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It's a new month and almost our 6th freaking anniversary in a matter of days, so it's time to take stock but I haven't got the time to do so today, so instead I will simply say thanks to the cadre of wonderful March guest bloggers, and welcome the new voices taking up residence here during the month of April. As usual, the March bloggers will probably linger a little while they get their last posts out, but in the interim, let's take a moment to greet with enthusiasm our new collaborators.

I'm thrilled to welcome for the first time Debbie Borman from Northwestern, where she is a clinical prawf.  I'm also excited to see a gaggle of Prawfy veterans return; please welcome back Michael Risch (Villanova), Mark Fenster and Elizabeth Dale (both of UF); Brendan Maher (OKCU); Eric E. Johnson (UND); Chris Lund (Wayne); Dave Fagundes (Southwestern); and my beloved co-author, Jennifer Collins (WFU). 

In the spirit of April Fool's, I'm curious to hear from readers about some good law-school related pranks in the comments.

Same Sex Marriage in the Fed Courts, Part I ("The Memo")

(first in a series of some ruminations, not wholly random, on the twin subjects of litigation -- California's Proposition 8 and DOMA -- presently winding their way through the courts).

With regard to the remarkable February letter from Attorney General Holder on behalf of the Obama administration, two pieces of intriguing fine print:

In footnote 2 of the letter, AG Holder says, in juxtaposing racial and sexual orientation discrimination, that "some of the (sexual orientation) discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed . . ."  This is the second shoe to drop (the other being one of Judge Walker's factual finding in the trial court decisin in Perry) with regard to the "immutability" argument.  When and if the administration is in the position in the future to argue about the constitutionality of either direct discrimination (as in Prop 8) or disparate impact, is this assertion -- a sort of "executive/legislative fact" if you will -- a component part of the government's argument?  And, more immediately, is this something that the Boehner Congress, soon expected to take up the task of defending DOMA, will expressly disavow?

Tantalizing fine print #2:  Holder asserts near the end that "in the event [the district courts in the Second Circuit] determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard."  Does it follow that a "reasonable argument" can be mustered for Proposition 8 under the rational basis standard urged by Judge Walker in Perry?  Is this a carefully crafted way out for the administration in the instance -- not at all implausible of course -- that either the appellate court or SCOTUS says "no heightened scrutiny" in Perry situation?  Or is just a throwaway?

There is, indeed, both more and less than meets the eye in this seminal document!

 

Symposium on Freedom of Conscience

The San Diego Law Review recently published a symposium issue on freedom of conscience.  The issue features contributions from Larry Alexander and Steven D. Smith, Kent Greenawalt, Adam Kolber, Brian Leiter, Andrew Koppelman, Chris Wonnell, Michael Perry, Dick Arneson, Nomi Stolzenberg, Michael White, Ronald Beiner, and Maimon Schwarzschild.

In my piece,  I analyze Kent Greenawalt's discussion of how we ought to weigh religious claims of conscience relative to nonreligious claims of conscience.  I also discuss “alternative burdens” we can impose on those who make claims of conscience.  These alternative burdens increase the cost of making a claim of conscience and increase the likelihood that such claims will be made sincerely and be perceived as fair if granted. The alternative burden approach avoids many knotty questions about religion by making it generally irrelevant whether a claim of conscience is founded on religious or nonreligious reasoning.

Statutory Construction is Going to the Dogs

My bike ride to work today reminded me of a sneaky little game I play with my students when statutory construction comes up. A medium-sized dog was in the front passenger seat of a Chevrolet SUV and the dog was wearing a seat belt. My first thought was that this was hilarious; my second thought was that it actually is just safer. Then, I wondered if seat belt laws apply to dogs.

California's Vehicle Code, Section 27315(d)(1) says that "[a] person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt." Without knowing the age of the dog (California's Vehicle Code alternately refers to "minors under the age of 16" and "children"), it is possible that "passenger," as broader classification than "person," could include a dog. That makes linguistic sense -- the word "passenger," from the Middle English passager, etymologically refers to a traveler or taking a path, not necessarily a human traveler  -- and the distinction is supported in subclause (e), which states that "[a] person 16 years of age or over shall not be a passenger in a motor vehicle on a highway unless that person is properly restrained by a safety belt." This section distinguishes between the status of being a "person" and the status of being a "passenger." It also means that when a dog is a passenger in a motor vehicle on a highway without a seat belt, only the person operating the vehicle is violating the law. Since subsection (e) refers to persons as passengers, a human passenger in a car on a highway without a seat belt opens up the driver and the passenger to a vehicle code violation.

Of course, this is not the only interpretation of these clauses. But, one thing is clear: much of this would be resolved if the California Vehicle Code defined the word "passenger," but it does not.

So, buckle up your dogs. Or don't. Download your state or local vehicle laws to be sure. Either way, it's a funny way to teach the perils of poor drafting and the gaps left by the plain language of statutes.

Alford, Tor, & Kelly to Notre Dame

Many readers will be familiar with Roger Alford's work in international-trade and international-arbitration law, as well as comparative constitutional law, and also -- more important, of course! -- with his blogging at Opinio Juris.  I'm delighted to report that he has accepted a lateral offer from Notre Dame Law School, and will be joining us next year, moving from Pepperdine.  (Yes, that's right -- a move from Malibu to South Bend.  Lake Michigan pwns the Pacific!) 

UPDATE:  We at Notre Dame have two more lateral hires that I'm really happy to report:  From Baltimore, we've landed James Kelly, who'll be adding some important transactional and community-development dimensions to our clinical programs, and also Avishalom Tor, from the University of Haifa, who is doing excellent work in Behavioral Analysis of Law.  Add to these some first-rate entry-level hires and I think my colleagues and I had a great year! 

Public financing and government speech

Based on yesterday's Monday's oral argument in McComish v. Bennett, it seems pretty clear that five justices (at least) will vote to invalidate the matching-funds provision of Arizona's public-financing law. Under that provision, a candidate who opts in to the public-finance system receives matching funds when privately financed opponents or independent groups spend more than a certain amount on speech. The plaintiffs (PACs and privately financed candidates) argue that the law chills their speech, because a candidate or independent group will not engage in expression knowing that their speech will trigger counter-speech funded by the government. Thus, while the law should produce more speech, plaintiffs argue that it actually disincentivizes their speech, resulting in less speech.

I have come to support some form of public financing of elections, the only way, it seems to me, to square away my agreement with the First Amendment principles recognized in Citizens United with a recognition that some control over election financing is necessary. Charles Fried has it right in arguing that Citizens United's more-speech principle should support the Arizona law.

Deborah Hellman (Maryland) argues in a guest-post at CoOp that the plaintiffs in McComish are confusing restrictions on speech with incentives for speech:

"The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not." She offers the following hypo:

Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy.  If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit.  Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?

Of course, commercial speech is not political speech, but that’s beside the point.  The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.

Deborah captures the problem with the plaintiffs' argument. They essentially are asserting a liberty from (government-subsidized) counter-speech and attributing their decision not to speak out of fear of that counter-speech to government coercion.

I have been similarly scrambling for some analogue for how this program works, but I do not think the one Deborah offers does it. The problem is that the responsive speech in her hypo probably would be deemed government speech, which is not subject to the same restrictions as government control of private speech. Of course government can respond to private speech. It either would speak directly in response to Little Debbie or it would get its own message out through private speakers (say, fruit growers), under some sort of Rust v. Sullivan theory. The government-speech characterization would be necessary to avoid the argument that making funds available only to the pro-fruit side is viewpoint discriminatory. Either way, there is no way that the candidate speech funded in a public-finance scheme is government speech.

What we need is a comparable situation in which government subsidizes purely private speech by one party, without endorsing or adopting the message, in a public debate. I am just not sure there are examples outside of campaign financing. The closest I have been able to come is in the context of criminal litigation--the government will pay for an indigent defendant to get certain expert testimony or evidence when the government is going to put on such evidence. But trials are generally not regarded as First Amendment institutions, so I am not sure that works. The absence of an analogy is not fatal, of course, but it helps. Does anyone have a different example?

By the way, assuming the case comes out the way everyone expects and the matching-funds provision is struck down, McComish will be a paradigmatic example of Lyrissa Lidsky's theory of the Roberts Court's First Amendment: "All speakers, whether individuals or organizations, are treated equallly to the extent they are free from government regulation of their speech; however, speakers who lack resources are not entitled to any government assistance in speaking."

Want to come to Los Angeles in September?

The Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law will take place in Los Angeles on September 16-17.  It will be jointly hosted by Loyola Los Angeles, Southwestern, and UCLA.  If you are interested, you can register here. 

As conference lore has it, this conference was initially the brainchild of Paul Secunda and Scott Moss, who on various blog posts were lamenting that there was no subject matter specific  conference on employment and labor law allowing a broad cross section of individuals to present their current work.  I have been to about half of the conferences, and in my view they have been very succesful in building a community of scholars teaching and writing in this area.  I'm delighted that we (along with our friends at Southwestern and UCLA) will be able to welcome folks to our fair city for this year's conference.

Reports of pleading's demise may have been exaggerated

The Federal Judicial Center today released a study of the use and granting of 12(b)(6) motions under Twiqbal, comparing the years 2006 (the year before Twombly) and 2010 (the year after Iqbal). The Executive Summary put forth the following:

•    There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A).

•    In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1).

•    Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then.

•    There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).

The increase in overall 12(b)(6) activity might reflect some effects of Twiqbal. Defendants now seem to have a new weapon to at least try to wield agains a complaint, even if unsuccessfully. That is particularly true of § 1983 actions, which did show a statistically significant increase in 12(b)(6) activity even though the overall category of "Civil Rights" did not. That the motions are not being granted at meaningfully greater rates does not mean the decisions are not having an effect. One explanation for the lack of increased success in those motions might be that Twiqbal is doing its work on the drafting process--plaintiffs are putting more information into their complaints out of an excess of Twiqbal-imposed caution. In addition, there was a 7% increase in overall case filings, suggesting that perhaps Twiqbal is not having the over-deterrent effect many feared.

