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Friday, November 30, 2007

It's Great to Be Back

Thanks to Dan and the rest of the permaprawfs for inviting me back to the 'Blawg, and best wishes to all for a happy holiday season.  Congratulations to the professors, especially the first-year ones, who are wrapping up their fall semesters and preparing exams.

It is with some sense of pride that I make this return visit.  When I was last here I touted the talents of Frank Caliendo, whose impressions struck me as hilarious.  Apparently others agreed--though I'm usually anywhere but on the pulse of America--and Frank now has a late-night show of his own, which airs at 11:00 on Tuesdays.  TBS has made available the first two entire shows on its website.  If you like impressionists, check out the skit where he plays DeNiro and Pacino as movie-critics.  It's in the third segment of episode 2.

Thanks again for the invitation, and I look forward to the rest of the visit.

Posted by Michael Dimino on November 30, 2007 at 06:21 PM in Housekeeping | Permalink | Comments (0) | TrackBack

Understanding Social Enforcement: Behavioral and Institutional Incentives

My co-author, Yuval Feldman (Bar-Ilan), and I have just posted our article, Behavioral Versus Institutional Antecedents of Decentralized Enforcement in Organizations: An Experimental Approach, which reports on an empirical study we conducted designed to understand motivation and patterns of reporting illegality in institutional settings. I have been very fortunate to work with Yuval who is a law professor with a PhD in social psychology who is doing lots of interesting stuff on social norms, expressive law and the implications of behavioral studies on policy. Here is the abstract for our paper. Hot Download! We are working on several follow-up studies and we very much welcome input, comments and ideas:

Social enforcement, the decentralized action by organizational actors of monitoring, identifying, and reporting legal violations, is widely recognized as a key factor in ensuring good governance. This article reports on a study conducted in the United States and Israel examining the behavior of individuals when confronting unlawful conduct within their workplaces. The study provides novel insights into the relationships between state - based, organizational - based, and employee - based enforcement. It finds that the likelihood and the manner of reporting will vary depending on the type of illegality and is strongly correlated to perceptions of legitimacy, job security, and voice within the workplace. Comparing illegalities, employees prefer to report clear violations by rank - and - file employees rather than violations by managers. At the same time, external reporting to government or media entities is most likely when violations involve the organization as a whole or implicates top management. The study also finds cultural and gender differences in reporting patterns. Finally, the study demonstrates that social norms are more predictive of social enforcement than expected organizational costs.

Posted by Orly Lobel on November 30, 2007 at 05:22 PM | Permalink | Comments (0) | TrackBack

Roll Tide Roll: Defamation in Alabama and Research Hooks

My Sports Law Blog colleague Rick Karcher writes about a $ 5 million jury award in a defamation action brought by Ray Keller, a former University of Alabama football boster, against the NCAA. Keller's claim was that the NCAA labeled him (and other boosters) as "rogue boosters," "parasites," and "pariahs" in the course of imposing sanctions on the Tide's football program several years ago. Rick's post and comments do a good job explaining some of the underlying First Amendment problems with the verdict.

I use New York Times v. Sullivan to teach subject matter jurisdiction in my civ pro course; the case illustrates complete diversity, the well-pleaded complaint rule, state-federal appealability, discretionary v. mandatory SCOTUS review, and the differences between statutory and Article III "arising under" jurisdiction. And it does it in (what I believe is) an interesting social, political, and constitutional context. Colleague-for-the-year Fred Bloom actually has put together complete set of materials on the case that he uses to teach all different issues, including discovery and personal jurisdiction.

2009 will mark the 45th anniversary of Sullivan and I have eyed that as a target year for an article on the jurisdiction of the case. The problem was finding a "hook" to the article, something that made it more than a recitation of doctrine. Depending on what happens next in this NCAA case, I might have found it. The complete diversity and well-pleaded complaint requirements, as limitations on district-court jurisdiction, mean that most defamation actions must be tried in state court and litigated through the state-court system because there is no basis for original federal jurisdiction in the district courts. And, with the loss of mandatory appellate jurisdiction in SCOTUS, many of these cases never will make their way into federal court at all.

The result is the occasional whopper of a home-field-advantage verdict such as this one. Which is not to say that a federal jury does not occasionally produce a jaw-dropping verdict in a First Amendment case. But it does reflect some general concerns about federal fora for federal issues that underlie much of the federal jurisdiction literature. As I said in the comments to Rick's post:

New York Times rewrote defamation law in a First Amendment light in 1964 because an Alabama jury ran wild with a massive damages award against an "out-of-town speaker." 43 years later, not much has changed . . .

Posted by Howard Wasserman on November 30, 2007 at 03:46 PM | Permalink | Comments (0) | TrackBack

Teaching Discovery

A question on course coverage for Civil Procedure those who teach, learn, or use it in real life: How important is it to get into the nuts and bolts of discovery in first-year civ pro?

I am fortunate enough this year to be teaching Civ Pro as a 5-credit, two semester (2/3 split) course, rather than the 4-credit, 1 semester I have at my home institution. So I have an extra hour to play with. Normally, I do discovery in-depth between pleading and summary judgment at the front end of the semester. But, given time restrictions this semester, I spent only a couple of days on it. We discussed the different discovery devices and how they work and the standards for discoverability--enough for them to understand how summary judgment operates.

So my question is this: Next semester, should I return to the rest of the discovery process? This would include a discussion of how the courts regulate discovery, including discussion of electronically stored information, work product, and discovery sanctions, along with a general discussion of the policies underlying the discovery process? This is about 3-5 class hours of material.

How important is it that students get this, compared with greater time and detail on, say, res judicata or appealability or 7th Amendment (the 3-5 hours must come from somewhere)? Or, alternatively, how important is it that they are introduced to discovery in this first-year course?

Posted by Howard Wasserman on November 30, 2007 at 09:22 AM | Permalink | Comments (4) | TrackBack

Thursday, November 29, 2007

Vote for Prawfs!

Shamelessness alert:  The ABA Journal puts Prawfsblawg in its "Top 100" law blogs.  (How could they not?)  Go here to cast your vote for your favorite law-blog site (i.e., Prawfsblawg).  At the very least, we want to make the good folks at the Volokh Conspiracy sweat a little bit.

Posted by Rick Garnett on November 29, 2007 at 04:41 PM in Blogging | Permalink | Comments (0) | TrackBack

Consider Sending This to a School Where You Didn't Get An Offer...

from Interweavers.com:

A Rejection Letter

Herbert A. Millington
Chair - Search Committee
412A Clarkson Hall
Whitson University
College Hill, MA 34109

Dear Professor Millington,

Thank you for your letter of March 16. After careful consideration, I regret to inform you that I am unable to accept your refusal to offer me an assistant professor position in your department.

This year I have been particularly fortunate in receiving an unusually large number of rejection letters. With such a varied and promising field of candidates it is impossible for me to accept all refusals.

Despite Whitson's outstanding qualifications and previous experience in rejecting applicants, I find that your rejection does not meet my needs at this time. Therefore, I will assume the position of assistant professor in your department this August. I look forward to seeing you then.

Best of luck in rejecting future applicants.


Chris L. Jensen

Posted by Orly Lobel on November 29, 2007 at 04:01 PM | Permalink | Comments (1) | TrackBack

Republican Presidential Debates

Tonight's Republican debates were interesting, in part, because of CNN's decision to use the You-Tube format.  This format has been highly criticized -- and rightfully so -- after CNN's Democratic version of the You-Tube format.  CNN seemed to recognize that it included too many silly questions in the last You-Tube debate.  Tonight's debates had some silly moments, such as an Uncle Sam cartoon, a Second Amendment question prefaced by target practicing, and a painful opening song but I was struck by the fact that many of the questions this time were far more insightful than questions asked by professional moderators.  Admittedly, the first five of the twenty or so questions were about immigration, but that was a selection problem by CNN.  But even these were good questions -- would you provide amnesty, what about the value of guest workers, etc.  The debate started off substantively and continued to include substantive questions, even if it devolved into snippy moments, and included a fair number of evasions.  Compare this, though, with the first questions from the last two professionally moderated Democratic debates.  Tim Russert began the debate in Philadelphia by questioning Barack Obama about his intent to attack Hillary Clinton.  Russert then moved on to asking whether the candidates would promise that Iran would not get a nuclear weapon during their respective presidencies.  (As one of my students noted, this was akin to asking if the candidates could assure us that a meteor would not strike the earth during his presidency.)   Wolf Blitzer began with a nearly identical set of opening questions at the Democratic debate in Las Vegas.   Certainly Tim Russert is sufficiently versed in politics to ask questions at least as good as those submitting You Tube questions.   Why, then, would questions from average citizens have more substance.  My best guess is that, unlike in ordinary markets, competition for news is making news coverage worse.  There are so many debates -- and so many media outlets -- that only the sound bytes are widely watched.  And it seems that the professional moderators are more interested in catching the candidates in a gaffe, or an insult, than they are in developing a thoughtful exchange too lengthy, or complicated, to make the highlights.  More debates (combined with more news outlets) may, paradoxically, be producing less information.  If I'm right, then the questions in the presidential debates will be much better because there will only be three of them and more people will watch them in their entirety.  And if I am right, then it is sad that journalists are only willing to flesh out real information when they're assured the audience will be large enough for their efforts to be worthwhile.   

Posted by Wes Oliver on November 29, 2007 at 12:20 AM in Law and Politics | Permalink | Comments (2) | TrackBack

Wednesday, November 28, 2007

Under the Radar Dishonesty and Self-Perception

How much dishonesty will an average person allow herself? Behavioral economists Nina Mazar (Toronto), On Amir (UCSD) and Dan Ariely (Duke) conducted a series of experiments to understand the dishonesty levels and processes by everyday people. They asked 326 students to take a multiple-choice general knowledge test, with payment for every correct answer. They gave some students the opportunity to cheat, for example by giving some of them bubble sheets with the correct answers seemingly inadvertently shaded in gray or by allowing them to save the sheets and just report the number of correct answers. Compared with others, those with the opportunity to cheat without the fear of getting caught changed about 20 percent of their answers, not more; not less.

The paper develops a broader theory of "self-concept maintenance" arguing that people allow themselves some degree of dishonesty before they must change their self-perceptions from honest to dishonest people. Here is the abstract:

Dishonesty plays a large role in the economy. Causes for (dis)honest behavior seem to be based partially on external rewards, and partially on internal rewards. Here, we investigate how such external and internal rewards work in concert to produce (dis)honesty. We propose and test a theory of self-concept maintenance that allows people to engage to some level in dishonest behavior, thereby benefiting from external benefits of dishonesty, while maintaining their positive view about themselves in terms of being honest individuals. The results show that (1) given the opportunity to engage in beneficial dishonesty, people will engage in such behaviors; (2) the amount of dishonesty is largely insensitive to either the expected external benefits or the costs associated with the deceptive acts; (3) people know about their actions but do not update their self-concepts; (4) causing people to become more aware of their internal standards for honesty decreases their tendency for deception; and (5) increasing the "degrees of freedom" that people have to interpret their actions increases their tendency for deception. We suggest that dishonesty governed by self-concept maintenance is likely to be prevalent in the economy, and understanding it has important implications for designing effective methods to curb dishonesty.

The NYT reports on this study this week, quoting Dan Ariely explaining that "essentially you can fool the conscience a little bit and make small transgressions without waking it up. It all goes under the radar because you are not paying that much attention." I think this article has significant implications for legal studies and policy. One of many interesting findings in the experiments which I found interesting is the effect of priming on the levels of honesty, including reminding people just before they have the opportunity to cheat of an honor code or of the Ten Commandments [equally effective references in case you were wondering...].

Posted by Orly Lobel on November 28, 2007 at 04:38 PM | Permalink | Comments (0) | TrackBack

Book Club on "oPtion$" by Fake Steve Jobs

Options Next week PrawfsBlawg will be hosting a book club on the novel/parody "oPtion$" written by Fake Steve Jobs (a.k.a. Daniel Lyons).  The book received a nice review over the weekend by the NYT Book Review, which said it was "peppered with deft comic touches."

Rather than simply discussing its merits as fiction, the book club will be taking a look at "oPtion$" as a parody of the corporate world -- in particular, one of that world's most fascinating denizens.  The picture that "oPtion$" paints of Steve Jobs is of course a caricature.   But parody resonates only if it builds off of reality (or our perception of reality).   And the picture created by Lyons has that resonance.  We'll be talking about the big ideas behind the book, as well as what corporate lawyers, law profs, law students, and policy makers can take from it.

We're very excited to announce a terrific line-up of commentators:

In addition, we are fortunate to have Daniel Lyons joining us.  Dan is of course Fake Steve himself, but when not masquerading as the benevolent one, he's a technology writer at Forbes Magazine.  We're very much looking forward to exploring some of the larger issues behind the book with Dan and our prof commentators.

We plan on starting the book club next Tuesday, December 4.  We hope you'll drop by then.  In the meantime, if you are unfamiliar with the terms "namaste" or "freetards," you can catch up with the "Secret Diary of Steve Jobs" here.

Posted by Matt Bodie on November 28, 2007 at 11:42 AM in Books, Corporate, oPtion$ Book Club | Permalink | Comments (0) | TrackBack

Cert in Boehner v. McDermott?

SCOTUSBlog reports on the cert petition in Boehner v. McDermott, which the Justices will take up in Conference on Friday. The case involves civil action under the Federal Wiretapping Statute filed by Republican Rep. John Boehner against Democratic Rep. Jim McDermott after McDermott disclosed to reporters an audio recording of a conference call involving GOP House members that had been intercepted and passed along to him by an unknown couple in Florida. The lawsuit, originally filed in 1996, has been up and down the federal system for a decade, including one prior stop in the Supreme Court, where the Court granted, vacated a decision in Boehner's favor, and remanded for reconsideration in light of Bartnicki v. Vopper.

Bartnicki had rejected a similar civil action under the wiretap statute for unlawful disclosure of a telephone conversation that had been intercepted by an unknown and unconnected third party and passed along anonymously. The Court applied the principle, frequently associated with Smith v. Daily Mail Publ'g, that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern, except to serve a governmental interest of the highest order. And protecting individual privacy is not a sufficiently important interest. The Court thus held that the wiretap statute, although content-neutral, was unconstitutional as applied to the conduct at issue, where the discloser did not know the interceptor and was not involved in the interception.

