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Thursday, February 12, 2009

Bring back the filibuster

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

  • Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.

Posted by Howard Wasserman on February 12, 2009 at 11:13 AM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (11) | TrackBack

Should criminal omissions liability attach in the face of victim's apparent consent?

My co-authors and I are just putting the finishing touches on Privilege or Punish, our book about how the criminal justice system uses a defendant's family status to both create and exempt defendants from liability or enhanced punishment. Thus, it's too bad that we are too late in the process to draw upon this fascinating story brought to my attention by Rachel Barnhill, one of my students in crim law this semester. It's the story of an elderly man who claims to have been following his wife's wishes not to call for medical assistance. Should the status-based duty to perform costless rescues apply when the rescuee apparently doesn't want the help? It looks like the hubby will be charged with a criminally negligent manslaughter charge. My guess is that the jury will reject the prosecution if it goes that far. But it's an interesting question about the relationship between consent of victim and the obligation to intervene that typically attaches in spousal or parent-child relations. One concern in this context is that the defendant will justify his omission by claiming that the victim consented to or insisted on his inaction, and that becomes a tricky space to navigate from an evidentiary perspective. Perhaps that defense should be rejected then in cases where there is no independent evidence or third party who can verify the consent's freely given nature.

What say y'all? The story after the jump.

Sheriff's officers have arrested an 82-year-old man after his wife died on the floor of their home, apparently about 10 weeks after she fell out of bed and was unable to get up.
John Klein was arrested for investigation of second-degree manslaughter after he called 911 on Monday to report that his 73-year-old wife Pia had no pulse.
Klein told Spokane County sheriff's Detective Jim Dresback that his wife of 52 years fell out of bed around last Thanksgiving, Dresback said in court papers filed Tuesday.
According to that account, Klein had been working outside, came in and found his wife lying next to the bed in the doorway of the master bathroom. He said she cried out in pain and told him to leave her alone when he tried to help her up.
After that, Klein said he left her lying on her left side on the floor for the next 10 weeks, bringing her food and water, giving her medications and cleaning her but did not summon any medical aid. The woman had no significant medical problems, Klein told detectives. It was not clear what medications he gave her.
Klein's bond was set at $200,000 at his initial court appearance Tuesday. Klein told the judge, in his words, "I don't consider it to be my fault. She did not want help." It was not immediately known if he was represented by a lawyer.
Klein told Dresback the couple have an adult daughter who lives in North Carolina and normally talks with them by phone every other weekend. Asked if the daughter spoke to her mother after the fall, Klein said his wife had told him to tell the daughter she was sick.
When Klein was asked whether his wife had asked him to summon help for her, "he looked down for about five or six seconds, then said, 'No,"' the detective wrote. In the affidavit, the detective alleged Klein was criminally negligent in failing to summon medical help.
Klein reportedly told the detective he thought his wife would eventually get up and start walking on her own, adding he told her to exercise while she was lying on the floor.
The woman apparently had been lying naked on the stained, carpeted floor and had several large ulcers on her left hip and left leg, "consistent with her having been lying on her left side for an extended period of time," the affidavit said. A soiled pillow lay in the bathroom doorway.

Posted by Administrators on February 12, 2009 at 12:12 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (3) | TrackBack

Wednesday, February 11, 2009

FIU Dean Search II: Oops

In my earlier post on the news accounts of the FIU dean search, I likened a mainstream media accounts of a law dean search to accounts of judicial proceedings--ripe for context to be lost in translation. I was more right than I thought.

It turns out that the ten people mentioned in the newspaper stories are not finalists for the job in any sense; those were ten candidates that were discussed during that meeting (which was attended by a Herald reporter). Other candidates also were discussed. Other candidates will be discussed at the next meeting. And Alex Acosta, the outgoing United States Attorney who was the focus of both newspaper stories, was at the top of the list because the list was alphabetical. So, contrary to what the media reports suggested to some observers, we actually were not doing anything "strange" compared to other dean searches, such as presenting twice as many finalists or identifying and highlighting one person as a "leading" candidate early in the process. The reporter apparently completely misunderstood what had occurred at the meeting.

The committee is taking steps to publicly correct the (mis)perception, to preserve the efficacy and workability of the search and to ensure all candidates (mentioned in the article and not mentioned in the article) that no firm decisions have been made.


The text of the public statement is after the jump:

Search for new College of Law dean moves forward

MIAMI (Feb. 12, 2009) - The search committee charged with finding FIU College of Law’s next dean discussed a preliminary list of candidates this week.

This list, published in several media outlets, is not a final slate of candidates. In future meetings, the committee will consider these and other candidates and will continue to solicit applications for this position until it is filled.

“We have, and continue to receive, applications from throughout the country to lead this young and promising law school,” said College of Medicine Dean John Rock, who is heading the search committee. “We will not settle on anyone until we are absolutely certain that we have chosen the right candidate.”

The next meeting of the search committee will be on Wednesday, Feb. 18 at 9 a.m.

The current dean, Leonard P. Strickman, came to FIU in January 2001 as a professor and founding dean of the College of Law.

Under his stewardship, the College of Law received accreditation in the fastest time allowed by the American Bar Association. Graduates have passed the Florida Bar Exam at rates exceeding the statewide pass rate and at the most recent examination, in July 2008, FIU graduates passed at the second highest rate when compared to graduates from all law schools in the state of Florida.

Strickman will remain a member of the law faculty after he steps down as dean this summer.

Posted by Howard Wasserman on February 11, 2009 at 10:57 PM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (2) | TrackBack

"The Catholic Church and Intellectual Freedom"

This is the title of Sandy Levinson's post, over at Balkinization, reacting to (the New York Times'  account and characterization of) Pope Benedict XVI's recent dealings with several formerly-schismatic Catholic bishops, including one who is clearly a loathesome Holocaust denier.  Sandy writes:

But I also confess to having very mixed views on reading that the "Vatican Secretariat of State said that Bishop Williamson 'must absolutely, unequivocally and publicly distance himself from his positions on the Shoah.'" . . .

"Recantation" or "distancing" would not only raise the most severe questions about Bishop Williamson's own intellectual integrity (assuming one can use such terms with regard to a Holocaust denier); it would also reinforce the view that the Church--especially under the current Pope?--does not intend to be friendly to anyone who fails to toe a given Vatican line.

Put aside also the "under the current Pope . . . toe a given Vatican line" jab (which reflects, it seems to me, a common misunderstanding of this Pope's views and record), I'm not sure why the Secretariat's demand should necessarily be seen as demanding what Sandy (and I) regard as pretty-near impossible, i.e., willing away one's mistaken beliefs, or as threatening his "intellectual freedom." 

Williamson is a Catholic bishop (albeit, it seems to me, a very bad one).  Part of being a bishop, I would think, is avoiding scandalizing one's flock and refraining from teaching error.  It is, as it happens, entirely orthodox Catholic teaching that one's beliefs are, and can only be, one's own (see, e.g., Dignitatis humanae); the Pope is not under any illusion that he can (or should) command a change in views (nor, to be clear, does his decision to permit this bishop back into communion signal, remotely, an endorsement of or approval of these views.)  

I suppose I'm not the best judge -- given that I buy into the Church's claims-to-teaching-authority -- but it does not strike me as worrisome, strange, or "[un]friendly" to say -- if one is, well, the Pope -- to a bishop, "given that you are a successor to the Apostles, charged with caring for the spiritual welfare of Christians, do not say and teach things, as bishop, that are grossly wrong and hateful, to say nothing of un-Christian.  And, even if you believe those things, it is part of your job -- in this case, your vocation and sacred charge -- to withdraw your endorsement of them."  After all, one's role constrains what one is, and is not, supposed to say, in the context of that role, all the time.

I assume that Sandy, like me, would not be moved by a public-school science teacher's argument that his "intellectual freedom" required that he be permitted not only to believe, but to teach in class, young-Earth creationism?  What's the difference?

Posted by Rick Garnett on February 11, 2009 at 08:09 PM | Permalink | Comments (2) | TrackBack

Koppelman on Taylor's "A Secular Age"

Charles Taylor's "A Secular Age" has been mentioned here at Prawfs before.  Andy Koppelman has this review, over at "Dissent", and it is well worth a read.  (The book is too but . . . it is really long.)  Much of Andy's review deals with the increasingly discussion about the possibility of non-theistic foundations for the morality of human rights.  He notes, for example:

 TAYLOR IS right that secularism is missing something important. There is a gap in the narrative. But this is not a comparative disadvantage for secularism, because the precise area of weakness—a normative commitment to human rights that can’t be accounted for—is equally present in traditional religious worldviews.

In a religious worldview, one can say that what grounds one’s commitment to treating people decently is that the will of God makes everyone sacred. But then what grounds one’s belief in God? We have moved from one shaky foundation to another; there is no gain in confidence.

(For an argument that this "gap" *is* a comparative disadvantage, check out Nicholas Wolterstorff's "Justice", which I reviewed here.)  The last few paragraphs of Andy's review are really nice, and I'll quote them after the jump . . .

AK:  TAYLOR ENDORSES what Jonathan Lear calls (in a book with that title) “radical hope”—a hope that is, as Lear puts it, “directed toward a future goodness that transcends the current ability to understand what it is.” In a review of Lear’s book, Taylor is uncertain whether radical hope “can be sustained without some kind of formulated faith in something, whether religious or secular—faith in God, or in History, or in our own resources, or in human resilience.” Any formulation, however, will be inadequate to that toward which it points. It is part of our nature that “we long for things that we do not yet fully understand.”