It is unsurprising that the study found an increase in 12(b)(6) motions granted with leave to amend. Courts dismiss with leave in cases of factual insufficiency, where the plaintiff has not pled enough facts or with enough detail. The whole point of Twiqbal was that plaintiffs must plead more facts and factual detail (even if it is not clear how much more), enough to convince the court the claim is plausible. Follow-up studies will explore what happens after these dismissals with leave to amend: Does the plaintiff replead? Does the defendant move to dismiss the amended complaint? We might expect an indirect effect here--Twiqbal leads to more dismissals with leave to amend, followed by a subsequent 12(b)(6) challenging the amended complaint eventually being granted, this time without leave to amend on the ground that the plaintiff already had multiple opportunities to amend and still had not made factually sufficient allegations. In fact, the study did find that more 12(b)(6) motions in 2010 were challenging amended complaints--this suggests that more amended complaints are being filed, perhaps in response to dismissals with leave to amend, perhaps in general response by plaintiffs to Twiqbal.

On the other hand, I am not surprised that there has been no increase in 12(b)(6) motions granted without leave to amend, at least not in direct response to Twiqbal. Legal insufficiency is about substantive legal standards and whether legal claims of right do not exist. Neither Twombly nor Iqbal changed the applicable substantive law in their respective areas (except perhaps for the law of supervisory liability in § 1983/Bivens actions), the only thing that would directly cause an increase in dismissals without leave. The increase in such dismissals occurred only on federal and state claims arising out of mortgages and other financial instruments. These cases were relatively unknown in 2006 and increased dramatically between 2006 and 2010 for obvious reasons. In any event, these dismissals result not from Twiqbal, but from the state of laws such as the Truth in Lending Act and the Real Estate Settlement Procedures Act, which did not reach much of the conduct about which foreclosed-on homeowners were complaining. Many of these claims were unique and legally creative or innovative--precisely the kinds of cases in which courts may find the claim to be legally non-existent and thus the pleading legally insufficient.

All in all, the report continues to suggest that we still do not know much about Twiqbal's real effects. There is certainly more 12(b)(6) activity, but plaintiffs are not routinely being tossed out of court at the early stages, at least not in significantly greater numbers than under pre-Twiqbal pleading rules (whatever they really were). Maybe some of the Twiqbal scholarship suggesting this is much ado about nothing is turning out to be correct. It is going to take a while to find out for sure.

BGSU Paternalism Workshop

I’m fortunate to have the opportunity to participate this week in a workshop at Bowling Green State University, “Freedom, Paternalism, and Morality,” a Workshop in Applied Ethics and Policy sponsored by the Philosophy Department.  Keynote speakers are Douglas Husak (Rutgers) and Richard Arneson (UCSD).

I’ve written a little about paternalism and the implications of contemporary research in psychology—cognitive heuristics and biases, emotional biases, affective forecasting, behavioral economics—for paternalistic interventions.  It is of course a touchy subject, highlighted by the fact that proponents of behavioral economics and the theories underlying such interventions—especially “nudges”—are prominent members of the current administration.

As many people have pointed out, much of the heuristics-and-biases research, as well as other research demonstrating poor (non-optimal? irrational? self-injurious?) decision-making does make a case for some sort of intervention into citizens’ decision-making in order to protect them from negative outcomes.  Anti-paternalists object that such intervention infringes on autonomy; people should be free to learn from their mistakes; and constraining options is detrimental.  And the problem with leaving decisions to government experts is first, that experts are human too (gasp!), and are thus subject to the same human frailties as are laypeople, and second—as Bentham and Mill and Hayek famously argued, and modern economists are reasserting—experts simply don’t know the citizen and his preferences as well as the citizen does.

My take, initiated in some of this earlier work and developed a little more in the workshop paper, is that these objections themselves are challenged, if not rebutted, by further empirical findings in psychological research.  Autonomy isn’t the be-all and end-all it is made out to be; we don’t always prefer to make decisions; we are actually less satisfied with outcomes when we “leave doors open;” and we’re not always so good at learning from mistakes (especially the really serious ones!).  Moreover, experts are—well, expert.  They’re less susceptible to the biases charged against them than are laypeople, and DO know citizens’ preferences better in some situations.  And there’s some evidence that citizens prefer to have government experts make decisions, so long as they’re not acting solely in their own interests but have the public welfare in mind.

That’s my sketchy take, but more important, this looks to be a really exciting Workshop.  The philosophical discussions will be way over my head, but I’m looking forward to participating and learning.  If you can get to Bowling Green, it should be fun!

DOMA, Immigration, and Switch in Time: A Dissenting View

Regarding Ari Waldman's valuable post, I am more troubled by this turn of events.

Let me begin by saying that I share 100% Ari's priors:  DOMA is unconstitutional, the Obama administration's recent position is both defensible and well-defended, and concerns of compassion and fundamental fairness make the immigration authorities' post-DOMA position hard to stomach.  That said, the line these two districts are endeavoring to walk is a shaky one at best.  The position of the administration is a problematic one, though not without logic.  That is, taking the strong position that DOMA is unconstitutional, in light of (1) the absence of clear legal authority against that position, and (2) the President's obligation to follow the Constitution leads more clearly to the position that the enforcement of the Act should be suspended than it does to the position that its enforcement should continue until a final court decides the constitutional question.  However, this line-splitting is a political compromise that the administration -- that is, the administration speaking from the top -- can legimately and credibly make.

Retail judgments by gov't officials down the chain of command is a rather different matter.  I suspect that steam would emerge from a wide swath of left-oriented law professors were the IJs to have taken a strong position on matters of political asylum where neither the President, nor the AG, nor federal courts had yet to weigh in.  While I share entirely the instinct that DOMA is an idea whose time has passed, death by a thousand cuts is not the answer.  Nor do these local immigration authorities appear to be doing the Obama administration any particular political favor by grandstanding in the midst of what is an intricate political and legal situation.

I predict (though not with unguarded confidence) that the administration will find its way to keeping this genie in the bottle while the DOMA issue percolates in the courts.  Wholesale justice for the LGBT community will be aided by such moves, despite the retail consequences (admittedly tragic) on particular couples. 

DOMA: Enforcing an Unconstitutional Law

Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. I am not alone in this view, with President Obama, Judge Joseph Tauro (D. Mass.) and many others on the left and right in my camp. But, even after announcing that the Department of Justice will no longer defend DOMA Section 3 because such laws fail heightened scrutiny, President Obama has rightly promised to continue enforcing DOMA Section 3 until it is either finally overturned by the Supreme Court or repealed in Congress. Today, I would like to consider what "enforcement" means.

DOMA Section 3 prevents the federal government from recognizing any marriage that is not between one man and one woman. It makes thousands of legally married same-sex couples strangers to more than 1000 federal rights that accompany opposite-sex marriages and injects the federal government into an area of family law traditionally and exclusively given to the States. Among other things, it denies benefits to same-sex spouses, prevents federal employees from putting their legally married same-sex partners on their health insurance and tears apart legally married same-sex binational couples. Recently, President Obama stated that he believes DOMA to be unconstitutional under heightened scrutiny and, therefore, refused to continue defending the statute in various challenges snaking their way through the federal courts. He did say that his Executive responsibilities required that his Administration continue enforcing the law.

What it means to "enforce" DOMA came into view this weekend. In a striking 180-degree turnaround, two U.S. Bureau of Citizenship and Immigration Services (USCIS) districts — Washington, D.C. and Baltimore — stated that departation cases in their districts involving married gay and lesbian couples would be put on hold. I was honored to be called by various media outlets to justify this policy change. How is this not an example of the Obama Administration declining to enforceDOMA, they asked?

More AFTER THE JUMP.

The USCIS is part of the Executive Branch and it is unlikely that only two of the country's CIS districts would make this policy shift on their own, suggesting that they are likely operating under instructions from somewhere up the Executive change. Regardless, the decision to postpone deportations of legally married same-sex binational couples is undoubtedly in response to President Obama's decision on the constitutionality of DOMA.

But, if DOMA is what is standing in the way of a married same-sex foreign national being allowed to remain in this country like his or her married opposite-sex foreign national comrades, is not the indefinite postponing of deportation proceedings tantamount to, at a minimum, an indefinite postponement of the Executive's responsibility to enforce duly enacted laws?

No.

Let us be clear about the policy. The USCIS offices statedthat alien relative petitions and green card applications filed by married same-sex couples will not be denied out of hand simple because of DOMA. Instead, the applications would be held in abeyance to allow for continued challenges to DOMA. As a leading gay immigration attorney has explained, "The significance of the 'abeyance' policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in 'pending' status, and second, this status will give protection and benefits to the applicant for an indefinite period."

In other words, the President's decision that DOMA is unconstitutional means that DOMA is no longer an a priori barrier to temporary reprieves from deportation. The CIS has not decided to stop enforcing DOMA; rather, it has decided not to tear apart loving, committed and legally married couples while DOMA's constitutionality is, at best, up in the air. DOMA still denies these couples thousands of federal benefits, but the CIShas come up with unique and creative strategies to at least keep married couples together while questions are answered. DOMA itself would not force deportation in these cases. The denial of an alien relative visa, pursuant to DOMA's discriminatory policy, would. All CIS has done is delay a final decision on alien relative petitions given the current challenges to DOMA. It sounds like an adequate compromise given the odious straight jacket DOMA forces upon us.