Boehner appears to be on all fours with and indistinguishable from Bartnicki. Both involve actions for statutory damages from the public disclosure by defendants of intercepted telephone conversations touching on matters of public import, where there was no connection or involvement between the disclosing defendants and those who did the actual (unlawful) interception. I never have understood how, since the remand, the district court and the D.C. Circuit have worked so hard to distinguish these identical cases. Initially, the lower courts distinguished them on the grounds that McDermott knew the identities of the interceptors, since they had signed their names when they sent the tape, while the tape in Bartnicki was send anonymously. Of course, that does not change that McDermott had not connection to them or knowledge of how they obtained the recording. In the en banc decision on which review is sought, a sharply divided en banc court held that McDermott's speech was not within Smith/Bartnicki protection because McDermott was under a special obligation, as a member of the House and the House Ethics Committee, not to disclose information such as this. The court emphasized that McDermott was disciplined by the Committee. The majority concluded that, if the First Amendment does not protect McDermott from House discipline, it does not protect him from civil suit or liability.

This is a potentially significant First Amendment case. Bartnicki is one of the great recent speech-protective and press-protective cases, expansively applying Smith to an otherwise-valid content-neutral statute, so long as the disclosing speaker was uninvolved in the original interception. This doctrine enables the press and individuals to publish, with consitutional impunity, leaked information about the (often unlawful) activities of government, about grand jury proceedings, and other information of public concern that might not otherwise be disclosed to the people. The disclosed telephone call in Boehner was a conversation among House members discussing ways to stonewall an ethics investigation of then-Speaker Newt Gingrich, certainly the sort of information we want the public to learn.

On the other side of the coin are personal privacy interests in keeping the contents of conversations private. Although intercepting phone calls is unlawful, Congress (and privacy advocates) supported the law on a "dry-up-the-market" theory. The prohibition on disclosure by even unconnected individuals is necessary to deter unlawful interception. There is no disincentive for a person with bad motives if he can pass the recording along anonymously to someone who can disclose the recording with impunity. By prohibiting downstream disclosure, Congress dries up the market for upstream interception. The Bartnicki majority rejected this as a valid approach under the First Amendment.

I believe the Court will take the case and probably will reverse. Although there is no circuit split, Boehner simply is impossible to reconcile with Court precedent. And the Court has been known to take the occasional First Amendment case simply for purposes of error correction, in this case the notion that the imposition of House discipline for some expression also pushes that expression outside the bounds of the First Amendment. Bartnicki was a 6-3 decision, with Justice O'Connor in the majority (and joining a narrowing concurrence by Justice Breyer) and Chief Justice Rehnquist writing the dissent. So this does not appear to be a situation in which change of Court membership will change the outcome.

Posted by Howard Wasserman on November 28, 2007 at 09:20 AM | Permalink | Comments (0) | TrackBack

Tuesday, November 27, 2007

Prawfsfest! comes to the City of Angels

Just another heads-up about something I alluded to last week. I'm very excited to announce that the second Prawfsfest! is occurring next week (Dec 5-7th) in Los Angeles, where Loyola Law School is generously hosting us.  Prawfsfest! is a gathering of 10-12 permaprawfs and guest bloggers that takes places over 2 days or so.  The point of the gathering is to be an incubator for half-baked scholarship mostly in the fields of public law and legal theory, broadly defined. Participants this year include Steve Vladeck (AU), Orly Lobel (USD), Tommy Crocker (USCarolina), Rob Kar (Loyola), Carissa Hessick (ASU), Jason Solomon (UGA), Sasha Natapoff (Loyola), Ekow Yankah (Illy/Cardozo), Dave Fagundes (Southwestern), Gowri Ramachandran (Southwestern), Zak Kramer (UALR), Michael Waterstone (Loyola) and myself. Special thanks to the crew at LLS who have helped us pull this off: Bill Araiza, the Associate Dean at LLS, and Mark Weiner and Vlasta Lebo. 

The actual schedule contemplates having presenters (there will be 10) talk for about 10 minutes about approximately 20 pages of manuscript which has been circulated and read before the Prawfsfest! by all those in the room. The presenter then fields questions from the rest of the crowd for the remaining 50 minutes in the hour.  The presentation sessions are largely restricted to participants but we open up most of the meals and happy hours so we can break bread with the faculty hosting us and others who choose to join us. If you're a prawf in the LA area and would like to join us for social events next Wednesday or Thursday evenings, please email me.

The hope and plan is to do this kind of thing for our future and past alums either every semester or at least once a year, usually in a fun city and good climate.  If you think your school might be interested in hosting this  event in the future, please email me.  And if you've been blurking on the blawg for a while, think of the Prawfsfest! as an additional incentive for you to come join our conversation.

Posted by Administrators on November 27, 2007 at 11:29 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Monday, November 26, 2007

Open and Notorious?

Speaking of adverse possession hypos... (HT BoingBoing)

Posted by Eduardo Penalver on November 26, 2007 at 08:13 PM | Permalink | Comments (0) | TrackBack

More Adverse Possession in the News

Adverse possession stories are  suddenly springing up around the country.  A few days ago, I blogged about Governor Spitzer's veto of a law that would require good faith in order to adversely possess in New York.    And then, just before Thanksgiving, I was directed towards this article (free registration required) of an adverse possession case that is stirring up some dust out in Boulder.  (HT PropertyProf and BoingBoing)    The case is a fairly straightforward one.  Although the facts are contested, the trial court seems to have credited  evidence indicating that the plaintiffs used the defendants' land openly and notoriously for over two decades, primarily as a path from the front  of their house to the back, but for other purposes as well (including, among other things, stacking wood, entertaining, and gardening).  For some reason, however, the case has generated a great deal of local commentary, such as this breathless report by the local Fox News affiliate about the "little known law" of adverse possession that it predicted would leave property owners "shaking their heads in disbelief." 

Opponents of the trial court's decision recently held a rally on the adversely possessed parcel in support of the original owners.  Here's a description:

More than 200 people holding signs that read, "Thou shall not covet, thou shall not steal" and, "You'll never enjoy a stolen view" gathered Sunday on Hardscrabble Drive in south Boulder to condemn Richard McLean, a former district court judge and former Boulder mayor, and his wife, Edith Stevens, for taking possession of a portion of two vacant lots that have belonged to Don and Susie Kirlin for nearly a quarter of a century.

Several protesters yelled "shame"and "thief" at McLean and Stevens as they drove away from their home shortly before the rally began at noon.

One woman stepped up to the car's passenger side window and yelled, "How can you live with yourself?"

The case looks like a fantastic tool for teaching first-year law students.  The site to which I linked above has nice video clips and copies of court documents, as well as a link to a Google Earth image of the property in question. 

This seems to be a clear situation of so-called "bad faith" adverse possession, which makes it somewhat unusual and especially likely to raise student hackles.  The intuition expressed by people at the rally, that that adverse possessors were little better than common thieves, is likely to be widely shared by incoming law students, if my own past experience is any guide.  And you couldn't ask for a more unsympathetic couple of bad-faith adverse possessors.  They are not needy squatters, as this fellow in London was, but affluent lawyers.  Indeed, the original owner of the parcel filed a complaint with the Colorado bar authorities, arguing that adversely possessing someone else's land was grounds for disciplinary action.   

Although the Attorney Regulation Counsel rejected the complaint, its response provides another interesting angle for class discussion.  The Counsel's letter in response to the complaint explained that "Colorado law specifically allows adverse possession.  A court of competent jurisdiction examined Ms. Stevens' claim and ruled in her favor. Pursuing a civil action that is permitted by state statute and upheld by a court of law is not misconduct."  While I agree with the Counsel's bottom-line decision, I think its reasoning moves a little too quickly.  A knowing adverse possessor, prior to the running of the statute of limitations, is not a run-of-the-mill civil plaintiff, but rather a serial trespasser.   What better way to bring out the inherent ambiguity and moral complexity of the doctrine than to discuss this very question -- whether it is ethical for a lawyer to knowingly adversely possess her neighbor's land?   

Finally, the case provides a great opportunity to talk about social norms and their relationship to the law.  Although these claimants were well within their rights to seek title to their neighbor's land by adverse possession, the people at the rally were having none of it.  In part, their reaction to the case shows the cultural power of a kind of naive property-rights absolutism that pervades much of our popular property discourse, however uninformed it is by the actual law of property.  We saw this a few years ago with the outcry in response to Kelo, with its incorrect insistence that the case broke new ground in the arena of constitutional property rights.  Here, we are witnessing a lesser version of the same phenomenon.   There are few property doctrines with a longer pedigree than adverse possession.  If anything counts as a "background principle" that qualifies the rights of private ownership, adverse possession surely does.  And so, from one point of view, the court's award of the land to the adversely possessing plaintiffs is  properly understood as an affirmation of property rights, at least as those rights are (and for centuries have been) embodied in the law.  The protesters are simply mistaken to suggest otherwise.  Obviously, adversely possessing a significant chunk of land in a suburban subdivision requires a fairly negligent property-0wner (it takes two to tango), but the critical commentary has not really focused on that dimension of the case.

On the other hand, I understand the moral indignation expressed by the people at the rally. Notwithstanding the parties' seemingly clear legal rights, I can imagine few things that are less neighborly than knowingly adversely possessing your neighbors' land.  Two owners a few doors down from my own house are going through this right now, and I can say with certainty that asserting a claim of adverse possession is guaranteed to destroy even decades-old friendships.   The angry response to the Colorado case, however divorced from legal doctrine, can create  its own "legal" reality.  It might, for example, make life for the adverse possessors sufficiently unpleasant in the short or medium term that the next person in analogous circumstances thinks a little longer and harder about trying to reach an accommodation with the neighbors by some other means before filing the lawsuit for adverse possession.

Posted by Eduardo Penalver on November 26, 2007 at 03:00 PM | Permalink | Comments (15) | TrackBack

Sunday, November 25, 2007

Wrongful Convictions, Unconstitutional Convictions, and "A Long Road Back"

The Sunday New York Times reports on its broad study of exonerated prisoners and their transition back into society. The American Prospect discussed this issue, with similar conclusions and anecdotes, back in July. Devan Desai at CoOp comments on The Times story's revelation that many individuals continue to be stigmatized by the undone conviction and shadowed by suspicion that, although formally exonerated, they still had done something wrong. Northwestern Law School's Center on Wrongful Convictions has more on this problem.

I am interested in the problems of compensation, or lack thereof, highlighted by these stories. According to the Innocence Project, only 22 states and the District of Columbia, along with the United States, provide for state compensation for time wrongfully spent in prison, usually not more than $ 50,000 per year of wrongful incarceration (the amount provided for under federal law) and far less in many states. The Times also reports on considerable delays in obtaining compensation. Moreover, all the statutes require, in some form, that the individual show actual innocence of the crime or a pardon--something that shows that, in the eyes of the law, this individual did not commit the unlawful act in question. The laws do nothing for what we might call the "unconstitutionally convicted"--those whose convictions were undermined by some constitutional infirmity, but who were not necessarily found to be, or cannot necessarily prove, actual innocence of the conduct or offense.

Given the absence of or problems with these compensation laws, both categories of unjustly convicted are pushed onto the same path--civil rights actions for damages under § 1983. But such actions are extremely difficult to win for a number of reasons.

First, the truly responsible officer--the prosecutor--has absolute immunity from damages for "prosecutorial functions" (a fact the Duke lacrosse players are going to learn), covering the decision to pursue charges and everything that occurs within the judicial process--regardless of how deliberate or obviously unconstitutional the conduct.

Second, to the extent police perjury was one cause of the conviction (as often is the case), officers have absolute witness immunity for even knowingly perjured testimony.

Third, pre-trial misconduct by any government officials will be subject to a defense of qualified immunity, under which liability attaches only if the legal right violated was not clearly established within a relatively similar factual context, such that a reasonable officer would have known that his conduct violated the Constitution. This covers things such as coercive detentions and interrogations and forced confessions; unreasonable searches and arrests; forged evidence; witness shopping; and false statements to the press.

Fourth, quirks of § 1983 doctrine involving statutes of limitations and the timing of claims at least throw some procedural hurdles in a person's way, complicating matters for individuals often bringing the initial suit pro se.

Finally, even if the plaintiff can prove some non-immune pre-trial constitutional violation, he may have a problem establishing the link between that misconduct and the resulting conviction/incarceration so as to recover for the time unjustly spent in prison. Which, of course, is the real goal of any lawsuit by someone whose conviction has been overturned. Absent the link to time spent in prison, the right itself may not be worth a substantial amount.

This is the very broad outline of a problem I plan to analyze in-depth in a future article (one of several that has been on my research agenda for at least three years). Later this week, I might discuss some of the solutions I might propose, if and when I finally write this piece. And maybe the recent media coverage on the larger issue tells me it is time to start working on that.

Posted by Howard Wasserman on November 25, 2007 at 11:40 PM | Permalink | Comments (6) | TrackBack

Law students and law deans

Apparently, at some (many?) law schools, students serve as full (i.e., voting) members of dean-review and dean-search committees.  Should they?  And, what does it mean, or say, that they do (or don't)?   

These questions -- like so many other "governance"-type questions -- seem tied up with several others:  Is a law-dean primarily an administrator?  A faculty-member?  Something else?  That is, is the dean best conceived of as the University's person, selected to manage the operations of one of the University's "units"?  As the public face of the law-school to the bench and bar?  As the point of connection between graduates and the law-school?  As the faculty's representative to the University?  As the faculty's (or the University's) representative to the students?  As (merely) the fundraiser-in-chief?  Or, again, as something else?

If any Prawfs readers or bloggers have experience with, or thoughts  concerning, the issue of students' role in dean-review and dean-search processes, I'd welcome them.

Posted by Rick Garnett on November 25, 2007 at 11:36 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Wednesday, November 21, 2007

Moniker Business: Names Matter

Does a kid with any old name fair the same in school and in life?

A couple of years ago, MIT/Univ of Chicago economists Marianne Bertrand and Sendhil Mullainathan tested the effects of names that prime race on the labor market prospect of job candidates. In Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination they describe an experiment they responded with fictitious resumes to help-wanted ads in Boston and Chicago newspapers, manipulating only the perception of race,  randomly assigned either a very African American sounding name or a very White sounding name. Their results were clear: White names received 50 percent more callbacks for interviews. A new study suggests that naming your kids may affect not only the reactions of others, but also their own behavior. In a forthcoming article in Psych Science, Business School Profs  Leif Nelson (UCSD) and Joseph Simmons (YALE) find that although most students want As in school, those whose names begin C or D have lower grade point averages than students whose names begin with A and B—with an even greater effect if they say they like their initials. For us law professors, this means that students whose names begin with C or D will attend lower-ranked law schools than students whose names begin with A or B. Here is the abstract of Moniker Maladies: When Names Sabotage Success:

People like their names enough to unconsciously approach consciously-avoided name-resembling outcomes. Baseball players avoid strikeouts, but players with strikeout-signifying K-initials strike out more than others (Study 1). All students want A's, but C- and D-initialed students find initial-resembling outcomes less aversive and achieve lower GPAs (Study 2), particularly if they like their initials (Study 3). Because lower GPAs lead to lesser graduate schools, C- and D-initialed students go to lower ranked law schools than their A- and B-initialed counterparts (Study 4). Finally, in an experimental design, participants perform worse when a consolation prize shares their first initial (Study 5). These findings provide striking evidence that unconscious wants can insidiously undermine conscious pursuits.