For many people, this hope takes a religious form, and probably could only take a religious form. Consider a crucial episode in the life of Martin Luther King, Jr. During the Montgomery bus boycott, a series of death threats, some of them directed at his family, had left him demoralized. “I was ready to give up,” he recalled. Sitting in the kitchen, unable to sleep after a threatening phone call, he began to think of how he could pass the leadership of the desegregation movement on to someone else. He began to pray out loud and, as King recalled, “it seemed to me at that moment that I could hear an inner voice saying to me, ‘Martin Luther, stand up for righteousness. Stand up for justice. Stand up for truth. And lo I will be with you, even until the end of the world.’” King’s new courage resulted from direct, felt connection with Christ—“I heard the voice of Jesus saying still to fight on. He promised never to leave me.”—and he persisted in his civil rights advocacy. It made him into the closest thing to a secular saint that twentieth-century America produced. It also got him killed.

I’m confident that King was not a fool or a sucker. I can’t tell you why I think that. And so I’m in a poor position to attack the hopes—hopes that to me (in most of my moods) are deeply implausible—that supported him in his confidence. Perhaps he could have arrived in the same place on the basis of Naked Strong Evaluation. Some have. But to do that, he would have had to change in so many ways that it is hard to imagine what he would have looked like. Martin Luther Kings don’t turn up that often, so I’m not inclined to tinker with the ones we have.

Wherever you situate yourself in this landscape, your view of the moral universe won’t—and can’t be—a neat, closed system with all the loose ends tidied up. Recognizing this can inoculate us against two related errors: One is to think that we have all the answers. The other, perhaps even more malign, is to be too confident of what the other fellow’s beliefs entail: that his or her “belief in God produces fanaticism” or “atheism leads to immorality.”

Posted by Rick Garnett on February 11, 2009 at 07:25 PM in Rick Garnett | Permalink | Comments (0) | TrackBack

Baseball, Steroids, and Jurisprudence

Here is a question for the jurisprudes and the crim law types:

In 1991, baseball established by rule that it was against the rules of the game to use a range of drugs, including steroids. There was no testing, no enforcement mechanism, and no determinate punishments for using steroids. That was the state of affairs until the start of the 2006 season, thus it was the state of affairs from 2001-03, when Alex Rodriguez has admitted to using steroids and when he tested positive. Of course, the commissioner did have catch-all "best interests of baseball" powers, so punishment was possible through that power. But absent testing, there arguably was no way ever to find out that someone was using steroids.

So, my question: Has Rodriguez "cheated" or "broken the rules" of baseball (put aside societal laws against steroid distribution, possession, or use) given the legal state as described. Is a stated legal prohibition that is not, as a matter of law, enforceable or punishable, a legal prohibition that can be violated?

Posted by Howard Wasserman on February 11, 2009 at 06:31 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

Comments on FIU's Dean Search

As much of the country seems to now by know, both South Florida newspapers yesterday ran stories yesterday reporting the ten candidates for FIU's deanship (what I have been calling the "medium list"). The stories focus (in headline, lede, and content) on one name--Alex Acosta, the outgoing United States Attorney for the Southern District of Florida, who is described in both stories as a "leading" candidate. He also is listed first among the names, although the list is alphabetical, further demonstrating that alphabetical order is not neutral. Dan Filler at The Faculty Lounge wonders if this could skew the search--by giving Acosta coverage in the mainstream media, it converts him into a favorite. Dan also suggests it could cause political problems for us if he is not hired.

I take mainstream media coverage of a dean search much as I would take most mainstream media coverage of judicial proceedings; I generally find the latter unwatchable because so much is reported incorrectly or inaccurately. And I think the same of these articles. Both stories are trying to convert a niche event (making an academic appointment) into something for mainstream consumption (a political appointment potentially involving a well-known local public official), and as with trial reporting, something often is lost in the translation. In fact, I am pretty sure the papers would not have reported the story at this point but for Acosta's name. I do not believe that mistranslation will affect how our faculty, search committee, or (hopefully) provost will act in the search such that it skews the outcome. I would agree that it might skew some non-academic responses to the outcome--but that is not unlike what happens with media reports of court cases. Acosta obviously also is a unique candidate, which makes his inclusion of some public interest. But what is not discussed in the story is what is relevant to the academic niche (i.e., our faculty and students) that really cares about the story: Acosta brings a very different set of skills and experiences to the position, so his inclusion, along with other experienced academics, suggests something about multiple thought processes as to the school's institutional direction.

And, in the meantime, the discussion over the admittedly strange news stories obscures the fact that we have a pretty good group of potential candidates as the search committee starts to pare them down. Since I do not have to do any real work to do on this at this point, I must admit to a sense of excitement and optimism at the prospects.

Posted by Howard Wasserman on February 11, 2009 at 03:12 PM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (0) | TrackBack

Equal Access with a Twist...

A district court in Minnesota recently decided an equal access case that has some important implications.  Child Evangelism Fellowship had sued the Elk River School District, having wanted to distribute its literature on school bulletin boards and at school open houses.  Elk River refused to let it; CEF claimed this violated the Free Speech Clause.  The Court's opinion grants CEF a preliminary injunction, but the way the opinion decides things suggests that a permanent injunction is certainly on the way.

The interesting thing about this case is the role of this federal statute, 20 U.S.C. § 7905, known as the Boy Scouts of America Equal Access Act.  Passed in 2002, Section B of the Act states that:

[No school or school district] that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in Title 36 of the United States Code (as a patriotic society) that wishes to conduct a meeting within that designated open forum or limited public forum, including denying such access or opportunity or discriminating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of America or of the youth group listed in Title 36 of the United States Code (as a patriotic society).

Now in part because of this statute, Elk River's policy was to permit distribution of three types of material -- (1) "materials directly relating to official and school-sponsored actvities," (2) "materials directly in support of school activities," and (3) "materials from [these patriotic organizations] after staff review."  Btw, these patriotic organizations are listed in 36 U.S.C. § 20101 et seq. -- they include groups like Future Farmers of America (§ 70901) and Little League Baseball (§ 201036).

Anyway, CEF's claim was straightforward: If you allow distribution of messages from these "patriotic" organizations, you have to allow our messages.  Whether an organization is listed as "patriotic" in Title 36 is hardly a viewpoint-neutral classification.  And apparently, Elk River made the ill-advised concession that there was a public forum here (see p. 6).  And so, under settled First Amendment law, CEF wins.

There are some important issues here.  There's always the aside that I don't know why school districts concede the public forum point.  Here the only outside organizations that Elk River permitted to send flyers are the patriotic ones that Congress singled out for special treatment.  Everyone else -- including political groups offering flyers with high-value political speech -- are banned.  (As another aside, note that if Elk River argues no public forum, Section 7905 suggests that it can exclude even the patriotic groups.)

Most importantly though -- and this is the heart of the post -- if the Free Speech Clause gives CEF rights co-extensive with the statutory rights of the aforementioned "patriotic" organizations, then one of the big unresolved issues in church/state law is now resolved.  Because the patriotic organizations don't just have the right to meet -- Section 7905 also gives them freedom to establish "membership or leadership criteria" and to have an "oath of allegiance to God."  That would mean CEF (and CLS and so on) would have the right to exclude gays and lesbians from joining or from leadership posts, anti-discrimination rules apparently notwithstanding.  CEF can claim that "patriotic" organizations have the right to meet without gays and lesbians, and that the Free Speech Clause prevents that right being given only to organizations the government defines as "patriotic."

Posted by Chris Lund on February 11, 2009 at 01:03 PM in Religion | Permalink | Comments (0) | TrackBack

Law School Hiring Thread, Part II: Callbacks/Offers Phase

Here's some of the info agglomerated so far from here. Please use the comments to this thread as a place to share info about callbacks and offers for the law teaching market. And feel free to note any errors and omissions.

Please note that I have been updating the information based on compilations previously created by Marc DeGirolami. I hope someone will step forward to carry on Marc's fine work through the spring semester and that more people (prawfs and wannabes) will share information.

updated 12/20


Georgia State

Indiana U-polis

Loyola Chicago
North Carolina
Santa Clara
South Texas
Wayne State
West Virginia

After the jump: callbacks list.

Here's a link to the most recent of comments.