The Constitution's Pocket Part

While I'm at it, here is a link to a short post on Jotwell that I wrote, discussing a forthcoming satirical article by Michael Stokes Paulsen titled "Our Perfect, Perfect Constitution." 

In selecting this piece, I was mindful of some excellent criticism I received from a friend while I was at the AALS conference this year.  Jotwell (of which I'm on the con law board of editors) specializes in posts about new articles that the reviewers like, and which they think deserve notice despite the deluge of articles we all receive.  My friend suggested, however, that many Jotwell pieces consist of posts about articles the reviewer likes because it agrees with the reviewer's own views.  That sounds like a fair criticism to me.  At least where those articles are not based on particular erroneous factual premises, we should be able to find articles we like despite our own total disagreement with them -- especially in constitutional law, which is a resolutely political subject.  With that in mind, I selected Paulsen's article to review because I enjoyed it and think others in the field will too, although I disagree with pretty well all of it.  Enjoy! 

"Prof. Moron" on Banning Sharia in Alabama Courts

Here is a link to an op-ed I published the other day in the Montgomery Advertiser, objecting to a recent bill proposed by an Alabama state senator which, like others that have been proposed elsewhere, would ban the state courts from "looking to" Sharia in deciding legal disputes.  It's short and doesn't address every nuance, but states my basic objection to these laws.  Here's a short quote indicating my views: "[The state senator who proposed the bill] has offered a solution to a non-existent problem. Since his bill is patently unconstitutional, it's a lousy solution at that." 

Two notes.  First, since the paper (oddly) didn't tell me it had accepted the op-ed before publishing it, I can't take responsibility for the editing.  Second, I am tickled to have been referred to as "Prof. Moron" in the online comments on the editorial. 

Characterizing the ministerial exemption

Rick beat me to the announcement of today's cert grant in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, onthe scope of the ministerial exemption from federal employment-discrimination laws. Marc first discussed this case a month ago when it was about to be conferenced; it kept getting pushed back until today.

I am intrigued because the case could potentially resolve (or at least address) the proper characterization of the exemption as jurisdictional or substantive/merits based, a subject that was discussed in great detail in Marc's post. The Sixth Circuit treated it as jurisdictional, which I have argued previously (and in a current draft) is wrong. The Court did not grant cert on the jurisdictionality issue. But perhaps the Court will, in the course of deciding whether the action should have been dismissed under the exception (as Rick urges) that dismissal is for lack of subject matter jurisdiction or for a failure of the claim on the merits (as I would urge). The Court did something similar last term in Morrison v. National Australia Bank on the extraterritorial application of the Sherman Act--the majority stopped to quickly and clearly announce the proper characterization of the issue (analysis I discuss here).

The cert grant just forced me to rearrange my summer research agenda.

The Court grants cert. in ministerial-exception case

Today, the Supreme Court agreed to hear what (I think) might be its most important religious-freedom case  in a long time.  The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  (More here, at the Religion Clause blog.)

The case does not involve what’s become the usual stuff of the Court’s church-state caselaw:  prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks.  Nevertheless, again, this case is huge, and it is about, at its heart, what I think really matters.

As readers probably know, the question in the case is whether antidiscrimination laws – like, for example, the Americans with Disabilities Act – allow courts to review hiring-and-firing decisions involving “ministerial employees.”  In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily "secular subjects" are not “ministerial employees”, and therefore are covered by the Act.

 The Supreme Court should reverse this decision.  Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines.  This, it seems to me, is what church-state separation is really about.  Now, to be sure, not every employee of a religious institution is a “ministerial employee”, and the Court's decision will almost certainly be more about where to draw the line (between "ministerial" employees and others) than about whether the Constitution requires some kind of "ministerial exception."  The former question is, to be sure, tricky; the latter, though, should not be.  The point is not that religious institutions and employees are “above the law” but rather that there are some (not very many, to be sure, but some) that our Constitution does not allow secular governments to answer.

Presence makes the heart grow fonder?

Making my way through Edward Glaeser's thrilling new book, Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier (Penguin 2011).  Glaeser points us to 19th century English economist, Wm. Stanley Jevons, whose noted the paradox that efficiency improvements lead to more, rather than less, consumption (fuel efficient cars end up consuming more gas, and the like).  In a neat twist, Glaesar applies insight to info technology, noting as a "complementarity corollary" that greater improvements in info technology increase demand for face-to-face contact.

This seems intriguingly true at the level of ordinary academic conferences and meetings.  Rise of SSRN and easy access to recently published research generates enthusiasm to get together (*every AALS now brings invites to blogger happy hours, for instance).  More interesting to me is whether and to what extent this corollary extends to intra-faculty interactions.  Is there anything to the much-remarked fear that info technology will crowd out faculty socialization and face-to-face exchange of ideas, information, and other spillover benefits associated with density?  My anecdotal sense is that the opposite is true.  As Jevins-Glaesar hypothesis, peer-to-peer interactions have grown as better info technology, and ready access to eclectic, extensive research "has made the world more information intensive, which in turn has made knowledge more valuable than ever, and that has increased the value of learning from other people in cities" (Gleaser at 38).  Substitute faculties for cities, and I believe the insight is right on.

One can be Panglossian about this picture, of course.  Info overload competes with schmoozing and adventitious collegiality.  But, still and all, my impression is that both the quality and calibre of faculty discussion in workshops and other informal settings and also the breadth of conversations over professional matters has been steadily improving.

A testable hypothesis is that is at least loosely related to the following:  There is more awareness of what our colleagues are up as a result of these human interactions and, therefore, more citations to faculty working in the same areas (supposing, perhaps implausibly, that one can control for the "sucking up" phenomenon).

 

Lie Detection and the Technological Look-Back Principle

Over the last decade, neuroscientists have made significant strides toward using various brain imaging techniques to determine when a subject is lying.    The research is still at early stage, however, and has principally involved rather artificial experimental settings (e.g., college students instructed to lie about the suit of a playing card).  If you ask most neuroscientists, they will say that we are quite far from having an all-purpose technique that can provide admissible evidence in court.  Indeed, a couple of courts have already refused to admit brain imaging evidence of credibility/deception (see Wilson, Semrau).

In my view, the test of whether we should admit some technology in court depends on whether, by introducing the technology, we achieve better outcomes overall.  That's a very difficult determination to make.  It depends on the quality of the science, the ability of judges and jurors to interpret the science, financial costs associated with the technology, various risks of abuse, and so on.  And there is a fair question about what legal standard judges should use to achieve our overarching goal.  But surely, as Fred Schauer points out, the technology need not be perfect to be helpful in real world forensic settings.

Even if we are still a long way away from developing reliable lie detectors, there is a substantial probability that we will have reasonably good lie detectors within the next thirty years.  Those prospects should arguably change our behavior even today.  For in thirty years, we can surely ask you about your conduct over the course of your lifetime: Have you ever cheated on your taxes?  Have you ever cheated on your spouse?  Did you bury the body by the river? 

Under what I describe here (p.118-20) as the technological "look-back principle," we should already consider the privacy protections we are likely have in the future in order to decide how to behave today.  (At least until we develop good means of forgetting what we already know!)

Of course, not all of our privacy interests are amenable to legal regulation.  Nothing will stop your lover from testing your fidelity in a brain scanner as a condition of continuing the relationship.  Many campaigning politicians already disclose their tax returns, even when they have no legal obligation to do so.  Perhaps, someday, politicians will agree to be scanned while they answer questions like: Have you ever knowingly misreported campaign funds?  Have you ever accepted a bribe?  Did you bury the body by the river?  No doubt many criminal offenders were surprised by the look-back potential of DNA.  Perhaps we'll all be taken by surprise, someday, by the look-back potential of lie detectors.

Federalism and Corruption: Which states effectively self-police themselves?

This last Friday, I had the pleasure of appearing on a panel with some very distinguished public officials in federalism and the fight against corruption in the United States. The panel was part of a conference on Policing, Regulating, and Prosecuting Corruption, organized by NYU's Center on the Administration of Criminal Law, a think tank run by Tony and Rachel Barkow. Ron Goldstock, the moderator of our federalism panel (as well as former director of the NY task force on organized crime and New York State Commissioner of the Waterfront Commission of New York Harbor), adopted the unconventional approach of posing to the panel hypothetical instances of corrupt behavior over which both state and federal prosecutors had jurisdiction. Imagining that we were a blue-ribbon commission tasked with figuring out rules for divvying up jurisdiction over corruption offenses, he asked us which level of government ought to handle the hypothetical offenses.

Being unhampered by responsibility, experience, or any practical knowledge, I had the temerity to press my strong prescription for subsidiarity: The feds ought to prosecute corruption cases involving state or local officials only if either (a) subnational authorities request such help, (b) the crime has significant interstate effects (say, on TARP money) that state officials would have insufficient electoral incentives to monitor, (c) the crime in question involves violations of national civil rights entrusted to the federal government's care (e.g., the police beating of Rodney King), or (d) objective criteria, developed by Main Justice in advance of specific disputes, indicates that state or city officials were too closely linked to the allegedly corrupt political figures to investigate their behavior in an independent manner. Absent one of these factors, the feds ought to back off and leave the cure for the corrupt behavior to non-federal prosecutors. On this theory, New York City's officials should never be subject to federal corruption investigations for garden-variety corruption -- bribes, extortion, gratuities, and conflicts of interest -- because the City's Department of Inspections, Conflict of Interest Board, very independent-minded district attorneys, and the NY Attorney General all provide sufficiently robust correctives for dishonest politicians. Needless to say, the practicing public officials on the panel were much too responsible and experienced to embrace my formula whole hog. But, to my surprise, Nora R. Dannehy and R. Blake Chisam (the two panelists most famous for their experience as federal watchdogs) seemed open to the idea of imposing pretty strict limits on the federal role.