Posted by Orly Lobel on November 21, 2007 at 12:25 AM | Permalink | Comments (4) | TrackBack

Tuesday, November 20, 2007

Five years to life?

Maybe I'm showing my ignorance of criminal law here, but this article in USA Today grabbed my attention:

A judge sentenced a polygamous-sect leader Tuesday to five years to life in prison for his role in the arranged marriage of teenage cousins.

Along with all Tupac fans, I've heard of "twenty-five to life."  But "five to life" seems to leave enormous room for disparity based on the sentiments of the parole board, no?  Is that a common sentence in other jurisdictions or is it a Utah thing?

Posted by Eduardo Penalver on November 20, 2007 at 08:15 PM | Permalink | Comments (2) | TrackBack

Will the Tenure Track Professor Survive?

This article appears in the NY Times today, calling attention again to the increasing reliance on adjunct professors in undergraduate teaching. Adjunct professors now account for about 70 percent of college and university teachers according to the American Federation of Teachers. I find this to be an astonishingly high percentage. Reasons offered for the increased reliance on adjunct teachers include a diminished financial capacity to maintain a sufficiently large tenured or tenure-track faculty to cover necessary courses as well as a desire by the institution to be more flexible with regard to courses offered and teachers hired.

Law schools rely on adjunct teaching as well, but for different reasons and in response to mostly different institutional pressures. Many undergraduate faculties in colleges of arts and sciences have dealt with financial pressures by replacing tenure-track retirees with adjuncts, decreasing the size of traditional faculties, while also perhaps increasing the scholarly expectations for existing tenure-track faculty. Similar pressures do not exist in law schools, perhaps because financial restraints are less acute. Moreover, a caste stigma can attach to the adjunct position in the wider university, but does not ordinarily attach to a law school adjunct professor. Adjunct professors in law schools are often prominent members of the bar who teach a course in their specialized practice area, enriching a student’s experience, and broadening the course offerings a law school may offer.

The problems at the undergraduate level seem readily apparent to me, where the end product, the production of a university graduate, perhaps too often takes precedent over other process-oriented values related to the sustenance of academic community and inquiry. The loss in terms of academic community, scholarly engagement, and institutional commitment to the scholarly enterprise that comes with increased reliance on adjunct teachers does not seem balanced in the university by any substantive academic benefits. What I find interesting, is that this structure is different for law schools. We can imagine decreasing the size of tenure-line faculties by relying more on practitioner-adjuncts, while also reaping substantive benefits to balance the losses from a smaller academic faculty. These benefits are those of the apprenticeship system, where actual practitioners in particular areas of law prepare students for the practice of law. If this is right, then law school faculties may have more in common with their university colleagues with regard to this issue than might first appear. If universities can rely on adjuncts where there are no obvious substantive benefits (apart from finances), how much easier it would be to move in that direction where some benefits do exist. What I see is a need for continual re-articulation of the specific values of academic community, inquiry, and writing that readily flow from full-time faculty (and I would argue, from tenure-line faculty in particular) within the university as a whole. Otherwise, as universities more readily comport themselves on the corporate model, academic outsourcing will increasingly dominate the future of the university.

Posted by Tommy Crocker on November 20, 2007 at 04:57 PM | Permalink | Comments (0) | TrackBack

The Supreme Court of Comedy

Over at the Yale Law Journal's Pocket Part, Prof. Jay Wexler (BU) has a study of which Justice instigates the most laughter at the Supreme Court (h/t Con-Op). As I suspected, the study, which is now in its second iteration and which tracks how things have changed with the arrival of Alito and Roberts and the departure of Rehnquist and O'Connor, is subject to its own dynamic effects. Specifically, Wexler's first study noted that the court reporter who created the transcripts for SCOTUS didn't differentiate between the robustness of laughter following a comment by a particular Justice. Now, the reporter makes clear whether there's "a little laughter" or "some laughter."  We should be on the lookout for future fine-tuning. As Wexler notes:

"What’s next? “(Knee-slapping guffaws)”? “(Some peeing in pants)”?"

For those of you wondering, the funniest three Justices, in order, are Scalia, Breyer, and Roberts.

Posted by Administrators on November 20, 2007 at 02:57 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

The need of the one versus the needs of the many

I'm making my belated return to Prawfsblawg . . . thanks to Dan and his crew for the re-invite.

Today's Wall Street Journal had an interesting story about how health care plans are increasingly likely to invoke their contractual right to subrogation in instances where insureds successfully sue the tortfeasors who caused the injuries resulting in the medical treatment paid for by the health care plan.  As is somewhat customary in these sorts of stories, the article opens with a sad story about a woman who was severely injured in a car crash and left needing nearly constant medical care.  She received a settlement for almost $500,000, but it was placed in a trust for her medical care.  (Her husband received a separate award of over $250,000 for his loss of consortium.)  When the health care plan learned of the settlement, it sued the woman for recovery of medical expenses it incurred as a result of her treatment -- something it was entitled to do (apparently) under the terms of the health coverage contract.

Told like this, the story looks ugly: big bad insurance company wants to take away money from the poor, still severely injured woman who needs the money to pay for her care.  Who wouldn't be sympathetic to her plight?  And her husband's?  (Actually, ex-husband -- he divorced her so that it would be easier for her to qualify for other public assistance.)  I certainly felt bad for them.

And yet, I thought the health care plan had a valid point: the plan has a fiduciary duty to all members of the plan to recoup its expenses when lawfully entitled, so as to maximize the funds available for all members.  Even the woman's family conceded that the health care plan was entitled to recoup its expenses; they argued merely that under the circumstances, it should leave them with some funds to help take care of her.

Of course, this is hard to stomach given the tragic circumstances the woman and her husband find themselves in.  But I see an (imperfect) analogy to the exclusionary rule -- we want to focus on the big picture, not the individual case.  Just as it is more important to suppress the evidence to deter police misconduct, etc. -- even at the expense of setting free a factually guilty person -- it may be more important to deny this poor woman's family what they are asking for.

Posted by Tung Yin on November 20, 2007 at 02:40 PM | Permalink | Comments (5) | TrackBack

District of Columbia v. Heller

The Supreme Court today agreed to hear the appeal in District of Columbia v. Heller, marking its first significant Second Amendment case since 1939.  (I know you probably already heard this from your local TV or radio station or on some newspaper's web site, but hey, that's what blogs are here for -- their immediacy.  Anyways, I was otherwise occupied till now.)

For a recent discussion of the case by the Ron Krotoszynski, visiting this year at the University of Alabama, see this webcast.  For recent Prawfs posts on this case, see this superb post by visitor Michael O'Shea, and this recent and somewhat off-handed post.  For a nice collection of resources, see this very helpful post by Eugene at the VC.  Also, Cass Sunstein has this excellent article in the most recent issue of the New Republic reviewing a new Second Amendment book by Mark Tushnet.

Or, if you just want to know why the District is obviously wrong, the Supreme Court has basically already ruled against it, and gun regulation in general is based on "very weak" and "empirically false" arguments and typifies by the "bigotry and incompetence" of government on this issue, read Kopel (natch).


Posted by Paul Horwitz on November 20, 2007 at 02:39 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Monday, November 19, 2007

Voluntary Criminal Law Regulation

Some of you probably remember that Ethan, Jennifer Collins and I are co-authors on a project looking at the way the criminal justice system uses familial status to distribute various benefits and burdens.  The first part of the project, which looked at various family ties benefits, appeared in Illinois Law Review a few months ago and is available here at this link

We are now close to finishing a draft of the second half of the project, which looks at and evaluates the burdens imposed on persons as a result of their familial status or familial connection to the crime.  Examples include omission liability, vicarious liability, and, depending on the way jurisdictions craft the statutes, incest, polygamy, and adultery. In the course of some (purely sedentary--not experiential) research on incest, polygamy and adultery, I've come across some really interesting articles that deserve some shout-outs. 

Together, they have helped me (and perhaps only me) come around to the unconventional position that (and here I continue to dash any possibility of elected or judicial position later) incest rules should be abolished or substantially modified, and that bigamy and adultery laws should be retained but modified subject to the preferences of the participants.  I won't bother defending or explicating these views now--I imagine I'll have some posts with considered views on this subject in a future  month.  But I wanted to highlight some of the work that helped me reach these tentative views.  What's interesting about the following articles is that a) they were all written by students or pre-prawfs, and b) together they exemplify the notion that reasoned argument actually might change people's "priors" about even familiar social institutions.  Before I mention the articles after the jump, I should add that I will be work-shopping our work on this topic at Prawfsfest at Loyola Law School (LA) in December (more on that event shortly), and that other opportunities to present this work in progress during the spring semester are very much welcomed.

The first piece I want to spotlight is a fascinating student note by Jeffrey Hayes analyzing the rhetorical and legal strategies of polygamy activists.  The piece is entitled Polygamy Comes Out of the Closet: The New Strategy of Polygamy Activists. It appeared recently in the Stanford Journal of Civil Rights and Civil Liberties. Also well-worth your while is an anonymous student note entitled Inbred Obscurity: Improving Incest Laws in the Shadow of the "Sexual Family, which appeared in the Harvard Law Review in June 2006.

The third (and substantially longer) piece, which I thought was masterfully executed, is by Liz Emens (now a Columbia prawf). It is entitled Monogamy's Law: Compulsory Monogamy and Polyamorous Existence. The citation is 29 N.Y.U. Rev. L. & Soc. Change 277 and a draft is available on SSRN. What I really liked about Emens' piece is how she wove together notions of contract theory about penalty default rules vs market mimicking contract rules to the context of criminal law, specifically whether couples should be able to opt in to a regime of criminal law regulation to ensure exclusivity between couples. Although in the end Emens thinks adultery laws should simply be abolished, she engages in a powerful thought experiment in which spouses would have the option to contract around adultery laws. I wasn't persuaded -- at least not yet --  by Emens' refusal to buy the result of her own thought experiment. She invokes Lawrence v. Texas as part of her skepticism but my guess is that voluntary criminal law regulation would pass constitutional muster and would also satisfy most of my liberalism-based inclinations too. In any event, I highly recommend the article to you all.

(I should close by noting that the Emens article is on the long side  (about 54000 words according to Word) and I fear that one of the costs of the new rules on length in law review articles is that articles of this sort and ambition are profoundly hindered. But that's the topic of another post.)

Posted by Administrators on November 19, 2007 at 03:05 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (8) | TrackBack

The Morality of "Saving Private Ryan": Did he "earn this"?

A week late for Veterans' Day, when I probably should have written this. But let me raise a moral/ethical issue that has stuck with me from the movie Saving Private Ryan. Initial disclosure: I think the first 30 minutes of the movie should be required viewing in any civics or modern American history class, for the way that the film recreates in vivid detail what happened during the Normandy Invasion. Until I saw it, I do not think I fully understood what that battle (or any battle, obviously) really was like. The rest of the movie is good-but-fairly-typical war-movie fair.

The heart of the movie is the question of the morality or ethics of the mission reflected in the title--sending a squad of eight men into harm's way (two of whom die in the search, four more of whom die in the final battle) to rescue one man and pull him out of harm's way. At one point, the main character, Captain Miller, played by Tom Hanks, tells his sergeant that Ryan had better do something great, such as finding a cure for cancer, to justify the loss of the men in Miller's squad. Miller dies in the final battle and his last words to Private Ryan (played by Matt Damon) are "earn this." At the end of the movie, we see Ryan visiting Miller's grave at Omaha Beach 50 years later--Ryan is married, has several children and grandchildren, and his wife confirms that he has been a "good man" in his life. Of course, we do not know what it means to be a good man. The inference I drew was that Ryan lead the sort of "ordinary" good life of many WW II veterans in the mid- and late-20th century--he probably went to college on the GI Bill, had a successful (if not apparently famous or world-altering) career in some undisclosed profession, raised a family, and enjoyed a life of middle- or upper-middle class comfort.

So, did Ryan "earn this"? On one hand, he never could earn it, simply because the sacrifice (exposing eight men to danger and losing six men to save one) is too unequal, especially when all are soldiers who have taken on the task of fighting and facing death. On the other hand, suppose Ryan could earn it by leading a virtuous and successful life. Did he? Could he earn it only if he developed a cure for cancer or became President of the United States or CEO of GM, or otherwise did something that history defines as "great"? Or did he earn it by being a husband, father, and grandfather who, say, taught high school or worked as a banker? In other words, did he earn it by doing precisely what we fought the war for?

This point is not revolutionary. But I have thought about it since I first saw the movie nine years ago and I have not read anything discussing it. Thoughts?

Posted by Howard Wasserman on November 19, 2007 at 10:36 AM | Permalink | Comments (14) | TrackBack

Saturday, November 17, 2007

Barry Bonds, the Home Run Record, and the Hall of Fame

Thursday's indictment of Barry Bonds on four counts of perjury and one count of obstruction of justice, arising from his allegedly false grand-jury testimony about his steroid use, squarely presents evidence that Bonds did indeed use performance-enhancing drugs. Bonds's statements denying steroid use only can be perjury if there is evidence that he did use steroids. The criminal process will play itself out moving forward.

But there also is the question of Commissioner Bud Selig imposing punishment within the sub-society of Major League Baseball--if it should punish, when it should punish, and how it should punish.

If: The question of whether MLB can punish Bonds for steroid use is somewhat murky. It is not clear whether steroid use was against Major League Rules during the time-frame at issue, roughly 2001-2003. There definitely was no testing for steroids then. On the other hand, steroid use was against federal law. Major League Rule 21(f) prohibits "any and all other acts, transactions, practices or conduct not . . . in the best interests of Baseball." Selig could decide that using illegal performance-enhancing drugs is conduct adverse to the best interests of baseball and punish him accordingly. It also is likely that the Major League Baseball Players Association will contest any league-imposed punishment and appeal any punishment to a labor arbitrator. This actually might present a nice test of the scope of the commissioner's "Best-Interest" power and how it is or might be limited by the CBA.