American (health)
Baltimore (IP)
Barry U

Boston College
Boston University (offer and multiple callbacks) (health)
Brooklyn (health)
Buffalo (offer and callbacks) (property, environmental)
Cardozo (IP)
Case Western
Catholic (multiple, more scheduled) (criminal)
Cincinnati (multiple) (comparative, crim)
Cleveland-Marshall (2) (health, crim)
Colorado (environmental, property)
Cumberland (IP)
CUNY (B-list letter)
Drexel (multiple) (business, tax, IP)
Duke (at least one offer made, multiple callbacks)
Elon (health, IP)
Emory (multiple)
Florida (2) (family law)
Florida Coastal
FSU (multiple offers made, multiple callbacks still scheduled) (health, criminal, IP)

George Mason
George Washington (multiple)
Georgia (2)
Georgia State (tax, business, criminal)
Golden Gate (multiple)
Hamline (health)
Hofstra (IP)
Indiana Bloomington
Indiana Indianapolis
Iowa (multiple) (business, tax)
John Marshall (2) (criminal, IP)
Lewis & Clark (multiple) (business, torts)
Loyola Chicago (health)
Loyola LA
Loyola New Orelans
Maine (IP)
Maryland (multiple) (corporate, health law) (CBs through January)
Memphis (multiple) (civil procedure, evidence)
Miami (2) (offer-health and callbacks) (health, IP)
Michigan State (IP)
Minnesota (IP)
Mississippi College (torts, health)
New York Law School
North Carolina (at least one offer made) (business, tax)
Northern Kentucky (civ pro)
Northern Illinois
Northwestern (2)
Notre Dame (2) (comparative public law, law & economics)
Ohio Northern
Oklahoma City U. (contracts)
Oregon (multiple) (offers in con law, ADR (accepted), and IP)
Penn State (criminal)
Pittsburgh (tax, business) (finished with callbacks?)
Quinnipiac (2)
Roger Williams
San Diego (multiple) (business, tax, IP)
San Francisco (property, environmental)
Santa Clara (multiple callbacks) (property, environmental, criminal, IP)
St. John's (criminal)
St. Louis (2) (IP, Health)
St. Thomas (MN) (2)
Seattle (multiple) (IP)
Seton Hall (multiple) (criminal, health, environmental, property)
SMU (multiple) (environmental, property)
South Texas (done with callbacks) (business)
Southern Illinois
Southwestern (business law)
Stetson (multiple)
Temple (multiple)
Tennessee (multiple)
Texas (2)

Texas Wesleyan
UC Irvine (environmental, property)
UCLA (multiple) (health, IP)
Utah (IP)
Villanova (3) (criminal)
Virginia (2) (health)
Wake Forest (IP)
Washington University
Wayne State (multiple) (IP, environmental, property)
West Virginia
Western State (multiple)
William & Mary (multiple)
Wyoming (international, IP)

Posted by Administrators on February 11, 2009 at 10:35 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (475) | TrackBack

Tuesday, February 10, 2009

Should Obama Veto His Own Bi-Curious Stimulus Package?

Monday’s Senate vote was anything but bipartisan - it was merely “bi-curious" at best.  (The House stimulus plan got zero Republican votes last month; the Senate version got just three Republican votes.) Remember, Obama really, really wanted a bipartisan plan, which made good political sense: What if the Democrat stimulus fails to stimulate the economy? The Wall Street Journal says we’ll be out of ammunition and deeper in the hole - and Democrats will shoulder all the blame.

If catastrophe truly is the result of what can be called "the Democrats’ plan," then won’t Republicans gloat I-told-you-so? Won’t right wing talk radio whip up the faithless to run Obama out of office?  We just might see the right wing step up and take over, ending Obama’s failed attempt at so-called socialism and maybe his presidency.  Pile on to this crisis the terrorist attack Dick Cheney keeps squawking about (which will result, of course, from liberals’ unwillingness to torture innocent prisoners at Guantanamo), and the Party of Obama will be over.

Please tell me why my gloom and doom is wrong:

Posted by Brian J. Foley on February 10, 2009 at 10:52 PM | Permalink | Comments (19) | TrackBack

Eight More Arrests in the Phelps Matter

Details here.  The County Sheriff has now made eight arrests in connection with the Phelps incident, seven for drug possession and one for distribution.  Phelps himself wasn't arrested.  Apparently, the police now also possess the infamous bong, which the owner was trying to sell on eBay for $100,000.  The owner was among those arrested.

Posted by Chris Lund on February 10, 2009 at 05:46 PM | Permalink | Comments (0) | TrackBack

Garnett wins Bator Award

No, not me.  The thoughtful and talented one.  Congrats!

Posted by Rick Garnett on February 10, 2009 at 03:14 PM in Rick Garnett | Permalink | Comments (1) | TrackBack

Should we be teaching more?

There has been a lot of conversation about the existence of a legal education bubble, and I have zero expertise on those dynamics.  I do know quite a bit about me, though, so my thoughts at these times naturally turn to the question, what would the post-bubble legal education world have to look like for me to jump back into private practice?

Now perhaps the post-bubble world means non-existence for some law schools, particularly the new ones, which could hasten my return to practice.  I don't think we're in any danger on that front at St. Thomas (having raised nearly $100 million in our short lifespan), so my mind turns to the reasons why life as a law prof is like having found "a loophole in life."  In particular, what could make it seem less like a "loophole" and more like, to put it delicately, what is known as "a job?"

[At this point, I would like my dean -- or anyone who might become my dean down the road -- to stop reading.]  My sense, if my views are remotely typical, is that law schools have quite a bit of cost-saving leeway before they start losing faculty back to the practice world. At St. Thomas, our teaching load is 10 credits per year.  That was a factor (though by no means the most important factor) in getting me to come here from St. John's, where the teaching load was 12 credits.  But even at 12 credits, folks have plenty of time to engage in scholarship throughout the year.  If my school raised teaching loads to 16 credits, would I bolt to a firm?  My mom is a tenured professor at a liberal arts college, and she teaches 18 credits every year.  She still has time to work on scholarship during the semester, though not nearly as much as I do.  Would I be unhappy to lose that extra time?  Yes.  Would I leave teaching?  No.  Does the value that flows from my extra time for scholarship accrue to the school so as to justify having to hire more faculty to cover courses?  I'd like to think so, but I'm not sure.  If teaching loads became so heavy that I had no significant time to engage in scholarship outside the summer, would I bolt?  I would seriously consider it.  Though I enjoy the teaching, I would not stay in teaching simply for the teaching.

Could my school cut my pay and still keep me around?  In past years, I would probably have given a reflexive "yes," since if we cared a whole lot about money, we wouldn't be teaching.  But as I'm starting to do those online college savings calculators, I will admit that I do have a breaking point on money.  I'm not sure where it is, but it's there.

I think there's more room to maneuver on teaching loads, but the obvious caveat is that it depends on what competitor schools are doing.  For the thirty or so schools that purport to be in the top 10, I wouldn't expect much movement on teaching loads given competitive pressures.  But isn't it reasonably foreseeable over the next ten years or so that, faced with significant downward pressure on tuition, a good number of schools outside the top tier will take serious looks at increasing our teaching loads?  And once a critical mass heads that direction, is there any reason why a dean figuring out how to make ends meet shouldn't join them?

Posted by Rob Vischer on February 10, 2009 at 11:14 AM | Permalink | Comments (3) | TrackBack

Birth of a Reactionary

Last night's prime-time presidential press conference gave me new insight into the substantial minority of citizens who passionately, vituperatively opposed FDR at the outset of the New Deal.  I used to think they were just a bunch of top-hatted plutocrats, alarmed at losing their class prerogatives and outraged to be betrayed by one of their own.  Now I know better: they were simply pissed off at having Fibber McGee and Molly preempted by another one of those damn fireside chats.  And that was in the pre-DVR days!

So, ironically, just as my Republican co-blogger Rick starts having nice things to say about Obama, I have now become an implacable opponent.  Crisis or no crisis, there is no excuse whatsoever for preempting House.  Hell, Mr. President, couldn't you have waited an hour and bumped One Tree Hill instead?   

Posted by Paul Horwitz on February 10, 2009 at 11:01 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

What is the Second Amendment for? (Part Three)

The previous two installments to this post are here and here. At this point, some of you might be asking: How many parts can there be to this post? Aren’t two enough? Well, in a recent article I identified nine distinct arguments (of varying degrees of persuasiveness) that have been offered in favor of the Second Amendment. And that’s ignoring the collective-right interpretation rejected in District of Columbia v. Heller. In short, the question of the purpose, or purposes, of the Second Amendment is much more complicated than has generally been assumed.

In the last post, I addressed the argument that the Second Amendment protects our interest in security from violence at the hands of our fellow citizens. This heart of this argument is the empirical judgment that a system of private arms possession is better at making us safe from private violence than a policy of compulsory disarmament. Notice that the idea is not merely that the choice to arm dominates, in the sense that it makes one safer with respect to any given population. For that could be true even though the collective result of each of us making the dominant choice is that we are all less safe (due to the mutually-imposed risks of accidental or improper use of arms).

The idea must instead be that we are all truly safer when allowed to bear arms than we would be in a system of compelled disarmament. Although this is indeed possible, I argued last time that it is insufficient to justify a right to bear arms – that is, a limitation on the authority of the government.

The primary goal of my article is to explore autonomy arguments that I believe are occasionally voiced by Second Amendment advocates (often without their being aware of the differences between these arguments and those that appeal to safety).  One benefit of autonomy arguments is that they could work even if, as many gun control advocates claim, private arms possession makes us less safe.

To get a feel for these autonomy arguments, it is best to begin with the idea of the Lockean state of nature. In the state of nature, each of us is entitled to defend and enforce natural right privately. For example, if you have violated my natural rights (e.g. to life or property) or indeed someone else’s natural rights, I may punish you.

The problem with the state of nature, of course, is that creates excessive conflict, because we tend to read the scope of natural rights in favor of ourselves and our kin. We would all be better off, and our natural rights more secure, if we gave over our power of enforcement to the government, even though it too can make mistakes about the scope of our rights.

But it is crucial to see that for Locke the fact that the state of nature can descend into a state of war does not mean we have a duty to submit to governmental authority. We may remain in the state of nature if we choose. To force us to submit to the government, even if it is for our own good, would violate our autonomy. Our ability to enforce our visions of natural rights (and bear the costs of our mistakes) is of value, despite its costs.

A natural right to bear arms can be derived from this autonomy interest in private enforcement of rights, because arms allow us to more effectively vindicate this interest. In a very real sense, guns increase our autonomy. Of course, for just this reason they exacerbate the problems of the state of nature. Feuding becomes more deadly when people are armed. But one cannot point to these costs to claim that we have no right to bear arms in the state of nature – for if that argument worked, there would be a duty not merely to disarm, but to submit to governmental authority. And that is contrary to Lockean values of autonomy and individualism.