So what is the chief obstacle to my theory of federalism in policing corruption? The problem is developing a good metric of subnational jurisdictions' capacity for controlling corruption. Such a metric would take into account factors like the independence of subnational watchdogs -- inspector generals, DAs, etc -- as well as the competitiveness of political parties, transparency of the governments' procedures, robustness of the local press, and any other political facts relevant to the monitoring and policing of corruption.

Here's my question: Does anyone out there know of academic work shedding light on states' capacity to police themselves? I'm looking for an index analogous to Heather Gerken's "Democracy Index" -- a sort of "corruption control index" -- that Main Justice could use in evaluating whether U.S. Attorneys should be permitted to go forward with corruption cases because subnational anti-corruption systems have, in some objective sense, "failed." Anything out there? Many thanks in advance for your tips.

Judge Blane Michael

M. Blane Michael, a judge on the Fourth Circuit Court of Appeals, passed away on Friday.  As one of his former clerks, I am incredibly sad at this news.  Judge Michael was one of the most decent and honorable people I have ever met.  He was beloved by all on the Fourth Circuit, no matter the political stripe -- he got along fabulously with Judge Luttig, despite their frequent clashes on the page, and he frequently went jogging with Judge Wilkinson during court week.  At the same time, he was an eloquent advocate for his positions.  He was one of the best writers I've known, constantly reworking drafts to make the writing seem effortless.  He worked hard and expected the same from his clerks. I remember one time he gently chastised me for "letting the flag touch the ground;" this chiding was the closest he came to rebuke.  He was modest in a genuine way and had a true sense of proportion.  He would often say that his job was less important than the county justice of the peace, and you could see that he meant it, because he was thinking of the importance of the job to the average person.  But he did not shrink from a challenge or duck a fight.  His position on the court made many of his best opinions into dissents, and he bore this role with grace.  I thought this interchange from the NYU alumni magazine illustrated his perspective:

Q: Have you ever come across any law that you felt you were bound to enforce, but you also thought to be unjust?

A: I will duck this question because it is my duty to apply settled law, and it is usually best to do that without griping.

The Charleston Gazette has more information here.  Here's a 2003 NYT Magazine article, "The Power of the Fourth," on the circuit's more controversial days.  Here is Judge Michael's Madison Lecture at NYU in 2009.  And here's a post on a 2005 clerk's reunion from my co-clerk Vic Fleischer. 

Judge Michael will be deeply missed.

New York City's patently illegal exclusion of WalMart

Lately, it has not been easy being a conservative Republican. My hyper-polarized co-partisans are just downright embarrassing. Their most recent act of public buffoonery has been to respond with Comedy Club-perfect timing to Bill Cronon's accusation that they behave like McCarthy by, well, behaving like Nixon, with Dirty Tricks-style FOIA requests for Cronon's e-mail records. (Yes, as Slate's Jack Shafer notes, this FOIA requst is not illegal -- but this tactic is precisely the sort of harassing use of FOIA that Republicans themselves denounce when the shoe's on the other foot).

But, just when I was about to turn in my conservative badge, the New York City Council renews my flagging faith in good old conservative suspicion of Leviathan by engaging in the sort of egregiously maladroit statism that we have gradually come to expect from Gotham. Lately, Wal-Mart is trying a new tactic in trying to breach the blatantly protectionist walls of New York's zoning by building a use "as-of-right" -- a smaller store -- that does not require any discretionary Planning Commission approval. This new strategy has the City leadership in conniptions, because there is precious little that they can do to exclude WalMart without blatantly tipping their hand that they are engaged in illegally protectionist zoning.

You do not have to like WalMart to hope that these efforts fail, because NYC's raw zoning protectionism does nothing to benefit consumers or workers in whose name it is practiced.

The problem is that incumbent businesses benefiting from zoning walls do not provide any assurance that they will pay a living wage or treat their employees fairly. Indeed, small businesses in Park Slope, an enclave of excruciating political correctness, have been known to violate basic wage laws. Meanwhile, there is much evidence (albeit disputed) that the poor pay more for basic goods. Small wonder, then, that New Yorkers' poll responses seem to suggest the New Yorkers would -- reluctantly -- shop at WalMart, despite the low wages: Sure, WalMart does not offer good wages along with their low prices -- but local businesses often offer neither. Why, then, should they get the benefit of protectionist zoning walls? The low quality of low-income residents' shopping opportunities might explain why Charles Fisher of the Hip-Hop Summit Youth Council supports WalMart.

This is not to say that every New York retailer is indifferent to labor: The major chains like Gristedes have entered into decent collective bargaining agreements with United Food and Commercial Workers Union Local 1500. The problem is that the rents of protectionist zoning, like the rain, fall on both the just and unjust.

In short, protectionist zoning is a crude instrument for insuring a good balance of benefits to labor and consumers.

So here is a suggestion: Why not allow WalMart to open up stores in any low-income neighborhood that is served by neither (a) a major unionized retailer who pays local residents wages high enough to compensate for the higher prices that they charge the local shoppers or (b) a non-union retailer who offers prices comparable to WalMart? If local residents do not actually get higher wages sufficient to balance out the higher prices that local retailers charge, then zoning to exclude WalMart does little to benefit the worker-shopper.

Criminal Liability for Unusual Art Forger?

According to this NYT article, Mark Landis has repeatedly forged artwork and presented it to museums as the real thing.  The tricky issue for legal scholars is that he donates his paintings:

Mr. Landis — often under his own name, though more recently as Father Scott or as a collector named Steven Gardiner — has indeed done a lot of traveling over the past two decades, but not for the church. He has been one of the most prolific forgers American museums have encountered in years, writing, calling and presenting himself at their doors, where he tells well-concocted stories about his family’s collection and donates small, expertly faked works, sometimes in honor of nonexistent relatives.

Unlike most forgers, he does not seem to be in it for the money, but for a kind of satisfaction at seeing his works accepted as authentic. He takes nothing more in return for them than an occasional lunch or a few tchotchkes from the gift shop. He turns down tax write-off forms, and it’s unclear whether he has broken any laws. But his activities have nonetheless cost museums, which have had to pay for analysis of the works, for research to figure out if more of his fakes are hiding in their collections and for legal advice. (The Hilliard said it discovered the forgery within hours, using a microscope to find a printed template beneath the paint.)

Does anyone want to take a stab at his criminal liability in the comments, assuming the allegations are true?  The article states that he received an "occasional lunch or a few tchotchkes," but you might also comment on his liability in cases where he received nothing at all.  For example, is this criminal mischief?

Google Takes One on the Chin

Unless you’ve been living under a rock for the past five years, you’ve heard about Google Book Search, an online database that Google is filling by scanning books from the collections of multiple academic libraries. Google partnered up with the libraries for access to their collections, concluding that it didn’t need to ask permission from copyright owners to copy the books or make them available online (with restrictions at Google’s discretion). Author and publisher groups brought a class action law suit, and Google sat down with the plaintiffs to hammer out a settlement agreement. The agreement, as presented to Judge Chin, then of the Southern District of New York, not only proposed to settle claims of prior copyright infringement, but also set up future business relationship between Google and copyright owners, using an opt-out mechanism instead of securing a license.

Judge Chin, sitting by designation as a newly appointed Second Circuit judge, issued an opinion Tuesday denying the motion to approve the settlement agreement. While the opinion does not rule on the merits of Google’s fair use defense, some of the court’s language suggests it would cast a skeptical eye on Google’s behavior in a case on the merits. Judge Chin used words like “blatant” to describe Google’s copying activity, and quoted hostile language from objectors to the settlement, who called the opt-out strategy “a shortcut” and “a calculated disregard of authors’ rights.”

I disagree that there was calculated disregard of authors’ rights. The way many scholars have viewed the case, it was a close call whether Google could copy whole books and place them in an online database for search (and eventual commercialization). Google took a calculated risk, under a standard view of fair use analysis, and one that could still pay dividends if the case gets litigated. I don’t think Google's fair use argument is a close call at all, but not for the standard reasons.

In a paper now available for consideration by your local law review editorial board, I argue that built into the Copyright Act are the seeds of a limited right of first online publication. Historically, the right of first publication protected the ability of the copyright owner to decide when to bring a work to market, and the right was strong enough to trump an otherwise reasonable fair use defense. A right of first online publication would thus dispose of (or at least weigh heavily against) a fair use defense raised to excuse the unauthorized dissemination of a work online—even those works previously disseminated in a more restricted format.

Courts and scholars tend to treat publication as a “one-bite” right, exhausted once the work was released in any format. A reexamination of its history indicates instead that the right of first publication often protected successive market entries. Where courts perceived a significant difference in scope and exposure to risk between a limited initial publication and more expansive subsequent publication, the right of first publication protected that subsequent entry.

In addition to the historical analysis, networks theory sheds light on the difference in scope between print and online publication. The dissemination of print books occurs in a conserved spread: while the physical embodiment of the content moves from point to point, the total number of copies in the network remains stable allowing the owner to correctly assess the risks inherent with market entry. Online dissemination occurs as nonconserved spread: any holder of a digital copy can instantly disseminate it to any point online while retaining the original. The differences are significant enough that print dissemination should not be held to exhaust or abandon the right of first online dissemination.

Copyright law will likely need to adapt to multiple format changes over the effective life of a copyrighted work. Recognizing the right of first publication as a rule governing transitions into new formats will provide courts, copyright owners, and technology innovators with firm rules allowing the copyright owner to decide if and when to adopt a new technology. Intra-format fair use is an important part of the bargain between copyright owners and society. We should be solicitous of intra-format fair use, but much less solicitous on inter-format fair use, particularly in those cases where unauthorized use imports the work into a previously unexploited format, and the new format is significantly broader in scope.

There are close fair use calls in disputes over unauthorized use of copyrighted works. Google’s opt-out copyright strategy, for books never before made available online, was no close call at all.