When: This is the question of whether Selig should suspend, ban, or otherwise punish Bonds now, in light of the indictment, or wait until the criminal process has played out. An indictment obviously is not a conviction and Bonds could well be acquitted, making any punishment now look like a rush to judgment. And a suspension now, pending resolution of the prosecution, likely ends Bonds's career. He is 43; if he is acquitted a year from now and Selig lifts the suspension, his next opportunity to play will be in 2009, when he will be almost 45.

On the other hand, the indictment does mean there is some evidence that Bonds used steroids (the indictment mentions a positive drug test, although it is ambiguous whether the indictment was referring to Bonds or another player at that point). And Selig can impose baseball-related punishment on proof less than beyond-a-reasonable-doubt. Thus, even if Bonds is acquitted of perjury, Selig still could decide there is sufficient evidence that Bonds used steroids and should be punished within the game, such as with a permanent suspension. Historically, this is what happened with the members of the Black Sox who threw the 1919 World Series. The eight players were acquitted (surprise--a Chicago jury would not convict White Sox players), but new Commissioner Kenesaw Mountain Landis banned the players for life anyway.

How: There are two obvious targets for baseball punishment. One is Bonds's possession of a number of historical records, including the two most-hallowed batting records--single-season home runs with 73 in 2002 and career home runs, currently with 762. The other is Bonds's selection into the National Baseball Hall of Fame.

There may be a temptation to strip Bonds of his records in recognition of the fact that he essentially achieved them by cheating--either by erasing his name from the top of the record book or by placing the dreaded asterisk next to his name. I previously have explained why I do not like asterisks. But I similarly reject stripping Bonds of the records. It smacks too much of rewriting history--of creating a "true" (but not accurate) historical record by eliminating from society's official story the enemies of the state, those who have run afoul of those in power. Even in something as (relatively) insignificant as professional sports, a respect for historical truth is important. Better to let the record show both what Bonds achieved and the way he achieved it and to let history judge. If MLB wants to introduce Henry Aaron as the "Real Home Run King" at all official events, fine--so long as the record book remains accurate.

As to the Hall of Fame, I discussed Bonds and the Hall last year, when reports first surfaced that grand jury testimony indicated that Bonds had used steroids and/or perjured himself. But this is a future issue. A player must have ceased playing five calendar years prior to selection, so if Bonds is done playing now, he would first be on the ballot in 2013.

Bonds's eligibility for the Hall of Fame actually depends somewhat on what Selig does. MLB does not control Hall of Fame selection or induction. But HOF Rule 3(E) provides that "[a]ny player on Baseball's ineligible list shall not be an eligible candidate." So if Selig bans Bonds, Bonds is ineligible for election. Indeed, Selig might impose a ban for that reason, since denying Hall election may be the only way that Baseball could meaningfully sanction him for this misconduct (assuming Bonds is done playing). If Bonds is not suspended or banned, voters still consider "the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played" in deciding whether to select a player for the Hall; cheating could weigh into the balance on Bonds's sportsmanship and character. Suspicion of steroid use has kept, or likely will keep out, several other players, including Mark McGwire and Rafael Palmiero. But Bonds's Hall credentials are much stronger than either of those players; Bonds arguably is one of the three best players of his generation. It will be interesting to see how this new evidence of steroid use plays into the voters' calculus in the years to come.

(Cross-Posted at Sports Law Blog)

Posted by Howard Wasserman on November 17, 2007 at 12:04 AM | Permalink | Comments (7) | TrackBack

Friday, November 16, 2007

Reducing Lawprofs, and Academics in General, to a Cultural Stereotype, Part XVII

Q: Who can dance better than your average law professor/academic/[insert your favorite stereotypically geeky profession here]?

A: Everyone.  Plus, this bird.

Posted by Paul Horwitz on November 16, 2007 at 06:29 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

F.I.A.S.C.O. Book Club

Fiasco_2 It's been ten years since the publication of Frank Partnoy's F.I.A.S.C.O.  Over at the Conglomerate, David Zaring has organized a book club celebrating the anniversary with posts from himself, Frank, myself, and Charles Whitehead.  The posts are located at the "Books" index category, or you can begin with this post and click through to the end.

If you've read F.I.A.S.C.O. -- or are reading it now -- I hope you consider putting in your thoughts over at the Club.

Posted by Matt Bodie on November 16, 2007 at 12:43 PM in Books, Corporate | Permalink | Comments (0) | TrackBack

Adverse Possession in the News

It's not very often that the New York Times takes note of adverse possession law.  So this short article about an abortive effort to toughen New York's adverse possession law is noteworthy.  As the article notes, the New York legislature, prodded by a disgruntled landowner who had lost a piece of her land to an encroaching neighbor, passed a bill that would have barred so-called "bad faith" adverse possession -- adverse possession where the adverse possessor has actual knowledge that he is occupying someone else's land.  Elliot Spitzer (wisely) vetoed the measure, noting the immense litigation costs such a state-of-mind requirement would generate.  Most states ignore the state of mind of adverse possessors, almost certainly for this reason.

If you've read Sonia Katyal and my article, Property Outlaws, you know that we actually favor making it easier to adversely possess land.  So, as you can imagine, I followed this back and forth between Gov. Spitzer and the legislature with some interest.  One of the ironies of the story is that the disgruntled litigant who lobbied legislators for the change in the law would likely not have benefitted from the new rule had it been in place when her case was litigated.  She lost a slice of her land to an encroaching neighbor, and boundary encroachments are less likely to be knowingly undertaken than, say, outright squatting, which is less common, though not unheard of, these days.

Also ironic is the comment by the real estate lawyer at the end of the story that knowing adverse possession is "unfair" and "un-American."  Since a great deal of land in the American West was  settled in the nineteenth century by people who were knowingly occupying land they did not own, whether the federal government's or tribal land, a practice that was ultimately formalized (at least with respect to federal land) in the Homestead Act of 1862, I can think of almost nothing a person can do on land that is more "American" than squatting.

Posted by Eduardo Penalver on November 16, 2007 at 11:46 AM | Permalink | Comments (4) | TrackBack

Thursday, November 15, 2007

The Potential Pathologies of "Leiter-scores"

I have a modest thesis, provoked by the release of the most recent Leiter rankings:  I suspect deans will now want a "Leiter-analysis" of any potential lateral candidates.  I have anecdotal evidence that this is already going on and I would guess that as these rankings become even more central to a school's self-conception and its promotional materials, faculty hiring will be more focused on attempts to "game" these rankings by poaching on the basis of "Leiter-scores".  (In theory, even the entry-level market could be affected, though much less so.)

A few caveats.  First, this may not be such a bad thing -- or it may ultimately tend to favor candidates who would otherwise be favored anyway.  If we like and embrace these rankings because we think they tend to measure scholarly influence, the lateral market is already designed -- at least in theory -- to give weight to this criterion.  Thus, assuming the metric is one we accept, Leiter and Leiter-scores (in short, your citation count) merely give us a proxy to quantify potential lateral candidates.  That may be a useful shorthand and may not adulterate the process through quantification, so long as the numbers are used sensibly.  Second, there are probably only a relatively small group of schools that are especially "Leiter-sensitive."  At the very top and the schools far outside the "top 50," few schools care where they find themselves, I'd guess.  Yale isn't losing much sleep over whether Chicago beats it out for the top slot.  But there is still a sizable group of law schools who probably do care, whether because the school "underperforms" in US News rankings or "underperforms" in Leiter's rankings, creating incentives to focus intensely on "Leiter-performance".  And given that some critical mass likely do care, one can reasonably ask whether there will be any effect on lateral hiring and if it is a welcome effect.

My instinct is that although the effects of "Leiter-fixation" will likely be small all-things-considered, they will be unwelcome.  First, it could lead schools to hire more people in "high citation" fields, disserving  those who focus in low-citation areas.  If I have one open hire and I am very Leiter-sensitive, I will hire another IP person over any evidence scholar:  the 10th most cited IP scholar beats out the highest cited evidence scholar.  Obviously a stylized example -- and rarely are lateral searches quite so open-ended -- but it makes the point fine.

A second effect is the potential to distort perception of a scholar's work and promise.  Although at the very top of the Leiter rankings ( Sunstein, Posner, etc.), no one would reasonably contest the importance of the winners of Leiter-competition, there is much less that can be said about using Leiter-scores in the middle of the field.  Yet, those on the hiring end with acute Leiter-sensitivity will tend to prefer a candidate with 250 citations over a candidate with a mere 50 citations, even though there is no evidence that that is a meaningful distinction, especially when the candidates work in high-citation fields like Con Law.

No doubt, Leiter is not responsible for the misuse of his metrics and he is fully honest about what they do and do not measure.  All the same, given their popularity, it does seem worth thinking about how to respond to deans and appointments committees who show themselves to be too Leiter-sensitive for comfort.

Any thoughts?

Posted by Ethan Leib on November 15, 2007 at 07:25 PM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Apple Backdating Opinion and "oPtion$" Book Club

Bloomberg is reporting that Apple has won the first round of a shareholder suit involving the backdated stock options provided to Steve Jobs and others at the company from 1997 to 2002.  The case was dismissed by U.S. District Court Judge Jeremy Fogel.  The court held that "without a discernable drop in the stock price there is no basis upon which to establish an injury to shareholders."  However, the court did apparently give shareholders leave to refile the claims as a derivative suit.  (I was unable to find the opinion online or on Westlaw; if you can find it, we'd love a link in the comments.)

Over at his secret diary, Steve Jobs has weighed in with this report:

I just called the people at the New York City Employees' Retirement System, which was the lead plaintiff in the case, and told them that even though they had tried to cash in on a bogus claim and that, ironically, if they'd succeeded and won a settlement they would have been hurting Apple and sucking money out of the pockets of shareholders, that nevertheless I hoped we could move on in peace and harmony with one another, and that I hold no hard feelings against.

31mwi8vqbel_aa240_ This seems like an auspicious time to announce that PrawfsBlawg will be hosting a Book Club for "oPtion$", the chronicle of these backdating events by the (fake) Steve Jobs of Secret Diary fame.  Here's a brief blurb from the "oPtion$" review in the Wall Street Journal:

The setup is Mr. Jobs's real-life run-in last year with California prosecutors who claimed that he had backdated stock options to increase their value. In the book, Fake Steve can't even remember the options grant. He doesn't understand finances at all. A lone, self-absorbed obsessive who wants only to perfect his gadgets, he tunes out anyone who tries to explain the details of the scandal. He is more troubled by minute flaws in the room's furniture. With $5 billion in the bank, he's eager to pay a fine and be left alone with his iPhone. But the threat of prison cracks his delusion of invulnerability. The head of the legal department warns him of the potential trouble he faces, and Fake Steve reflects: "That's a strange word, incarceration, and after she says it a weird silence comes over the room. Suddenly the air feels really, really cold, and it's so quiet that I can hear the air conditioning whirring in the walls, and I'm thinking to myself, Holy friggin mother of Jesus, I am so going to kill the a-holes who did the HVAC work in this place."

Look for the Book Club coming in early December -- further details will follow.  We hope you all will get your hands on this shiny, alluring tome and join us for the Club.

Posted by Matt Bodie on November 15, 2007 at 06:30 PM in Corporate | Permalink | Comments (0) | TrackBack

Wednesday, November 14, 2007

Should I Be Nonplussed by Howard Dean?

In this space a while back, I wrote a post entitled "Should I Be Offended by Ann Coulter?"  It discussed Coulter's apparent assertion that her perfect world would be both all-Republican and all-Christian; she added that Jews were "unperfected" because they denied the divinity of Christ, and suggested that everyone should become Christians.  Coulter's remark recalled the statement of then-candidate Bush that the acceptance of Christ is the sole route to heaven -- a remark that was somewhat misconstrued and misreported, but that occasioned complaints then and still does.  I wrote that Coulter could be criticized on a number of levels, but that "simply to bear witness on a fundamental disagreement about matters of faith is not, I think, offensive in and of itself."  I would say the same thing about Bush's statement about salvation.

All of this comes to mind because Eugene links on the VC today to a report by the Jewish Telegraph Agency on a speech by DNC chair Howard Dean to an assembly of Jewish leaders, in which Dean said:

"This country is not a theocracy . . . .  There are fundamental differences between the Republican Party and the Democratic Party.  The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."

Eugene's own comments are worth reading.  Eugene points out that many Democrats do believe  that belief in Christ, or in Allah, or in some other religious doctrine, is necessary for salvation.  He says that Dean "can no more make assurances about the Democratic Party's stand on salvation through works than he can about its stand on transsubstantiation or Papal infallibility."

My take on this is similar but somewhat different in focus.  Of course, the Democratic Party qua political party could adopt a particular religious viewpoint if it wanted, by, for instance, enshrining it in the party platform.  In the real world, however, it would not, and such a plan would be ignored even if it were adopted, so Eugene's conclusion is correct, practically speaking.  Mostly, though, I just find Dean's remarks strange and close to incoherent.  It's not just that plenty of Democrats believe that there are specific bars to heaven for non-believers -- that you have to acknowledge belief in the right god to enter into heaven.  Even if we had a more ecumenical view of the turnstiles at the Pearly Gates, though, surely many if not most religionists (including religionist Democrats) believe there are other potential bars to heaven -- for the wicked, the unrepentant, and so on.

Beyond this, and keeping in mind that Dean was talking to a Jewish audience, one must acknowledge that Dean's Democratic theology is simply inaccessible to some of the very audience he was addressing.  Many Jews don't believe in an afterlife at all, and others don't believe in heaven as such.  What could his statements possibly mean to them?  Would they not be either gibberish or an affront?  For other Jews, heaven exists and is available to people of all faiths.  (For quick-and-dirty Internet info, see this.)  Dean's remarks would indeed resonate with them.  But does that mean that Dean is, in effect, adopting a particularly and peculiarly Jewish theology on behalf of his party?  If so -- or even if Dean is simply shopping a similar, but not specifically Jewish, view of heaven -- shouldn't those Democrats, whether Jewish or otherwise, who adopt a different view of the existence of heaven and the preconditions for salvation be offended by his presumption?

Of course, we can understand what Dean is really trying to say: that the Democratic Party sets no religious preconditions on entry into the democratic sphere, and values all faiths equally.  (I might add that this boilerplate applies equally in principle and, generally, in practice to the Republican Party as well.)  But by trying to merge statements about pluralism in the world, and in ordinary politics, with statements about theology, Dean cooks up a dog's breakfast.  In a religiously plural world, as I wrote earlier, everyone should be equally welcome at the table; but that hardly means we are all obliged to share the view that we are also equally entitled to enter into heaven.  There is nothing wrong, from a secular viewpoint, with holding the belief that, say, acceptance of Jesus is necessary to be saved; or that good works are necessary to be saved; or that belonging to some faith or other is necessary -- although it is true that not all these views can be accurate theologically and one can disagree with them on that basis.  Secular politics can and should demand that we live together and reason together, but it cannot demand that we give up fundamental disagreements of this sort.  Certainly the Democratic Party's writ runs out long before that point.

