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Why Heller Matters (It's Probably Not Why You Think)

A recent New York Times article on Heller’s progeny suggests the hotly debated case is “firing blanks.”  Sandy Levinson (who, in full disclosure, was a professor of mine while I was in law school) is quoted as saying that “Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”  The idea is that, because Heller won't overturn many statutes, it's doesn't matter much. ( I’m sure Sandy would agree that it matters to people in the District who want to own handguns, but that is admittedly a pretty small population. The issue that the article is raising and on which Levinson is prognosticating is the broader impact on our society.)  

I disagree. Heller matters a lot.  

But the way it matters escapes most of those involved in the debate.  The effect won't be measured in terms of statutes overturned.  Instead, Heller's effects will be expressive and ultimately, as a result of its expressive influence, practical. 

Expressively, it’s probably true that, to the radical wing of the gun-rights movement, Heller and its progeny will seem like small change – their vision of Americans happily armed to the gills without any state oversight or intervention has not been vindicated.  But to the average gun owner who worried that the Constitution afforded her no protection, Heller is deeply reassuring. Consider how different Heller’s message is from the message sent by the Director of the CDC's National Center for Injury Prevention and Control under the Clinton Administration, Mark Rosenberg when the last major gun control measure was considered.  He described the Clinton administration's proposed initiative on gun violence this way: “We need to revolutionize the way we look at guns, like what we did with cigarettes. It used to be that smoking was a glamour symbol — cool, sexy, macho.  Now it is dirty, deadly — and banned.”  Even if one were trying, it would be hard to script a message more offensive to ordinary gun owners.

Practically speaking, Heller matters, too, but in ways that most in the debate miss.  The truth is that gun bans in most of the places like DC and Baltimore where gun control initiatives are popular don’t benefit the citizens of those cities by reducing crime; in fact, gun bans probably exacerbate gun violence in those cities.  Why do I think that?  Not because, as many gun-rights advocates fervently argue, more gun ownership in those cities would deter criminals, an issue on which I have no opinion.  Rather, it’s because, within the expressive economy of gun rights and regulation, gun bans in DC and other northern cities make ordinary gun owners elsewhere fear dispossession, which generates opposition to any tracking of firearms in the states where illegal guns originate – after all, in the absence of a right, gun tracking could be a way of dispossessing law-abiding gun owners in the future!  By taking complete dispossession off the table, Heller removes the central reason that moderate gun owners oppose information-gathering efforts.  

At least in that sense, Heller matters. 

Nell Jessup Newton to Notre Dame Law School

I am happy to report the news that the new dean of Notre Dame Law School is Nell Jessup Newton.  (Notre Dame's gain is, I know, my PrawfsPal Ethan's loss.  The announcement also means, I hope, that I will get to see the lovely and talented Nicole Stelle Garnett, who was on the hard-working dean-search committee, more often.)  

Once upon a time, when I imagined myself a potential scholar of Federal Indian Law, I had a chance to read and benefit from her important work in the field.  (I'm counting on her to bring me back up to speed!)  Dean Newton has a great reputation as an energetic, empowering, and creative dean, and I am looking forward to working with her, as she puts her many talents to work at making my law school the outstanding, distinctively Catholic, and (therefore) interesting place that it should be!

Lyondell Chemical Co. v. Ryan and Delaware's (Counter-)Cyclical Jurisprudence

Larry Cunningham has posted on the recent Lyondell Chemical Co. v. Ryan opinion from the Delaware Supreme Court.  (The title of his post reminds me of this.) He calls the opinion "refreshingly lucid and terse" and states that "for now, Lyondell puts the notion of good faith in something of a coma. Not dead, but nary alive."

There has been lots of great commentary on the opinion: I'll crib from Larry and point you to Steve Bainbridge; Jeff Lipshaw; Gordon Smith; and Andrew Lund's paper on the subject.  There's one angle that I haven't yet seen mentioned, however, and that's the counter-cyclical nature of the opinion.

There's a standard meme in corporate law that Delaware courts are worried about encroachment from federal law, and so their jurists are motivated to shape the law in accordance with the prevailing political winds.  As the abstract for Mark Roe's Delaware's Competition explains:

Delaware's chief competitive pressure comes not from other states but from the federal government. When the issue is big, the federal government takes the issue or threatens to do so. Delaware players are conscious that if they mis-step, federal authorities could step in. These possibilities of ouster, threat, and consciousness have conditioned Delaware's behavior.

The Disney case is often held up as an example of this, as sketched (in simplified form) by this timeline:

• 1998 [pre-Enron]: Chancery Court dismisses claims

• 2000 [pre-Enron]: Supreme Court affirms as to most counts, but remands for dismissal without prejudice

• 2003 [post-Enron]: Chancery Court finds good faith claim has been stated and rejects motions to dismiss

• 2005 [post-post-Enron]: Chancery Court criticizes Eisner but finds no violation of good faith

• 2006 [post-post-Enron]: Supreme Court affirms

Of course, this simplification does no justice to the actual opinions and their complexities.  But it is an illustration of the (cynical) explanation of Delaware's relationship with D.C.: Delaware judges do what they need to do to satisfy the feds but no more.

Recent cases from the Chancery Court have been somewhat in harmony with this thesis.  In the AIG case, Vice Chancellor Strine called AIG a "criminal enterprise" (under the facts as alleged in the complaint) and allowed the case to move forward.  In Citigroup, Chancellor Chandler dismissed the Caremark claims but did allow a excessive compensation-waste claim to go forward - a fairly unusual event.  (But cf. Jay Brown's criticisms of Citigroup here.) 

However, Lyondell seems like a pretty clear victory for the deregulatory side.  It cuts back on the fiduciary duty of good faith in straightforward and dramatic terms, using adverbs like "completely" and "utterly" that provide little wiggle room.  Moreover, this near-elimination of good faith was arguably unnecessary to the resolution of the case.  (See Andrew Lund's comment here.)  Given the regulatory mood in Washington and across the country, Lyondell seems to be radically out of step with the prevailing political winds.

So does this mean that the "federal competition" explanation of Delaware jurisprudence is wrong?  Maybe it was right before but the equilibrium has changed?  Or is this case just an exception?

SCOTUS Digs Philip Morris

Thanks to Adam Richardson, one of my RA's and fave students, I just got word that the Supreme Court dismissed cert on the Philip Morris punitive damages case as improvidently granted. It was a one line per curiam statement, available here. Lyle Denniston of the indispensable SCOTUSBlog has this brief report.   I'd be curious to hear rank speculation about why the case got DIG'd in the comments. In the meantime, here's a snippet of Lyle's work, and some links to my own recent and forthcoming work in the area of punitive damages. 

Mrs. Williams’ lawyers told the Court this time: “Twelve years after the tragic death that gave rise to this action and nine years after the lengthy trial of this case, with four appellate reviews in Oregon, and five years after the first of three trips to this Court, it is time for this litigation marathon to end.”  The marathon, however, may not be over yet.  Philip Morris, at an earlier stage in the case, reserved the right to challenge a state law that requires that 60 percent of a punitive verdict goes to the state of Oregon. The company’s argument against that is that Oregon has achieved all of the proceeds it is entitled to have under the global settlement of a group of states’ lawsuit against the industry. Mrs. Williams’ lawyers, backed by the Oregon attorney general, have argued that the tobacco settlement only applied to that specific case, and thus would have no effect on the verdict in her case.   Philip Morris must take an affirmative new step to revive this issue, according to lawyers involved. The verdict stood at nearly $143 million a year ago when Philip Morris filed its latest petition in the Supreme Court.  Under Oregon law, the interest rises at 9 percent a year, indicating that the award is now worth something around $156 million.  Mrs. Williams’ 40 percent share would thus appear to be somewhere above $60 million.  (The compensatory award of $521,485.50 has not yet been paid, because Philip Morris’ various appeals sought a new trial on the entire verdict.)

A poem from Melanie

I've been neglecting my blogging duties, but no more.  To jumpstart my posting, I thought I'd share a poem my friend Melanie shared with me this morning.  It seems to set the right mood for these uncertain times.

The Burning of the Leaves

Now is the time for the burning of the leaves,
They go to the fire; the nostrils prick with smoke
Wandering slowly into the weeping mist.
Brittle and blotched, ragged and rotten sheaves!
A flame seizes the smouldering ruin, and bites
On stubborn stalks that crackle as they resist.
The last hollyhock’s fallen tower is dust:
All the spices of June are a bitter reek,
All the extravagant riches spent and mean.
All burns! the reddest rose is a ghost.
Spark whirl up, to expire in the mist: the wild
Fingers of fire are making corruption clean.
Now is the time for stripping the spirit bare,
Time for the burning of days ended and done,
Idle solace of things that have gone before,
Rootless hope and fruitless desire are there:
Let them go to the fire with never a look behind.
That world that was ours is a world that is ours no more.
They will come again, the leaf and the flower, to arise
From squalor of rottenness into the old splendour,
And magical scents to a wondering memory bring;
The same glory, to shine upon different eyes.
Earth cares for her own ruins, naught for ours.
Nothing is certain, only the certain spring.

Laurence Binyon

TRO issued in Pennsylvania case

Order here. (H/T: Jeff Spangler, commenting on an earlier post).

Nothing surprising or detailed. The DA argued Younger abstention, which the court rejected for the obvious reason that there is no pending prosecution. The court was admittedly cursory in the merits analysis, emphasizing that this was just a motion for a TRO and the only issue is a reasonable likelihood of success on the merits. The court did not seem to recognize that the "retaliation" would come only if the prosecutor actually filed charges, not from the mere threat.

I wonder how long before the DA makes this go away quietly--this cannot be good for him.

On Legal Representation II: The Case of Kirsten Gillibrand

The other issue concerning legal representation that I want to discuss today has to do with a story the Times ran on Friday about the legal work performed for Philip Morris by now-Senator Kirsten Gillibrand as a young lawyer.  The story discusses, at great length, her work in defending Philip Morris in tobacco litigation, which she apparently did very well.  I had rather expected more commentary on this to appear in the legal blogosphere, but there hasn't been much.  Today, however, Sandy Levinson has a post at Balkinization that I think can be fairly characterized as excoriating Gillibrand for doing this work for "an industry that has killed far more people than any of the various torturers some of us would like to see brought to [the] bar of justice."  Levinson, who of course has criticized John Yoo's legal work for the Bush administration (as have many people), says that Yoo was at least motivated by patriotism, while Gillibrand was only motivated by opportunism.  He says that it is fine for a public defender to represent "the worst axe murderer" against criminal charges -- he does not say whether it is fine for a private criminal defense attorney to do the same -- but questions Gillibrand's decision to represent the tobacco company.  He says the Democrats ought to choose another candidate for Senator in New York in 2010, and adds that any votes she may have cast against the tobacco industry in Congress won't suffice to exonerate her unless "she offers credible evidence that it [was] the result of a conversion experience."

I agree with Sandy on one thing: Senator Gillibrand's response to the story is weak.  In the story, she says through her people that she had "little control over the cases she was handed," and says focusing on her work for Philip Morris "would not reflect the range of her work as a lawyer, which also included representing pro bono clients."  There are two problems with this.  The first is that her firm apparently allowed associates to decline work on the tobacco cases.  I admit to having problems with this rule, which other firms have had.  The ethical rules already require lawyers, most certainly including junior associates, to decline representation in cases in which they have a serious conflict of interest brought on by personal views.  Carving out a specific "permission" with respect to the tobacco cases alone, as some big firms did, is thus both redundant and a fig-leaf, a public relations gambit that helps them recruit young associates with a somewhat glorified and untutored sense of moral self, allowing them to feel good about declining these few cases while taking on work that might be every bit as disturbing.  These firms ought to have had a blanket rule or none at all.  But in any event, it strips Gillibrand of her excuse that she "worked for the clients that were assigned to her."  (Nor would it be an excuse if she felt pressured to take the case; working at a big firm is not worth one's sense of integrity, and she could always have quit.)  Second, the story suggests she spent a good deal of time on this case, so I don't see what's unrepresentative about it; did she really spend an equal amount of time on pro bono cases?  (I might add that this also shows the ways in which big-firm pro bono work, whatever other value it may have, also serves as a fig leaf, and a vehicle by which top students with a tendency toward high moral dudgeon can be recruited to top firms without having to face up to whatever cognitive dissonance they ought, by rights, to be experiencing.)