Type I and Type II errors

Inspired a few years ago from a piece I read of Christine Hurt's, I began using the Type I and Type II error jargon a lot, not only in my writing on punitive damages or punishment theory generally, but also in my teaching, particularly in the realm of criminal procedure rules related to adjudication (the bail to jail class). Since the last time I could be even plausibly described as competent with numbers and stats was about 11th grade, I was not surprised that many of my students and some colleagues exhibited some trouble keeping track which error was which. So, I'm grateful to Michael Heise, who pointed out this recent blog post from Ethan Fosse with mnemonics for keeping Type I errors differentiated from Type II errors:

first, a Type I error can be viewed as a "false alarm" while a Type II error as a "missed detection"; second, note that the phrase "false alarm" has fewer letters than "missed detection," and analogously the numeral 1 (for Type I error) is smaller than 2 (for Type I error)

 

 

Tech Tech Symposium on Criminal Law & the First Amendment

Texas Tech Law School and the Texas Tech Law Review are holding a symposium on April 8 that focuses on Criminal Law and the First Amendment.  I'll be speaking on Cyber Incitement on a panel entitled The First Amendment, the Internet, and Criminal Law.  I'm very honored that Professor Arnold Loewy asked me to attend this distinguished symposium, not least because I get to return home to West Texas for a weekend and perhaps consume some great Mexican food or a nice chicken fried steak.  Lubbock is just a few hours from the dusty and desolate West Texas oil field town of Iraan, Texas, where I grew up.   [Iraan has literary cred. It is mentioned in a sentence in the last few pages of Cormac McCarthy's All the Pretty Horses.  Larry McMurtry doesn't mention Iraan, but he captures the feel of it in the towns he describes in books like The Last Picture Show and Duane's Depressed.]

 

Blogging Happy Hour @ Ritz DC Tonight at 7PM

Prawfs at ASIL or in DC:

An informal bloggers happy hour will convene tonight, Thursday March 24, at 7PM in the lobby bar at the Ritz.  I hope to see some of you there!

Subjective Experience and the Federal Sentencing Guidelines

In The Subjective Experience of Punishment, I argued that we ought to take better account of the different ways in which offenders experience punishment.  I noted, however, that the federal sentencing guidelines make it difficult for judges to do so by advising them not to consider a variety of offender characteristics that could inform their expectations about how prisoners will experience incarceration.  For example, the 2009 federal sentencing guidelines state that: “Age (including youth) is not ordinarily relevant in determining whether a departure is warranted,” U.S. Sentencing Guidelines Manual § 5H1.1 (2009); “[m]ental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted,” unless they affect culpability, id. § 5H1.3; and “[p]hysical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted,” id. § 5H1.4.

Just a few months ago, however, amendments to the guidelines took effect and now make it easier for judges to consider such offender characteristics.  As I point out in this article (p. 154), the 2010 Federal Sentencing Guidelines state that: “Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”  U.S. Sentencing Guidelines Manual § 5H1.1 (2010) (emphasis added).  Similar revisions were made to provisions covering other offender characteristics, including their “[m]ental and emotional conditions,” id. § 5H1.3, and “[p]hysical condition or appearance,” id. § 5H1.4.

I'm not suggesting that the guidelines were amended in order to allow judges to better take subjective experience into account.  Nevertheless, I think that's a side effect of the amendments.  Incidentally, if you know of any active cases that clearly or dramatically implicate  concerns about the differential ways in which offenders experience punishment (like the recent case of a 6'9'', 500+ pound Dutch "giant"), I'd love to hear about them by email.

Racial Blindsight Conference at Michigan State

The Michigan State University College of Law is hosting a symposium entitled "Moving Beyond 'Racial Blindsight'? The Influence of Social Science Evidence after the North Carolina Racial Justice Act."  This webpage includes an introduction and an invitation for this upcoming event:

The North Carolina Racial Justice Act of 2009 (RJA) broke new ground in its recognition of the role that social science research can play in identifying racial discrimination in the criminal justice system.

The RJA expressly authorizes a claimant to rely on statistical evidence of race of defendant discrimination, race of victim discrimination, or racial discrimination in jury selection.  This directly confronts the legacy of McCleskey v. Kemp(1987), which foreclosed the possibility of meaningful analysis of the role of race in death penalty systems by denying claimants the possibility of bringing claims based on social science research.  McCleskey left defendants in search of the ever-elusive smoking gun....

By allowing capital defendants to assert race discrimination through statistical evidence encompassing more than a single defendant’s case, the North Carolina legislature demonstrated a willingness to move beyond the McCleskeystraightjacket when addressing claims of race discrimination.  This symposium addresses not only the implication of such a remarkable shift for the death penalty in North Carolina, but also the possibility that the RJA heralds a new openness to the use of social science research to inform questions obscured through exclusive reliance on direct evidence.

The exact contours of the symposium are still taking shape. We are delighted to have confirmed participation from a number of scholars already, including David Baldus, Jeffrey Fagan, Sam Gross, and Michael Radelet.  If you have work that would contribute to this discussion, please consider participating.

 

Why do I waste my time teaching the so-called "Rule of Lenity"?

By one of those extraordinary coincidences that making teaching statutory construction a pleasure in the Spring, the Court managed to come down with an opinion today that confirmed my low view of the so-called "Rule of Lenity" the day after I taught lenity in statutory construction. In the course of holding that the Fair Labor Standards Act's anti-retaliation provision's phrase "filed any complaint" includes the making of an oral complaint, the Court in Kasten v. Saint-Gobain Performance Plastics held that the rule of lenity was no reason to favor the defendant's narrower view of the phrase. According to the Court (slip opinion at pp 13-14):

Saint-Gobain invokes the “rule of lenity” in support of its “written complaint” interpretation. That rule applies primarily to the interpretation of criminal statutes. It leads us to favor a more lenient interpretation of a criminal statute “when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). We agree with Saint-Gobain that those who violate the anti-retaliation provision before us are subject to criminal sanction, 29 U. S. C. §216(a). And we have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.See Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004). But after engaging in traditional methods of statutory interpretation, we cannot find that the statute remains sufficiently ambiguous to warrant application of the rule of lenity here.

Given that Justice Scalia took a different view of the same phrase and is presumably no dummy when it comes to reading legal texts, the phrase in question is at least somewhat ambiguous. So the level of ambiguity necessary to trigger the soi-disant "rule" of lenity is pretty high: The canon really ought to be called "the exception of lenity."

The canon is, indeed, so exceptional that I wonder why I bothered wasting twenty minutes of class time yesterday teaching that lenity does not matter, only to be confirmed today that the canon (and presumably the class time wasted telling people about its phantom existence) is as useless as I took it to be. Oddly, Justice Scalia said nothing about lenity in his dissent. Given that he has been a crusader for the rule, does this mean that we can now adopt Dan Kahan's suggestion that the rule does not really exist and just stop teaching it altogether? Or are there state courts out there who give lenity more than lip service?

Dean as Hercules or hegemon?

Brian Leiter's virtual interview with esteemed evidence scholar and Northwestern law teacher, Ron Allen, about the Van Zandt era at NW Law makes for compelling reading.  DVZ is tagged with a reputation somewhere between Machiavelli and Macbeth among his detractors and (*pick up your favorite literary hero*) among empiricists grateful for his machinations and muscle.

Striking to me, however, is how much power Professor Allen claims DVZ wielded during his many-year reign.  Though wholly an outsider (of course) to events at NW Law, I ask nonetheless:  Is it plausible to suppose that one dean could, first, cajole a diverse, accomplished faculty to buy into a "radicalized vision" by succumbing to programmatic and personnel decisions and, second, commandeering the faculty writ large into further ventures both "narrow minded and exclusive?"  The question I raise, independent of the merits of the intellectual & pedagogical program, is whether and to what extent this account of relentless agenda-pushing can be wedded to a modern account of a dean as impressario, leader, and, in ways that faculty occasionally minimize, agent of the university and its myriad constituents.  Or, to put the question less clumsily:  How is it that one individual can accumulate singular power in a structure that it inextricably requires collaboration?

To take the focus off of DVZ in particular (noting, again, that Ron Allen's perspective as a NW faculty member will be light years better than any outsider), query whether a dean armed with a powerful vision and the energy to implement that vision with extraordinary tactics and relentless fortitude can move more than incrementally.  My friend and co-author Mat McCubbins always reminds me that a dean cannot credibly move a law school very far off the equilibrium path in the short or even intermediate run, where the path is set by an admixture of university priorities and personalities, the state of the economy, evolving faculty sentiment, student anxieties, disciplinary cultures and trends.

An intriguing question raised by the Leiter-Allen interview is why DVZ (or any other dean for that matter) would expect reality to be otherwise and, moreover, why would any faculty faction likewise fear or hope that the dean's "power" (an odd enough label for what s/he has available for use) could be directed toward reconfiguring unilaterally the objectives of an established law school. 

 

 

Disability in the news

Two stories on disability caught my eye recently and I think/hope have an applicablity to a wider audience.  The first is here.  In a discussion with a manager of a community mental health program, a New Hampshire state lawmaker said that "the world is too populated," that there are "too many defective people," and clarified that he was referring to "the mentally ill, the retarded, people with physical disabilities and drug addictions - the defective people society would be better off without.  I wish we had a Siberia so we could ship them all off to freeze to die and clean up the population."  Amidst the ensuring uproar, he resigned.  I take two points from this affair.  First, it is a reminder that stigma and bias against people with disabilities still exists.  In my experience, most people acknowledge this, although some still resist it.  Second, at least in its most blatant and extreme form, disability prejudice is outside the bounds of what is socially acceptable.  It is in less visible and vitriolic areas (for example, assuming that someone cannot do something because of their disability) where disability bias is still more mainstream.