So far so good. But to say that there is a natural right to bear arms does not mean that governmental authority is limited by this right. The whole point of the social contract, by means of which the authority of the government is created under Lockean consent theories of the state, is that we give over some of our natural rights to the government. Foremost among these alienated natural rights is the right to private enforcement. Since the right to bear arms is tied to the right to private enforcement, it appears that we would also alienate our right to bear arms.

The justification I am considering today assumes, however, that we have returned, at least partially, to the state of nature. One reason might be because the government cannot promise the level of protection from violence that is a requirement for governmental authority. Returned to the state of nature, we regain our natural right to bear arms even though – and this is important – the collective exercise of our right to bear arms can make us less safe than we would be if we were forcibly disarmed. Under this theory it is not safety that justifies the Second Amendment, but Lockean autonomy.

The argument has some plausibility given the circumstances of the founding of the Republic, since there was no regular police force at the time. Particularly in the backcountry, American citizens were, at least partially, in the state of nature. This arguably returned to them some of their alienated natural rights, including the right to bear arms. Notice that it follows from this theory that not all governments have a duty to allow private arms possession. A government that offers its citizens sufficient protection from violence would be within its authority if it forcibly disarmed the population in the interest of public safety. The theory is anarchistic in the sense that it depends upon our escaping, to some extent, the authority of the state.

I discuss this theory in greater detail – including some of its problems – in my article. One of the biggest problems with theory is its anarchistic premise that we have escaped the authority of the government. In my next post, I will consider an autonomy argument that does not depend upon anarchistic premises.


Posted by Michael S. Green on February 10, 2009 at 10:40 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Monday, February 09, 2009

A-Rod and Michael Phelps

It's surprising in combination.  Michael Phelps is caught using marijuana, a non-performance-enhancing drug, a single time.  And he gets a three-month suspension from USA swimming, dropped by Kellogg's, and criminally investigated by the local sheriff's department.  A-Rod is caught using steroids, an illegal performance-enhancing drug, for three years.  He lies about it.  And apparently he will not be charged with any crimes, and may not even be in breach of his employment contract.  One even wonders if A-Rod has a cause of action against the Players' Union relating to the unauthorized disclosure... Really? 

Posted by Chris Lund on February 9, 2009 at 08:38 PM | Permalink | Comments (7) | TrackBack

Friday, February 06, 2009

Five years of Mirror of Justice

For the "things that make you go . . . I'm old" file:  This week marks the fifth anniversary of my other blog-home, Mirror of Justice.  (Here is the first post.)  Tempus freakin' fugit.

Posted by Rick Garnett on February 6, 2009 at 05:15 PM in Blogging | Permalink | Comments (1) | TrackBack

Teaching Self-Awareness

We have all seen the reports about how unhappy many lawyers are, how many people drop out of the profession, describe themselves as "recovering lawyers," and so on. And we know that lots of law students are unhappy, stressed, and confused about what law school is supposed to be doing. It seems that wherever you find someone who hates what she is doing, you also hear, "I thought this was what I wanted, but I didn't want this." So in line with a recurrent theme here at Prawfs, what role should law schools play in teaching students to know what they want and exposing them to what the real world is going to be like?

Personally, I think we play a big role in both, which is why I often require my students to do some kind of reflection exercise, sometimes the same exercise, at least once during the semester. My favorite is also a good icebreaker for seminars or other meetings. I ask the students, "If time, money, and skill level were no object (in other words, you have enough of all of that), what would you be doing with your life and why?" Not surprisingly, almost no one says, "going to law school," but the answers can tell the students a lot about what they need out of a career. And knowing what they need out of a career can help them tailor their law school experience towards those attributes, which will make the law school piece (and hopefully the career) much more fun or at least easier to tolerate. And this question can create a lot of productive internal dissonance for people not used to reflecting. For example, recently one woman I asked got very agitated when I told her that she could not consider obligations or other people's expectations in her answer. But the point was, how do you know what you want or need if you're always doing things based on what others want or need?

So, if time, money and skill level were no object, I think I'd be working at a specialty cake bakery like the one featured on Food Network's Ace of Cakes. Each cake is a single project with a beginning and an end, the environment is full of of really creative people, the work is very tactile, you can see your progress, and the end product is so beautiful and often visually calming, with smooth curves and symmetrical patterns. Plus, who doesn't like cake?

What about you?

Posted by Marcia L. McCormick on February 6, 2009 at 10:43 AM in Teaching Law | Permalink | Comments (11) | TrackBack

Thursday, February 05, 2009

Poker: Luck or Skill?

There are some posts over at Volokh Conspiracy regarding some recent litigation regarding underground Texas Hold 'Em games. Judge Cassell links to an amicus brief by the Poker Players Alliance in one of the cases.  The key part of the Kentucky statute, judging solely from the amicus brief, forbids "gambling" as defined as:

[S]taking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome.  A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling.

So, as per the last sentence, games with an "element of chance" are gambling.  But if the "ultimate winner is determined by skill" -- it's apparently not gambling.  And for games like Hold 'Em that involve both skill and chance, Kentucky uses a "predominance" test -- courts are supposed to discern whether skill or luck predominates.

I find this an interesting question, in part because I've always thought the reason why Hold 'Em works as a game is that it's the optimum blend of skill and luck.  If it were too much a game of skill, the fish wouldn't play.  (Cue Phil Hellmuth, who loves to say that if it wasn't for luck, he'd win everytime.)  If it was too much luck, though, there wouldn't be professional poker players -- they couldn't survive the rake (i.e., the amount the house takes for supporting the game).  The skill/luck ratio of a given Hold 'Em game depends on so many things -- no limit Hold 'Em involves more skill than limit, tournaments involve more skill than cash games, tournaments with a slower structure involve more skill than shootouts, etc. etc.   The games around my Thanksgiving Day table are pretty much luckfests; the ones in casinos less so.  The big thing, I think, is what the relevant timeframe is.  In the short run, luck predominates in poker.  The outcome of any one given hand depends largely on the cards.  But over the the long run, luck evens out -- and skill is clearly what matters.  That's why it's bad poker form to win a big hand and leave.  Social convention demands that your adversaries be given more time to let luck even out and let skill be the deciding factor.

The brief, though, is great.  I never thought I'd see a legal citation to Doyle Brunson's Super System or David Sklansky's The Theory of Poker -- see footnote 35. 

Posted by Chris Lund on February 5, 2009 at 07:59 PM | Permalink | Comments (7) | TrackBack

What is the Second Amendment for? (Part Two)

As I’m sure you all know, in District of Columbia v. Heller the Supreme Court held that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. In this series of blogposts, I’m asking the following question: What are these interests? (This is a topic I have pursued in greater detail in a recent article.). It is not enough to say, as Scalia did, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

My first post discussed one conception of a right of self-defense, which failed to justify a right to bear arms. Today I am going to consider an alternative argument – that the right of self-defense and the right to bear arms can be justified on safety grounds.

But first a quick distinction between two senses in which possessing a firearm might increase one’s safety. There are good reasons to believe that possessing a firearm makes one safer compared to a fixed population. Firearm possession is, as the game theorists say, the dominant strategy.  If no one else owns a firearm, one is safer if one is armed.  If everyone else owns a firearm, one is safer if one is armed. That means that each individual will tend to have a strong desire to own a firearm and will rightly point to considerations of safety as the ground for this desire.

But that does not mean that a system of private arms possession, in which others are also allowed to own firearms, makes us safer. The mutually-imposed risks of accidental or improper use of firearms might make us all less safe than we would be in a world of compelled disarmament. Guns might, as the game theorists put it, present a prisoners’ dilemma

But let us assume, as is surely possible, that a system of private arms possession does make us safer than a policy of disarmament. One reason could be because a policy of disarmament would primarily affect only the law-abiding, leaving criminals with guns. If so, we would be safer if we let the law-abiding have guns as well. Another (less likely) reason is because a system of private arms possession would be very good at keeping guns out of the hands of those who would use them improperly, such that the predominant use of guns would be in justified self-defense.

Whatever the underlying reason, we are now assuming not merely that firearm possession is the dominant strategy, but that a system of firearms possession makes us safer than a policy of disarmament. The question remains, however, why we have a right to bear arms. To see why there is a problem here, consider the safety argument for a right of self-defense.

Imagine that the government prohibited all acts of self-defense, even when retreat is impossible. If confronted by a violent attacker, we could not defend ourselves, although we could inform the attacker that his actions are illegal and subject to punishment by the government. I think just about everyone would agree that we would be less safe in such a world. But why does it follow from this that there is a right of self-defense?

It appears that when Scalia speaks of the rights of self-defense and bearing arms, he means that these rights are pre-existing limits on the authority of the government. Individuals enjoy these rights even if they are not legally recognized. But does it follow from the fact that self-defense makes us safer that it is beyond the authority of the government to prohibit it? Keep in mind that the whole point of governmental authority is to obligate us to do what the government says even if it is wrong. If we were obligated to do what the government said only when it got things right, governmental authority would evaporate. The minute people disagreed with a law, they would conclude that the law was outside the government’s authority and could be permissibly ignored.

I’m not saying that there are no limits on the government’s authority. We can assume that the government would be acting outside its authority if it prohibited free speech or imposed cruel and unusual punishments, even if there had been no 1st or 8th Amendments. But the question remains why self-defense is among those limits. The fact that allowing self-defense is a good idea cannot be the reason, since governmental authority can obligate us to obey even the government’s bad ideas.

Nor do I think we can say that there is a right of self-defense because we have no duty to obey laws that are wrong concerning issues of public safety. The government constantly passes laws that impact our safety, laws that we think are binding upon us even when they are misguided.