Beyond that, though, I think Levinson is at least intemperate, and more likely simply wrong.  There is no doubt that some specific actions undertaken in the legal representation of the tobacco companies was troubling.  But it seems to me that most of that work came earlier, both in the temporal sense and in the sense that it came at the counsel stage rather than the litigation stage.  Defending companies against high-stakes class action litigation, even the tobacco companies, does not seem to me to be morally reprehensible as such.  Certainly that representation need not be carried out in a morally reprehensible fashion -- and none of the evidence in the story suggests that Gillibrand did so; only that she was heavily involved in the work.  Levinson treats her as nothing more than an opportunist.  He has no evidence for this charge.  Gillibrand could as easily have believed that the class actions were legally faulty, or that these were valuable cases in which to serve the process of justice on either side of the bench.  If, on the other hand, she was motivated by nothing more than the desire to do well on the cases she took on and succeed as a big-firm litigator, I still do not think this says very much, unless Levinson is saying that any big-firm litigator who fulfills his or her role in a perfectly honorable fashion should not serve in the Senate.  Perhaps he thinks only public-interest lawyers should serve as candidates; if so, he could fairly ask whether none of them ever operate for opportunistic reasons at times -- say, the desire for future political office.  His argument that any votes she cast against the tobacco companies in Congress should be discounted unless she experienced a "conversion" assumes that she must have loved the tobacco companies in the first place.  But this mistakes the usual nature of the relationship between lawyer and client, or at least mislays the possibility that she served her client for reasons having nothing to do with personal sympathy; maybe her votes in Congress are a more telling indicator of her policy views on these issues now that she is freed from her role as an advocate.

Finally, the comparison with John Yoo, which is largely a rhetorical point, strikes me as unsuccessful.  Most people, including me but also including some of Yoo's thoughtful conservative former colleagues, were troubled by the quality of Yoo's work and the question whether he provided the sort of analysis he was obliged to give or whether he instead offered questionable advocacy when he should have provided careful counsel.  His motives, in this sense, are less important than the work he did; if he wrote shoddy memos out of "patriotism," or love of torture, or love of the administration, they would still be shoddy.  On the other hand, a person could well have worked on these sensitive issues in the Bush administration, and taken positions I might not share, but still do so in a thoroughly honorable fashion.  Unless Levinson is saying that there is never a distinction between the lawyer and the client he or she represents, I just don't see the comparison between the two; if he is saying that, on the other hand, I tremble for the criminal defense bar, among other sectors of the legal profession.

On Legal Representation I

Last week, Richard Painter offered a series of excellent posts on the Volokh Conspiracy about government ethics reform and other related matters, based in part on a new book by him and in part on his experience as an ethics officer in the Bush White House.  They're all very worth reading -- very thoughtful contributions to the public dialogue.  One of his most interesting posts, to my mind, is this one, in which Painter discusses the legal arguments concerning torture.  Among other things, Painter writes:

This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.

Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.

Painter's statements provoked quite a heated discussion in the comments (with, among other things, many commenters apologizing for the more red-blooded views of some commenters).  A number of commenters responded along the lines of: "Your job as a lawyer is to tell me what the law is.  I'm not interested in hearing your views on the moral or (broadly speaking) ethical implications of my proposed actions.  Would you tell a corporation not to do something because it's morally wrong?  Stick to your knitting."

I'm not a legal ethics scholar, but I do teach and think about it.  More generally, I think such views are in line with views that I have seen expressed by commenters in the blogosphere before, to the effect that lawyers are there to offer technical advice and have no business offering moral views.  The fairly conventional legal professional rule is that this view is simply wrong.  Thus, ABA Model Rule of Professional Conduct 2.1 states that a lawyer's advice "may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."

This strikes me as entirely appropriate.  That's true not because lawyers have any special moral authority, or any great epistemic expertise on matters of morality.  But these considerations are, at the crudest level, practically relevant: any lawyer trying to give worthwhile advice should include all the factors that might affect a client's decision, and those certainly include both the external effects, such as public criticism, that might meet a possibly "immoral" action, but also the internal effects on the client or entity of doing so.  Moreover, clients may propose immoral actions in the heat of the moment and without reflection; lawyers who serve as reasonably disinterested in dispassionate advisors can serve as a check on these impulses, and smart clients should welcome this.  Finally, the commenters seem to me to lack a sense of the give-and-take involved on these issues.  To tell a client you think some line of action is not to prevent that client from disagreeing with you; it also does not prevent a client from honestly reconsidering his or her actions and changing his or her mind about a course of conduct based on the lawyer's morally inflected advice.  

Finally, although I don't hold an especially exalted view of lawyers. I think it is possible to be too narrow in viewing legal advice as purely technical in nature.  Per Kronman and many others, and even if we strip such arguments of their tendency toward self-regard and Law Day rhetoric, there is still room for a "wise counselor" model of lawyering, even in dealings with sophisticated corporate clients (which, after all, are entities represented as a whole by the lawyer; even if the entity as a whole is sophisticated, its constituent actors may not always be).  Lawyers at their best can serve as a check on impulsiveness, group polarization and groupthink, and so on, and offer sober second thoughts on various issues.  They may have no great epistemic authority on moral matters, but they do, if they are experienced, have a decent situation-sense about such things derived from working on many such cases.  And some lawyers actually have good judgment on these and other matters.  Leaving aside the special duty that government lawyers may have to do so, by law and custom, I think Painter is right that sometimes a lawyer's proper role is not just to say "how," but also "no."  The trickier question is what that lawyer should do when the client listens to moral advice and says "yes" anyways. 

Garnett on "Our Free Speech Fortress"

Our own Rick Garnett has an op-ed in USA Today, um, today, discussing the government's role in religious expression, in light of the recent Summum opinion.  Rick argues that the government regularly is involved as a speaker within the walls of our "free speech fortress," and that disputes over things like the public display of the 10 Commanemdments may distract us from more serious questions of religious liberty.  Ira Lupu, among others, has remarked on the degree to which religious symbolism cases have taken primacy in Establishment Clause litigation over religious funding cases, and supplies various reasons why this may be.  It's a fine article; I don't have the cite off hand, but I believe it was in William & Mary some years back.  Rick's is a brief and commendable contribution to this conversation.  Rick writes that while we must be sensitive to and cautious about the role of government in religious speech, 

At the same time, we should, in these and similar cases, keep our eye on the religious-freedom ball. The separation of church and state, correctly understood, is a powerful, crucial protection for genuine diversity and liberty of religious conscience. Its proper goal is not to put religion in its place but to keep the state in its place. It is not, however, meaningfully threatened by a Ten Commandments monument in a town park or a land swap involving a cross in the desert. The court should, in a predictable and principled way, enforce the establishment clause by preventing attempts by government to exercise religious authority or to interfere with religious communities' self-government, and leave the monitoring of monuments to the good sense of citizens and to the give-and-take of ordinary politics.

I have a couple of responses to this.  If religious liberty is not meaningfully threatened by, say, Ten Commandments displays, then presumably neither is it meaningfully advanced; of course, as some have argued, religion may also be positively harmed by being watered down and/or made the subject of government speech.  If Rick is right, then the good sense of citizens may also at times include the choice not to present such displays, or only to do so on an even-handed basis.  Also, I'm not sure how to draw the line between the first clause of Rick's last sentence -- government must not exercise religious authority -- and the second clause, in which he says that monuments must be left to ordinary politics.  Why isn't the latter subsumed under the former rule?  

I suspect my default rule would be closer to excluding than to including, although perhaps not in all circumstances.  But I agree with Rick that government is already a speaker within our free speech fortress and that this fact needs greater attention; and I agree that not all the Establishment Clause cases that generate light necessarily generate heat.  Anyways, read it all!

On moral panics and the definition of sexting

I do not plan to be the "sexting blogger" here at Prawfs. But John Parry of Lewis & Clark points me to this story from Oregon. A 17-year-old took a cell-phone video of another girl (then 16), who was drunk at a party, engaging in a sexual act with a dog owned by a 30-year-old man in the room; the filmer showed the video (which lasts for a bit less than one minute) to a male friend, who sent it to his phone. It is not clear whether that person disseminated the video. Arrest warrants were issued for all three of them and the girl and her male friend both have been charged with child pornography, which carries stiff mandatory minimums in Oregon.

I seriously doubt this case qualifies as "sexting." True, the word is a largely meaningless media-created one. But the paradigm that has been established (as described in the Oregonian story) is girls taking pictures/videos of themselves and sending/posting them between one another or to boyfriends. This story seems quite different, because it appears the subject of the video was drunk and the story does not make clear the connection between filmer and subject. But simply referring to this as sexting solely because it involves minors and a cell-phone video fails to capture how this departs the core definition. The word sexting is intended to describe something that is different than child porn (because it is self-depicting, consensual, non-exploitative, and, arguably, harmless). If so, the word cannot be used too broadly or to try to cover situations that do not share the elements or core characteristics of the paradigm.

The Oregonian story engages in this error, probably in an attempt to spice the story up by placing it in the sexy national obsession du jour. The piece cites statistics of teens and twenty-somethings who say they have sent or posted nude/partially nude photos of themselves. And it cites critics who insist "sex-crime laws were never meant to apply to teenage girls sending naughty photos of themselves to boyfriends, for example." (emphasis mine). What the author ignores, of course, is that those statistics and criticisms have absolutely nothing to do with this case, because the filmer was not posting a video/photo of herself or sending it to her boyfriend.

Actually, this is how moral panics pick up steam. We define some objectionable category of conduct broadly (often overly and inappropriately so). In doing so, we make the conduct appear far more pervasive than it really is and potentially more dangerous than the core really is. Policymakers might use the Oregon case as grounds to go after everything they can label as "sexting," even if the cases really are dramatically different.

All that said, we should be more thoughtful about legal categories. This may not be "harmless" sexting, but I am not sure it qualifies as child pornography, either. There must be other options. We can say the filmer did something wrong, without calling it child pornography and subjecting her to the mandatory minimums and sex-offender-registration requirements that come with it. But that may be less a problem of sexting and more a problem of a different moral panic over child pornography and child abuse.

Why do conservatives like the non-delegation doctrine?

My inspiration for this question is George Will's column denouncing the Emergency Economic Stabilization Act as an excessively broad delegation of power to the Secretary of the Treasury to spend federal dollars. Quoting Gary Lawson and Jeff Rosen, Will repeats the old saw that turning over a blank check to an executive official to spend money as that official pleases violates Article I, section 1's assignment of "legislative" powers exclusively to the Congress.

I do not want to discuss the objective merits of the doctrine (although, to put my own ideological priors on the table, I think that the doctrine is silly). Instead, I am curious about why any good conservative would endorse the doctrine, especially as applied to executive officials controlled by the President and especially as applied to federal money. It seems to me that George Will's column and the argument that he presses flies in the face of at least three principles of conservatism: (a) textualism, (b) flexibility in spending, and (c) Presidentialism.

First, are not we conservatives supposed to care about limiting judicial review as closely as possible to the enforcement of plain constitutional text? The non-delegation is the smokiest of penumbras, inferring that somehow broad power to make policy is "legislative" power without anywhere identifying the textual basis for this strange equation. As Vermeule and Posner pointed out in Interring the Non-Delegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002), the textual basis for this inference is weak: "Legislative" power might simply be power resulting from any legislation. Just so long as Congress can retract its grant of statutory authority, it has not delegated anything "legislative" to the Secretary of the Treasury. In short, the non-delegation doctrine is the Roe v. Wade of separation of powers doctrine, having only the loosest mooring in text.

Second, are not we conservatives against micro-managing policy through centralized and hard-to-change directives? Conservatives, after all, are the ones who championed block grants against categorical grants during the 1970s, arguing that rigid statutory definition of spending priorities led to bad policy-making. If a block grant to the states is okay, then block grants to the Secretary of the Treasury are equally acceptable, right? When Will denounces TANF, then I'll take seriously the denunciation of EESA.