Many of you might have seen the second story last weekend, featured here on the front page of the New York Times.  This was a report on a New York Times investigation that found widespread problems and abuses in the New York State small group home system for people with developmental disabilities.  There is some pretty sickening stuff in here; it makes for a tough read.  This article shows how difficult of a policy problem this is.  Various federal laws and court decisions implementing these laws (most recently the Supreme Court's Olmstead decision) have worked to move people with developmental disabilities out of large state institutions into community homes.  The idea is that in large, segregated institutions abuses are inevitable as dehumanization sets in, but, that with adequate social supports, people do better in the smaller homes in the community.  Although this challenges the existing Medicaid bias towards nursing homes, advocates have made some progress.  The Department of Justice under President Obama has made this a priority and brought some high-profile cases challenging states' failures to move people from institutions into community-based programs.  But this article demonstrates what lawyers who bring these cases know quite well - there still needs to be effective monitoring and oversight of community facilities, otherwise abuse will happen.  Clearly New York had some terrible failings in this regard.

A Triangle Anniversary

This week is the 100th anniversary of the Triangle Shirtwaist Factory fire. On March 25, 1911, a fire broke out on the top few floors of the 10-story Asch Building at 29 Washington Place, Manhattan, killing 146 of the 500 employees of the Triangle Shirtwaist Company. The victims were mostly young women, some of whom were young teenagers and most of whom were recent Jewish immigrants from Southern and Eastern Europe.

Many of us know this tragedy by heart -- the poor conditions, the locked doors, the manslaughter trial, the acquittal, State Representative (and later Governor) Al Smith and the State Factory Investigating Committee -- and some of us New Yorkers may have even lost relatives. I remember standing at the base of the old Asch Building (now, I think, an NYU property) and realizing that I stood where the bodies of young girls once lied. It was chilling.

A few questions about the post-tragedy gatherings AFTER THE JUMP.

I would like to talk about the post-fire gatherings at the Metropolitan Opera House and then at Washington Sqaure Park some days later. Some reporters and historians called the Opera House meeting a "memorial" or "protest" or "community shivah" depending on their political predilections. The word shiv'ah is the Hebrew term for the week long period of mourning after the loss of a loved one. According to Leon Stein's definitive (although decidedly left-leaning) history of the fire, the meeting of women, Jews, socialists and more than a smattering of men was all things to all people. Rose Schneiderman and the International Ladies' Garment Workers' Union did their share of rabble rousing, but Morris Rosenfeld, a poet, also gave a long and sorrowful dirge about the tragedy.

Little is known about Mayor William Gaynor's decision-making process during this time, although it is notable that Representative Smith took more initiative to meet the families in the tenements than Mayor Gaynor. The mayor and his police department approved two "mourning marches" to commemorate the victims, one from uptown down to Washington Square and the other from downtown up to Washington Sqaure. It must have been quite a sight. New York's immigrant women and labor force met and milled about Washington Square until the police chief worried that too many workers in one place would cause an eruption of sorrow, hysteria and violence. He changed the route of the downtown procession to meet the uptown march at the decidedly less mass-gathering friendly upper Fifth Avenue.

I wonder if our cities have changed their approaches to labor protests since 1911. New York City allowed the dual marches, but it took away Washington Square, the classic town square where anti-establishment speakers could literally bring soap boxes and spout off on this or that topic. Mr. Stein's text speaks of elderly women, dressed right out of the Old World shtetl, taking young girls under their coats to protect them from the rain while letting them get views of the Asch building and the crowds. Clearly, there were thousands of men there, some of whom were undoubtedly angry. And, while we know that local authorities have a compelling interest in putting reasonable restrictions on marches and protests in order the protect the public safety, do we not run the risk of constructively muting protests or any public gathering when we give city officials cart blanche to take away the best gathering places. Should the status of the "town square" matter more?

Styling...

I shudder a little when I re-read parts of my first law review article--the verbosity, the prolixity, the obscurantism, the obvious reliance on a thesaurus. . . .  I wasn’t entirely sure what I was doing, and I’m grateful to the editors who saw (what I still think is) a good point in all that purple prose--even if that point could in fact be boiled down to three sentences.

But then, that was almost 20 years ago (which also makes me shudder), and law school was several years in the future when I wrote it, and I was writing in the style in which I thought legal academics wrote.  I’d LIKE to think I write better now.  But thinking about it--and seeing Bridget Crawford's post over at the Faculty Lounge--prompted a few questions about style, about voice.  What style do you strive for when you write a law review article?  Conversational?  Formal?  For those who clerked, do you find yourself writing in a clerk’s voice?  Those who went to grad school or were in another discipline before legal academia, do you see differences?

Of course it varies by person, and probably by piece.   But do you think about it?  How conscious a choice is the style or voice you write in?  Were you taught a particular way?  Do you follow it or rebel against it (I’m probably opening up a thread for legal writing people as well)?

More style questions to come, but that’s a start.

Academic Satire Recommendations

It is possible that you are at that point in the semester, or in your career, when you are in need of academic satire in literary form.  Although many would recommend Lucky Jim by Kingsley Amis, it has scenes of gratuitous cruelty in the beginning chapters that I can never get past. [I feel the same way about certain episodes of Seinfeld involving George or most episodes of Curb Your Enthusiasm.] It does contain a brilliant description of a hangover, though. Some would recommend Jane Smiley's Moo, which has a brilliant opening chapter but doesn't follow through.  Instead, I prefer David Lodge's Changing Places, which has a brilliant scene about a "rising star" English professor whose tenure prospects are scuttled when he admits during a drinking game at a faculty party that he's never read Hamlet.  I also love Richard Russo's hilarious Straight Man, which captures the inanity of (certain) faculty meetings perfectly.   

Internet Freedom

Here is a review of Evgeny Morozov's The Net Delusion and Tim Wu's The Master Switch  from the New York Review of Books that makes me want to run out and buy the latter immediately.

Friends in the Age of Facebook

The American Scholar has a "Works-in-Progress" feature; the editor asks authors to pose questions to readers about the subjects covered in their recent books.  My questions about the subjects covered in Friend v. Friend can be found on page 14 of the Spring 2011 issue, scanned here:  Download Document.

Thanks for Having Me Back...and a "Creative" Question

Thanks to Dan and the other Prawfs for having me back for March.  I’m just getting started, so my apologies for being late to the game.

One of the things holding me up was attending the American Psychology/Law Society Conference at the beginning of this month.  This is the premier conference for psychology-and-law research, and was, as usual, a great gig (the fact that I could go to Miami for several days from Syracuse didn’t hurt either).  I hope to mention a few of the highlights in my short time here on Prawfs.

One thing I’ll raise to start with involves a panel we had on Psychology and Property law.  We’ve done it a few times at APLS conferences; we had a special issue of the Tulane Law Review on the topic; and I’ve organized two annual Workshops on Property & Psychology at Syracuse.  This year’s panel involved a foray into intellectual property, with Greg Mandel presenting a version of a paper he has forthcoming in the Notre Dame Law Review.  The paper in part reviews psychological work on creativity and the creative process—e.g., what fosters or inhibits creativity—and whether the IP regime itself might inhibit the creativity it is supposed to encourage.  For instance (and simplifying enormously), internal rewards and incentives foster creativity; many external motivators inhibit it.

In chatting about the paper I raised a couple questions I’d like to toss out here.  The first acknowledged that there are many motivators for the creative process; getting a patent or other IP reward is but one.  And in the legal academy regime, external rewards such as tenure, promotion, a lateral move, etc. are rampant—yet these are the sort of external rewards that “should” dampen creativity.  Yet to get tenure junior scholars are expected to be creative; on the other hand, tenure allegedly frees one to be creative.  So Question 1: where do we really see the more creative legal academic work—before or after tenure?  This in fact could be an empirical question—look either across authors and measure creativity of those pre- or post-tenure, or look at an author before and after she gets tenure.  Lots of other interesting variables you could throw in, too.

But that raises Question 2: what criteria would yo use to measure the creativity of a law review article?

Which side are you on?: College sports edition

With the NCAA basketball tournaments getting under way, I wanted to post about an issue that comes up this time of year: who's your team?  Most of us have multiple teams we could root for: we've been to college and law school; we have friends and relatives from various schools; and there are also hometown teams to consider.  Many of us profs have sports teams at the schools where we teach.  So how do we rank our various loyalties?

Here's my take.  I've ranked loyalties from 10 (complete attachment) to 1 (tepid enthusiasm).  These are not my personal ranks -- they are how I think these loyalties should rank.  (It's normative!)

• Undergrad institution (9).  This should be your primary team -- so much so that it blots out the others.  After all, it's college sports -- you should root for the college you attended.  Division III folks may claim some mitigation here, as it's harder to follow your teams.  But I think you should root for your college over any other team on the list.  This ranking becomes a "10" if combined with another factor (your parent or spouse also went there, or it's your hometown team).  This could drop down to a 5, I suppose, if you really hated your college experience.
• Current employer (7).  You might say that you don't have "loyalty" to your employer.  But I think it's natural and good for your institutional capital to have loyalty to the school where you teach, and enthusiasm for sports teams can be part of that.  This jumps to an 8.5 if you are the dean.  
• Hometown team of your youth (6).  Often, this will be the local state school -- or you may have a choice, in which case you'll side with one or the other, or even a local city team (Fla vs. Fla State vs. Miami, for example).  The sentimentality of childhood is what puts this so far up the list.
• Spouse's or relative's team (5).  Again, this is often a childhood thing -- you root for your parents' teams because they are rooting for them.  But this is easier to grow out of, I think.  You also root for your spouse's team, but you never root for your spouse's team over your own college team.  And this ranking can drop down to a 1 if it's the school where your mean older sibling went.
• Close friend's team (4 or less).  You only hit four if a really close high school friend went off to a big time sports school, and you spent a lot of time rooting for this team because your own college didn't really offer much in the way of sports.  Schools of ex-boyfriends and girlfriends should be 1 or lower.  (Sports hate is an entirely different category, which is beyond the scope of this post.)
• Law school team (3).  A lot of folks may disagree with this one, but I just don't think you accumulate much sports loyalty in law school.  If you did, you were longing too much to return to undergrad.  Or perhaps parlaying a D3 undergrad into a D1-A law school team.  Again, I don't really buy it.
• Current hometown team (2).  The sports media in town probably have generated at least this level of enthusiasm in you, even if you have no other affiliations with the school.  But let's not get carried away.
• Past employer (1.5).  Some residual loyalty remains, but absence generally does not make the heart grow fonder.
• LL.M. school (1).  I'm looking at you, Georgetown LL.Ms!