One last question: Should I, or you, be any more or less offended by Dean's remarks than I was by Coulter's?  I might or might not prefer his theology to hers, or vice versa; but are they really that different?  To the extent that Coulter was offensive because she was trying to impose a particular theological view on the world and on her party, is Dean acting any differently?  To be sure, Coulter is a deliberate provocateuse, and we might say that one difference between the two individuals is that Coulter does not want to shut up, while Dean can't seem to shut up.  Certainly she is a more piquant speaker, and we might find her more objectionable for that reason.  But in substance, aren't their remarks equally offensive?  Aren't they both trying to tell us who gets into heaven, even if Dean's answer happens to be "everyone?"       

Posted by Paul Horwitz on November 14, 2007 at 10:15 AM in Religion | Permalink | Comments (5) | TrackBack

Pharmacists and Free Exercise

Last week, Judge Ronald Leighton of the United States District Court for the Western District of Washington preliminarily enjoined Washington state regulations that would have prohibited pharmacists and pharmacies from discriminating against women and others trying to lawfully fill prescriptions, where the pharmacist had religious- or conscience-based objections to providing the medication at issue. Although the regulations applied to all prescriptions, the apparent goal was ensuring access to "Plan B" contraceptives in the face of refusals by pharmacists who believe life begins at conception. The court held that the regulations violated the pharmacists' liberty of free exercise of religion, by requiring them to engage in conduct that their religious beliefs define as murder.

Finding a violation of the Free Exercise Clause in a post-Employment Division v. Smith world is no mean feat, given Smith's declaration that neutral laws of general applicability are presumptively constitutional, even if they burden religiously motivated conduct, and need not allow for exemptions for such religiously motivated conduct. The key move was avoiding Smith and relying instead on Church of the Lukumi Babalu Aye v. City of Hialeah, which holds that a law that discriminates against individuals because of their religious practices and beliefs is subject to strict scrutiny. And once it got there, the Washington regulations, like just about every legal rule, were going to fail strict scrutiny.

Some thoughts after the jump.

1) The court insisted that the regulations were not neutral or generally applicable, thus taking the case out of Smith and into Lukumi. According to the court, the regulations allowed pharmacists to refuse to fill prescriptions for a number of secular reasons--including lack of expertise, lack of needed specialized equipment, potentially fraudulent prescriptions, an obvious or known error in the prescription--while prohibiting religious-based objections to filling. That indicates religious discrimination.

But I think the court's analysis is wrong here; the secular reasons for declining that are exempted by the Washington regs are not truly comparable to the religious reasons for declining that are prohibited. The exemptions seem designed to ensure proper filling of a proper and lawful prescription; they permit refusal when the prescription is improper or where the pharmacist is unable properly to fill it. But the regulations do not allow any refusal to fill a proper prescription that can be properly filled, regardless of whether the basis for the refusal is religious or secular. A law ceases to be neutral or generally applicable when it prohibits conduct done for religious purposes while allowing the identical conduct when done for secular purposes. That is not what is going on in Washington. Refusing to fill an incorrect or fraudulent prescription is not the same as refusing to fill a valid prescription. There is no religious discrimination when, as here, the law simply prohibits all refusals to fill a valid prescription, whether the refusal is religiously or secularly motivated.

2) Once into strict scrutiny, the state argued that it had two interests: 1) promoting health by ensuring access to medications and 2) preventing discrimination because of sex, in violation of state anti-discrimination law, by depriving women access to a gender-unique medication. Neither interest was compelling and the analysis of the second purported interest is telling. The court stated that refusing to fill a Plan B prescription, based on a religiously motivated belief in when life begins, is not gender discrimination. Reasonable minds differ about that question and refusing to participate in an act that one believes terminates life, merely because that act inevitably involves women, has nothing to do with gender or gender discrimination. As the court said, "plaintiffs' objection to Plan B is not about gender, it is about the sanctity of life as defined by their religious teaching." This notion is supported by Supreme Court case law. And it seems to be about the difference between discriminatory intent and discriminatory effect, with only the former being prohibited by state anti-discrimination law. But that seems to ignore the unique impact that allowing refusal has on women, and usually only women, seeking medical assistance.

3) The injunction puts in place in Washington the type of refuse-and-refer system that has become common in many states. A pharmacist and the pharmacy (if it only has one pharmacist) can refuse to fill a prescription, so long as she "immediately refers the patient either to the nearest source of Plan B or to a nearby source for Plan B." But this raises the question of whether this works geographically in remote parts of the state as well as it might in Seattle, where there may be no reasonably nearby source for the drug. Or whether it works in especially religious areas, where all nearby pharmacies share the same objection to filling the prescription.

4) According to Planned Parenthood statistics from 2004, twelve states permit health-care providers to refuse to provide abortion services, abortifacients, or other drugs and services on the basis of personal or moral objections and many other states have been considering similar bills exempting religious objectors from providing such services. In other words, the legislative process has been carving out special protections from otherwise-applicable requirements for religious objectors, which is where the Smith Court intentionally placed responsibility for creating religious accommodations. What makes the Washington case unique is that the First Amendment carved out the religious exception, making it mandatory as a constitutional matter.

Update: Thursday, 7:30 a.m. C.S.T.:

Marci Hamilton, one of the leading religion-clause scholars, devotes her FindLaw column to this case and is, as expected, highly critical of the decision. She highlights several points:

First, she argues that what the judge did was essentially to apply disparate-impact analysis, although the Free Exercise Clause under Lukumi applies only where there is intent to discriminate. The law did not prohibit only religiously based conduct (such as animal sacrifice); it prohibited all conduct generally (refusing to fill prescription) in which some people want to engage for religious reasons. That is the heart of Smith.

Second, in a point I overlooked, Hamilton emphasizes the fact that the initial regulations permitted an individual pharmacist in one store to refuse to fill for religious reasons, if she could refer the prescription to another pharmacist at the same store. But the pharmacies opposed this regulation (a pharmacy chain was one of the plaintiffs in the case), arguing that it would require them to bear the cost of hiring a second pharmacist. Hamilton argues that this is an appropriate (although not constitutionally compelled) compromise between the deeply held religious beliefs of individual pharmacists and the rights of patients to obtain lawfully prescribed medication. But the court ignored this, essentially elevating the economic interests of the pharamacy above those of the (mainly female) patients, with the court condescendingly deriding the latter interest as one of "convenience" of not having to drive to a different store.

Posted by Howard Wasserman on November 14, 2007 at 09:02 AM | Permalink | Comments (6) | TrackBack

Tuesday, November 13, 2007

Speaking for the Text

We spend a lot of time discussing different approaches to constitutional interpretation. For example, there has been a recent flurry of activity focused on Originalism, in particular as a consequence of Jack Balkin’s recent conversion to this method of interpreting the Constitution. Legal academics have also spent a lot time discussing approaches to statutory interpretation – or “legisprudence.” Using canons of construction, economic and public choice theory, or various approaches to purposive reading, we have explored a large range of issues vital to understanding the practice of interpreting statutes. By contrast, we spend much less time discussing ordinary approaches to linguistic or literary interpretation in the law, even though such practices can be just as important. For example, the subject of a prior post – the issue of a method of interpreting a video appended to a recent Supreme Court opinion – involved what I’m designating as ordinary textual interpretation. No statute needed interpreting, and constitutional theory was present only as a distant background noise. Straightforward textual interpretation of the meaning or story of the video was the whole game.

Likewise, in another Supreme Court case from last term, Morse v. Frederick, the outcome depended upon ordinary textual interpretation. The Court endeavored to resolve what “BONG HiTS 4 JESUS” meant, when displayed on a fourteen foot banner held by high school students on a public sidewalk across from their school when the 2002 Olympic torch procession passed. Joseph Frederick was suspended after refusing the Principal’s instruction to take it down. He sued, arguing that the Principal’s action violated his First Amendment rights. Writing for the majority, Chief Justice Roberts noted that the phrase was “cryptic.” Nonetheless the Court decided that the “cryptic” phrase reasonably could mean only two things – either a celebration of illegal drug use, or an imperative to engage in illegal drug use. Although neither interpretation seems particularly plausible, more to the point, where the Court had suggested in the prior case involving interpretation of a video that the text could speak for itself, in this case it employed an entirely different method, one that required the Court to speak for the text. My question is: ought we to pay more attention to the methods of “ordinary” interpretation employed by the Court?

The Court’s method in this case began with the two words “BONG HiTS.” The Court reasoned that these two words involved an “undeniable reference to illegal drugs.” The method then involved creating a propositional grammar and content for the reference. To do so, the Court had to speak for the text to derive either an imperative or a celebration. To derive an imperative the Court added an implied verb – “take” – in order to construe the phrase as “take bong hits.” To construct a celebration the Court adds either four or two additional words to create the phrases “bong hits are a good thing,” or “we take bong hits.” Regarding the celebratory interpretation, the Court was unable to discern a “meaningful distinction” between this celebration and “outright advocacy or promotion.”

What is most interesting about this interpretive exercise is that the Court added one, two and four words to create different propositional meanings for the reference “BONG HiTS,” but never considered the meaning or reference of “4 JESUS” at all – nor did the Court consider how inclusion of “4 JESUS” might contribute to any propositional meaning attributable to “BONG HiTS.” First, as a matter of interpretation, construing the meaning of this “cryptic” phrase, for which the Court acknowledges that “gibberish is surely a possible interpretation,” by ignoring half of the words in the phrase is significant, to say the least. Whatever “BONG HiTS” references (marijuana or tobacco, something else more akin to “GONG HiTS,” or nothing at all), the propositional meaning of the phrase cannot be accurately construed by ignoring “4 JESUS,” while substituting different words. In the world of statutory interpretation, this would be like ignoring the actual text of the statute and writing a new one instead – the height of judicial legislating. Second, because the Court finds an undeniable reference to illegal drugs construed as a “pro-drug message,” the Court ignores the speaker’s own expression of meaning – he claimed it was a form of spectacle designed to attract television attention. Although speaker’s intent is certainly not dispositive of meaning, it is certainly relevant. Third, the Court does none of the work associated with linguistic or literary analysis. Linguistically, the Court does not ask how the parts of the phrase fit together, consider the meaning of “4” as likely the preposition “for,” consider the reasons for use of capitalization (is it like shouting on email?), or consider whether the purported proposition is meaningless or nonsense (“Twas brillig, and the slithy toves”), etc. Regarding methods of literary analysis, the Court does not consider how the context might influence the meaning, what the history of the circulation and use of the phrase might be (Frederick claims that he saw the phrase on a sticker on a snowboard), whether it imbeds any cultural references or expresses group identity, whether it participates in any traditions of spectacle, or how it might function as political commentary. These are among the kinds of questions any serious literary rendering of the text might consider while speaking with the text – and all have plausible answers that having nothing to do with “unfurling a pro-drug banner.”

In speaking for the text in such a partial manner, the majority is vulnerable to Justice Stevens’ claim in dissent that they engaged in a “ham-handed” approach. More than this, however, I wonder if the partial exercise in textual exegesis is really beside the point. By interpreting the banner as it did, the Court was able to impart its vision of the proper scope of school authority, unchecked by First Amendment constraints in the face of rebellious and recalcitrant students. Like, for instance, interpreting a nativity scene as not having sufficient religious meaning in an establishment clause setting, such exercises in ordinary interpretation can be the means by which the Court is able to animate and articulate its vision of some domain of constitutional relations (I sketch an argument about the role of vision in more detail here). Interpreting “BONG HiTS 4 JESUS” as the Court does may be an opportunity for it to articulate a limit on the use of the First Amendment to constrain the disciplinary authority of school officials. That is, it may be a vehicle for further doctrinal erosion of Tinker. Even if so, however, ought we to consider methods of ordinary textual interpretation as potentially having similar importance for judicial constraint and legitimacy as methods of constitutional interpretation purport to have? Shouldn’t we be just as concerned about the literary capacities of judges and justices (as James Boyd White has argued for years)? It is tempting to engage Justice Thomas’s originalist understanding of the First Amendment articulated in concurrence in this case because arguments over method in constitutional argument are compelling and important. It is perhaps at least as important, however, to engage the Court’s methods of ordinary interpretation.

Posted by Tommy Crocker on November 13, 2007 at 09:56 PM | Permalink | Comments (0) | TrackBack

Harold Berman, R.I.P.

Harold J. Berman, 1918-2007

[What follows is a message from Dean David Partlett of Emory Law School.]

November 13, 2007
Dear Colleagues:

        It is with much sadness that I write to inform the Emory Law community of Professor Harold Berman’s passing.  Professor Berman, honored and respected for his scholarship and passion for the law, passed away in New York City today, Tues., Nov. 13.  He was 89.

        Professor Berman recently celebrated his 60th anniversary of teaching law, a profession he referred to as his “calling.”  He was the first Robert W. Woodruff Professor of Law at Emory University, and has served the school for more than 20 years as a teacher, scholar, mentor, and colleague.  He also was James Barr Ames Professor of Law Emeritus at Harvard Law School, where he taught from 1948-1985.

        A humble giant in his field, Hal’s contributions to Emory and to legal scholarship were impressive and far-reaching.  He had a special interest in world law and was considered one of the founders of the study of law and religion.  At Emory, he was co-director of the World Law Institute, a Fellow of The Carter Center, and an integral part of the development of Emory’s Law and Religion Program, now the Center for the Study of Law and Religion (CSLR).

        The work of Professor Berman was celebrated during the CSLR’s Oct. 24-26 silver anniversary conference, and an interview of him shown during that event is available in video and text on the Emory Law and CSLR websites: http://www.law.emory.edu/index.php?id=4577

        Hal’s passing is a great loss to the Emory community, the legal profession, and the world.  He will be deeply missed.

        A public celebration and memorial of Professor Berman’s life and work will be held at Emory University early in the spring semester.   


David Partlett

Posted by Rick Garnett on November 13, 2007 at 02:03 PM in Rick Garnett | Permalink | Comments (1) | TrackBack

An Open-Source Approach to Casebooks

This month's Journal of Legal Education includes the final version of my article, "The Future of the Casebook: An Argument for an Open-Source Approach."  You can also find it here on SSRN, in case you missed the JLE issue with its new, possibly-a-collector's-edition color scheme.  The article provides a sense of the challenges and possibilities in creating an open-source casebook, drawing heavily on Yochai Benkler's work about commons-based peer production.  An open-source casebook is perhaps the quintessential example of a situation where commons-based peer production would be effective.