Finally, I thought that conservatives liked Presidential power. Whatever happened to a robust definition of Article II?

I do not mean to suggest that Will is denouncing EESA only because it gives power to a Democratic Administration. The problem is actually worse than Will's being unprincipled: He has confused principles. Will and other conservatives are confusing their policy priors with their constitutional and interpretative priors. Conservatives like limited government, and they think that the non-delegation doctrine will get them to this goal. But the doctrine flies in the face of their constitutional commitments to a robust executive and textualism and their policy commitment to re-inventing government to be less shackled by centralized red tape.

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

More on sexting

A commenter on my original sexting post points to a story about a 14-year-old suburban New Jersey girl arrested on child porn charges for posting nude pictures of herself on MySpace. This appears to be the first prosecution to go forward. New Jersey also is the birthplace of Megan's Law sex-offender registry requirements; Maureen Kanka--the mother of Megan--expressed outrage at this use of child-porn laws.

It is important not to fall into a moral panic or start assuming, because the news media is talking about this, that these sorts of prosecutions are more pervasive than they really are. But this is getting insane, in however limited amounts it is happening. I guess we have to wait to see how many prosecutions must fall flat on their faces before prosecutors stop doing this sort of thing.

But here is an interesting First Amendment angle: The essence of child pornography as a proscribable category of expression has been exploitation, not nudity or sexuality alone. Non-obscene sexual depictions of children made without exploiting an actual child--drawings or paintings or "virtual child porn" (adult figures morphed to look like children) or adults "playing" children--are constitutionally protected. So how should we treat a photo of an actual child in which there has been and can be no exploitation because the producer and subject of the allegedly child-pornographic photo are the same person? Can a 14-year-old "exploit" herself?

Some thoughts on the timing of the spring submission process for law reviews

It occurs to me that there doesn't really seem to be a good reason for law reviews to change over their boards in late Feb/early March, as opposed to mid-January. And there's an important advantage to all the players (the students and the profs who bow down to them) if the turnover occurred earlier: namely, it lessens the freneticism of having the expedite madness bump up so intensely against both spring break and, more importantly, exams.  Here's my thinking: my sense is that the sweet spot for spring submissions is usually around March 1.  Many friends of mine who submitted four weeks ago or more, however, are still in the "game" now, just as law reviews start to think about winding down due to increased student anxiety about upcoming exams. The situation is probably substantially worse for those who submit toward the end of the window, ie, around or after March 15th.

The fall cycle by contrast begins roughly speaking with the new school year in late August. This makes it a more orderly experience in terms of being able to get read at places without having to deal with the kinds of disruptions or shutdowns associated with spring break and exams/reading period. 

Am I missing something?  If not, why the heck don't we get the top reviews to agree in advance to do their turnover at the beginning of the spring semester, and that should probably get everyone else to move their turnovers to an earlier point in time also. Vitarelli: lead the charge!

Weekend Reading: Segall on Tribe's "Invisible Constitution"

Thanks, Dan, for posting the table of contents for the Michigan Law Review's annual books issue; it's always one of the better annual reads.  I haven't seen hard copies of this yet.  In the meantime, readers may enjoy Eric Segall's review, in Northwestern's Colloquy, of Laurence Tribe's Invisible Constitution.  It's a very enjoyable read.  I have reviewed Tribe's book here, and I reach very similar conclusions.  Both of us are dissatisfied with the book, but I must say that it provided a very useful basis for discussion of substantive due process in my constitutional law class the other day.  

Incidentally, I don't know whether it's generational, regional, or whether it has something to do with the [insecurity/common sense] of current law students, but I find it hard these days to get students even to acknowledge the possibility of legitimate substantive due process rights -- and the P & I Clause and the Ninth Amendment don't tend to change that if they're included in the conversation.  in saying so, I'm not tipping my hand as to whether I think they're right or wrong; I'm just a little startled that I find it so hard to find defenders of this doctrine, even though it's plain that many students agree with some of the outcomes in some of these cases.  On the other hand, some of the few who are sympathetic tend also to think Lochner was rightly decided.  Interesting!  Quite a different reaction from the fairly orthodox reactions I experienced from my classmates when taking con law at Columbia a million years ago.   

Sexting, Prosecutors, and § 1983

Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school.

In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts. The pictures then were being traded phone to phone among male students in the school district, many of whose phones were confiscated by the school and turned over to the DA. The DA threatened to bring felony child pornography charges against twenty teens (the three girls who had been photographer and 17 who had the pictures on their phones--although not the boy(s) who initially mass-disseminated the photos) unless they agreed to probation and to attend a "re-education" program, in which they would do homework and try to “[g]ain an understanding of how [their] actions were wrong,” “[t]o gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “[i]dentify non-traditional societal and job roles.”

The 17 possessors took the deal; the three girls brought a § 1983 action against the DA, alleging that he retaliated against them by knowingly threatening to bring frivolous felony charges against them for exercising their First Amendment rights in posing for the photos and in refusing to engage in compelled expression by participating in the re-education program. (H/T: Josie Brown at First Amendment Blog, via Bashman). The ACLU of Pennsylvania and Seth Kreimer of Penn Law are representing the plaintiffs.

Some interesting things.

1) At one point, the Complaint alleges that the DA told one of the plaintiffs' parents that "the girls were accomplices to the production of child pornography." If true, this is one of the most incoherent legal assertions ever. The reason for child porn laws--and for child pornography as an unprotected First Amendment category--is the conclusive presumption that the children photographed are being exploited, which conclusively presumes that they are too young to consent. So if they could not consent to their actions, how can they be accomplices to that act, since accomplice liability typically requires intent (I believe)? Is this really what the county's chief prosecutor came up with?

2) There is a lurking Younger problem (isn't there always?). The prosecutor could halt the federal lawsuit tomorrow by filing charges against the girls (the Complaint alleges that the DA has "temporarily deferred" prosecution to allow the girls more time to research and decide on their strategy). The complaint was filed on Wednesday; there have not yet been any "proceedings of substance on the merits" in federal court, so a quickly filed state criminal action would trigger abstention. The plaintiffs make a preemptive move, alleging several times that the threatened charges are blatantly meritless, thus any prosecution is brought in bad faith, a recognized (although extremely narrow) exception to Younger. It raises the question of how weak a charge must be qualify as brought in bad faith. Interestingly, the conduct challenged as unconstitutional is the threat to prosecute First Amendment protected activity, although the relief sought is an injunction prohibiting the DA from initiating prosecution. So that probably defeats the argument that the injunction would not interfere with state proceedings.

3) On the other hand, I wonder how strong the claim is on the merits. This case looks different than the typical anticipatory First Amendment action, which says "There is a risk that this state law will be used against me and such an application of the law would be unconstitutional." Here, the argument seems to be that the plaintiffs' conduct does not violate Pennsylvania child porn laws--as a statutory matter, not necessarily because such application would be unconstitutional--and that the threat of such a statutorily invalid prosecution violates the First Amendment. But are there recognized First Amendment (or any other) limits on threatening to bring charges under a facially constitutional statute? And can a federal court enjoin a prosecution not because the law (or its application) is unconstitutional, but simply because the state statute would not be violated on the facts?

4) There is no claim for damages, presumably because the DA enjoys prosecutorial immunity (a fact emphasized to show no adequate remedy at law). We could question whether the threat to charge and pre-charge negotiations are prosecutorial acts or more part of the pre-charging investigative process to which prosecutorial immunity does not attach. But the conduct described in the complaint sounds like plea bargaining, which is core prosecutorial. On the other hand, the plaintiff's real constitutional objections are to the meritless harassment from the threat of prosecution--which is better remedied by damages for the harassment than by an injunction halting future actual prosecution.

Keep an eye on this one.

A few interesting law review issues

After the jump, I thought I'd spotlight a few law review issues that caught my eye recently, including the new Mich LR books issue, a Penn symp on the Eighth Amendment, and a Loyola LA symp on the "frontiers of tort law."

MICHIGAN LAW REVIEW

Volume 107       Number 6       April 2009

 

2009 SURVEY OF BOOKS RELATED TO THE LAW

 

FOREWORD

WHY WRITE?

Erwin Chemerinsky

881

 

CLASSIC REVISITED

BRADBURY: FAHRENHEIT 451

Rodney A. Smolla

895

 

REVIEWS

NUSSBAUM: LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY

Gene R. Nichol

913

 

SPIRO: BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION

Jonathan Weinberg

931

 

SLOBOGIN: PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT

Orin S. Kerr

951

 

AYRES: SUPER CRUNCHERS: WHY THINKING-BY-NUMBERS IS THE NEW WAY TO BE SMART

Edward K. Cheng

967

 

GREENFIELD: THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES

Antony Page

979

 

POLIKOFF: BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW

Amy L. Wax

999

 

BAKER: MEDIA CONCENTRATION AND DEMOCRACY: WHY OWNERSHIP MATTERS

Leonard M. Niehoff

1019

 

MCCRUDDEN: BUYING SOCIAL JUSTICE: EQUALITY, GOVERNMENT PROCUREMENT, AND LEGAL CHANGE

Jeffrey L. Dunoff

1039

 

EPSTEIN: SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL PROTECTION FOR PRIVATE PROPERTY

William Michael Treanor

1059

 

SULLIVAN, COLBY, WELSH WEGNER, BOND, & SHULMAN: EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW

Anthony V. Alfieri

1073

 

UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW

Volume 11       Number 1       December 2008

 

SYMPOSIUM:

CRUEL AND UNUSUAL PUNISHMENT: LITIGATING UNDER THE EIGHTH AMENDMENT

Prison Health Care, Political Choice, and the Accidental Death Penalty

Elizabeth Alexander

1

 

The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies

Stephen B. Bright

23

 

Limiting Excessive Prison Sentences Under Federal and State Constitutions

Richard S. Frase

39

 

Evaluating Institutional Prisoners' Rights Litigation: Costs and Benefits and Federalism Considerations

Sarah Vandenbraak Hart

73

 

Desert and the Eighth Amendment

Youngjae Lee

101

 

Prolonged Solitary Confinement and the Constitution

Jules Lobel

115

 

Preserving the Rule of Law in America's Jails and Prisons: The Case For Amending the Prison Litigation Reform Act

Margo Schlanger & Giovanna Shay

139

 

Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly

Carol S. Steiker & Jordan M. Steiker

155

 

A Closing Keynote: A Comment on Mass Incarceration in the United States

David Rudovsky

207

LOYOLA OF LOS ANGELES LAW REVIEW

Volume 41       Number 4       Summer 2008

 

SYMPOSIUM

THE FRONTIERS OF TORT LAW

 

INTRODUCTION

John T. Nockleby

1143

 

DOING AWAY WITH TORT LAW

Jules L. Coleman

1149

 

TORT NEGLIGENCE, COST-BENEFIT ANALYSIS, AND TRADEOFFS: A CLOSER LOOK AT THE CONTROVERSY

Kenneth W. Simons

1171

 

PUTTING "DUTY" IN ITS PLACE: A REPLY TO PROFESSORS GOLDBERG AND ZIPURSKY

Dilan A. Esper & Gregory C. Keating

1225

 

LIABILITY FOR POSSIBLE WRONGS: CAUSATION, STATISTICAL PROBABILITY, AND THE BURDEN OF PROOF

Richard W. Wright

1295

 

SITUATIONIST TORTS

Jon Hanson & Michael McCann

1345

 

FORM AND SUBSTANCE IN THE LAW OF COUNTERINSURGENCY DAMAGES

John Fabian Witt

1455

 

UPSIDE DOWN? TERRORISTS, PROPRIETORS, AND CIVIL RESPONSIBILITY FOR CRIME PREVENTION IN THE POST-9/11 TORT-REFORM WORLD

Ellen M. Bublick

1483

 

SANCTIONING THE AMBULANCE CHASER

Anita Bernstein

1545

 

SUMMARY JURY TRIALS IN CHARLESTON COUNTY, SOUTH CAROLINA

Steven Croley

1585

 

DRUG ADVERTISING CLAIMS: PREEMPTION'S NEW FRONTIER

Catherine M. Sharkey

1625

 

STATE INNOVATION AND PREEMPTION: LESSONS FROM STATE CLIMATE CHANGE EFFORTS

Alexandra B. Klass

1653

 

TOBACCO CONTROL STRATEGIES: PAST EFFICACY AND FUTURE PROMISE

Robert L. Rabin

1721

Putting Expresso Out of Business?