I've tried to be exhaustive, but perhaps I'm missing something.  Feel free to chime in with your own take.

Evidence for non-litigators?

While I’m blogging about the curriculum, let me ask a question.  In addition to teaching first-year courses, I also teach Evidence.  At Marquette, as I’m sure is the case at many schools, it’s a required course.  That, of course, means that many of the students have no intention of ever setting foot in a courtroom.  My colleagues and I have kicked around the idea of tailoring one section to those students.  That section might, for example, devote more time to privileges and less time to things like the Confrontation Clause, and would otherwise serve to highlight some of the key evidence-related issues that non-litigators need to be mindful of.  Has anyone else done such a thing?  What are your thoughts, law-professorial hive-mind, about what would be appropriate to include?

 

I've got your intellectual feast right here

Over the course of my now nearly nine years as a full-time academic I’ve taught (at least three times apiece) four of the six courses that are traditionally part of the first-year curriculum (Criminal Law, Constitutional Law, Property, and Civil Procedure).  This is attributable partly to differing curricular needs at the two schools where I’ve taught, and partly to nearly nine years in practice that involved stints doing work in the seemingly disparate fields of commercial real estate, public defense, and civil litigation.  But there may be something else at work.  Just this morning I was reading an article discussing Karl Llewellyn and found myself thinking that it would be pretty fun to teach Contracts some day.  (It is, perhaps, no wonder that I recently finished writing an article expressing skepticism about judicial specialization.  Which article, I may as well note while I’ve got the microphone, remains available to the enterprising law review.)  It’s unfortunate that the first year of law school ends up being so pressure-filled, because the questions involved are not only important, but endlessly fascinating.

 

faculty recruitment and the big sort

In the midst of a pleasant visiting semester in nyc, and thinking about other substantial time spent at wonderful law schools in rather different areas of the U.S. (noCal, C-ville, soCal, Austin TX, and now nyc), I am intrigued by the following:  with the convergence of law school salaries and culture (very roughly speaking, of course) around a certain mean, and controlling somewhat for rankings, isn't it all about location, location, location?

Given the enormous variation in municipalities -- a point reinforced in important recent academic work including the Bishop's "The Big Sort" and Glaeser's "Triumph of the City" -- will the law school hiring future belong to a cluster of schools located in "hot" areas?  More provocatively, will the vaunted "rural college town" go the way of the dinosaur? 

Any number of intense conversations with colleagues contemplating moves or, earlier, fretting about first-job offers, suggests that the urbanity of the law school, in all the multiple meanings of that word, is mattering a great deal indeed.  In the eye of the beholder?  Perhaps.  But I throw out the query:  Are y'all working more creatively to sell the city? the state? a hopeful story of progress in "Middleearth Law School" or "Skyscraper State?"

Egyptian Constitutional Reform, Take 1

In the midst of tragic and jarring world events in Japan, Libya, and Bahrain, we should not take our eye off of the ball in Egypt as it sets the pace for reform in the Arab world.  To open first post-revolutionary chapter in Egyptian history, the Supreme Council of the Armed Forces (SCAF) has set a milestone referendum on 10 new constitutional amendments for Saturday.  Within just days of its ascent to power, the SCAF appointed a Constitutional Amendment Committee and gave it just 10 more days to propose amendments dealing with parliamentary and presidential elections.

 The proposed amendments have been controversial in Egypt.  Proponents say these changes abolish the worst excesses of the old regime, meet key demands of the protestors, show that the military is serious about change, and represent a crucial early move forward toward eventual democracy.  Indeed, many changes seem like a step in the right direction -- like imposing presidential term limits, requiring a public referendum to extend the despised emergency law for more than 6 months (Article 148) and abolishing Article 179, which allowed Mubarak to commit heinous acts in the name of national security.  The drafters also wisely sidestepped political conflict by leaving thorny political issues unaddressed.  The amendments leave intact the provision against forming political parties “with a religious frame of reference” (Article 5), which effectively bars the Muslim Brotherhood from forming a political party. 

 The proposed amendments may pave the way for the Egyptian judiciary to take a leading role in democratic transition.  The Supreme Constitutional Court would have the ability to decide eligibility for members of parliament (Article  93).  Judges with positions held by seniority – not appointees -- would have broad powers to fully supervise presidential elections (Article 88).  Rather than having an independent electoral commission or international observers primarily supervise the first democratic elections in the largest country in the Arab world, Egypt would rely on a judiciary developed under Mubarak to supervise the reform of its other governmental institutions.  This appears to signal trust in the judiciary and a desire for Egyptian self-reliance by the CAC.  However, it is a well-known fact in Egypt that that not enough judges exist to supervise countrywide elections in a single day.  The framers of the amendments wanted the judges to have technical assistance from outsiders, or left open the possibility of electoral manipulation inherent in elections that occur over multiple days. 

 While the amendments represent a positive start, these rushed, superficial constitutional revisions alone will not lead to substantive democratic change in a deeply flawed system.  Organizing a vote in a country of 83 million is an overwhelming logistical task when previous elections were outright rigged by the Mubarak regime.  Without appropriate time to prepare internal or external monitoring, the referendum process itself is fraught with opportunities for fraud.  Moreover, the SCAF appears to be ramming the amendments through as a package with little opportunity for public debate or dissent on individual provisions.  This does little to promote democratic discourse, and evokes tactics long used by authoritarian regimes to preserve power under democratic guises. 

Perhaps most importantly, these constitutional amendments are hollow without support from the rest of the Egyptian legal and political system.  The constitution in its entirety was suspended by the SCAF, and they will retain power to enact the new amendments.  Much of the enabling legislation that gives life to these provisions will remain the same as it was under the Mubarak regime until a new parliament can be elected to change it.   Political parties, largely absent from the proposed amendments, have an unspecified role in the new Egyptian political ecology.  No matter the result of Saturday’s referendum, it thus remains unclear whether what appears to be monumental constitutional change in Egypt will result in any change at all.  

FIU still hiring, as well

I'll copy Dan's post:  FIU also is looking to hire visitors, specifically in Intellectual Property and related courses. If you are interested in joining us next year or know someone who is, please email (or have your friend email) a cv directly to me.

Jane and John Doe

Thanks to Professor Danielle Keats Citron at the University of Maryland Law School, I was given the opportunity to offer written testimony to the Hawaii Senate on behalf of a bill that would protect the privacy of harassment victims so they could bring lawsuits against their attackers. The bill currently being considered allows certain domestic abuse victims to sue as "Jane Does" or "John Does." It is an important bill and one, I must admit, I was surprised to learn was not already an option in every jurisdiction.

The arguments against this are four-fold, but I find each unconvincing. I am eager to hear from this gathering of minds much smarter than mine on this. 

First, the Hawaii Office of the Public Defender opposes the bill on the grounds that the measure "violates the rights of a criminal defendant under the Sixth and Fourteenth Amendment" to the Federal Constitution. The Sixth Amendment guarantees to accused the right to be informed of the nature and cause accusations against him, to call witnesses in his favor, to have the assistance of counsel and to confront his accuser. By filing complaints under pseudonyms, the argument goes, defendants can neither investigate a plaintiff's background nor research whether his or her accuser has filed these claims before. This means that a defendant would be unable to adequately prepare a defense and, therefore, would be unable to confront his accuser.

Second, various lawyers testified against the bill, noting that complaints with "John Does" and "Jane Does" lead juries to erroneously assume that pseudonyms were used because the defendant is dangerous. There is some evidence to support this, based on various studies done in the late 1990s. If jurors assume that the defendant is dangerous from the get-go, their credibility judgments would be impaired without evidence.

Third, the American Civil Liberties Union of Hawaii opposes the bill because courts are presumptively open to the public and only showings of "strong counterveiling reasons" could overcome the public's interest in access.

Fourth, some have suggested that this bill is unnecessary because courts already have the power to apply an appropriate balancing test to determine whether and when to seal portions of family court proceedings and records.

These are weighty arguments against the bill. But, they are unconvincing.

First, "John Doe" and "Jane Doe" filings do not prevent defendants from investigating and preparing defenses. It is a fallacy to suggest that such complaints are clouded in mystery until the moment trial begins and the plaintiff is sitting in his or her chair. Filings with pseudonyms shield identification and private information from the public, not the parties involved in the case.

Second, while some evidence suggests that pseudonym filings make fact-finders wonder what would cause the plaintiff to hide his or her identity, judges can head this off at the pass by issuing clear jury instructions that the "John Doe" or "Jane Doe" filing means nothing with respect to the credibility of the defendant or his witnesses. Jurors are surprisingly smart when it comes to compartmentalizing inadmissible nonsense when given clear instructions from a judge.

