibiting discrimination." According to the Cline majority,"Congress used the phrase 'discriminat[ion] … because of [an] individual’s age' the same way that ordinary people in common usage might speak of age discrimination any day of the week," because the "commonplace conception of American society in recent decades is its character as a 'youth culture,' and in a world where younger is better, talk about discrimination because of age is naturally understood to refer to discrimination against the older." Because "we are not asking an abstract question about the meaning of 'age'" but instead "seeking the meaning of the whole phrase 'discriminate … because of such individual’s age,'" Cline looked to the "social history" of that phrase, which "emphatically reveals an understanding of age discrimination as aimed against the old."

Cline’s reasoning is obviously helpful to Justice Kavanaugh’s claim that "discriminat[ion] ... because" does not include discrimination based on sexual orientation, because ordinary people do not understand the latter to be an instance of the former. So why would Justice Kavanaugh ignore Cline? The most obvious hypothesis: Justice Thomas‘ dissent in Cline suggested to Justice Kavanaugh that Cline represents a sort of "Textualism Lite" that good textualists must not endorse. After the jump, an argument that Cline does indeed suggest the incoherence of drawing a sharp line between context-based "social usage" of a whole statutory phrase and a statute's overall purpose. That incoherence suggests that Bostock's majority opinion would have been more persuasive if it had not repressed all memory of Cline but instead pondered more deeply the purpose of Title VII separate from the word games that feature so prominently in Justice Gorsuch’s majority opinion.

Continue reading "Bostock, Cline, and the SCOTUS's Repression of Textualism's Unresolvable Contradictions"

Posted by Rick Hills on September 10, 2020 at 08:15 PM | Permalink | Comments (12)

JOTWELL: Mangat on Weinstein-Tull on local courts

The new Courts Law essay comes from guest Leonard Mangat, reviewing Justin Weinstein-Tull, The Structure of Local Courts (Va. L. Rev., forthcoming), analyzing the hidden-but-consequential practices of local courts.

Posted by Howard Wasserman on September 10, 2020 at 10:26 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Look! A Gift Horse

One unusual fact about where I live (West Lafayette, Indiana) is that C-Span's Archive is about five minutes from my house. (Brian Lamb, the founder of C-Span, is from West Lafayette and went to Purdue.). I drive by the archive a few times a week to pick up my daughter from school.

Yesterday as I was doing so I thought to myself, "I really should try to design a research project that would actually use the archive. I mean, it's right here." But what should I do? A project on Congress is the most obvious thought, but in what sense? Maybe how televising the House (and then later the Senate) changed how Congress operated. Or is there is some particular event that I should look at from the past forty years where watching wall-to-wall coverage would help. I'd be curious to hear from anyone who is doing research that involves looking at old C-Span footage to hear what you are doing.

Posted by Gerard Magliocca on September 10, 2020 at 08:15 AM | Permalink | Comments (6)

Tuesday, September 08, 2020

Amnesty Under the Fourteenth Amendment

I've been reading through the debates in Congress during the early 1870s about whether to remove the disability to hold office imposed on many ex-Confederates by Section Three of the Fourteenth Amendment. These debates culminated in an amnesty that extended to most, though not all, of those covered by Section Three. The arguments made in favor of amnesty are quite revealing.

1. Some Republicans argued that amnesty would improve their party's prospects. In other words, there was simply a pragmatic judgment that more whites would vote for Republicans if amnesty were given. Or that more whites would support Reconstruction with amnesty.

2. Some contended that the disabilities were ineffective. They said that officials or representatives in the South would inevitably reflect the electorate's wishes. Thus, no useful purpose was was served by barring some people from only holding office---local policies or politics would remain the same. (This was not a Burkean view of what representatives do, to say the least).

3. Some said that amnesty should be linked to a broad civil rights bill. Amnesty was something that could be traded for more civil rights protection. 

4. Amnesty was already being granted to people, but in a haphazard way through private bills. There was no rhyme or reason to these legislative pardons and hence some more logical or systematic approach was required.

5. Here's the most fascinating argument. Some people said that Section Three of the Fourteenth Amendment was in tension with the spirit of Section One. Barring some citizens from holding office worked a denial of their privileges or immunities or denied them equal protection of the laws. Why are we treating some Americans unequally, they asked? 

The last point highlights the conflict between an anti-classification and an anti-subordination view of the Fourteenth Amendment. One answer to "Why are we treating some Americans unequally" is that they were leading white supremacists. That is a reason for applying the law unequally, but only if you concede that the law can be applied unequally. I'll have more to say about that in another post.   


Posted by Gerard Magliocca on September 8, 2020 at 12:32 PM | Permalink | Comments (4)

Guest Post:Could Pipeline and Non-Residential Fellowships Increase the Diversity of the Academy?

The following is by Matthew B. Lawrence (Emory) and Bijal Shah (Arizona State).