I'm quite certain that the law school casebook will soon cease to exist -- at least in its physical "book" form.  The most likely replacement would be putting current casebooks online, with greater or lesser degrees of accessibility and adaptability.  But there is a window now for an open-source approach.  There are moves afoot to put at least some class content online that would be usable and accessible by all.  I'm hopeful that these developments may blossom into sustainable, robust alternatives to the current system.

Posted by Matt Bodie on November 13, 2007 at 11:15 AM in Information and Technology, Teaching Law | Permalink | Comments (0) | TrackBack

Monday, November 12, 2007

AutoAdmit Complaint as a Teaching Tool????

In keeping with my earlier thoughts on the major procedural and jurisdictional issues in the AutoAdmit case, I would like to pose the following question:

Is it a good idea to use the AutoAdmit complaint in class to teach the various procedural and jurisdictional material illustrated by the case? On one hand, the events detailed in the complaint are so offensive as to be disconcerting and distracting to many students. And they likely are uniquely so to female students because of the explicitness of many of the threats of sexual violence; a female colleague I trust suggested that the sexual violence ttakes this beyond the ordinary disgusting speech situation. On the other hand, the extreme offensiveness may make it a better teaching tool. It forces students to get beyond their visceral reactions to the case to see and work through the issues that underlie the merits and that may, at times, override those merits (here, by potentially depriving them of their chosen forum) and overwhelm the simple dichotomy of sympathetic plaintiffs and unsympathetic, hiding defendants.

Do the obvious costs of the offensive nature of the material described outweigh the teaching benefits? I really would like to hear thoughts from prawfs and students, especially women.

Posted by Howard Wasserman on November 12, 2007 at 04:04 PM | Permalink | Comments (8) | TrackBack

JFK's Houston speech

CSPAN's web site has a link to John F. Kennedy's September 1960 speech to ministers in Houston about his Catholicism.  It's fascinating, especially the Q & A section, which is pretty bruising. 

Relatedly, here's a news story regarding Mitt Romney's decision (for now, anyway) not to give an LDS version of "the Speech."

Posted by Rick Garnett on November 12, 2007 at 11:26 AM in Religion | Permalink | Comments (2) | TrackBack

Exam Writing

It's that time of year again.  Time to start wracking your brain for ideas about how to probe your students' understanding of easements implied from prior use, or whatever equivalent common law doctrine you happen to teach.  I find the process of exam writing to be one of the most challenging parts of a professor's job.  But it's something that junior faculty members are frequently left to figure out on their own.  So I thought I'd start a thread to give readers an opportunity to share their tips about how to write the perfect exam.  Where do you hunt for ideas?  Do you cull through recent cases?  Do you rely on newspaper articles about arcane property or contract disputes?  How many issues do you bury in a single fact pattern?  Do you use short answer essays or multiple choice?  Is your goal simply to generate a good spread of scores, or do you also want to make (most of) your students feel good about their legal knowledge at the same time?

Posted by Eduardo Penalver on November 12, 2007 at 10:24 AM | Permalink | Comments (7) | TrackBack

Sunday, November 11, 2007

The Process of AutoAdmit

Dave Hoffman at CoOp reports on the Amended Complaint in the AutoAdmit lawsuit, filed last Thursday, with links to the new complaint and to some early commentary. As a substantive matter, I agree with Dave that this is a stronger pleading, with some new or more-detailed allegations (involving letters sent to Yale Law School Faculty and to several law firms containing verifiable factual assertions about the plaintiffs) that could form the basis for defamation and/or false light claims, as opposed to amorphous claims of Intentional Infliction of Emotional Distress based on crude, obnoxious, and reprehensible, but seemingly constitutionally protected, comments. This case may be of a piece with the lawsuit against Fred Phelps and Westboro Baptist Church, in terms of seeking to recover for intentional infliction based on speech about private individuals.

But the procedural aspects of this case always have fascinated me; the case is a walking civ pro/fed courts exam.

First, there now are no named defendants in the lawsuit. The one named individual in the original complaint, former administrator of Auto Admit Studies (and former Penn law student) Anthony Ciolli, was dropped in the amended pleading; all the defendants are identified only by the screen names they used for their posts and comments. The complaint has not been served, because there is nobody on whom to serve it. Plaintiffs' counsel will try to learn those names through discovery from some non-party (Ciolli, perhaps?), but only after getting leave of court to take that discovery (I expect the court will grant leave). Plaintiffs also must keep an eye on the statute of limitations (which is two years on the state tort claims in Connecticut). If the plaintiffs do not identify some or all of the defendants by name until after the limitations period has run, they might find some claims as to some defendants time-barred. I discuss the issue of unknown-defendant pleading in-depth here.

Second, there is a nice jurisdictional problem here. Plaintiffs assert two bases for jurisdiction. The first is § 1331 federal question jurisdiction over DOE II's claim for copyright infringement against two or three of the 38 pseudonymous defendants. The second is § 1367 supplemental jurisdiction over the state-law tort claims (libel, intentional infliction, false light, and disclosure) brought by both DOE plaintiffs against all the defendants. The copyright claim is based on the posting of certain copyrighted photographs of DOE II without her consent; the tort claims are based on the posting of the photos, in addition to the many posts. The claims thus appear sufficiently linked to satisfy §1367's requirement that claims be "so related" as to "form part of the same case or controversy under Article III of the United States Constitution."

The jurisdictional wrinkle is that a district court has discretion to decline to exercise supplemental jurisdiction over state-law claims in several situations, two of which might be relevant here. Under §1367(c)(3), if the court dismisses the federal claim, it can (and usually does) decline to retain jurisdiction over the state-law claims. Some commentators have questioned the strength of the copyright claims; I do not know enough about copyright law to say for sure. But if that claim is weak enough to be dismissed, the plaintiffs could be forced out of federal court on the state-law claims.

Under § 1367(c)(2), the court can decline supplemental jurisdiction over the state law claims when they "substantially predominate" over the federal claims. That provision might be in play here. The copyright claims are brought by one of the plaintiffs against only two or three of the many defendants, so most of the parties to the case are uninvolved in the anchor federal claim. The crux of this case is the pattern of harassing, offensive, outrageous, and libelous comments about the plaintiffs on the web site; the posting of the photos seems secondary to that. If this case is "really about" the offensive statements that violated the plaintiffs' rights under state tort law, the court may decide those claims should be heard in the (more-appropriate) state-court forum.

Finally, there is some chance that a new jurisdictional hook--§ 1332 diversity jurisdiction--could present itself, if discovery reveals that some of the defendants are not Connecticut citizens (both DOE plaintiffs are Connecticut citizens). The plaintiffs then could proceed against some of these defendants in federal court on the state-law claims, although it would require the dismissal over the remaining defendants who either are unknown or who also are Connecticut citizens. The jurisdictional question may require some liability trade-offs, at least if the plaintiffs want to remain in federal court: Go forward against some of the defendants, if there are some who are diverse from the plaintiffs, and let others go.

It will be interesting to watch how these procedural issues will play out as the plaintiffs try to find some identifiable defendants in the coming months.

Posted by Howard Wasserman on November 11, 2007 at 11:13 PM | Permalink | Comments (0) | TrackBack

Friday, November 09, 2007

Turn Me On, Dead Man

Since pop culture generally, and the Beatles in particular, often are fair game for GuestPrawfs (is that the right term?), let me try something a little different:


November 9 marked the 41st anniversary of the death of Paul McCartney in a late-night car accident. The story was that the band found a look-alike to assume Paul's identity and place. And that the band put all sorts of audio and visual clues in their later music. The most famous visual clue is the cover of Abbey Road (pictured), which is supposed to represent a funeral procession, with Paul (walking barefoot and out of step) as the deceased. The most famous audio clue is the song Revolution 9, which, when played backward has John saying "Turn me on, Dead Man." I actually can vouch for that last one--my college dorm had an in-house radio station with turntables that spun backward and we tried it out one night.

It is fun to see how people have dissected the Beatles texts (maybe this post has a legal connection, after all) for clues, even if it is all nonsense. On the other hand, after hearing "Paul"'s post-9/11 song Freedom, the death story makes sense. How else to explain how the man who was The Walrus had fallen so far, musically.

Posted by Howard Wasserman on November 9, 2007 at 11:12 PM | Permalink | Comments (3) | TrackBack

Hiring information wants to be free-ish

I've gotten some emails requesting a post about candidates waiting to hear from law schools' call back period.  Brian Leiter's got a relevant post about this here.  Ethan mentioned on that thread that people should have the decency to let you know where you are, but schools rarely do that. Thus, if you're a candidate wanting to know whether a particular school has "moved" on some people already, this would be a good place to post information (anonymously) about where you have already heard from. Since this is a public good piece of information, it's at risk of abuse. Feel free to post anonymously if you're a candidate or a prawf with info about your school. But please note that we can track your IP address so if we think there's something fishy going on in the comments--and we will snuff you out...

To start the ball rolling, I know FSU has already extended some callback invitations. No shocker there.

Posted by Administrators on November 9, 2007 at 05:56 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Can't We All Just Not Get Along?

Dan Ortiz has an interesting and enjoyable new paper, available here, titled "Nice Legal Studies."  Nice, as contrasted with Critical Legal Studies.  Ortiz writes beautifully and begins provocatively:

Until recently, legal theory pushed a critical agenda.  Critical legal studies, feminist legal studies, and even normative law and economics all challenged orthodoxy -- from somewhat different angles, of course. . . . it was a time when reading law reviews was sometimes exciting and many thought we were finally getting down to first principles, as uncomfortable as that can be.  Much of the writing outraged, but it was even more exciting for that. . . . Theory . . . seemed to matter. . . .

The backlash has set in.  As critical turned tired, legal theory turned nice.  In an effort to reclaim peace and calm, legal theory has increasingly sought to minimize conflict and soften its edge when it is unavoidable.  In different ways, many legal theorists have moved to privatize disagreement in the belief that a calmer, more polite, but still robust public sphere would remain.

Ortiz complains that this sort of "niceness . . . does not so much avoid as settle conflict -- and in a particular way. . . . It is not neutral or largely procedural, as its proponents claim, but value-laden through and through."  He argues that "we need to face up to social conflict.  Niceness may make us feel better but only because we fail to see its partiality and violence.  Its smile masks the troubling political work it achieves.  Disagreement and conflict can, moreover, serve a healthy social function.  If nothing else, they can focus on our ideals, our imperfections, and our differences and let us see -- sometimes painfully -- how law actually works.  And just as important, the discomfort they bring can galvanize us into productive social action."

I quote so heavily in part because Ortiz writes so cleanly and well.  (And, as Stoppard's Shakespeare would add enviously, "Good title!")  I also write because I want to give a full sense of the scope of Ortiz's claims and the context in which he places the body of his article, which turns out to be somewhat narrower -- a close read of materials by Thomas Nagel, Cass Sunstein, and Chief Justice Roberts.  In each of his critiques of these writers, he's concise and sharp.  (Twisting the title of Nagel's famous work "The View From Nowhere," he writes: "Nagel's is a view from somewhere -- the current center and moderate left.") 

I agree with much that Ortiz has to say in these sections.  He is right to note that legal theory and scholarship may lack the zing and zest of conflict that they had twenty to thirty years ago; on the same point, read the opening to Laura Kalman's great The Strange Career of Legal Liberalism, in which she notes how, during this period, she could no longer read law reviews to help her get to sleep -- they were too exciting.  He is right, too, to suggest that civility is not always the primary virtue, or a virtue at all, and to note that some practitioners of the politics and theory of civility and process are far from neutral, and in fact exemplify liberalism's tendency toward empire.  One example of particular interest to me is his discussion of Nagel's treatment of religion, at pages 11-12.  Over all, the article is well worth reading.

Does Ortiz succeed, however, in making his critiques of Nagel, Sunstein, and Roberts do the work his bold introduction and conclusion promise?  Is his article ultimately a successful critique of "nice legal theory?"  And just as importantly, does he succeed in showing that nice legal theory has taken over critical legal theory's position, or that we should get critical again, in order to "galvanize us into productive social action?"  I think not.  More after the jump.       

These thoughts are provisional, but let me set down how I think Ortiz doesn't succeed in proving the bold claims of his introduction and conclusion in the body of the paper, and some of the considerations I think are missing in his brief introductory treatment of nice vs. critical legal theory.

First, I am not convinced that Ortiz has established that all procedural, or civility-oriented, approaches to legal theory -- approaches that set out to minimize disagreement, work from incompletely theorized agreement, and so on -- are illegitimate.  He does a wonderful job, certainly, of establishing that they are rarely as neutral as they claim to be; that civility can mask a desire to resolve issues in someone's favor, and that neutrality or proceduralism can smuggle in a host of substantive positions.  This is fairly well-covered ground, although he puts the argument forcefully and well. 

But I think three things remain to be said about this.  First, I think he is too ungenerous in suggesting that civility- or process-oriented approaches are always really mostly about substance, and especially that civility and proceduralism are only a "guise."  Civility is not always a mask, and procedure is not always a hidden grab for power; sometimes these are good faith approaches. Certainly his critique suggests that these approaches finally cannot be completely neutral.  But for all their flaws and, in many cases, their seminar-room vision of public deliberation, many of its practitioners understand the limits of their approach and are (sometimes) candid about it.  At the very least, civility and proceduralism provide a basis for critiquing a particular civility-oriented approach for its substantive bias.  Second, to say these approaches are imperfect is far from saying that they are not a leap forward -- that they do not, in fact, move the ball forward in terms of providing for more open, useful, and free public dialogue and (incremental) legal reform. 

And this leads to my third point: even if the kind of "uncivil" dialogue he champions is the right kind of approach for a first-best world, it may not be the best kind of approach for a second-best world, and for the kinds of institutions that operate in this second-best world.  Although civility and proceduralism are certainly legal theory of a sort, they are also practically oriented: they are operating manuals for how to run particular flawed public institutions as best as they are capable of being run, in light of, among other things, imperfect knowledge and the fact of substantive disagreement on various issues.  To be sure, in this second-best world, civility can sometimes mask real conflict and proceduralism can sometimes quietly impose a substantive victory for one side.  But the question should be, do these approaches work as well as or better than other approaches, all things considered?  Ortiz certainly exposes the worm in the civility/proceduralist apple, but I don't think he comes near answering this question.