John Doyle (the librarian par excellence at W/L) writes:

A new, free, law journal submissions system will be launched by mid-April. "LexOpus" will not simultaneously submit works to multiple journals. Instead, an author selects an ordered list of journals and the system makes the work available to each journal serially on a 7 day exclusive basis. If the current journal rejects, or the 7 days elapse, then the work moves on to the next journal in the author's sequence. A journal whose exclusive period has elapsed may still accept the author's offer, but the current journal has priority until its exclusive offer from the author is rejected or elapses. More information is at http://lawlib.wlu.edu/lexopus/about.aspx
Would authors have any interest in giving up simultaneous submissions?

My sense is that most of us benefit from the simulatenous submissions process so that the answer would be no. But I do suspect Expresso is capturing high fees that another school could undercut with a smartly run program. Thoughts?

Do Cities Have Any Role in Regulating Executive Comp?

A combination of recent headlines and Richard Schragger's recent piece "Mobile Capital, Local Economic Regulation and the Democratic City" (which suggests, among other things, that "[t]he new 'regulatory localism' challenges the proposition that industrial policy, redistribution, and other responses to global economic restructuring must be addressed at the national level") prompt me to wonder about the role of cities in economic regulation. 

I'm sure the answer depends on a rigorous definition of "economic regulation," which I don't claim to offer here.  So let me just raise a specific question I'm intrigued by: the role of the city in regulating executive compensation.  Should it or can it have any role at all?  At the very least, we can say that the interests of the different levels of government as to executive compensation may be different.  The AIG bonus example plays out on the national stage (e.g., 90% taxation of the bonuses) and at the state level (the New York Daily Newssuggestively quotes Attorney General Andrew Cuomo as saying that "If a person returns the money, I don't believe there's a public interest in releasing their name.").  At the city level, though, Mayor Bloomberg apparently warned that "[e]ven if you think that it's fair to take [the bonuses] away, just recognize that we're going to have to make up that tax gap, that reduction, by taxing the rest of us."

The Schlagfest in Geo. L. J. and a mild defense of SSRN emails...

As some of you saw on Co-Op the other day, there's an unusual exchange going on in the pages of the Georgetown LJ this month.  Pierre Schlag has written a(nother) polemic against legal scholarship, and folks as varied as Daniel Ortiz, Richard Weisberg, Richard Posner and Robin West respond. Putting aside the merits of the exchange for now (which I hope to revisit at some point later), I wish to make two small points, indeed, in a phrase I owe to Bob Weisberg, they are thunderously trivial points. [And here it is, I've gone and wasted a perfectly good hour drafting these here in the post...]

First, I couldn't help note that Professor Robin West's response to Professor Schlag is titled A Reply To Pierre. Throughout, and without explanation, Professor West refers to Professor Schlag as "Pierre." Perhaps they are friends. Perhaps P. Schlag implored R. West to call him by his first name given the informality of P. Schlag's paper. In any event, I simply note its apparent and unexplained unusualness, and wondered if it was part of a subtle anti-subordination campaign.  Indeed, although I'm sure it was written well-beforehand, the piece appears on the heels  of New Yorker magazine critic Joan Acocella's letter in the New York Times Book Review this past Sunday, entitled "The Name is O'Connor." In the letter, Acocella decried the habit of the NYT publishing reviews where men are referred to by their last name but women are referred to by their first name.  Of course, it's NOT as if Prof. West refers to men by their first name and women by their last name in this piece.  Still I couldn't help but wonder about the casualness of the reference, the lack of its explanation, and whether that casualness can be, all things considered, normatively justified, especially in the context of a paper defending "normativity" as a law professor's pursuit -- a defense I'm very sympathetic to for reasons of stark self-interest since I'd be out of a job if normativity were verboten. I did once write a piece of juvenilia contending that students and faculty should be on a first name basis with each other. So I am sympathetic to the move, but I wonder if it's a move meant to achieve something else aside from providing a handy and quick referent. [I contacted Prof. West about this and she indicated that it was not intended to subvert or undermine, but rather that since the Schlag piece was informally written, her informality was designed to mirror it and suggest that her critique was intended in a friendly manner also. So that settles that...]

One more trivial point.  (And I hope no one reads this as picking on Professor West, because there's lots more weirdness in Professor Schlag's essay itself, the substance of which Prof. West deftly observes in her remarks, and which I largely endorse by incorporation. Moreover, during the course of writing this post, I came across this absolutely fascinating essay on sex, law, and consent of Prof. West's, which I plan in due course to praise and address a bit more on the merits. )  

In any event, in footnote 8, I noticed her reference to SSRN emails as spam.  Prof. West writes:

When SSRN pops up in the subject line of my emails, I hit delete,
without even a glance, and without even thinking twice. Of course that stuff is spam. It would be nice, in fact, if a sensitive spam filter could select and delete these SSRN emails so I wouldn’t have to. I’m sure I’m not alone in this. Scholarship is now not just like spam [in the Schlagian sense that it is un-nutritious and deadening], it is spam. [italics in original]

I confess I'm puzzled as to why a dean for research (at Georgetown) would say this. First, one opts into receipt of SSRN emails, so they're not the spam of the generally "unwanted" Cialis pill or Russian mail-order bride variety, even though on a particular day, an email from our friends at SSRN might be part of the information overload under which we sometimes labor.  And if one couldn't motivate oneself to un-subscribe from SSRN's mailings, there are in fact sensitive email spam filters that could select and delete these emails: try a filter that deletes anything with publish.ssrn.com in the "from" email address.  Finally, just because the emails on a given day may seem unwanted (even if they are not technically uninvited), that  doesn't make the underlying articles which are linked to in those emails (or any other scholarship) spam, let alone the moral equivalent of spam (qua bad meat or uninvited mass emails). This might be a space where one *should* shoot the messenger but spare from punishment the "message." Indeed, this claim of equivalence between spam and scholarship seemed jarringly inconsistent with West's otherwise illuminating defense of the potential (if not the actuality) of normative legal scholarship, and the exposure of the corresponding shortcomings in Schlag's piece. [After writing this, I showed it to Prof. West, and she said her footnote was intended to ironically make the point that while scholarship is not spam, SSRN floods the market with scholarship and thus, like any commodity which floods the market, the numerous SSRN emails risk bringing down the scholarship's value.  I don't think I buy the argument, but do I share Prof. West's other concern that  these points should not overwhelm the discussion on the merits of the more fundamental critique Schlag makes about legal scholarship, so I'll leave it here, with an invitation to those who want weigh in on that more substantive debate to do so in the comments.] 

Actually, one last point, trying to tie together the essay about consent and sex mentioned above and the relationship we have to these SSRN emails.  In her essay on sex, law and consent, Professor West adverts our attention to the distinction between the unwanted and the unwelcome, a distinction arising out of the literature on sexual harrassment. Perhaps the SSRN emails are unwanted but welcome/tolerated (ie, occuring in a relationship where the sexual attention is welcomed or permitted more generally), and this stands in contrast to the emails selling viagra, which are both unwanted and unwelcome.  If this distinction holds, we might wonder whether the legal scholarship Schlag derides is simply unwanted, or both unwanted and unwelcome...

Innovation in Legal Writing Programs...

Last year, Prawfs had a number of good discussions on various aspects of legal writing programs, including posts of who should teach legal writing, the components of a legal writing program, and an exchange over the use of 3L writing instructors. I thought I would return to the state of law school's legal writing programs, spurred by an email I received from Catherine Wasson, the Director of Elon's Legal Research and Writing Program about the 2008 Law School Survey of Student Engagement (LSSSE).

The 2008 LSSSE has some interesting things to say about law schools' legal writing programs and the law school curriculum in general:

In the crucial area of legal writing, the 2008 findings are more complex and unsettling. Nearly half of responding students reported that they have not had enough practice in developing their legal writing skills in situations matching or approximating real-world legal practice. At the same time, students reported that such practice-oriented writing assignments were particularly effective in enhancing their legal research and communication skills. So, while in aspiration much of legal education is starting to move beyond an exclusive focus upon “thinking like a lawyer,” in practice the schools generally have a long way to go to make those aspirations real achievements. * * * *

 

Innovation is essential to making sure the law school curriculum as responsive to the rapidly changing, increasingly complex legal environment. At the same time, effective legal training must be rooted in such timeless fundamentals as helping students acquire the strong conceptual, analytical, and writing skills demanded by the profession. Despite near-universal agreement on the value of these skills and competencies, legal writing, for example, is typically featured primarily in the first year, and viewed by students as a sidebar in their doctrinal classes.  The low value placed on writing is sybolized by the facts that relatively few legal writing faculty are tenured or in a tenure-eligible role and are often paid less than other faculty members.  Nonethless, good lawyers must be good legal writers; it is a skill that will serve students well as they transition to the practice of law according to results from the After the JD study.

 

In many ways, the observations of the 2008 LSSSE Survey reaffirms conclusions reached by the ABA Survey of Law School Curricula, the Carnegia Foundation's Educating Lawyers book and the Best Practices in Legal Education book, which have all urged law schools to adopt more professionalism and practice-oriented approaches to their curriculum.  Educating Lawyers particularly emphasized the unique opportunities for simulated practice in writing courses, explaining that the "teaching of legal writing can be used to open a window for students onto the full complexity of legal expertise."  Many commentators have picked up the call of the Educating Lawyers' recommendations as it relates to Legal Writing.  See, e.g., Erwin Chemerinsky, Rethiinking Legal Education, 43 Harv. C.R.-C.L. L. Rev. 595, 597 (2008) (urging first-year legal writing programs to focus on writing assignments "more likely to be seen by a larger number of students in their early years of practice.").

 

So my question.  What are law schools doing to reconceive the traditional legal writing programs?  Are schools moving away from the appellate brief and argument to structure classes around more practical problems that lawyers are more likely to see in their eary years of practice?

To get things started, Southwestern's legal writing program has for many years been at the vanguard of legal writing programs, and recent changes seem to really take to heart the calls from Carnegie, Best Practice, and LSSSE.  

 

Southwestern's program -- titled Legal Analysis, Writing, and Skills -- covers objective and persuasive legal writing and research, but also includes focused instruction on professionalism, statutory interpretation, client and witness interviewing, meet and confers, client counseling, email drafting, as well as advanced legal reasoning and case synthesis.  The program is taught by full-time dedicated faculty, who are either tenured or on long-term contracts, who have committee and voting responsibilities, and who are paid at rates among the highest in the country (for the benefits of this approach, see Jan Levine's comments to the earlier posts and the ABA's Sourcebook on Legal Writing Programs). The course is graded and is for six credits (three each semester). 

 

The faculty has also recently approved a new innovation that creates three-tracks in the spring semester.  Instead of just having appellate advocacy, our Fall 2009 entering students will have the opportunity to select one of three tracks: (1) negotiation; (2) trial/pretrial practice; or (3) appellate advocacy.  Each track will provide instruction on persuasive writing, but then will focus on either negotiation skills, pretrial litigation skills, or appellate advocacy skills.  The guiding idea is that the writing program should prepare our students for summer externships, jobs, and eventual graduation by including more real-world experiences. The plan -- although not yet fully formed/implemented -- is that these three legal writing tracks will lead into the school's three honors programs (the negotiation, trial advocacy, and moot court honors programs).  This seems exciting to me.  I'm aware of no other first-year legal writing program that provides students the opportunity to specialize or select a track.  I would be interested though in hearing if other schools are considering this kind of approach.

 

Students can then get advanced legal writing instruction through upper division advanced writing classes, a number of simulation/practical skills courses (such as pretrial civil practice, business contract drafting, patent drafting, drafting licensing, video game, technology agreements etc.), and ultimately conclude their law school career with a capstone course (e.g., capstones in Civil Litigation, Entertainment Law, Employment/Labor Law, Criminal Law, Mass Torts etc.).  This is in addition to traditional seminars. Each capstone course requires substantial writing instruction in simulated real-world experiences.