As one of us has noted, our shared field of “administrative law, both in academia and practice, suffers from a lack of representative diversity.”  But this problem is bigger than administrative law, and recent tenure-track hiring trends may be complicating things.  In this short post, we seek to spur conversation about how to improve the diversity of the legal academy, and encourage possibilities that offer a chance to gain some traction.

Continue reading "Guest Post:Could Pipeline and Non-Residential Fellowships Increase the Diversity of the Academy?"

Posted by Howard Wasserman on September 8, 2020 at 09:31 AM in Teaching Law | Permalink | Comments (9)

Monday, September 07, 2020

Data--Rough Data--on Bar Exams and Covid Cases Among Test-Takers

With due caution and various caveats but a serious underlying point, I commend to you this post by Derek Muller at the Excess of Democracy blog. Derek writes of his efforts to obtain information on "the spread of Covid-19 related to the administration of" the July 2020 bar exam in the jurisdictions that held in-person bar exams this summer.

Derek reports that he heard back from bar officials in seven jurisdictions and, "to their knowledge, no one contracted the coronavirus on account of the administration of the bar exam. . . . Some additionally confirmed that no proctors or staff contracted it, either." He adds that "some jurisdictions did emphasize they asked test-takers to disclose if they contracted the coronavirus within 14 days after the exam, and none did so."

Of course caveats apply. I can come up with many; you can come up with many; Derek did come up with many, and notes them near the top of his post. I am personally less sanguine than him when he writes, "My instinct is that if someone did contract the coronavirus during the administration of the bar exam, we’d probably know by now." I'm not sure I have an instinct about this one way or the other. But my imagined scenarios for under-reporting embrace, at a minimum, secrecy, incompetence, caution about making disclosures, uncertain standards of causation, and a lack of organized data collection. (Asking test-takers to disclose is better than nothing but doesn't seem a terribly powerful effort.)  

I do not, then, take the post as strong proof of anything. And its interest for me is quite disconnected from my policy views on the bar exam, now and generally. It is possible to think the in-person bar exam is dangerous for current public health reasons without opposing the bar exam generally, and equally possible to think that it's relatively safe, or can be made so, and that the bar exam should be replaced by something else for other reasons. Our normative and policy views and our sense of the evidence on a particular point needn't move in parallel, and there may be reasons to be suspicious when they do. 

I appreciate and commend Derek's post because it is an effort at collecting data to evaluate the many warnings and predictions that were made about the bar exam ex ante. Leaving aside the students and recent graduates, many academics made various predictions or voiced various concerns before the bar exam. These concerns included but weren't limited to the question whether in-person bar exams would spread the virus among test-takers. (Another ex ante argument was that there would be a shortage of lawyers and a surfeit of new clients with pandemic-related legal service needs, and that diploma privileges or other measures would assist in improving access to legal services for those individuals by those new lawyers.)

Voicing ex ante concerns about risks is perfectly understandable. One can hardly wait until after the event to express worries about future risks. And the outcome doesn't mean the concerns about risk were unwarranted. But it seems to me that, at least for those whose arguments were based on academic expertise, or invoked that expertise and appealed to past and ongoing empirical study of the issue, or otherwise invoked a kind of academic or data-driven or scientistic authority in making various arguments, there is an arguable duty to follow up and see what the data ultimately revealed about the accuracy of those warnings. In the long run that would include, I should think, studies of the discipline levels of this cohort of new lawyers depending on the approach taken in different states. And it would be useful in the shorter term to work to find out whether any state's approach actually resulted in any difference in the level of legal services provided to clients in need, and whether those services were provided by new lawyers or by already existing practitioners.

I'm not a particular fan of the bar exam, as I've written before, although I also think some claims for the value of the diploma privilege and some claims against the bar exam seem overstated, and that a period of mandatory supervision in lieu of examination ought to be of meaningful length and contain reasonably detailed requirements for both the supervised and the supervising lawyer. But none of these views have anything to do with whether it's a good idea for those who make predictions to follow up on those predictions with data after the fact. Of course it is. The data would be interesting in themselves, and a better measure of the authority of those making predictions than a general appeal to their credentials. (Even experts can fare poorly in making predictions.) 

I am sure that many of the academics who offered warnings before the fact are working to collect such data, that doing so properly takes time, and that they may well end up being getting and reporting more thorough and careful results than this. I acknowledge the possibility that sometimes no data may be better than some data. Better, sometimes, to know you don't know than to be overconfident that you do know, based on anecdata or weak data. It depends, I think, on whether writers are careful, in the absence of any data, about emphasizing the lack of data and how it affects the strength of their arguments--and on whether a person with some data is equally clear in emphasizing those limits. But I'll take this as an interesting step forward, and one that required genuine time and effort on Derek's part. 



Posted by Paul Horwitz on September 7, 2020 at 04:19 PM in Paul Horwitz | Permalink | Comments (0)