So far, I've focused narrowly on Ortiz's position on civility and proceduralism.  But there are broader questions, I think, about how well Ortiz's middle sections link up with the broad claims in his introduction.  It seems altogether too narrow to use just three writers as evidence that critical legal theory has dried up in favor of nice legal theory.  That's especially true when one of them, Nagel, is primarily a philosopher and not a legal theorist; he is cross-appointed at NYU Law School, but he speaks as much to the former crowd, or to the more serious jurisprudes of the legal academy, than the broader and woolier bunch of legal academics who practice the kinds of legal theory Ortiz is writing about.  And another is a judge, not an academic at all -- in fact, the scant evidence suggests he is, if anything, rather contemptuous of much legal academic writing.  That leaves us only with Sunstein.  And as prolific and influential as he is, showing that Sunstein has turned to a civility-oriented approach hardly demonstrates that this approach has supplanted critical theory.  Ortiz is certainly right that critical legal theory of the kinds he mentions has, for the most part (although the Latcrit folks are certainly very busy), diminished or disappeared altogether.  But that does not show that it has been replaced by "nice" legal theory: that the two stand in some kind of relationship of succession, or that "nice" legal theory occupies the space that critical legal theory otherwise would have occupied.  Indeed, as Ortiz notes, theories such as Sunstein's descend mostly from work such as that of John Hart Ely.  But Ely's work occurred simultaneously with the work of critical theorists, and was countered by their work.  So it's not clear to me that Ortiz has shown that the rise of nice legal theory necessarily has anything to do with the decline of critical theory.  To paraphrase Shakespeare, that suggests to me that the decline of critical theory lies primarily in itself, in its own flaws and problems, and not in what the "stars" of legal theory are up to.

Finally, even if the decline of critical legal theory and the rise of nice legal theory are more unrelated than Ortiz suggests, is he right to imply that we need more critical legal theory?  Is he right to say that it would "galvanize us into productive social action?"  Note that this is not the same thing as saying that we need less civility, less niceness.  I agree with Ortiz that we ought to face up to fundamental disagreement and social conflict, not paper it over.  But is critical legal theory the vehicle by which it should take place, and will it lead to more productive social action? Well, one way to answer that question is to ask why critical legal theory got "exhausted" in the first place.  One possibility is that it never had anything to do with "productive social action" at all.  It was always an academic game, and once the giants in the field had used up whatever social capital could be produced by mining a new field, they moved on, to new projects or into senescence.  Another possibility is that at least some of the critical theorists believed that their work could and should lead to productive social action -- and were wrong. 

If so, then why argue that critical legal theory will be a more socially productive endeavor than "nice" legal theory?  Indeed, why argue about legal theory at all?  If "productive social action" is what Ortiz wants, maybe he has focused reviving the wrong corpse.  If we are looking to bring back what most would see as a failed movement, perhaps it should be that of the scholars who arose at the same time as critical legal theory but who worked in a more practically, empirically, sociologically, and socially engaged way than the critical theorists: the law and society scholars.  In the years since the decline of critical legal theory of various kinds, plenty of scholars have devoted their work to empirically grounded studies of various spheres of activity, often influenced not only by sociology but by economics, behavioral economics, and other methods.  Their work is sometimes grand, and sometimes "small," in scope and ambition.  And it is often at least putatively "neutral" in orientation.  It is certainly rarely "critical" in the way Ortiz uses the word, and often is even "nice," as he uses that term.  But which article is likely to be more socially "productive": another take on 19th Century private law as understood by the Frankfurt School, or a study on racial patterns in taxicab tipping in modern-day New Haven? 

It seems to me, in sum, that if social productivity is really what Ortiz cares about, he has not shown that "critical" theory is likely to achieve more of that than would a "nice legal theory" that actually proposes reasonable compromises for real-world deliberating institutions, individuals, and courts.  Nor has he shown that critical theory -- or theory in general -- is likely to yield better results than a more chastened, but also more grounded and empirical, approach that eschews grand theory and just tries to solve one problem at a time.

Again -- an article well worth reading, notwithstanding my criticisms.  And, also again -- good title!


Posted by Paul Horwitz on November 9, 2007 at 01:00 PM in Legal Theory | Permalink | Comments (1) | TrackBack

Thursday, November 08, 2007

The Catholic Recipe for Hamburgers

In blogospheric terms, the discussion of Justice Scalia's statement that there is no such thing as a Catholic judge is long over, so it's a little late to weigh in.  Moreover, I agree generally with Rick's pithy pronouncement on the subject, which he fills in on MoJ and in the comments to his post, so it would seem there is little to add.  But I want to add two comments.  The first is raised by a quote offered up by Judge William Pryor in his article, The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol'y Rev. 347 (2006), which is well worth reading.  In his article, Judge Pryor offers up this quote from the Catholic Catechism:

Human work proceeds directly from persons created in the image of God and called to prolong the work of creation . . . . Work honors the Creator's gifts and the talents received from him.  It can also be redemptive.  By enduring the harship of work in union with Jesus, the carpenter of Nazareth and the one crucified on Calvary, man collaborates in a certain fashion with the Son of God in his redemptive work.  He shows himself to be a disciple of Christ by carrying the cross, daily, in the work he is called to accomplish.  Work can be a means of sanctification and a way of animating earthly realities with the Spirit of Christ.

Obviously, this sentiment does not mandate, or even suggest, a particular jurisprudential view or methodology.  In that sense, a "Catholic Justice" imbued with this belief in work as a duty of faith may be indistinguishable in his or her outward approach or outcome from any other judge; so Scalia is right, in that limited sense, to say there is no such thing as a Catholic Justice.  But in a broader sense, he is wrong: a faithful Catholic Justice brings to his work a sense of the sacredness of all work, of the hope that labor can be a profound and redemptive activity.  Surely that is something distinctive.  "Distinctive," not unique -- it is an outlook that surely is not limited to Catholics, nor, I think, to religious individuals.  But distinctive, nonetheless.

Which leads me to my other comment, and the title for this post.  Justice Scalia said in his remarks that the Catholic faith seems to him to have little effect on his work as a judge, "just as there is no Catholic way to cook a hamburger."  At the risk of straying into an almost self-parodying respect for religion, I take issue with that, and I was disappointed that no one during the first round of discussion of Scalia's comments focused on the mundane act of cooking a hamburger rather than the supposedly exalted act of judging.  Surely the point of a religious life, or of any effort to live a serious and thoughtful life, is that any and every action can be imbued with purpose, meaning, or at least a sense of the fullness of the moment.  If anything, I think the question whether there is a "Catholic [or other] way to cook a hamburger" -- whether, in less risible terms, it's possible to invest mundane acts with meaning -- is of more importance than the comparatively episodic and ephemeral work of judging. 


Posted by Paul Horwitz on November 8, 2007 at 05:31 PM in Religion | Permalink | Comments (4) | TrackBack

Bleg for Info re: legal clinical malpractice insurance

Quick question for those of you who have some experience in these things.
A) Do law schools' clinics or pro bono programs carry malpractice insurance?
B) If not, should they as a matter of prudence or legal obligation?
C) If not, are the (spouses of ) lawyers who work for such clinics or pro bono programs in jeopardy of having their assets used to satisfy potential malpractice claims?

People who hug want to know. Thanks.

Posted by Administrators on November 8, 2007 at 04:26 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Volokh on Westboro and Phelps

Eugene Volokh has a collection of excellent posts on the Westboro Baptists Church/Fred Phelps verdict, which I previously discussed. Prof. Volokh and I generally share First Amendment sympathies and views, but he states them all better than just about anyone around.

Posted by Howard Wasserman on November 8, 2007 at 04:08 PM | Permalink | Comments (0) | TrackBack


My regular blogging gig is at Sports Law Blog, where I write a lot about the quasi-legal nature of the rules and regulations involved in sports, sports teams and leagues, and sports management. So I wanted to comment on this week's sports/law stupidity.

Don Shula, the coach of the 1972 Miami Dolphins, the last NFL team to go undefeated, now argues that if the 2007 Patriots go undefeated (the Pats are 9-0 and far above everyone else in the league), an asterisk should be placed on their record, in light of the finding that the Patriots violated league rules in an early-season game by videotaping the opposing team's sideline to steal signals. This is the latest effort to impose an asterisk to taint and diminish what otherwise would be a record performance. Earlier this month, the man who caught the ball from Barry Bonds' record-breaking 756th career home run announced that he would brand the ball with an asterisk and donate it to the National Baseball Hall of Fame. The asterisk would suggest that Bonds' record is tainted by his alleged steroid use--steroid use that Bonds continues to deny and that Major League Baseball never has found, although other sources document his alleged use.

Can we please stop with the asterisks already?

The first alleged asterisk to denote-but-diminish a record was not, in fact, an asterisk (despite Billy Crystal's version of baseball history). In 1961, when Roger Maris hit 61 home runs to break Babe Ruth's single-season record of 60, Commissioner Ford Frick ordered that official record books would celebrate two marks--Maris for 61 in 162 games, Ruth for 60 in 154 games (Maris hit only 59 in his first 154 games). There never was never an asterisk next to Maris' record; Major League Baseball just decided to keep two records and have two official record-holders, based on the different rules (the length of season) under which the players performed and the records were set. Now this was, indeed, an attempt to diminish Maris' achievement--or more accurately to keep the immortal Ruth at the top of the record book. And it was pretty stupid, as indicated by the fact that MLB changed the books in 1991 to establish one single-season record. But there was at least some arguable logical basis for having two records, given the different rules and conditions.

Shula and the baseball people are suggesting something different: Name one record holder but put an official asterisk by his name to denote something amiss about the record, thus quasi-officially keeping the prior record holder at the top of the books. And that is even dumber than Frick's idea of two official records. If there ever is a finding that Bonds cheated, that might justify taking his name out of the record book. This is, for example, the actions of the Tour de France to strip Floyd Landis of his 2006 victory when his failed doping test was confirmed; college teams similarly are retroactively stripped of victories and championships based on findings of past cheating.

As to the Patriots, if they broke the rules to achieve a perfect season, strip them of their victories. But this does not appear appropriate in this case. There was a league finding that they broke the rules in one game and they were punished--but not with a forfeit of the game. The NFL obviously determined that their conduct did not affect the outcome of that game and did not warrant a forfeit, which would deprive them of that perfect season. Absent that, there is nothing "tainted" about the achievement, if it happens.

The record books should reflect top achievements consistent with applicable rules. . If someone achieves a record through unlawful activity, is found to have engaged in that unlawful activity, and is to be punished for that unlawful activity, such punishment can (and should) include the loss of records and titles. With an explanation, of course. Erasing players, teams, and achievements from history is itself a dangerous proposition--probably more dangerous than having "tainted" record holders.

But it is ridiculous to take this half-measure of an official asterisk, while leaving the record and record-holder in place based on a suspicion of relevant wrongdoing or, as in Shula's case, sour grapes (the '72 Dolphins are notorious for the vigor with which they guard their achievement). And it flies in the face of the normal approach of finding a violation of rules, then imposing a meaningful and relevant punishment.

(Cross-Posted on Sports Law Blog)

Posted by Howard Wasserman on November 8, 2007 at 08:24 AM | Permalink | Comments (6) | TrackBack

Misguidedly Merciful? Part III

In two previous posts, I began a reply here on Prawfs to Linda Ross Meyer's The Merciful State, which in turn is a critique in parts of my article from a couple years ago, Against Mercy. Here's the first post and here's the second. Today, I will close by focusing on a couple interesting questions Professor Meyer raised about the relationship I see between democracy and retributivism. I will then offer some concluding remarks about the role of compassion  and pardons in liberal democracies.


4. Democracy and Retributivism

 a) In Against Mercy, and other work, I argue that retributive punishment by the state is justified further because punishment against offenders of legal offences serves to effectuate a democratic self-defense. In sum, the reason for the state’s role in punishment stems in part from the criminal's usurpation of the legitimate authority of the state in trying to establish where the property rules lie, where the liability rules lie, and where the rules of inalienability lie. Thus, the state is the appropriate agent of retribution because the crime, even if it is “victimless,” is an affront to the government's rulemaking authority. Accordingly, the state’s institutions of retributive justice effectuate a form of democratic self-defense, a commitment that serves to protect not only the equal rights of individuals but also the decision-making regime agreed upon by the people at the time.

Professor Meyer finds fault with my account here because the “argument from democracy assumes that the positive laws of the state are truly ‘democratic’ – a significant stretch of faith. Insofar as they may themselves be the result of faction and prejudice, racially biased districting, disenfranchisement of significant proportions of the population, undue influence of rich interest groups or foreign powers, small print in omnibus appropriations bills, etc., the argument from defense of democracy weakens.”[1]

I can see why Professor Meyer might allude to democratic deficits in some contexts, say, election law, or tobacco regulation. And in light of this nation’s historical experience, she’d be right to note that what passes for law by various legislatures sometimes seems out of sync with majoritarian preferences. Nonetheless, even if I conceded the problems in democratic provenance in some areas of law, it does not mean it attaches to other areas of law, specifically, the one that matters the most for our purposes here: the criminal laws passed by a legislature. Consider: does Professor Meyer think that the laws prohibiting murder, rape, battery, sexual assault, theft, insider trading, falsification of statements made to the investing public—that all these laws are drafted in such a way as to improperly reflect capture by the wealthy and powerful? Or that they lack “true” support from real majorities? I would think the poor and disenfranchised want to keep their person and property from being violated as much as the rich do.

Sometimes, it is true, that certain populations’ interests are not well-considered. An absence of laws prohibiting marital rape for instance might be the product of patriarchal power relations in society. But outrage over the absence of marital rape law doesn’t entail sympathy for those rapists who attack women who are not their wives. The situation simply calls for marital rape laws too. Thus, Professor Meyer’s critique of the democratic legitimacy of criminal laws is an odd point to advance in the context of an article urging more leniency in the criminal justice system. After all, the claim that the “have-nots” are regulated while the “haves” walk freely calls, more likely, for more regulation of the “haves,” not less regulation of the “have-nots,” at least in the context of malum in se criminal laws. Those who harbor a deep sense of dissatisfaction with the criminal justice system’s inequities probably believe that there is insufficient investigation and prosecution against the wealthy and powerful, not that there is an absence of laws available to use against them.

Of course, it might well be the case that the poor and disenfranchised oppose certain criminal laws, such as those requiring draconian sentences or those constituting the so-called war on drugs. But it is not just the poor and disenfranchised who hold those views. Indeed the wealthy and powerful – not to mention large numbers of the middle class – may also think American drug or sentencing policy is misguided or counterproductive.[2] So even if some criminal laws reflect political contest rather than political consensus, Professor Meyer adduces no evidence to believe that those laws persist today without support from at least a majority of the population’ elected representatives. At the very least, a presumption of legitimacy (on account of democratic provenance) should attach to the criminal laws we have, which is not the same thing as saying a presumption of legitimacy should attach to the ways we enforce those laws.