   

Rosenkranz on "An American Amendment"; or, Do 9 and 11 Equal 28?

Nicholas Quinn Rosenkranz has posted on SSRN a short paper called An American Amendment.  It argues, in an admirably succinct fashion, for a constitutional amendment banning the reliance on foreign law in interpreting the Constitution.  The proposed amendment reads, in its entirety: "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations."

It's a fun paper, and the kind that will draw scads of downloads.  Our guest blogger Austen, having written about these issues, might want to weigh in.  But let me say that although I enjoyed it, I think it's seriously flawed.  Of course, there is even less chance of such an amendment getting off the ground in 2009 than there was when his paper was orally delivered in 2007, so nothing much turns on it.  But it still compels this response.

I have, I think, three major problems with the article.  

The first is its somewhat bizarre tone.  For whom is this paper intended?  Its central premise is that reliance on foreign law is illegitimate because "the project of constitutional interpretation, properly understood," is only concerned with the original expected public meaning of the text at the time of ratification, and so foreign law is simply irrelevant.  For those who agree with this interpretive approach, it says nothing they would not already agree with.  For those who don't think constitutional meaning can be so cabined, it offers nothing to change their minds; understandably, perhaps, in a paper this short, it simply proceeds by way of ipse dixits about how to interpret the Constitution.  So what does it achieve?  It makes me think of Judge Posner's recent critical remarks, in his new piece in the Georgetown Law Journal, observing that much constitutional scholarship is just by and for other constitutional scholars.  This paper is even more circumscribed: it's written by and for, and by way of reassuring, constitutional scholars who already accept particular contestable interpretive premises.  

Second, and giving rise to my subtitle, Rosenkranz argues that his proposed 28th Amendment would "fit nicely within our constitutional tradition," given the presence of the Ninth and Eleventh Amendments.  But the first has had little meaningful effect on the courts, and the second has been read in ways that are hardly reflective of the text.  As simple as his proposed text is, what reason is there to think it would not give rise to the same interpretive ambiguities that afflict other amendments?  For instance, what would "construed" mean in this context, and why would it forbid citation of foreign law by way of illustration or comparison?  Of course, given my own priors, I think of this (constrained) interpretive freedom as endemic to, and not incidental to, the task of constitutional interpretation.  Rosenkranz apparently thinks otherwise; but surely he is aware that even meta-rules cannot perfectly cabin the scope of their own interpretation, as the Eleventh Amendment itself demonstrates so well. 

Third, given Rosenkranz's premise, the scope of the amendment is woefully incomplete.  Rosenkranz argues that allowing the Court to cite foreign law declares "nothing less than the power of foreign governments to change the meaning of the United States Constitution."  He adds in a footnote: "If the Court cites foreign sources, presumably it is relying upon them at least in part.  The Court has no business spending government money to print its thoughts in the United States Reports unless those thoughts are in the service of an exercise of the judicial power."  If that is so, then surely we should amend his amendment to ban the citation of any non-authoritative sources: Rosenkranz's own article, say, along with all other law review articles and, indeed, opinions of lower courts.  We could add to that still other non-authoritative "thoughts," like Justice Scalia's occasional rhapsodies on such matters as the nobility of military academies and the actions of the President at post-9/11 memorial services, all of which are irrelevant to and detract mightily from the persuasiveness of his own interpretive method.  He would certainly save us in printing costs, but only at the expense of a good deal of candor about the actual sources of judicial opinion.

I have other quibbles with the piece.  He says -- another ipse dixit -- that the "current predilection for use of current foreign law is as a mechanism of constitutional change."  Yes, if you accept his premises; no, if you think of it as a mechanism, one among many, of constitutional interpretation or implementation of a document whose aged and ambiguous interpretive status both permits and allows some recognition of contemporary social facts.  And he says the citation of foreign law differs from constitutional amendment because the latter requires the concurrence of individuals with "a different -- and exclusively American -- geographic perspective."  The two may differ in legitimacy, but surely not in the sources they draw on; of course citizens may be influenced during the amendment process by arguments drawn from a variety of foreign sources, as, indeed, the Framers were.  Finally, he writes that the amendment is not far-fetched because the citation of foreign law has drawn great political and theoretical attention, and "could conceivably inspire a sufficiently broad and deep consensus for constitutional change."  I don't think so.  The public is not that interested in the issue, and even most of those who express concern about it really like the issue for what they think it signals about political and constitutional ideology.  We might get broad consensus on this issue, but it would be decidedly shallow.  Remember, along these lines, the 27th Amendment.

A fun piece, as I say.  But I don't find it persuasive, and I'm a little bewildered by how persuasive it doesn't seek to be.  As with some but not all constitutional scholarship, it strikes me as preaching to the converted.

Comments on Prawfs

We've been getting tons of spam comments lately that have been escaping the usual spam filters at Typepad. Consequently, we're going to experiment with a requirement that the comments come from "authenticated" users (those with typepad accounts).  Hopefully we'll revert to the prior strategy soon enough; but if it's not effective, we might have to hold comments before they get published.  Feel free to weigh in with suggestions in the comments.

Update: well, the authenticated users mode didn't save us from the spam attacks. Bah!

My Spring Break...

So my spring break was mostly lost to work, but a really fun part of that work was interviewing the two current congressional chaplains -- the Rev. Barry Black on the Senate side, and the Rev. Daniel Coughlin on the House side.  They are quite remarkable people and they have quite a remarkable job. 

I should say, first off, that they were incredibly gracious.  I was surprised they even agreed to see me after I sent them my paper, which focuses on some very uncomfortable and unfavorable episodes in the chaplaincies' history.  But they read it, offered helpful comments, and seemed very appreciative that someone had uncovered these historical details about the institution they care so much about. 

Anyway, here are some things that came up in the interviews that other faculty here found interesting:

(1) The chaplaincy is no sinecure.  The chaplains counsel members, sometimes staffers.  They arrange Bible studies.  They take around dignitaries, especially those with religious positions (i.e., Vatican personnel, the Dalai Lama, Muslim clerics).  They still do the opening prayers.  (One chaplain told me he considered it his most important and most sacred duty.)  What surprised me was this -- they also apparently try to attend all final votes on legislation, standing outside the voting chamber to greet members as if welcoming them to worship.  (One chaplain actually made that joke, saying it reminded him of his days in the parish.)

(2) The chaplains are vigorous fans of the separation of church and state.  I tend to avoid that phrase myself; whenever a speaker uses it, I usually wonder what they mean.  But they kept on bringing it up.  They consider the chaplaincies as furthering that ideal; they see their jobs as evidence of America's commitment to religious liberty and religious tolerance.  It took me awhile to understand what they meant.  But their point is that their daily work involves facilitating mutual understanding and respect between religious groups.  Especially after 9/11, they say, the message that America accepts all religious groups is one that needs to get out. 

(3) Legislative prayer in the Congress is radically different than legislative prayer in states and local governments.  After talking with one of the chaplains for a few hours, he wanted to know why I was so down on legislative prayer.  I spoke of some of the recent problems that had gone on in state and local legislatures, and he was horrified.  And I realized the very serious political checks on legislative prayer in Congress.  There are "guest chaplains" -- outside ministers who come in to give the prayer for a day.  But they are screened somewhat by the congressperson that chooses them.  And they meet with the congressional chaplain, who gives them guidance on speaking to a general audience.  They also probably restrain themselves.  The Senate is an awesome place; no one wants to be an embarrassment.  And finally, if they do go too far, they don't get invited back.  Compare all that to legislative prayer at a county commissioner meeting -- where it's easy for any yahoo to get control of the microphone and say literally anything in his prayers.  There, obviously, the potential for abuse is staggeringly high.  So let's just say that federalism didn't come out so well on this trip.

Multiple-Choice Law School Exams

I've informally asked around over the last few years about giving multiple-choice (or partially multiple-choice) exams and have noticed: 

• Views (and institutional norms) are strong

• Whether multiple choice is considered acceptable varies among subject areas (civ pro ok?  con law no way?)
• Some of these strong positions are linked to issues about "teaching to the bar"

So, multiple choice - pro or con?

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

Justice Jackson on Umpires and Judges

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List (Link: http://new.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett/JacksonList.stj) and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.” When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century. “Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”

Greenhouse Joins ACS Board

Via Orin Kerr comes the news that Linda Greenhouse, the former New York Times Supreme Court reporter, has joined the board of the American Constitution Society.  The ACS press release praises Greenhouse and the other new board members for the ability to help the ACS "promote discussion, debate and understanding of a progressive legal and public policy vision."  Well, it certainly ought to promote debate!  For years, of course, Greenhouse has been accused of harboring a liberal political view and airing it, more or less subtly, in her reporting; heck, she's even had an "effect" named after her.  She has been more clear about airing her political views in her speeches, although even then she often defended such airing of opinion as mere "statements of fact," but she certainly has always denied promoting her views through her reporting.

That Greenhouse has now joined the ACS board does not, I must emphasize, mean her reporting was ever biased; it's possible to harbor personal views but subordinate them to the task at hand.  Perhaps Greenhouse did just that.  Nor do I think it impermissible for her to join the board now, since she has since left the Times and landed a sinecure at Yale Law School.  Personally, I have always thought her work was excellent, and that she was the best Supreme Court reporter in the news media.  But I always also thought that she certainly did at times evince her politics in her work, and I could never quite take seriously those who were a little too full-throated in defending her work as utterly neutral.  I suppose that's fine if you think bias is inevitable in journalism -- I find that statement both accurate as far as it goes and woefully, often sneeringly, incomplete as a description of the ways in which journalists can and do strive for a measure of fairness and objectivity.  But the Times certainly champions a vision of objectivity in reporting, and Greenhouse never said otherwise, as far as I know, so I hardly think that defense would be open to her.  

That she has now joined a specifically politically progressive group does not irrefutably demonstrate that Greenhouse ever failed to do her job on the TImes, but I still find it somewhat disturbing, and I would not be offended if her critics viewed this as vindicating their prior views of her (provided, as I say, that they did not treat her action as irrefutably vindicating their criticisms; it doesn't).  Would we think differently if someone who had long been accused of (and denied) conservative bias in reporting the Court joined the Federalist Society board after retiring from active journalism?  Wouldn't most of Greenhouse's erstwhile defenders treat this as strong evidence that they had been right, so to speak, all along?  I frankly think this was either a very poor choice on Greenhouse's part, or a very telling one.   

Downloading the Download of the Week on Contracts and Friendships

I was pleased to see Larry Solum recommending my paper "Contracts and Friendships" as the Download of the Week.  This is a competitve week in light of the submission season and I'm glad to get a little extra attention for what I think is a hard but rewarding paper to read.  I'm interested in your feedback, which you can just e-mail directly to me. 

Two recent events, which broke after I completed the uploaded draft, seem implicated by my analysis in the paper.  First, the AIG bonus fiasco seems to have some intersection with relational contract theory: even if the "bonus" was not a written contract term (and I have no idea what the written contracts looked like), at least some people seem to be arguing that the bonuses are essentially contractual entitlements because of the internal norms of the industry.  That is a relationalist argument at its core, coming from many who don't like to think of themselves as such.

Second, consider this case about a friend who took a blood oath to pay his friend back money he lost in a failed investment; the oath was deemed an unenforceable gift promise.  That's pretty conventional consideration analysis, since the blood and promise to pay $170,000 was not bargained-for.  Still, some of the arguments I've been making in my friendship & law research agenda suggest that under some conditions between friends, we ought to be a little less conventional in our analysis and allow such informal deals between friends to be enforceable.  I can't comment on the actual case because the factual development in the public record is thin.  But there are cases I report upon in "Friendship & the Law" that reveal courts allowing informality in friendly transactions, all while finding such informal dealings enforceable.

Tit-for-tat in the Law Review Submission World?