Here are two other possibilities. The first is that laws that are manifestly bad at promoting public safety are beyond the government’s authority, and a law prohibiting self-defense would be such a manifestly bad law. (Notice that governmental authority would not evaporate if we were freed of an obligation to obey manifestly bad laws.) Another possibility is that we have a right to a certain minimal level of security (say, a level higher than what we would experience in the state of nature) and the government, by prohibiting self-defense, would take us below that threshold.

Of these two, I like the first better. One problem with second is that it is not clear that a government that prohibits self-defense would take us below the threshold of safety that is our due, since it may be doing a sufficiently good job at protecting us from violence in other respects that we are safer than we would be in the state of nature, even though we cannot engage in self-defense.

But let us assume that both of these are arguments for a right to self-defense. It is hard to see how a right to bear arms follows from this right of self-defense. Second Amendment advocates are fond of the following syllogism: There is a right of self-defense; arms are an important instrument of self-defense; therefore there is a right to bear arms. But this is too quick. As we have seen, even though we are clearly made safer by a system that allows self-defense, it does not follow that we are made safer by a system in which people possess arms for use in self-defense. The mutually imposed risks of the misuse of arms may make us less safe compare to a system in which we are disarmed (but can otherwise engage in  self-defense).

Of course, we are now assuming that a system of private arms possession does make us safer. But it still does not follow from this that we have a right to bear arms. After all, even if it is true that such a system makes us safer, it is hardly manifestly true. It is a matter about which reasonable minds differ. Therefore, it is hard to see how this is an issue that it outside the authority of the government to decide. By the same token, it is very unlikely that the contribution of private arms possession to our safety is so profound that the government can satisfy its obligation to provide us with a minimal level of security only by providing us with arms. (It would be odd to say, for example, that countries that prohibit arms are not providing their citizens with a level of safety better than they would experience in the state of nature).

Of course one can always conclude that the Founders simply wanted to constitutionalize this empirical judgment that a system of private arms possession makes us safer, even though there is in fact no genuine right to bear arms. But I would prefer a reading of the Second Amendment that makes better sense of why people think arms possession is truly a right.

Furthermore, if the safety argument does stand behind the Second Amendment, the argument for incorporation into the Fourteenth Amendment seems very weak. After all, if the Second Amendment does not protect a right, but simply constitutionalizes a (controversial) judgment about how best to promote public safety, it is hard to see how it can be “fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

It is for this reason that I think that the most promising argument for the Second Amendment points instead to an autonomy interest in firearms possession, which might be worth protecting even if we are all made less safe as a result. I’ll talk about that in subsequent posts.

Posted by Michael S. Green on February 5, 2009 at 12:50 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Is public reason a two-way street?

We pay a lot of attention, at least in the academy, to how religious believers engage the political arena.  We would prefer that believers put their views into language that is accessible -- not necessarily agreeable -- to non-believers.  (E.g., we frown on "God created Adam and Eve, not Adam and Steve," but are willing to discuss "Children are more likely to flourish under the care of a father and mother.") In this past campaign season, the more pressing issue was the reverse: how should the political arena engage religious believers?  Romney's apparent need to satisfy a theological litmus test in order to maintain political viability ("I believe that Jesus Christ is the Son of God and the savior of mankind") was just the beginning.  Whether it was folks taking political potshots at Obama based on the tenets of black liberation theology, or at Palin based on the spiritual warfare prayer said over her, or at Mormons based on their support of proposition 8, I sensed a troubling eagerness to pierce the public reason veil when the object of criticism was the religious believers themselves.  Yes, when religious folks jump into the sandbox, they're bound to get dirty.  But just as we're concerned that believers' invocations of divine authority or revelation as the basis for political action tends to be divisive and potentially marginalizing, shouldn't we also worry that building political arguments based on a political actor's religious identity poses similar threats?

Obviously I'm not talking about legal norms here; I'm talking about what should be viewed as best practices in a democracy that takes the concept of public reason seriously.  (Maybe we don't yet take it seriously, so I suppose my question is more aspirational than descriptive.)  If we think that Mormons were wrong on proposition 8, and we want to communicate that fact, shouldn't we drive the arguments with ideals that engage our listeners as citizens (equality, the social functions of marriage, inclusiveness) or as spouses (the centrality of marriage in our own lives), rather than as people who share our disdain or skepticism toward the religious believers in question?  For example, the commercial depicting two tie-wearing Mormons barging through the front door of a lesbian couple's home and ripping up their marriage license seems ill-designed to persuade Mormons.  Its more likely objective was to remind Californians that it's those odd proselytizing Mormons who are behind the prop 8 campaign.  If we think that Rev. Wright is a legitimate campaign issue, let's talk about his policy stances that could be attributed to congregation members; let's not focus on the perceived strangeness of the theological claims.

I recently wrote a short essay on this point for Commonweal (subscription req'd, unfortunately) but I'm not sure if I've gotten the point quite right yet.  My basic question: if we expect religious believers to use public reason when they enter the political arena, how should public reason commitments shape our response to those believers? 

Posted by Rob Vischer on February 5, 2009 at 11:45 AM | Permalink | Comments (6) | TrackBack

Movies, Law, and Magic Grits

Thanks to Dan and the other Prawfs for having me back.

Last night I screened My Cousin Vinny as the first installment of Penn State's Faculty Film Series.  The purpose of the series is to bring together faculty and students to watch and discuss great movies about law.  We had a wonderful discussion about the way the movie portrays lawyers--e.g. their clothes, their demeanor, their pronunciation ("the two yutes" vs. "the two youths").

And we have some great movies lined up in the coming weeks.  We're showing 12 Angry Men, North Country, A Few Good Men ("You can't handle the truth!"), Anatomy of a Murder, and my favorite, Kramer vs. Kramer

What else should we show?  I'd love suggestions from the Prawfs readership.  Thanks!

Posted by Zak Kramer on February 5, 2009 at 11:06 AM in Film | Permalink | Comments (20) | TrackBack

Wednesday, February 04, 2009

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

Posted by Marcia L. McCormick on February 4, 2009 at 04:09 PM in Employment and Labor Law, Law and Politics, Workplace Law | Permalink | Comments (5) | TrackBack

R.I.P., Irving Feiner

Irving Feiner died last month at the age of 84. Feiner was the defendant/petitioner in Feiner v. New York, the 1951 decision in which the Supreme Court upheld a conviction of a public speaker for disorderly conduct based on the audience's angry reaction to the speech. The case formally remains good law, although it generally gets taught along with Terminiello v. Chicago, which came out the opposite way in a situation involving a legitimate riot and the general view has become that Terminiello was right and Feiner dead wrong. The Court has basically recognized that a "hecklers' veto," a negative audience reaction to speech, is not a basis to restrict speech, although the principle is not always enforced vigorously enough for my tastes in the lower courts. And the modern definition of incitement should exclude a speaker who says things that cause listeners to become angry at the speaker, as opposed to convincing listeners to agree with the speaker and to act unlawfully. Thus, Feiner's position ultimately prevailed, even if too late.

The obituary says that Feiner, at the time a junior at Syracuse University, was kicked out of school and had his acceptance to law school revoked. In 1984, he went back and completed his undergrad degree. And in 2007, the university invited him to give a lecture on freedom of speech.

(H/T: Dan Levin, political scientist at Utah).

Posted by Howard Wasserman on February 4, 2009 at 02:59 PM in First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thank God We're Not Discussing the Michael-Phelps-Smoking-Dope Story!

Is anyone surprised that a 20-something über-athlete millionaire would smoke some pot at a party? My sense is that most people don’t care about this. (I live in Massachusetts, which recently decriminalized possession of less than an ounce of marijuana for personal consumption.)  This is one of those media stories that exists because there's a photo to display - though the Olympian’s lung capacity alone might make a double-hearsay report of the event newsworthy ("Phelps Finishes Off World Marijuana Supply").

“But Phelps is a role model!” some people say. If Phelps is your role model for swimming and now you’re confused and think that maybe you can smoke dope and still win eight gold medals in one Olympics, I say, Go for it. You probably won’t win eight gold medals (or a single silver or bronze) even if you don’t smoke dope, or, for that matter, even if you’re a drug-free teetotaler.  If Phelps serves as a more general role model, then I think we’re all better off knowing that people can succeed in various endeavors without having to be “perfect” - why let false idols rule our lives?

Here’s a hypothetical question. Assume it’s a jailable offense to smoke dope as Phelps has.  Should Phelps go to prison? Why or why not? Now assume it’s a mandatory minimum two year sentence. Is putting Phelps in dry dock a good use of our limited resources? Perhaps the Phelps story might open up public discussion about the so-called "War on Drugs."

Perhaps I'll raise Phelps’s case Friday at The Road to Prison Reform: Treating the Causes and Conditions of our Overburdened System, sponsored by the Connecticut Public Interest Law Journal at the University of Connecticut School of Law. See the program here.

And on that note, be sure to catch the California Correctional Crisis Conference next month, which former PrawfsBlawg Guest Hadar Aviram is involved with.

Posted by Brian J. Foley on February 4, 2009 at 01:29 PM in Criminal Law, Culture, Current Affairs | Permalink | Comments (5) | TrackBack

Public Choice & Local Voice

I just posted on SSRN a draft chapter entitled "Federalism and Public Choice." (The chapter is to be included in a collection on Law and Public Choice, edited by Dan Farber and Anne Joseph O'Connell and published by Elgar).