In the same vein, Professor Meyer chastises me for failing to be sufficiently critical of legislative prerogative. She writes, “while Markel is skeptical about the exercise of discretion by prosecutors, judges, juries and executives – concerned about bias and caprice infecting their decisionmaking – he doesn’t bring the same skepticism to bear on the votes of legislators, who also exercise unreviewable discretion during their terms of office and have also been known to vote for reasons of bias, caprice or corruption. Bias and caprice would seem at least equally distributed among the legislative, judicial and executive branches, yet no number of ombudsmen would be able to correct this. And we would need ombudsmen for the ombudsmen.”[3]

Professor Meyer is correct that I don’t worry as much about the problem of corruption or bias affecting legislators. But a few good reasons embolden this relatively laissez-faire attitude toward legislative discretion in the realm of criminal law. The first one is called bicamerality, the second one is called executive review, and the third one is called judicial review.

To begin with, as I said in Against Mercy, it is emphatically not the case that “anything legislatures do is permissible. The boundaries of democratic action are properly demarcated by constitutionalism rooted in fundamental liberal principles.”[4] What this entails for federal criminal law under the American constitutional structure, to use one example, is important: legislation has to survive a vote among many people through the bicameral structure and get signed by the executive branch. It is then subject to constitutional review through three levels of courts. The fact that legislation is subject to these checks makes me much less anxious because, in some substantial way, they are serving as “ombudspersons” over the legislature.

Moreover, what’s important to keep in mind about review of legislative action is that the review is not just held by other legislators and non-legislators, but also that such review is specifically guided by substantive guidelines. For example, in the case of the courts, they are bidden to constrain legislative action targeted at particular individuals through particular doctrines under the constitution. By prohibiting ex post facto legislation or bills of attainder, and by affording, albeit too weakly in some contexts, the equal protection of the laws, our constitutional tradition ensures that legislation cannot be created with the intent to unduly punish individuals on account of some particular individual legislator’s biases or prejudices against a particular person. Of course, without these protections, I would be worried about pervasive legislative discretion, but by specifically situating (and limiting) my account of retributive punishment to the context of constitutionally constrained liberal democracies, I believe the substantive and procedural limitations on legislation already provide sufficient canals within which legislative discretion is channeled.

That said, if Professor Meyer provided an example where leniency to particular individuals based on compassion, caprice, corruption or bias was extended through the legislative process and was not actually subject to the review by other branches of government, then that would be helpful to her case. But they don’t exist so far as I know.[5] And in the absence of such a situation, it is difficult to understand why we’d be tempted to lump legislative discretion together with the other unreviewable sites of discretion discussed in “Against Mercy.”

5. Are Compassion and All Pardons Unpardonable?

Professor Meyer labors under the belief that I oppose the institution of the pardon because it is unjust or undemocratic. Specifically, she writes that she “can demonstrate, contra Markel, that pardons are not necessarily unjust or undemocratic, but I cannot demonstrate they are always necessarily just or appropriate. Ethical judgment, case to case, is still possible, but it is always particular and provisional and un-lawful.”[6] It’s hard to understand how anyone can faithfully read my work in “Against Mercy” and arrive at the conclusion that I believe the institution of the pardon is itself “necessarily unjust or undemocratic.”[7] What I wrote is that there are legitimate and illegitimate uses of the pardon power (along with other sites of discretion), and it’s important to develop legal norms and checks to reduce the incidence of what I take to be illegitimate uses of the pardon power.[8]

It’s disappointing to see this mischaracterization ride piggy-back on another inaccurate rendition of what I wrote. Earlier in the paper, Meyer misleadingly writes that “compassion [according to Markel] runs counter to three principles of liberal government: moral accountability for unlawful actions, equal liberty under law, and democratic self-defense.”[9] But what I argued is that “mercy based on compassion” is inconsistent with those three principles, not compassion generally. This distinction is important lest it suggest that these three principles would stand opposed to a society that decided to have robust redistributive measures based on compassion for the poor, hungry, sick, or homeless. Hostility to compassion-motivated pardons extended in a lawless and unpredictable fashion should not signal a lack of commitment to laws and institutions that are compassionate to the misfortunate more generally.


As I said at the outset, my intent in this brief essay is not to refute Professor Meyer’s Heidegger-inspired defense of “The Merciful State.” That part of her project is a provocative meditation on what kinds of norms of social self-understanding help constitute attractive conditions for human flourishing. My goal instead has simply been to alert readers to the ways in which I believe my work was misread or wrongly criticized in the course of motivating Professor Meyer’s argument. Readers can judge for themselves the extent to which they are persuaded by Professor Meyer’s argument in defense of mercy, but I think it would be a mistake to rely on that work alone to try to understand the retributivist critique of mercy.

[1] See TMS at 20-21.

[2] Indeed, George Soros, the wealthy financier, established the Open Society Institute in part to advance more lenient penal policies and saner drug laws. See, e.g., http://www.soros.org/initiatives/justice/about and http://www.soros.org/initiatives/justice/focus_areas/drug_policy.

[3] Meyer, The Merciful State, at 21.

[4] Against Mercy, 1435 n. 46.

[5] In a comment on an earlier draft, Professor Meyer noted that the


legislature has the power to pardon but that it is rarely used because of concerns about voter disagreement. I’m unfamiliar with other examples of the legislative pardon, but I can also imagine how such a pardon power would be compatible with the principles of Against Mercy, ie, by subjecting that pardon, like other legislation, to judicial review to ensure that it was consistent with liberal and other relevant constitutional values.

[6] TMS at 30.



[8] See, e.g., Against Mercy at 1432; AM at 1436 (analytic chart providing examples of legitimate and illegitimate uses of discretionary sites such as the pardon); id. at 1473-1477 (discussing ways in which criminal justice sites of discretion can be made compatible to retributivism).

Professor Meyer herself recognizes that pardons can be used well or poorly, but she argues that preserving the use of the pardon for only equitable purposes still requires a certain kind of lawlessness: “The only way to achieve the pardon-as-equity is to keep it ruleless and thereby lawless – making justice itself depend upon the absence of legal rules.” TMS at 31. But this is not true. An executive officer who, pursuant to the framework of Against Mercy, makes the determination that a pardon is justified must submit reasons consistent with those discussed in Against Mercy or for other reasons recognized by the legislature, and then that determination would be subject to review by the courts subject to a deferential standard, such as whether there was substantial evidence in the record to support the President’s decision. This is no different than reviewing most administrative actions by an executive agency. But we don’t call that lawless. In light of all this, there is good reason to hesitate before embracing Professor Meyer’s claim, “That justice cannot be done within law points out the limits of reason itself.” TMS at 31.

[9] TMS at 18.

Posted by Administrators on November 8, 2007 at 07:32 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (3) | TrackBack

Wednesday, November 07, 2007

From the weird world files...

Check out this story: One kid half-hugs two other kids. Result: 2 days of detention at Mascoutah Middle School. Here's why:

District Superintendent Sam McGowen said that he thinks the penalty is fair and that administrators in the school east of St. Louis were following policy in the student handbook.

It states: "Displays of affection should not occur on the school campus at any time. It is in poor taste, reflects poor judgment, and brings discredit to the school and to the persons involved."

Is it just me or does this seem like a profoundly odd policy? I can imagine some hugs being unwelcome but the idea that hugging one another categorically brings discredit to the school and the persons involved needs reassessment.  But as those of you who know me as an inveterate hugger, perhaps I'm just a bit sensitive here. (H/t: one of my unnamed colleagues who I tend to hug too much.)

Posted by Administrators on November 7, 2007 at 04:38 PM in Odd World | Permalink | Comments (4) | TrackBack

The Blessing of a B- in Law School?

Wendy Mogel, clinical psychologist and author of the best-selling parenting book, The Blessing of a Skinned Knee, has a forthcoming book about what parents can learn from teenagers, The Blessing of a B-. The message of the two books, one on the parenting of young children and one on the parenting of young adults, is to allow kids room for failure, resist judgment, and let individuals find their own path in life. Mogel draws on Jewish law to challenge American middle and upper-class upbringing, which relies to much on what kids learn at school and expects too little from kids at home. If a kid reports that they have  an exam at school, parents  both place extreme pressure on the child to succeed in that exam through tutors and study time and, at the same time, pamper and indulge their every request while at home, depriving them from the learning process of multi-tasking, problem solving and the independent facing of adversity.

By the time these kids reach law school, they are spoiled and unwilling to accept the fact that school can be gratifying even when you are not receiving a steady stream of A-s. My colleague Grant Morris has written an article about this next stage, Preparing Law Students for Disappointing Exam Results: Lessons from Casey at the Bat. Here is the abstract:

It is a statistical fact of life that two-thirds of the law students who enter law school will not graduate in the upper one-third of their law school class. Typically, those students are disappointed in their examination grade results and in their class standing. Nowhere does this disappointment manifest itself more than in their attitude toward their classes. In the fall semester of their first year, students are eager, excited, and willing to participate in class discussion. But after they receive their first semester grade results, many students withdraw from the learning process - they are depressed and disengaged. They suffer a significant loss of self-esteem. This article considers whether law professors should prepare their students for the disappointing results - the poor grades - that many are certain to receive. I assert that professors do indeed have a role to play - in fact, a duty to their students - to confront this problem. I offer a strategy by which professors can acknowledge students' pre-examination anxiety and deal constructively with their impending disappointment. There are lessons to be learned from Casey at the Bat, Ernest Lawrence Thayer's immortal poem about failure.

Posted by Orly Lobel on November 7, 2007 at 11:20 AM in Current Affairs | Permalink | Comments (1) | TrackBack

Cutting Back on Measure 37

A few years ago, voters in Oregon passed Measure 37, an initiative that required the government to compensate property owners when land use regulations caused any decline in the value of their property or, alternatively, to free complaining owners from the offending regulation.  The Measure 37 campaign made very effective use of anecdotes detailing the inability of rural landowners to make seemingly reasonable uses of their land under Oregon's stringent state-wide land-use regulatory regime.  For example, ads featured Dorothy English, a 93-year-old widow living on 20 acres near Portland, who had owned her land since 1953 but was blocked by the state land use law from building a home for her grandson.  When it passed with a very convincing majority, Measure 37 was hailed as a huge victory for property rights activists, who interpreted its passage as a broad-based rejection by property owners of Oregon-style land use regulation.   When critics of Measure 37 suggested that voters might not have understood the full implications of what they were doing, property-rights advocates chided them for their elitism.

Yesterday, the shoe was on the other foot.  Oregon voters passed, by a similarly wide margin, Measure 49, which substantially cuts back on the remedies available to property owners asserting claims under Measure 37.    Measure 49 tapped into a reservoir of voters who were experiencing a little bit of buyers' remorse in the wake of the flood of claims (and the threat of rural development) unleashed by Measure 37.   Last year, the blog GOAT gathered a number of stories of such voters.  One of them was Ted Schroeder:

Schroeder, a doctor, lives on 52 acres in the rural Grande Ronde Valley in northeast Oregon. He voted for Oregon’s Measure 37 and regrets it. A neighboring family, operating as Terra-Magic Inc., has filed a Measure 37 claim, seeking to brush aside agricultural zoning and subdivide 1,400 acres of prime farmland into 335 home sites. The valley is mostly farms, which grow mint, grass seed, potatoes, alfalfa and wheat. Many residents say that an influx of homes on small lots would change the valley’s character forever. Opponents also say it would cause conflicts with farm activities, including increased traffic, dogs harassing livestock, and intolerance toward field burning and pre-dawn harvesting. On June 7, the Union County Commissioners (all three Republicans) rejected the developer’s claim on a technicality, but the developer will likely appeal to circuit court. Schroeder is not optimistic the development can be stopped, and he feels deceived.

Under the new law, landowners who can establish that regulation caused their property values to decline will be entitled to some relief, but not the virtually complete liberation from land use regulation that some owners enjoyed under Measure 37.   Owners will be entitled to build one to 10 houses on burdened rural parcels under various scenarios, but typically not more than three.  In effect, the measure tries to strike something of a middle ground, permitting some rural development in order to address horror stories like Dorothy English's inability to build a home for her grandson, but prohibiting new hundred-home subdivisions and commercial and industrial development in rural areas outside of Oregon's urban growth boundaries.   

In the wake of their defeat yesterday, property-rights groups, who opposed Measure 49 as an evisceration of Measure 37, are echoing earlier arguments raised by opponents of Measure 37 concerning voters' understanding of the implications of their actions.  According to Dave Hunnicutt, president of the property-rights group Oregonians in Action, (per the Oregonian) opponents never had a chance because Democratic legislators wrote the 21-page measure's ballot title and explanatory statement themselves.  "I'm not sure voters ever really got a chance to understand one way or the other what the impact of 49 really does," he said.

Posted by Eduardo Penalver on November 7, 2007 at 10:49 AM | Permalink | Comments (0) | TrackBack

Tuesday, November 06, 2007

Bye, & a Plug for My New Article on the Sup Ct's Employment Jurisprudence

My post weeks ago asserting that in employment law, Justice Thomas had a moderate streak, or at least a textualist streak that yielded reversals of more conservative lower-court decisions, was based on an article of mine that's just about to come out (November issue of Fordham Law Review) and that I just put up on SSRN: Fighting Discrimination while Fighting Litigation: A Tale of Two Supreme Courts.  The article notes the Court's odd mix of pro-plaintiff and pro-defendant rulings in employment law (mainly employment discrimination) and argue that this duality reflects two competing tendencies of the recent Supreme Court: (1) the Court retains some degree of commitment to anti-discrimination policy (which explains the Court's string of 9-0 pro-plaintiff rulings reversing appellate precedents favoring defendants); but (2) the Court has a hostility to litigation (as documented in constitutional law by Andrew Siegel's teriffic 2006 article, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence) that yields pro-defense rulings on employment law issues related to the whether the litigation at issue was properly filed and prosecuted (e.g., strictness with statute of limitations in Ledbetter and Morgan, as well as "exhaustion"-type requirements that employees file internal complaints before suing).

I'm tempted to bust out the old cliche that I must be doing something right because both sides will dislike part of my thesis (the left won't like my assertions that the Court remains at all committed to nondiscrimination; the right won't like my signing on to Siegel's blistering critique of the Court's anti-litigation tendencies) -- but I've never liked that cliche; it's certainly possible to tick off both sides by making a mix of bad points, and maybe that's all I've accomplished here.  Anyhow, I've summarized and given the link, so 'nuff said; I report, you decide.

Thanks to Dan et al. for inviting me to guest blog -- and then for letting me overstay my guest-blogging stint once again.

Posted by Scott on November 6, 2007 at 06:43 PM | Permalink | Comments (0) | TrackBack