Today over lunch I heard about a very interesting form of self-help from a colleague (unnamed!). S/he mentioned that when law reviews fail to acknowledge receipt of the manuscript during the submission cycle, or receipt of the request for the expedite, s/he simply doesn't inform those schools of when the manuscript has been accepted elsewhere/withdrawn from availability.  Hopefully, we can create a virtuous circle where the law review editors click the Expresso box to confirm receipt and the authors won't be tempted to retaliate by clogging the pipeline...reactions?

Update: just to be clear, I'm not endorsing the retaliation, just describing it!

Why Barack O is Cool

Aside from the little slip about the Special Olympics, it's hard not to think POTUS 44 is pretty awesome, as politicians go...here's the link to the extended interview he did with Leno this week. Enjoy the weekend.

New Article: Duplicative Foreign Litigation

I posted on the topic of antisuit injunctions and international parallel proceedings last week, and mentioned an article I had written.  A few suggested I do an Article Spotlight (the polite PrawfsBlawg way of saying "shameless plug and self-promotion").  So here goes... A copy of the article's draft can be found on SSRN -- Duplicative Foreign Proceedings -- and below is the abstract.  I would be grateful for any feedback or comments. 

What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings – and the waste inherent in such duplication – becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.

 

The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their “unflagging obligation” to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem.

 

This article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The article concludes that courts should adopt a modified lis pendens principle, and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction over the case under U.S. jurisdictional principles. This approach – pragmatic in its orientation, yet also more theoretically coherent than current law – would help avoid the wastes inherent in duplicative litigation, and better serve long-term U.S. interests.

Souter, Cromwell, and "intellectual lobotomy"

Justice Souter raised a few eyebrows recently when he said, before an audience at the American Academy of Arts and Sciences, that -- as Tony Mauro reports -- "he undergoes a 'sort of annual intellectual lobotomy' when the Supreme Court term begins in October, a condition that he said lasts until the end of the term the following summer."  Now, taken out of context, this remark cries out for a snarky, "get over yourself" smack-down.  The Justice's larger point, though, about the importance of reading, the humanities, good books, etc., is certainly a welcome and important one.

What caught my attention, though, about Mauro's piece was his concluding paragraph:

That led Souter to his discussion of the need for a "habit of mind" that includes reading, intellectual curiosity and self-doubt. He ended by quoting Oliver Cromwell, the 17th century British leader, who once said these words should appear above the entrance of all schools, courthouses and public buildings: "Consider That Ye May Be Wrong."

This is a common use of Cromwell, but one that he would probably have rejected.  After all, when he wrote this he was not calling for a general policy of critical inquiry, toleration, and humble self-doubt, but rather cajoling his Scots-Presbyterian opponents for obstinately refusing to agree with Cromwell that Cromwell was right.

Recovering Money from Madoff's Investors

Whereas lots of attention has been paid to recovery from Madoff (and his wife), another source of funds may be from investors who redeemed shares before the Ponzi scheme fell apart.  (Although the investors would have to return money, presumably they would eventually get their pro-rata share.)  These investors may have an uphill battle.  

First, "good faith" is an affirmative defense to a fraudulent conveyance claim, but it doesn't necessarily have the same meaning as in other areas of the law.  As Bankruptcy Judge Hardin described "good faith" in In re Bayou:

"The test [for good faith] is whether the defendant requested redemption after learning of a 'red flag' which, under an 'objective' standard, should have put the defendant on 'inquiry notice' of some infirmity in Bayou or the integrity of its management.  The rule does not require that the 'red flag' be of such specificity as to put the recipient on 'inquiry notice' of the actual fraud, or embezzlement, or looting, or whatever ultimately proves to be the cause of loss.  It is sufficient if the red flag puts the investor on notice of some potential infirmity in the investment such that a reasonable investor would recognize the need to conduct some investigation."

And presumably (reasonably and without what we usually think of as "bad faith") to consider redemption....

Second, hat tip to Edward Hynes (Cardozo '10 and summer law clerk to Judge Hardin), who describes another fact that may support clawback in the Madoff cases:

"Bernard Madoff's admission in his plea allocution that he operated a Ponzi scheme is bad news for those who redeemed investments from his fund. Courts have found that criminal admissions of a fraudulent scheme to defraud investors made in plea allocutions are admissible as direct evidence of "actual intent" to defraud creditors. This is significant because under Section 548(a)(1)(A) of the Bankruptcy Code, a trustee may clawback the principal and fictitious profits of any redemption that was made with 'actual intent' to defraud creditors.

Madoff's allocution details how he operated the fraud. This will be good evidence for any forensic accounting expert to track down how accounts were fraudulently calculated and specific assets transferred. In the recent Bayou hedge fund case, Judge Adlai S. Hardin used the plea allocutions of the hedge fund officers to decide that investor redemptions were fraudulent and, therefore, subject to clawback."

"Outside" Information in the Law Review Submission Process

Yesterday the NYT reported on the growing use of PDAs and the Internet by jurors in the midst of trial and deliberations.  Although sometimes the problem is information flowing out from the jury, in many cases the jurors are trying to do their own investigation beyond the parameters of the court.  This thirst for outside information seems natural:

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

Law reviews now have access to a lot more information about the articles submitted for consideration, for reasons similar to the juror phenomenon.  The Internet has made authors' biographical details easy to find, and has made this information much "thicker" in terms of resumes, SSRN drafts, news stories, and blogging.  (Think back to the biographical information available in, say, 1992, or even 2002.)  Given that ExpressO encourages the submissions of CVs along with articles, it would seem that law review editors are interested in this outside information and are making use of it.

However, there is something about this natural investigative urge that cuts against the Platonic ideal of the submission process. In the best possible world, the argument goes, the law review would simply consider the article itself and would make the review process anonymous to exclude all outside "noise."  That way, any biases based on the author's past work, institutional home, or political ideology would be excluded from the process.  The article itself would rise or fall based purely on its own merits.

I posted yesterday about the new input law reviews are seeking from their own faculty or even outside faculty as part of the submission process.  Most folks seem comfortable with faculty involvement, on the theory that more information is better and that professors can provide helpful guidance to students.  But law reviews are moving to this new model sporadically, and without much uniformity in terms of input or transparency.  Perhaps profs and law reviews could work to develop some sort of "best practices" for outside input as we move away from the "article and article alone" model.  And before we move away from it, are there aspects to the "article and article alone" model that we might want to keep?

Is Working for House Like Clerking?

For those of you who watch the television show "House," do you feel like those people who work for House are kind of like law clerks working for a judge?  I mean, I realize there are some important differences.  For example, the people who work for House are doctors, while the people who work for judges tend to be law clerks.  Also, House's workers do things like save lives, while law clerks write memos.  But, still, there are some parallels, right?  The close knit quarters, the ego stroking, the long hours.  And if I'm right that working for House might be like clerking for a judge, then what judge is most like House?

What's in a Name?: The "New Doctrinalism"

Cumberland's Brannon Denning has a very interesting and enjoyable piece in the new Tennessee Law Review titled The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller.  It's available on Westlaw, of course; for those who don't have subscriptions, an earlier draft is available on SSRN here.  Brannon writes that there is "a renewed interest among [constitutional] scholars in the formation and application of doctrine.  What I am calling the "New Doctrinalism" in constitutional scholarship focuses less on controversies over the fixing of constitutional meaning and more on the rules courts develop to 'implement' . . . those constitutional commands."  He names as examples of the New Doctrinalists Richard Fallon, Kim Roosevelt, Adam WInkler, Dan Coenen, David Strauss, Mike Dorf, and others -- including me, for my piece on deference.

Well!  It's always very nice to be named as a member of a school of thought, particularly in such stellar company.  The piece itself is enjoyable and, in my view, does a nice job not only of describing what Brannon calls the New Doctrinalism but responding to some of the early criticisms of this school, including those by our own Rick Hills.  And naming something can be a very powerful thing, for the namer and the named alike; how else do you think someone gets to be Archmage of Earthsea?  

I have two thoughts about this article and its project.  The first is to wonder whether I am indeed a New Doctrinalist.  The deference piece was part of a larger project of thinking about First Amendment institutionalism.  Although the deference piece was indeed a work of constitutional implementation, and took some pains to draw a connection between that project and First Amendment institutionalism, some might wonder whether the institutionalist project itself is accurately labeled as part of the New Doctrinalism.  In some ways it is, I think; it focuses on the institutional turn as a better way of shaping First Amendment doctrine than using the existing doctrine, but it is still a way of thinking about how the courts should implement the First Amendment, albeit the answer is that they should often do so by getting out of the way.  On the other hand, that difference is not unimportant.  Some New Doctrinalists think in terms of clarifying or improving or understanding existing doctrine.  Others, including me and, I dare say, constitutional experimentalists like Mike Dorf and advocates of tailoring like Mark Rosen, think in terms of reshaping the courts' overall approach so that it is less reliant on imperfect, one-size-fits-all doctrine and more responsive to the particular needs and norms of various public and private actors.  It is certainly a form of implementation, but it's one that is more interested in how law gets shaped outside the courts than in the (quixotic, in my view) project of trying to perfect doctrine itself.  My deference piece suggests that we can think of the institutionalist or experimentalist project as being closely linked with the implementation project, and that both schools of thought should be aware of one another.  But it may be that the differences between the two offer food for further thought about different ways of thinking about the relationship between implementation and doctrine itself.

The second thought is a little more playful.  Brannon gets the naming rights here, and he's come up with a pretty good name.  (I think of Shakespeare in Love: "Good title!")  Do we have any other volunteers, however?  What else might be a snappy name for the school of thought Brannon identifies, with or without the institutional piece?  Some people have referred to it already as constitutional decision rules theory.  That's nice, but it doesn't have capital letters.  The New Doctrinalism has the crucial caps, but it's a close call whether being identified with doctrinalism consigns us to the mockery of folks who think doctrine is dead and that real law professors don't write treatises, or whether the very act of reviving something that everyone has been mocking for years gives us a leg up in the novelty and counter-intuitivism department: maybe the best way to be ahead of the curve is to be really far behind it!

Here are some alternative suggestions: Implentarity.  The New Relevance.  The Theory-Smashers.  The Desert Foxes of the Real.  The Moss Gatherers (a nice one, since it helpfully distinguishes us from Mick Jagger; I hear Fallon gets mistaken for him all the time).  The New New (New) (New, Damn It!) Legal Process.  Let me also suggest, although I understand they're taken, either the Jets or the Sharks.  They're less descriptive, but either name would look really keen on the back of a leather jacket.

Other suggestions, genuine or fanciful, anyone?     

Erie meets the First Amendment

The Maryland Court of Appeals last month established a standard for when a defamation plaintiff suing an anonymous on-line poster can enforce a subpoena against the non-party ISP to obtain the identities of the anonymous speakers. Commentary on the case here.

The court thoroughly discussed the standards that various state and federal courts have adopted for when such a subpoena should be enforced, ultimately adopting a three-part test: 1) the plaintiff must attempt to give notice to the Doe defendants that a court order has been sought to obtain the Doe identities and await a possible response; 2) the plaintiff must identify the precise statements alleged to be defamatory; 3) the plaintiff must make a prima facie showing of defamation; and 4) the court must balance the anonymous poster's First Amendment interests in anonymous speech with the strength of that prima facie case. The court was trying to balance First Amendment concerns inherent in such discovery efforts, a problem that arises primarily in defamation cases (which tend to arise in state court), but also could come up in copyright cases (which are brought exclusively in federal court).

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard? Are these standards part of substantive state defamation law, where a federal court must follow state law? Or do they reflect an interpretation of the federal Constitution, which state and federal courts are equally competent to interpret? Or is it an interpretation of the procedural rules governing subpoenas, in which case federal courts interpret and apply one set of rules and state courts interpret and apply a different set?

Thoughts?