Writing this survey about public choice and federalism left me with the odd feeling that the literature really has nothing to say about public choice and federalism. The literature is overwhelmingly focused on individual choice, not public choice: The vast majority of the scholarship revolves around Tiebout's idea that an individual's decisions to migrate between jurisdictions reveals those individuals' preferences for local public goods. Since the 1980s, political scientists have added a theory of political economy to Tiebout's theory of locational economies, arguing that central governments cannot be trusted to decentralize power to state and local governments, because central legislatures (1) promote universalistic coalitions through pork-barrel spending; (2) behave in a predatory "Leviathan"-like manner to maximize their own budgets (Brennan & Buchanan); or (3) are captured by cartel-promoting business interests (Barry Weingast).

None of this literature about the alleged flaws of national politics says much about what subnational politicians want. The ability to migrate from a badly governed subnational jurisdiction is just going from frying pan to fire unless somehow subnational politicians can be made to care about losing tax base, population, property value, etc. Of course, the obvious mechanism is voting, but public choice theorists do not seem to believe that voting helps much, citing the usual problems of rational ignorance, collective action problems in forming interest groups, unstable majorities, etc.

The paucity of public choice scholarship on the ways in which scale of jurisdiction affects political choice is especially odd in American political theory. The Anti-Federalists and Jacksonians were, in a sense, America's original public choice theorists: They were obsessed with the private corruption of public power, but they thought that subnational politics, not interjurisdictional mobility, was the cure. Where has this American tradition of federalism and public choice gone?

Posted by Rick Hills on February 4, 2009 at 01:24 PM | Permalink | Comments (1) | TrackBack

Heartening Hiring News

As I  mentioned on the other thread, this may be heartening news to some. Some schools (ranked roughly b/w 25- 75) have asked me who's still on the market because they are still engaged in hiring and want to find promising candidates who are still available. If you're still on the market or know someone good who is, please feel free to email me at my fsu account.  

Posted by Administrators on February 4, 2009 at 08:47 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (22) | TrackBack

Empty bi-partisanship

Paul Krugman captures why, at least as to the stimulus debate, the talk of bipartisanship is vacuous. Responding to David Broder's insistence that the bill needs "the best ideas from both parties," Krugman said:

You see, this isn’t a brainstorming session — it’s a collision of fundamentally incompatible world views. If one thing is clear from the stimulus debate, it’s that the two parties have utterly different economic doctrines. Democrats believe in something more or less like standard textbook macroeconomics; Republicans believe in a doctrine under which tax cuts are the universal elixir, and government spending is almost always bad. Obama may be able to get a few Republican Senators to go along with his plan; or he can get a lot of Republican votes by, in effect, becoming a Republican. There is no middle ground.

Absolutely right, at least if we are talking about substantive, as opposed to procedural, bipartisanship. If the GOP believes the bill has too much spending and not enough tax cuts (because that is what their economic principles suggest) and Obama believes the balance is about right (because that is what his economic principles suggest), there is no where to go--no way to create a bill with the best ideas of both parties.

Note that none of this blames Republicans over Democrats. While I share the Democratic economic views, others do not and maybe they are right and we are wrong. However we got here, there is an impasse. And my point is there is nothing wrong with this state of affairs. It is why we had an election three months ago in which the public put one side in power. It is why we will have another election in 21 months that will serve as a mini-referendum on this whole debate. I am not trying to argue that substantive bipartisanship is bad. I am trying to suggest that it may not be possible in some situations and to blithely insist that it is the inherent absolute good, in a situation of fundamental disagreement, misunderstands the situation and focuses on the wrong debate.

I think I am turning into a parliamentarian supporter of a parliamentary system.

Quick Update:

In one of his series of sit-downs yesterday, Obama told Charles Gibson that he is not interested in "bipartisanship for bipartisanship's sake." I think too many people, especially in the media, are.

Posted by Howard Wasserman on February 4, 2009 at 07:36 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Tuesday, February 03, 2009

What Are We Supposed to Be Doing Here?: On the Tension between Theory and Practice

Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement.  [Name withheld only because I haven't asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn't bear it because he didn't feel like what was taught in criminal law bore any relationship to reality.  The casebook he used (and that I use) focuses on homicide and rape, not the far more common property and drug crimes with which criminal courts generally deal.  Also, although the book has an extensive section on the workings of the criminal justice system, it generally presents the substantive law through reported appellate cases, as nearly every other law school casebook does.

But this professor's greatest criticism of the book's had to do with its focus on the Model Penal Code.  "That's not the law anywhere," he complained.  "It's just an analytic exercise."  What was interesting to me is that this is exactly the same criticism that my students, not generally immersed in the Law and Society tradition, make against the book.  Many of them want to practice criminal law in this state and expect our class to focus on what Colorado's laws provide rather than on the MPC's attempt to systematize and rationalize the common law.

So I guess my question is, what is our obligation to familiarize our students with the realities they will encounter when they hit the real world?  How much should we teach them about the law of a particular jurisdiction (or even what the majority rule is nationwide) and how much should we encourage them to think expansively about what the law ought to be?  The Carnegie study of legal education indicated that law schools do a poor job of giving our students the practical skills they will need to practice.  But how much is that our responsibility?  Shouldn't we be teaching our students analytic rigor and expecting their future employers to help them find the courthouse?  Or do we dis-serve our students by teaching them the MPC's approach to attempt law, but not how to negotiate a plea agreement?

Posted by Sam Kamin on February 3, 2009 at 05:15 PM in Criminal Law | Permalink | Comments (17) | TrackBack

I aspire to Charlie, but I've got some Oprah in me.

During the hiring process, my least favorite question -- usually asked by students -- was "What's your approach to teaching?"  I always wanted to respond, "What would you like my approach to teaching to be, friend?"  Even today, I'm not sure how to describe my approach -- a little bit of lecture, some light-contact socratic, a song, a dance, whatever works.  After all these years, though, I've finally found an analogy that works for me.

By way of background, since Ted Koppel retired, the object of my biggest man crush has been Charlie Rose (besides Eddie Vedder, of course).  While watching last night, I realized one basis for my admiration: he actually embodies what I hope to accomplish in the classroom.  He creates space for a conversation, not just an interview; he is a great listener (rather that formulating my next point while a student is talking); he encourages participation from everyone at the table (rather than relying on a few "go to" students); he is not afraid to challenge his conversation partners when they try to punt, but he always does so with grace and class (he doesn't make them cry); he is funny, but not in an insecure stand-up comic sort of way; he can make even painfully boring topics seem only moderately boring.  Now to be clear, I aspire to be Charlie Rose in the classroom.  I'm not there yet.  On most days, I fear that I'm exhibiting a parade of horribles from across the talk show host spectrum.  Read on for the heart-wrenching introspection . . .

I confess to having some Oprah tendencies in me: pedagogy as self-revelation, sharing stories that entertain and affirm the power of the law student spirit.  Trotting out a good human interest story (i.e., photos of my kids) when the class is about to turn against me.

At the same time, I occasionally like to rattle my students out of their comfort zones, pushing them through real-world examples that call their settled views into question.  Jerry Springer has gotten rich by doing the same thing, though I hope that mine leaves students with some lasting lessons other than shock and nausea. 

I don't have the abrasiveness of Rosie O'Donnell (I hope), but I do need to make sure that, when I disagree with a student's remark, I have a legitimate pedagogical objective for that disagreement.  I don't pick fights, but I do like to disagree. 

One host who thankfully does not show himself much in my classroom is the early David Letterman, whose grouchy sarcasm made the guest not so much a conversation partner, but the object of scorn.  The more recent Letterman's slightly bemused sarcasm is not foreign to me, but I reassure myself that it can motivate learning and keep classmates engaged without alienating the recipient. 

The talk show host I resist most in the classroom -- perhaps because he can rear his big-jawed head now and then -- is Jay Leno: not wanting to make anyone feel uncomfortable, keeping things light (and lightweight). 

I don't spend much time worrying about Craig Ferguson, whose "dirty old man" schtick could actually threaten my job security if he saw the light of day. 

Eureka!  I think I've found a workable framework for articulating our diverse approaches to teaching.  Much more informative than the socratic / non-socratic blather.  So which talk show host are you?

Posted by Rob Vischer on February 3, 2009 at 03:52 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

What is the Second Amendment for?

Thanks to Dan for inviting me back on Prawfsblog. I thought I would devote the first half-dozen or so posts to a topic I have spent some time on recently – the purpose, or purposes, of the Second Amendment.

Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power. But in District of Columbia v. Heller, the Supreme Court embraced the idea that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. My question is – what are these interests?

I do not think this question was answered in Scalia’s opinion in Heller (although I’d be happy to be convinced otherwise). It is not enough to say, as Scalia does, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

Consider, for example, the following argument for a right of self-defense: The impulse to engage in self-defense in cases of imminent violence is so strong that if self-defense were prohibited by the government, people would defend themselves anyway. No threat of sanction is sufficient to stop people from defending themselves. Since a government can require people to do only what they can do (ought, as they say, implies can), the government cannot require people to refrain from self-defense.

One nice feature of this argument is that it suggests that the right (or, more accurately, the excuse) of self-defense is inalienable: I cannot promise to refrain from engaging in self-defense when faced with imminent violence, because I know I will be unable to abide by my promise when I’m threatened.

But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves. So the government probably should excuse anyone who, in the course of self-defense, uses a weapon lying nearby (or, like MacGyver, creates a weapon on the spot). But that does not mean that the government must excuse people for keeping weapons for use in self-defense. After all, it is not true that our impulse to possess weapons is so great that no threat of sanction would lead us to give them up. People can be coerced to disarm. So there is no relationship between this right of self-defense and the Second Amendment.