Third, open access to the courts is indeed an important value, but it is not absolute. Even if we require "strong counterveiling reasons" to insert some measure of anonymity into the process, those reasons exist. Domestic abuse is a grave problem, both in straight and gay relationships, and coming forward knowing that you will be identified as a victim of domestic violence is emotionally daunting and physically dangerous. Professor Citron's testimony focused on female victims of cyberharassment -- a growing problem indeed; my testimony touched on gay victims of domestic violence and cyberharassment -- a problem that will become increasingly obvious as gay couples continue to come out of the margins of legal society and assert their rights.

Finally, as to the unnecessary point, I am normally sensitive to this argument. Unnecessary laws are bad laws. But, this law is not unnecessary. In Hawaii, judges have routinely denied "Jane Doe" or "John Doe" filings without even considering a balancing of the harms. In fact, the drive for this bill came from a woman's case where a judge rejected the premise of pseudonym filings out of hand.

This seems like a valid exception to the presumption of open courts. What does the Prawfs community think?

Public Forum 2.0

If you are interested in social media and/or the First Amendment, you might be interested in the article I just posted on ssrn.  The abstract is below, and the link is here.

Abstract: Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court's public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article diagnoses critical doctrinal and conceptual flaws that block this path. Relying on insights gleaned from communications theory, the article critiques the linear model underlying public forum jurisprudence and offers an alternative. This alternative model will enable courts to adapt First Amendment doctrines to social media forums in ways that further public discourse. Applying the model, the article contends that courts should presume government actors have created public forums whenever they establish interactive social media sites. Nevertheless, to encourage forum creation, governments must retain some power to filter their social media sites to remove profane, defamatory, or abusive speech targeted at private individuals. Although some will contend that ceding editorial control is no more necessary in social media than in physical forums, the characteristic "disorders" of online discourse, and particularly the prevalence of anonymous speech, justify taking this path.

Some prawfy options may still be available at FSU

I'm thrilled to say we've hired six lateral and rookie folks for next year but we are still hiring at FSU! So, if you either are someone or know someone who is still interested in an academic law position for next year, perhaps as a visitor, please let me know asap with an expression of interests and I'll forward it along to the relevant folks. It's especially helpful if you can send along a cv to me. We have wide needs and as always seek a diverse pool of applicants from a wide range of backgrounds and interests.

William Stuntz, R.I.P.

"William Stuntz, a renowned scholar of criminal justice at Harvard Law School,  an evangelical Christian and a teacher much beloved by students and colleagues, died March 14 after a long battle with cancer."  More here.  He was a great scholar and a deeply good man.  God bless him, and his family.

The So-Called Top 14

allow me to be (one of?) the first UTexas-associated faculty member(s) to say "no cheers" to the today's US News ranking bombshell regarding my illustrious school on the Third Coast. So-called Top 14 club is meaningless designation, as Brian Leiter noted a few years back. It is no less meaningless for 2012 as for years past. And only responsible way to approach this rankings sillingness is to say so -- whether your law school moves up or down. So I've said it.

Eastman v. Roman on Birthright Citizenship

As a follow-up to last month's Prawfs Roundtable on Birthright Citizenship (entries here and here). Late last month, FIU College of Law and FIU Law Review hosted The U.S. Immigration Crises: Enemies at Our Gates or Lady Liberty's Huddled Masses?, which featured a terrific debate between FIU's Prof. Ediberto Roman and Professor/Former Dean John Eastman (Chapman) over birthright citizenship. The audio for the debate can be accessed here.

Hello

My name is Michael Waterstone, and I teach and am one of our associate deans at Loyola Law School Los Angeles.  Thanks to Dan and the rest of the crew for having me back.  

I certainly do not consider myself a US News rankings "deep thinker."  But in this post, before the new US News rankings come out this week, I wanted to get on my high horse about something.   This is a point my Dean, Victor Gold, has helped me realize.  The rankings do not currently include diversity as a factor in how they evaluate law schools (although they have done a stand-alone diversity ranking).  On the merits, this seems crazy to me – there is pretty broad consensus that diversity is an important part of the educational experience. 

I have heard two responses: first, that it is difficult to calculate diversity because of the different background populations in the geographic region where schools reside; and second, this would disadvantage schools in less diverse parts of the country.   As to the first point, although I am no statistician, I don't buy it.  US News has as standalone diversity ranking, indicating it can be calculated.  And US News is able to include bar passage rates as part of its survey and there are different passage rates in different states.

As to the second point, even assuming it is true that including diversity would disadvantage schools in certain regions, I guess my response is – who cares?  I’m not naïve – I realize the rankings exist to sell magazines, not to be accurate in any meaningful measure.  But the rankings are not “neutral” – they use all kinds of factors that advantage some schools over others – primarily money.  So if diversity is meaningful to the educational experience (and thus something that prospective students should look for), how can it not be justified as a factor by which US News ranks schools?

I am a member of the California State Bar Council on Access and Fairness, and we have been engaged in a public dialogue with Bob Morse at US News on this issue.  I hope we are able to make some progress.  

The unraveling of the grand coalition on free trade?

It was probably always a pipe dream to think that any cross-aisle coalition favoring free trade could survive the extraordinary levels of political polarization that currently afflict our government. But I confess to nursing a fond and naive hope that Obama's 2008 posturing on trade was merely political theater. Obama, after all, was an academically inclined guy with a penchant for modest egalitarianism, and it is simply indisputable among the economically literate that our reducing our trade barriers to imports from the developing world would increase the welfare of the world's poorest citizens. True, such imports might lower wages here -- but that's what generous trade adjustment assistance is for. A smart Democrat like Obama could create a grand coalition by reducing tariffs but devoting the revenue from increased economic activity to higher spending on job training, unemployment benefits, and infrastructure investment. Everyone -- business, labor, and the developing world -- wins.

My hopes for such a deal are now being being eroded faster than one can say "Smoot-Hawley." Last month, Congress allowed both the Andean Trade Preferences Act (ATPA) and the 2009 version of Trade Adjustment Assistance to expire. The consequence is that U.S. tariffs on imports from two Andean nations (Colombia and Ecuador) are set to increase, while job training assistance for workers displaced by foreign imports will decline, with severe effects on economically declining areas like Detroit.

The unraveling of the TAA-ATPA deal might be the harbinger of larger political trends that place free trade more generally in jeopardy. Obama's delay on sending the Colombia Free Trade Agreement, over Senator Max Baucus's objections, suggests that, despite his economic literacy, Obama is throwing his lot in with the anti-free trade wing of the Democratic Party in order to placate union supporters. Sadly, the Tea Party members of Congress hate trade with developing nations as much as unions, albeit because of their usual anti-foreign paranoia rather than the unions' simple economic short-sightedness.

Whatever the reasons, I suggest that the foot-dragging on the Columbia Free Trade Agreement is a policy that only an economic Luddite or a right-wing xenophobe could love. It hurts the developing world and destroys the opportunity for bipartisan cooperation.

What is the case against the Colombia Free Trade Agreement? The unions argue that Colombia has not done enough to stop anti-union violence. But they do not offer any argument that high U.S. tariffs against Colombian imports will somehow benefit Colombian unions. Indeed, there is no such argument to be made. To the extent that high U.S. tariffs throw workers in Colombia out of work by shutting down Colombian business that export good to the United States, Colombian unions are hurt, not helped: High unemployment in Colombian lowers demand for labor and, thus, Colombian unions' bargaining power. Preventing cut-flower growers from sending blossoms to the United States will only insure that more unemployed scabs (thrown out of the cut-flower business by our economic paraochialism) will stand ready to replace striking Colombian unionists. Moreover, there is no reason to believe that the Colombian businesses that survive our trade barriers will somehow be more pro-union or less prone to using violence against their workers.

Why punish every producer, even the unionized ones that eschew anti-union violence, for the Colombian government's failure to stop right-wing militias? If American unions care so much about stopping anti-union violence in Colombia, then why do they not advocate a more targeted sanctions policy, barring imports from specific Colombian businesses that do not practice fair labor practices?

One should not blame the unions alone for the demise of free trade: Although the AFL-CIO opposes both the South Korea free trade agreement (despite robust South Korean unions) and the Central American Free Trade Agreement, there are pockets of labor support for some trade deals: The United Auto Workers and United Food and Commercial Workers both supported the South Korea deal.

Every bit as pernicious as union intransigence is right-wing xenophobia about foreign trade. Tea Party folks denounced the South Korea trade deal as a violation of U.S. sovereignty, so it is unlikely that Obama can expect much help from the freshmen Republicans. Moreover, these Tea Party types will predictably oppose the expansion of trade adjustment assistance that is essential for making free trade a distributionally just expansion of American welfare rather than a one-sided benefit for trade winners.

Where does this leave free trade? My best guess is that free trade will be hostage to the vagaries of bilateral deals in which pro-trade coalitions are cobbled together from alliances between importers of foreign goods and exporters to foreign markets pried open by trade deals. This does not mean that such deals will never occur. But it does suggest that the deals will mostly bypass the developing world that needs them the most. In particular, free trade unilateralism like the ATPA, where the United States unilaterally opens its markets to struggling developing nations to improve their welfare, is probably a lost cause.

Those on the Left who purport to care about the welfare of the developing world ought to deplore this change in the political climate. In particular, the academic Left ought to muster a bit of political courage to speak truth to union power and denounce trade policies that leave the developing world's economy shackled in poverty. (And please, please, please do not repeat the untrue claim that respectable economists have ever defended U.S. tariff barriers as a boon to the developing world. Even trade contrarians like Joseph Stiglitz argue that the developing world would benefit from the United States' unilaterally lowering of its trade barriers).

As for my fellow conservatives: Shame on all of you who cry for higher tariffs. You claim to distrust the State and yet support statism -- high tariffs, the Wall, ICE brutalities -- whenever its victims happen to be foreigners. This is not libertarianism: It is autarky of the nastiest nationalist variety.

And to those two or three people out there who still care about the international trading system, my condolences.