Faculty Influence on Article Selection at the Law Reviews

I wanted to build on Dan's comments about the fascinating thread over at Brian's Leiter's place but then take them in a different direction.  What I found most interesting were the comments about faculty influence on the selection process.  Here are a few examples:

• from Elisabeth: "HLR and YLJ get multiple faculty reviews before publishing anything."
• from Brian Leiter: "[O]ne thing that is unclear is how much of a role in article selection faculty play at the elite law schools. They clearly play more now than even fifteen years ago, but is it really the case that any article published in Yale or Harvard or Chicago or Columbia is really a 'peer' refereed article at this point?"
• from L&E Scholar: "[S]omething interesting appears to be happening at Stanford. They sent me an econometric article they were considering (& I'm not in-house). Also, they asked me if I would agree to be on a standing referee list/advisory board for this kind of work. My respect for Stanford went up a lot after this since I see it as a push toward a real refereeing system . . . ."
• from Jeffrey Kessler: "I can confirm what is going on at Stanford. As of a few months ago, Stanford Law Review's new policy is to have all articles peer reviewed before they are accepted. (We had to make one exception because another school gave the author a one hour exploding offer.) Since this policy was put in place, most articles we selected have been reviewed by more than one professor, and we've made a special effort to reach out to experts at other schools. Faculty from across the country have been very gracious in giving us thoughtful, incredibly insightful commentary."

• from Frank Cross: "I think it's good what Stanford and other schools are doing, but its not peer review. I was one of those 'faculty from across the country' who commented to Stanford's law review on a submission. It wasn't at all the same as a peer review, in part because of time constraints."

I would love to get both descriptive and normative commentary on these developments.  On the descriptive side: How many law reviews are doing this?  Is it a formal or informal process?  Are written comments asked for?  Is the author notified of the process and/or the comments?  How influential are the comments on the law review?  Has any review gone forward in the face of a "no" from a faculty member?  And are there other, more informal methods of faculty involvement, such as when a faculty member from the home school sends over a submitted article with a positive note?

On the normative side: Is this faculty influence a good idea?  If so, what is the best method of implementing it?  How strong should the role of faculty be in the process?  How transparent?  Can "walking an article down" be considered a form of peer review?

Some more blather about "best journals"

The other day Brian Leiter trotted out his new favorite toy (condorcet-compatible voting tools) to do a ranking of the "best law journals." Brian editorialized: "is there really any legal academic who thinks the quality of articles in, say, the Harvard Law Review is really higher than the quality of articles inJournal of Legal Studies or Oxford Journal  of Legal Studies or almost any of the faculty-edited journals?  I find that quite hard to believe, but I am open to being persuaded otherwise."  There's a pretty interesting comment thread to this question-- interesting if you're a dork like most of this blog's readership.

Anyway, my sense is that even if the overall quality of articles in OJLS (which I have seen cited only a few times in my area--I think a piece by Paul Robinson and John Darley is the only one that comes to mind) or JLS (admittedly, a great journal) were higher than HLR or YLJ, it would be hard to say that they are necessarily the best journals to publish in for academics in American law schools.  The quality of the articles is only one valuable metric to judge. But visibility and accessibility are important too--a point conceded by some (including Brian) in the comments. Indeed, for a good while, I don't think these journals were on Westlaw (which is the primary though not exclusive research tool I use), which makes citation more difficult.  

Moreover, there is an important submission problem associated with the question that I don't think was addressed in the comments to Brian's thread, but which was highlighted to me by a certain FOP named Zoom.  Zoom asks: what peer-reviewed journals publish articles in the standard law review format (footnotes instead of parentheticaly references)? I think the answer is not many, which if true tends to support the view [Markel] made on the Leiter thread that there are different streams of people who write for the two different sets of journals. If you're a philosopher, and your preferred publication sequence goes something like Top Philo journal, JLS, middle tier Philo journal, JLA, then of course you write it with the parenthetical reference style.  But if your preference is JLS, HLR, YLJ, JLA, then you skip JLS b/c it's a pain in the ass to write two different articles based on citation formats.

Update: A couple things I forgot to mention. I don't intend to shill for tout  the student law reviews, but the talk that peer reviewed journals solve the "network" effects by being blind seems naive. I've been a peer reviewer for pieces that are allegedly blind, but b/c of ssrn and just being up on what people are working on, it's not blind. And I've also been the beneficiary of comments (again, allegedly blind) whose authorship is relatively easy to discern.  The latter is less problematic than the former because the former situation has the reviewer still get to perform favors for friends (or remove opportunities for antagonists!) in relatively small areas of academic writing. Moreover, there are some faculty edited journals that are not strictly speaking going through blind peer-review. They're faculty edited in the sense that faculty choose the articles.  That allows for both cronyism as well as nimbleness in a tight market.  That's not to say there aren't journals with better practices and better articles, but we have to be careful about generalizing too broadly about the benefits of one "system" over another.

Law Firms, Compensation Cuts, and Public Interest Deferrals...

Last week, I mentioned the depressing news over law firm layoffs.  Since that post, the trend has continued with numerous other firms announcing massive cuts (you can find a detailed "Layoff List" on AmericanLawyer.com).  Some estimate over 1300 lawyers and staff were given pink slips last week alone. Against this backdrop, other changes are happening in how firms pay their associates; not all of it bad.

Orrick, Howrey, and several other firms recently announced significant changes to their compensation systems to reduce starting salaries and a move away from seniority-based pay. Many believe the salary cuts save more money than layoffs.  Other firms -- like Pillsbury, Foley, White & Case, Morgan Lewis, SImpson Thatcher, and Skadden, among others --  have offered to pay their incoming associates often between 1/4 to a 1/3 of their regular salaries if they leave the firm and work for public interest organizations.  The approaches are varied.  Morgan Lewis, for example, has agreed to pay deferred associates graduating in 2009 a $5,000 monthly stipend for one year if they secure a job in the public interest field.  Skadden in a "Sidebar" program has said it will pay associates one-third of their salaries to work for public interest organizations for a year.  The deferral plans are estimated to often save the firms about $100,000 for the year for each associate.

The compensation changes may not be all bad news. Since 2007, the starting salaries at the large mega-firms have hovered around $160,000. Until recently, starting salaries had risen fairly consistently (since the dot.com boom) as firms throughout the country tried to keep pace with the New York pay scale. For some firms, the new compensation changes are out of necessity - as a way to survive the economic downturn -- but I suspect other firms may well see the economic crisis as an opportunity to rein in salaries generally (long perceived by some as excessive). The deferrments encouraging associates to work in the government or the public interest field may also lead to some interesting long-term developments.  In some ways, it has the attributes of the articling requirements that exist in other countries (although, ironically, in Canada, some law societies have contemplated abolishing the articling requirement because of the shortage of placements).

I'd be interested in reactions from lawyers in the public interest field to these deferral plans and whether they suspect it will have any impact -- either on how lawyers view public service or the public interest field generally.

Anonymity, Signaling, and Silence as Speech

Looking for something to read over March break?  Here's my latest, a short paper called Anonymity, Signaling, and Silence as Speech.  It's a reply to an interesting symposium paper by Professor Martin Redish of Northwestern.  And here's the abstract:

This short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.

This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of "anonymity" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of "anonymous" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.

The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.

As always, comments are welcome.  Although other papers have mentioned the intersection between signaling theory and the First Amendment, I think this paper may do a more thorough job of looking at that connection and applying it.  It should be of interest to First Amendment folks, election law folks, signaling theory folks, and people who are interested in the role of anonymity and pseudonymity in the First Amendment.

Globalization and Nationalism

Paul Krugman had an interesting Op-Ed piece in the New York Times -- The Great Illusion.  In it, he questions whether the international economic crisis might lead to the end of globalization.  He does this by reminding readers of a prior era when globalization existed only to be undone by nationalism (leading to WWI).  His conclusion is that "things can fall apart again."  It's an interesting article. Yesterday, Peter Spiro over at Opinio Juris commented on it.  Peter is skeptical of Krugman's conclusion, suggesting that globalization is "different this time around" and will not be a causalty of the economic crisis.  He ends saying that at least there's agreement that "the economy - and not terrorism - is now the biggest security threat."

While I  tend to think that de-globalization is unlikely, it certainly seems true that the economic crisis will impact world politics.  The more useful insight perhaps though is not whether this age of globalization is remarkably different or more resilient than earlier ages of globalization, but that earlier globalized times have existed.  It is common in legal scholarship to attribute many changes that have occurred in law and society to globalization, without any serious assessment as to whether the two have the assumed causal relationship.  

Spiro's post and Krugman's piece also raise another interesting question.  Having international law and politics focused on the territorially-defined nation state was a way to constrain rampant nationalism. Now that globalization means not just international trade and investment, but also greater interconnectedness among peoples, groups, networks etc., globalization is often described as undermining the territorial state itself.  It may well be that traditional nationalism then is much less a threat to global peace and economic prosperity than the rise of various non-state actors that through their interconnectedness have a greater chance, on the margins, of destabilizing the existing system. 

Sorry, no great insights here (or at least not in this short post).  But as more details of the economic recession unfolds, I suspect there will be renewed interest on the topic of globalization and nationalism.

Getting New Prawfs Off the Ground

Earlier I received an email from someone about to start teaching. He asked:

This fall, I will begin teaching at ___.  As of writing, I anticipate that my classes will consist of torts, criminal procedure, and American legal history.  As I prepare for the academic year, I wonder whether you know of any source(s) for course outlines, syllabi, casebook recommendations, and other materials relating to these classes, as may have been provided and collected by other professors.  I intend on hitting up my future colleagues for these items, but I'd like to cast a broader net and thereby (hopefully) become aware of as many alternative course strategies as possible.  I would genuinely appreciate any guidance you might provide on this score.

 

Let's make this an open thread for prawf-folks to post links or citations to sources that will help the newbies hit the road running. Any thoughts? I know there's a AALS Criminal Justice bank of sources that Susan Rozelle has put together and I saw something recently that Joseph Tsai and some others are putting together for multimedia sources in criminal law.  I'm also quite certain that I've read a few things from J.Legal Educ on this topic (ie, with respect to helpful hints for the new prawf) that are somewhat useful, but I don't remember the titles or authors.  Throw a life preserver out in the comments.

Tri-4-Gey, and an update from Steve Gey

The folllowing is a press release that I thought would interest the academic legal community as well as the numerous fans of Professor Steve Gey outside the professoriate. I am also posting Steve's most recent update, which is both, and again, heart-breaking and inspiring.

Warriors against ALS Continue Battle for Ailing Professor

 

For the third consecutive year, a group of rowdy devotees are raising money on behalf of their favorite law school professor as he combats a fatal illness. Their story is one of love for a great man, dedication to a cause, and hope for the future. Competing in a triathlon is not easy, and fundraising during an economic crisis has proven difficult. However, knowing that every cent raised brings happiness and meaning to their hero’s final years keeps this team swimming, biking, and running to the finish line.  

 

In December of 2006, the colleagues, students, and friends of Professor Steven Gey received devastating news: he had developed a particularly aggressive form of amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s Disease. Except in very few cases, the victims of this cruel disease endure slow paralysis and, eventually, death.

 

For those who know him, it is difficult to think of Professor Gey as being mortal. Sporting a thick Groucho Marx mustache, his explosive personality and endearing charm have made him a favorite at Florida State University’s College of Law since he first began teaching there in the 1980s. Blessed with the ability to speak almost as fast as he is able to think, Professor Gey’s unorthodox and impassioned teaching method has cultivated generations of students entirely devoted to him, whether or not they agree with him. As one former student, Sean Park, put it, “time was always short in his daily schedule, but whenever you had his attention, the spotlight was on you.”

 

It has been just over two years since his initial diagnosis, and the disease is taking its toll. Professor Gey jokes that being hand-fed and spending all day, every day, in pajamas makes him “feel like Hugh Hefner without the baby rabbits.” But this humor belies the truth: ALS has ravaged his body. Always wafer-thin, his weight dropped to a paltry 90 pounds at one point during 2008, prompting him to joke: “I won’t have the chance to die. I’ll just float away.” But even now, after losing control over his limbs and lungs, the kinetic fire in his eyes continues to burn mischievously. His abilities to motivate and influence those around him—the same characteristics that make him a powerful professor—have inspired a fundraising effort of monumental proportions.

 

After learning of Professor Gey’s illness, many of those who love him chose to proactively channel their grief into raising awareness about ALS. In the spring of 2007, a small group of students led by Atlanta-based lawyer Kristina Klein, a graduate of FSU law school, initially set out to raise a couple thousand dollars towards ALS research by competing in the Red Hills Triathlon in Tallahassee, where Professor Gey still resides. This modest goal snowballed into a three-year philanthropic endeavor. Over $40,000 were raised in 2007; the following year, the team doubled in size and raised another $60,000.