Of course, there may be arguments for other rights of self-defense that could justify a right to bear arms. The problem with the justification above (which is the second that I discuss in my article) is that the right of self-defense is unrelated to the protection of innocent life. Self-defense is protected only because the impulse to engage in it is overwhelming, not because it makes us safer. A right of self-defense that is tied to safety, one might argue, can justify a right to bear arms. 

I’ll discuss the safety argument for the Second Amendment in later posts. But it is a striking fact that Scalia’s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety or an autonomy interest that is valuable even if its protection increases our vulnerability to violence.  (At least I cannot find him addressing this issue.) The academic literature on the Second Amendment has not been helpful either.

Clarity about the purpose of the Second Amendment is necessary for any principled reasoning about its scope – including the looming question of whether the right to bear arms is incorporated into the Fourteenth Amendment and so applicable against the states. 

As we’ll see later, I think the safety argument has problems (unrelated to the empirical question of whether private arms possession does indeed make us safer). Although the "excuse" argument above fails, autonomy arguments for the Second Amendment are the most promising, not the least because they make the Second Amendment more like other provisions in the Bill of Rights. The Fourth Amendment, for example, is commonly understood as protecting our interest in privacy, which has value even though its protection increases our vulnerability to crime. The Second Amendment might be similar. I’ll explore a number of possible autonomy arguments in subsequent posts.

Posted by Michael S. Green on February 3, 2009 at 01:42 PM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Only Children as a Suspect Class?

The suggestion is in jest, of course, but has anyone else noticed how incredibly OK it seems to be to insult only children, even right to their faces?  I'm an only child, and my son is an only child, and my son will almost certainly remain an only child (or, to put it another way, if he ends up with a brother or sister, that brother or sister will carry the name "Mistakey"), and people will occasionally say to me something like, "Oh, you're going to have another child, right?" or "Only children are so spoiled and weird" or "Why would you put all your eggs in one basket?" or something equally irritating.  I usually do that thing that the sitcom characters do and look around me and then look at the speaker and say, "You know, I'm right here, right?" 

Sometimes I also suggest that, just as I don't dilute my love for my wife by having other wives, so too do I not wish to dilute the love I have for my son by having another child.  I usually say this only when particularly cranky, for some reason or other.

Posted by Jay Wexler on February 3, 2009 at 01:13 PM in Jay Wexler | Permalink | Comments (8) | TrackBack

"Positive Secularism"

The folks at Public Discourse were kind enough to publish an edited version of the remarks I gave at a recent conference, in Rome, on the "American Model of Religious Freedom."  (Mary Ann Glendon convened the conference, as the U.S. Ambassador to the Holy See, to commemorate the 60th anniversary of the Universal Declaration on Human Rights and the 25th anniversary of the establishment of formal diplomatic relations between the two entities.)  Here is the set-up:

Pope Benedict XVI has, in recent months, expressed his admiration for the “American model” of religious liberty and church-state liberty. For example, during his trip last spring to the United States, the Pope noted, and seemed to praise, America’s “positive concept of secularism,” in which government respects both the role of religious arguments and commitments in the public square and the important distinction between religious and political authorities.

Is there, in fact, such a model, and such a concept, at work in America? What are its features? And, is it worthy of the Pope’s apparent endorsement?

Comments welcome!

Posted by Rick Garnett on February 3, 2009 at 11:13 AM | Permalink | Comments (3) | TrackBack

13 year-olds in prison for life...and the Eighth Amendment

In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At his trial, Mr. Sullivan was made to say those words several times. “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

Sullivan's case is now winding its way through the courts; according to Liptak, his lawyers have recently petitioned the Supreme Court to determine whether a sentence to die in prison is a constitutionally compatible response to a non-homicidal crime committed by a 13 year old. (I tried a quick search for the cert petition but didn't find it; if anyone has it, please forward it along.)  My views after the jump.
My quick sense is that although the Court's Eighth Amendment non-capital proportionality review has been relatively stingy in light of Ewing vCalifornia, 538 U.S. 11 (2003), this case would be a good candidate for reviewing and revisiting those principles and how they apply. For one thing, remember that Ewing was a recidivist with some serious priors (a robbery and several burglaries). He was a grown-up when he committed his crime, and he was eligible for release after 25 years under the 3 strikes rule. By contrast, Sullivan was barely a teenager, and as far as I can tell, without any priors. Justice Kennedy's concurring opinion in Harmelin, which enunciated the now-controlling framework for analysis in proportionality review of non-capital crimes, addressed a non-recidivist who was tagged for life b/c of 600+ grams of cocaine possession. While the defendant there wasn't able to get relief under the 8A (a pretty kooky outcome), at least there the defendant was not 13 years old when he committed the crime. One last point: normally the SCT would look to see if there's a split to resolve among the circuits before weighing in. But as Liptak points out, outside Florida there are no persons in prison for life without parole for non-homicidal crimes commited at the age of 13. In Florida, there's only one other person who fits that criteria, though his conviction involved attempted murder. The fact that Florida is an outlier here may be a good indication that by objective criteria this is a grossly disproportionate response. (Cf. Coker v. Georgia, where Georgia was an outlier with respect to executing rapists of "adult" women; the victim in Coker was 16--and married.)
I also think that in light of the communicative conception of retributivism that was embraced by a majority of the Court in its Panetti decision in 2007, there are certain restraints on punishment that the Supreme Court must embrace. As I argue in my forthcoming article on Panetti and the future of the Eighth Amendment, the Court's constitutional elevation of a communicative conception of retributive justice in Panetti has broad implications -- and beyond the capital context too. 

Punishment, under the Court's view now, requires that the defendant be a fit interlocutor for the communicative nature of punishment. The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept. Moreover, by insisting on competence and guilt as jointly necessary criteria for punishment, Panetti entails a "negative retributivism" constraint on state punishment. That constitutional constraint supervenes on other legitimate penological objectives such incapacitation or general deterrence. Negative retributivism means that one can only be punished if one is guilty and only as much as one's offense reasonably permits by reference to (desert) or (what comparable offenders with comparable offenses receive); I recognize that the materials in parentheses are not identical, but I offer the second one as a way to care for evenhandedness across cases, which is an important feature of legal accounts of retributive justice. 

Thus, putting aside for now the very pronounced and reasonable concerns that he had a flimsy trial, Sullivan cannot constitutionally be punished in excess of what would be determined to be reasonably proportionate to the severity of his offense. Given that we punish adults with much more severe crimes and far worse records with far less severe punishments, both in and outside Florida, it seems clear to me that Sullivan should be able to raise these Panetti-inspired arguments with some success.  (Oddly enough, similar arguments of mine were found in Panetti's briefs to some effect). Of course, these are the claims that I think would follow from Panetti's reasoning, properly understood and extrapolated. I invite the lawyers and scholars interested in the scaffolding beneath these claims to read the article, a draft of which can be found here.

Posted by Administrators on February 3, 2009 at 10:13 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (6) | TrackBack

Four Reasons Empiricism Won’t Fade Away This Time

Although no one has “talked me down” from my bull market hypothesis about the historic trends in empirical movements in law, I believe that this third period of interest will be far larger and more enduring than either of the previous two even if the economy takes a very long time to recover from its current malaise.  My arguments in no particular order include the following: Phd-ification of the professoriate; the coming of empirical lawyering; business law; and multiculturalism.

At the outset, I should emphasize that I mean empirical legal studies in a far broader sense than is meant by the journal or the association that bears those names, and includes not only the qualitative social science types that are still feeling marginalized in those venues, but also scholarship influenced by the humanities and cultural studies.  In short, empirical on my account is not a question simply of methods but of the location of legal knowledge outside the boundaries of formal law and its institutional practices.

Readers of this blog with long memories will recall that I’m not a proponent of making the Phd an entry requirement for law teaching.  One of the things that makes contemporary law schools so interesting in my view is that the standards for what counts as a legal scholar have never been more heterogeneous.  However, there are innumerable good reasons why a Phd provides advantages to people seeking law school teaching jobs and their numbers have been growing steadily for several decades.  What is essential is not that these Phd-eed scholars will define non-empirical work as outside the canon, but that their intellectual interests and sensibilities create an enduring base for empirical scholarship inside the legal academy.  In contrast, the Realists lacked not only Phd’s (as did many of their social science colleagues) but that they lacked any real training or skill in social science (or the humanities for that matter).  The “law and society” scholars of the 1960s, did have Phd’s (in many cases) and solid social science tool kits, but they were largely based outside of law schools and only penetrated in a few distinct schools (Wisconsin, Berkeley, Buffalo, Denver, Miami, perhaps a few others).

Empirical Lawyering
As I argued in a UC Davis Law Review article on the 40th anniversary of Katz v. United States last year, for the first time we are approaching a time when empirical skills and knowledge are sufficiently available to lawyers themselves that the business of law outside the law schools is becoming strikingly more empirical.  The Warren Court’s doctrines invited all kinds of empirical lawyering, but the supply side was not there.  Today it is (beginning) to be.

Both the Realists and the Law & Society movement had a decidedly left and social justice orientation.  This was scholarship and advocacy with a mission to improve law’s relevance to the poor, the marginalized, and those generally who find themselves “against” the law in all too many circumstances.  Today, there is little doubt that the center of gravity in empirical law is coming to be the business curriculum.  While it is easy to drop or marginalize social justice scholarship and pedagogy (especially during economic downturns), the same is not true at all for the business curriculum.

Throughout the 20th century, law became steadily more doctrinally porous to consideration of social circumstances and contexts (think of the steady march of “manslaughter” doctrine from its common law set of fixed forms of mitigated killing to a generalized consideration of emotional disturbance).  This could be done with little actual presentation of empirical evidence about those circumstances through the sleight of hand worked by the magical word “reasonable.”  So long as judges could get away with consulting their own lived experience to decide what was “reasonable” (an empirical study with an “n” of 1), there was no real opening for empirical advocacy.  This magic trick was supported by the continued cultural hierarchy that place white Protestants from northern European backgrounds at the top of virtually all social and economic ladders in America (as true in the 1960s as it had been in the 1920s).  As the multicultural make-up of the US (and other peer societies) becomes undeniable and irreversible, tolerance for allowing judges to use their own cultural assumptions as a knowledge base about social context is collapsing.  The well-equipped lawyer of the near future will need not simply to be able to consult social science but to bring a sociological imagination to their lawyering (whether litigation or transactional).

Posted by Jonathan Simon on February 3, 2009 at 04:48 AM in Legal Theory, Life of Law Schools | Permalink | Comments (2) | TrackBack

Monday, February 02, 2009

Good Night and Have a Pleasant Tomorrow

Thanks to Dan for letting me hang here for the last two months. I look forward to coming back. But, for now, I have one less excuse for not finishing my spring projects and managing to make Products Liability interesting at 5 pm on a Monday evening.

I think I can say, as I sign off, that Mr. Areeda would have friended no one on facebook and, if he did, they would have been terrified. I cannot trace the origins of the phrase "see you in the funny papers," but it was uttered by George Bailey's friend Sam Wainwright ("Hee Haw") in "It's a Wonderful Life." suggesting, I think, either the frivolity or the carefree nature of the speaker. Life's just one big comic strip and I'll see you there.

Time to get out of my pajamas and leave the basement.

Posted by Richard Esenberg on February 2, 2009 at 10:26 PM in Blogging | Permalink | Comments (0) | TrackBack

See you in the funny papers

I've never understood how that expression might have originated (unless it was among mutual acquaintances of Garry Trudeau in his college days) or how it makes sense as a farewell. Still, for some reason it feels apt.

Many thanks to Dan for giving me the chance to blog here for a month, and then giving me an extra month so I could end up with something like one month's worth of posts. I've enjoyed it a lot, and I hope I'll get the chance to do it again some time.

Posted by Michael Cahill on February 2, 2009 at 04:38 PM in Blogging | Permalink | Comments (0) | TrackBack

Prisons in Haiti... and in California

I've been thinking this morning about the parameters we use to compare the scope of rights available to citizens in different countries. This month we've been hard at work putting together the California Correctional Crisis Conference, which will happen in San Francisco March 19-20 (and you are all, of course, warmly invited to RSVP and attend). In making the conference happen, we all learned a great deal about the dire circumstances of our state prisons, which are at 200% capacity, and whose medical system is falling apart. I've also come across a pretty decent (though somewhat sensationalized in terms of presentation!) documentary series that serves as a good primer about how we got to this sad state of affairs.

But then, I think about the prison system in places like Haiti, where people languish for months without any proper medical care and before trial; where the conditions are unbearable; and where, often, there is no separation between populations that we take for granted should be separated. Hastings, and a few other law schools such as Seton Hall, are helping in Haiti, and we will be there in March helping with some prison research. Is it better to concentrate our efforts on places where people are, perhaps, objectively worse off, or closer to home?

Naturally, there's no one good answer to these questions. Do we expect more from California than we do from developing countries? And, if so, do we take it for granted that "our" prisoners, even if their conditions are extremely problematic, are and should be better off than "their" prisoners? To what extent do we ignore problems in developing countries until some political/symbolic mechanism pushes us to act? And given the limited resources we all have, what do we devote our energies to?

As I ride into the sunset to ponder these, I'll provide an update I still owe you all regarding the police officer who shot Oscar Grant at the Oakland BART station. After what seems to have been a problematic police probe into the matter, the officer has been released on bail but charged with murder, and it seems like he will be arguing he mistook his gun for a taser. The other officer, who hit grant, argues provocation. 

With these difficult questions on my mind, I bid you all farewell for the time being. Thank you for the gracious hosting and for your thoughtful comments and dialogue.

Posted by Hadar Aviram on February 2, 2009 at 12:18 PM in Criminal Law | Permalink | Comments (2) | TrackBack

Good to be back

Thanks to the nice people at Prawfs for letting me crash on the couch for another month.  I'm glad to be back blogging after a long lay-off.

It's probably because I'm trying to write a Criminal Procedure casebook that being a guest blogger puts me in mind of Justice White's opinion for the Court in Minnesota v. Olson, 495 U.S. 71 (1990):

"Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home."

I agree with the Court's conclusion in this case, but I've always found Justice White's trumpeting of crashing at someone else's house just this side of ridiculous.  I'm getting a sense he rarely imposed on friends when he was on the road....

Posted by Sam Kamin on February 2, 2009 at 11:12 AM in Blogging | Permalink | Comments (1) | TrackBack

Would Phil Areeda have been my facebook friend?

I've been hanging out for the past five years over at Mirror of Justice, where emotions run high in rollicking discussions of all things Catholic, legal, and theoretical, and for a much shorter period of time at Legal Ethics Forum, where emotions run significantly lower in discussions of all things Model Rulesish.  It's nice to hang my shingle out here for a while where, as I understand it, the field of inquiry is wide open.

Ideally, I should have had the foresight to prepare a whole pipeline of witty, insightful posts for my time here.  I haven't.  I've been preoccupied by my venture last week into the world of Facebook.  As a friend of mine remarked, FB simultaneously elevates and trivializes our relationships.  Gone forever are the days when we could sing along wistfully with our beloved Wilburys, "Maybe someday down the road aways, you'll think of me and wonder where I am these days."  Odds are, they know where you are these days, and they know what you had for breakfast.  Curiosity is satisfied, but the mystery of it all is bludgeoned to death in the process.  FB angst is old news to most of you, and I'm sure that there is an entire section of the MLA convention devoted to navel-gazing scholarship on the FB experience.  But bear with me, for I do have a PrawsBlawgable question about all this after the jump. 

What does FB mean for the professor-student relationship?  I'm not talking about whether the law school should use FB as a professional networking venture; I'm talking about what students know about you and what you know about your students.  I still base my image of the law school professor on Phil Areeda, who I'm certain would have had me arrested if I had dropped by his office to chat about the weekend.  Even when I started teaching at St. John's, a senior colleague (whose attitude did not, I learned, reflect the prevailing sentiment of the faculty) warned me that, given my age, students would try to become friends with me, and that I should run screaming if any approached me outside class. 

And now what have I become?  Going out with students for a beer, fielding a flag football team, and playing basketball with students has always made me an enthusiast for the friendship that dare not speak its name, but now I've taken it to another level -- I'm FB friends with my students.  I'm all up in their business, and they're in mine.  Is it wrong?  Is it a concern?  Do any other faculty FBers deny student friend requests?  Do you keep them on a separate friend list with more limited access to your page?  At least for me, the notion of keeping a mysterious distance between students and myself was a non-starter, but have I (or my students) lost something in the process?  WWPAD?  (What would Phil Areeda do?)

Posted by Rob Vischer on February 2, 2009 at 11:03 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Misunderstood legal quotations

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?

Posted by Howard Wasserman on February 2, 2009 at 06:29 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Sunday, February 01, 2009


Just a quick note to say thanks for all the wonderful posts by our guests this past month. Some of them may linger a bit longer before saying goodbye, but with the new month, it's time to welcome (back) some new and familiar voices to the conversation. 

Making a debut at Prawfs this month are Marcia McCormick (Cumberland, Employment law and fed courts); Rob Vischer (St. Thomas; law and religion/professional responsibility); and Brian Foley (vap at BU; crim and evidence law). Returning we have a stellar crew: Chris Lund (Mississippi; con law); Bernie Meyler (Cornell; con law/law and humanities); Michael Steven Green (William and Mary; jurisprudence); Sam Kamin (Denver; crim); and Zak Kramer (Penn State; anti-discrimination law). You can find links to their scholarship on the sidebar to your right under Guests. Thanks again for joining us; we are so thrilled to have you here for February!

Posted by Administrators on February 1, 2009 at 10:36 PM in Blogging | Permalink | Comments (0) | TrackBack

Cardinal Mahony and honest-services wire fraud

The invaluable Prof. Friedman's Religion Clause blog has this post, about this Los Angeles Times story concerning a wire-fraud investigation of Cardinal Roger Mahoney.  This seems (putting aside the religious-liberty issues) an ambitious effort.  I've not been following the matter in recent years, but I would not have thought that the honest-services theory reached this far.  (I'd welcome comments from those who have been keeping up with the statute's development and application.)

As a religious-freedom matter, though -- and, to be clear, to say this is not to suggest that Cardinal Mahony has exercised well the power, and responded well to the trust, that his Church (and, members of that Church believe, God) placed in him -- this prosecution is troubling.  On the one hand, it seems quite unremarkable to say that allegations of the kind that are swirling around Mahony suggest, on any meaning of the word, a betrayal of Catholics in his Diocese.  On the other, it also seems that identifying (and then vindicating, through a criminal prosecution) the "honest services" that a Catholic bishop owes to the Catholics in his Diocese would involve the kind of inquiry that we -- for "Freedom of the Church" and "hands-off religious doctrine" reasons -- do not want, and should not permit, the civil authorities to undertake.

Posted by Rick Garnett on February 1, 2009 at 01:17 PM in Rick Garnett | Permalink | Comments (4) | TrackBack