 

This year, the 60 members of the Tri-for-Gey III team aim to bring the total to $150,000—no small feat in the midst of a global economic crisis. With less than three weeks left until the April 4^th triathlon, they are still $30,000 short of their goal, but they hold out hope that they will succeed.

 

Hope is all they have left.

 

The members of Team Gey are diverse. They are Christians, atheists, and Jews; they hail from Norton, Kansas, and Bowling Green, Kentucky. Very few are true athletes. To the contrary, many are doughy white-collar workers who, until recently, had not seen the inside of a gym since leg warmers were in style—the first time. Yet everyone who started the race succeeded in making it across the finish line. This determination evidences the formation of a positive-feedback cycle based on devotion and a sense of responsibility: the Team Gey members continue to be inspired by Professor Gey’s staunch will to live, which is in turn bolstered by the team’s determination and constant outpouring of love.

 

Orlando-based lawyer Melanie Shoemaker Griffin, a three-year Team Gey veteran and former student of Professor Gey, refers to his powers of motivation as “heroic.” She hopes that “as a result of Team Gey's efforts, I will see a cure for ALS found during my lifetime and know I played a small part in saving millions of lives.”

 

Another competitor, Atlanta-based lawyer Ranney Wiesemann, has never met him, but the devotion of co-workers inspired her to join the team. “As long as Professor Gey continues his courageous fight against ALS, I will be right there beside him,” she says, looking forward to the opportunity to meet him after this year’s triathlon.

 

It is no small wonder, then, that Professor Gey has drawn two conclusions from his experience with ALS. First, “fatal diseases are a bummer, but second (and more important), people's responses to fatal diseases make the human race look downright respectable.” In a recent letter to the team, he expressed regret that “I will never be able to repay any of you for what you've done. But please understand that if you could cash out gratitude, you would all be rich beyond belief.”

 

And yet his happiness is all the riches that the members of Team Gey seek.

 

Professor Gey’s story is a timely reminder that the ongoing debate regarding stem cell research has a very human face. Many argue that degenerative disorders such as ALS can be treated, if not cured, by such research. Never one to shy away from controversy, Professor Gey is a strong proponent of stem cell research and applauds President Obama’s recent reversal of the ban put in place by the previous administration.

 

Some who adore Professor Gey abhor the use of human stem cells for research; others roundly support it. Both wish that he could be cured. Reinforcing his legacy as an educator, Professor Gey continues to compel those who love and respect him to address and fully analyze a sensitive issue that, for the sake of comfort, they may have otherwise ignored.

 

Back in December of 2006, after she first proposed the idea of the Tri-for-Gey, Kristie Klein made a pact with Professor Gey: he would keep living as long as the team kept competing in the triathlon. He has thus far held up his end of the bargain and continues to insist that the team live in the moment. Just yesterday, he wrote: “For now, let’s all celebrate the fact that I’m still living and you are all still crazy.”

 

Perhaps they should also celebrate that their fundraising efforts have produced an immortal gift for future generations of ALS victims: hope.

 

Donations can be made in Professor Gey’s name at www.active.com/donate/Tri-For-Gey-III. Professor Gey personally receives an update every time a donation is made, and all proceeds will go to ALS-Therapy Development Institute, the world’s largest ALS research center.

 

 

Select Quotes from Professor Gey in letters to the Tri-for-Gey team:

·         “The basic plan now is the same as it was a year ago: figure out how to deal with an ever-diminishing number of body parts, until some doctor trips over a cure to ALS while trying to develop a new and improved version of Rogaine.”

·         “It's probably safe to say that I'm on track to fulfill the usual prognosis for all ALS patients, which basically gives me the life expectancy of a hummingbird. I've just decided to act as if that's not the reality, and I'm happy to say that all of you are helping me perpetuate my self-delusion.”

·         “If you crazy people are still willing to get up at the crack of dawn and jump in a frigid lake, and then run and ride yourselves silly, then I may as well try to stick around to see what you all look like in wetsuits.”

·         Regarding his new-found freedom to watch French movies: “Indeed, my present circumstances have given me a whole new perspective on the nouvelle vague. I now find Jean-Luc Godard’s Weekend oddly comforting. So you see? This whole fatal disease thing isn't all that bad after all.”

 

Informational Websites:

• Tri-for-Gey Fundraising website: http://www.active.com/donate/Tri-For-Gey-III
• Tri-for-Gey III Facebook page: http://www.facebook.com/home.php?#/group.php?gid=39048938733
• Tri-forGey II Facebook page (photos from last year’s triathlon available): http://www.facebook.com/home.php?#/group.php?gid=4961478062
• St Petersburg Times article featuring his students’ devotion: http://www.tampabay.com/features/humaninterest/article463230.ece)
• Professor Gey is the author of a myriad of controversial articles (http://www.law.fsu.edu/faculty/profiles/gey/vita.pdf)

 

Please direct any questions to Julia Breslin ([email protected]) or Melanie Shoemaker Griffin ([email protected]). 

TV depicting the law, inaccurately

At CoOp, Corey Yung writes about the increasing inaccuracy of legal shows on TV, wondering whether Law & Order still employs lawyers as consultants and how that inaccuracy affects the understanding of law and the legal system that our students bring into the classroom. I long have shared this distaste for the often-stunningly incorrect depiction of law, lawyers, and the legal system. But this did remind me of my one brush with legal television:

When I was clerking on the Eastern District of Pennsylvania, we got a call in chambers from a production assistant on one of the legal shows (I think it was "Boston Legal") asking for minute details about the set-up of the courthouse and the courtrooms. The woman wanted to know who is in the courtroom during hearings and trials, where everyone sits or stands, where the district court and court of appeals are located within the building, all the way down to (I kid you not) the color of the striped ties and blazers that the Court Security Officers wear at the security stations at the building entrances. It seems the show was planning a story arc in which the lawyers would represent a prisoner in a habeas action in the E.D.Pa., with an appeal to the Third Circuit. And the PA's job was to find out all the atmospheric details.

I told her what I could over the course of about three conversations. But the entire time, all I could think was: You are going to get the legal issues and procedures so completely and utterly wrong. Why are you bothering to worry about the direction of the stripes on the Marshal's tie?

The Bard's Tale

I just found a downloadable version of The Bard's Tale online and had to share my discovery.  Oh, the hours I used to waste playing this game on my parents' Apple IIgs (remember the Apple IIgs? -- it was like an amped up Apple IIe).  Anyway, it's all there: the game, the spell book, the maps.  The graphics are awful, of course -- the game is over 20 years old.  But what makes The Bard's Tale awesome is that it is a truly difficult RPG.  You can't just fight any enemy that appears; some will make mincemeat out of you.  You can't just wander around a dungeon; you need to make maps.  It's not just fooling around -- the Bard's Tale requires work.

Law Professors and Moot Court Competition Teams

I write to you all from New York Law School, where I'm visiting this week as coach of my law school's labor and employment moot court team.  NYLS hosts the Wagner Competition every year, and it's been a lot of fun.  It gives me a chance to get back in the game and reactivate my old appellate litigation and L&E experience, and it's nice to get to know the students (or at least two of them) quite a bit better.  We actually have two coaches -- myself and a distinguished and experienced L&E litigator -- and I tend to think that we complement each other in some nice ways.

So a question to you all: Do other schools do this?  Do other schools have faculty (tenured, tenure-track, otherwise?) acting as advisors/coaches to moot court competition teams?  Do they travel with the students?  I think it's rare but I have heard of it at other places, and wanted to inquire more generally.  I actually got started in this as a favor to a friend and it does take up a good bit of time and energy, but I have to say -- I really enjoy it, and I think the students get a tremendous amount out of it.

P.S.  If you happen to be going to the Wagner Ball, I'll see you there -- and feel free to drop me a note...

Contracts and Friendships

My third big article in my friendship & law research agenda is now available from SSRN.  It is forthcoming in Volume 59 of the Emory Law Journal.  Here is an abstract:

This article aims to give the relational theory of contract some new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship. In drawing the analogy between friendships and relational contracts and revealing their morphological similarities, I offer a provocative window into friendship's contractual structure - and into relational contracts' approximation of friendships. The analogy I develop in the article is poised to replace the "relational contract as marriage" model, prevalent among relationalists. The new model developed here is more honest to relational contract theory and to marriage - and helps relational contract theory produce some new insights, support old ones, and revise some of its normative agenda.

The first two articles are available here (54 UCLA L Rev 631) and here (86 Wash U L Rev 665).  There is some interesting work coming out of business schools these days about business friendships but my thinking on that subject has not yet made it into this draft.  I'm still not sure exactly what I think about this work -- and didn't have space in my 35,000 words anyway.  But stay tuned for more engagment on this work.

Anti-suit Injunctions and Duplicative Foreign Proceedings

Lots has been written about globalization and transnational litigation.  One of the results of the increased number of transnational/cross-border actions -- that has not been written about so extensively -- is the larger number of parallel proceedings that potentially exist (i.e., duplicative, concurrent actions pending in different countries at the same time).  In the U.S., the issue has not been carefully examined, and, with some exceptions, little has been written on the topic by legal scholars. I posted on this topic during my last guest stint at Prawfs Blawg, and I thought I would do so again.  Although the issue is only just starting to get attention in the U.S., outside the U.S. the issue of parallel proceedings is a hot topic.

Last month, two significant decisions were handed down that relate to the problem of parallel proceedings.  The first was from the European Court of Justice in the West Tankers case.  The ECJ issued a decision that anti-suit injunctions may not be brought to restrain court proceedings in another EU member state, even if the proceedings are brought allegedly in breach of an arbitration agreement (summary of decision here).  An anti suit injunction is a court order that attempts to prevent an opposing party from continuing a proceeding in another jurisdiction. If the opposing party contravenes the order, the court may find the party guilty of contempt. The use of anti suit injunctions are highly controversial, and once used quite commonly in the U.S. The underlying rationale of the ECJ's decision is that each European state must respect the procedures of the courts of other member states.  This is big decision that has sparked lots of controversy.  The Conflict of Laws blog held a wonderful online symposium on the case that's well worth taking a look at.

The second decision (also handed down last month) was from the Supreme Court of Canada in the Teck Cominco v. Lloyd 's Underwriters case. In that case, the issue was whether a British Columbia court should decline jurisdiction and stay its proceedings pending resolution of a parallel and previously filed U.S. action (pending in federal district court in Washington State).  The court's decision held that the trial court correctly refused to stay the Canadian action, and in doing so approved using the doctrine of forum non conveniens to determine whether a stay would be appropriate.  Unlike in the U.S., the Canadian doctrine of forum non conveniens now seems to be used to determine not whether the forum is appropriate, but whether the forum is the most appropriate forum.  The Court seemed little bothered by the costs and waste associated with the duplicative proceedings. The Canadian Business Law Journal (from the U. of Toronto) has dedicated a special issue to the case, which should be in print soon.  Contributors include Joost Blom, Janet Walker, Vaughan Black, and John Swan -- all leading Canadian conflicts scholars.

Both cases have important implications for forum shopping and transnational litigation in general.  To date, the U.S. Supreme Court has yet to grapple with the issue directly. One suspects it can only be a matter of time: currently, U.S. courts apply at least three different approaches when addressing the issue of parallel foreign proceedings.  Unfortunately, the three approaches are doctrinally confused and inconsistent.  Part of the problem is that all three approaches are derived from domestic law theories, without any serious consideration as to whether domestic translate well into the the transnational or international context. The issue of how to handle duplicative foreign proceedings is important because battling on two fronts can be incredibly costly and wasteful. As transnational litigation becomes more common, having the same lawsuit pending in two countries may become not only more common but also part of a defense strategy.

If you're interested in more on this topic, I've written a short article on the topic titled Duplicative Foreign Proceedings (a draft is posted on SSRN).  It's still a draft, so comments would be welcome.  I am embarassed to say I don't have a theme song for it (didn't realize that was the new trend in the law).  I better talk to Jay....