PrawfsBlawg

Criminal Procedure too at the Supreme Court

I will have to find time today to read JDB v. North Carolina, but for now, Lyle Denniston's very helpful summary on SCOTUSblog will suffice.  It appears that the Court, in a 5-4 split decision, held that the police must "take into account" a suspect's age during questioning when deciding whether or not to deliver Miranda warnings.  

Since I cannot imagine any police department wants to suffer the costs of guessing wrongly, I assume that most departments will go much farther than simply taking age into account, and will conclude that its safer to administer Miranda warnings to all suspect-minors in most if not all interrogation situations, rather than risk making an improper calculation of whether a suspect understood that she was free to leave.  I don't know that this is a bad thing (in fact, I might well support legislation that required the police to do that), but I do wish the majority would dispense with the fiction that it was leaving the ultimate decision up to the police.  

Who Should be the Audience for Legal Scholarship?

“Modest” is not the first word that comes to most people’s minds when asked to describe me.  (“Pasty” and “bald” are popular choices.)  That’s pretty common for law professors, in my experience.   (That is, the self-confidence, not the baldness.)  Nonetheless, this post is in praise of the modesty of contemporary legal scholarship.

Many practitioners, from C.J. Roberts on down, have been heard to complain (read the comments!) about the “irrelevance” of recent legal scholarship to their work.  These complaints are, in a sense, factually wrong.  There is tons of doctrinal scholarship being produced today, much of it quite fine.  But to find it, you probably have to read a journal with “of” in the title, or a general-interest journal from a law school with a relatively low U.S. news ranking.  So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do.  It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.      

Perhaps, then, there is a need for some signal of quality for highly practical scholarship.  (The ABA’s journals seem a useful step in that direction.)  I nonetheless want to defend the status quo in which such scholarship is not highly prized by the academy, and therefore not prized by the gate-keepers who have internalized our norms. 

In short, I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty.  Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars.  Lots more after the jump.

My basic assumption is that law is policy, and choices of legal doctrine have consequences.  Much of the modern intellectual trend away from judge-made law rests on those claims.   (Though I don’t want to discount the role of ideological efforts to entrench the politically powerful against the threat of litigation, and to diminish the influence of trial lawyers.)  While courts have strengths, the fact remains that their judgments typically represent at best an agreement among a handful of smart people.  And that’s a problem when the world is as complex as it is.  

We could say the same thing about scholarship.  Brandeis was brilliant, but on and off the bench he missed a lot of important points, too.  (E.g., about that laboratories of democracy business).  For any one of us to claim that we’re clearly right about what the law “is” (or, implicitly, should be) just strikes me as overwhelmingly likely to be wrong, or at least perilously incomplete, most of the time.  Yet it isn’t clear that this limitation is apparent to policy makers who consume “doctrinal” scholarship – the scholarship that speaks directly to lawmakers and makes claims about legal policy should be.

“Theoretical” scholarship, then – scholarship that speaks to other scholars, and not to a lay audience – is insular, but appropriately so.  That is the modest course.  (It is also is more consistent with a modern understanding of statistical inference.)  We debate with each other because that is how we move closer to a fully-informed truth, or at least to a position we can agree is most defensible given the limited information available to us.  Doctrine emerges at the end of this process, in spinning out the consequences of consensus theoretical positions for discrete applications.  We do what judges should do, would do, if they had endless time.  (I leave for another day the question of whether the optimal institutional design follows the u.s. in joining theorizing to teaching, but separating out judging and lawmaking.)    

Of course, sometimes crises demand immediate answers.  Sometimes the best guess is better than doing nothing.  Sometimes doing nothing leaves in place an existing baseline that is clearly inferior to most other options.  But given the stickiness and path dependence of legal choices, in particular, it is often wiser to measure twice and cut once.                         

To be clear, “doctrine” and “theory” as I’ve sketched them are points at the ends of a continuum.  Nearly all legal scholarship is considerably more “practical” or doctrinal than the median of any other major academic discipline.  In many ways, I see that as the emerging role for legal scholarship: moving foundational ideas from elsewhere in the academy closer towards some possible real-world implementation.  That “translational” task suits our skills as explainers, negotiators, institution-builders, and problem-solvers.  But even translators should be cautious.

Federal procedure day at the Supreme Court

It was a heavy procedure day at the Supreme Court--and that is without the justices getting to the two personal jurisdiction cases that the civ pro professoriate has been awaiting. Justice Kagan authored one of the opinions and she introduced it by calling it a "complicated procedural ruling." Live-blogging at SCOTUSBlog, Amy Howe translated this as "if you understand anything I say, you have a law degree AND you had your cup of coffee."

First was Smith v. Bayer (the one authored by Justice Kagan), holding that a federal court which had denied class certification under FRCP 23 could not enjoin a state court from considering a class action raising similar claims against the same defendant. The "relitigation exception" to the Anti-Injunction Act did not extend that far for two reasons--1) class certification under FRCP 23 was not the same issue as class certification under West Virginia Rule 23, because West Virginia law had explicitly taken a different approach and 2) the named plaintiff in the state case was not a party to the federal case, thus he could not be subject to issue preclusion by the federal court's ruling (Justice Thomas, without explanation, did not join this part of the opinion). One additional note: Stanley Fish a while back commented on Kagan's rhetorical style in her dissent in CSTO v. Winn (the taxpayer standing case). Smith confirms that--her opinions are very enjoyable reads.

Next came Bond v. United States. This case is more known for its underlying facts (Bond used chemical materials to hurt a former friend who had become pregnant after an affair with Bond's husband) and the seeming governmental overcharging (Bond was charged under a federal statute barring possession and use of certain dangerous chemicals, a staute enacted as part of the convention against chemical weapons). And it likely will get attention going forward (at least in the popular press) for what hints it gives about the health-reform litigation; Justice Kennedy includes a long paen to the beauty of federalism and how it enhances individual freedom. The specific issue before the Court was whether Bond had prudential standing to challenge the constitutionality of the federal law as violating the Tenth Amendment; the Court concluded she did.

The decision touched on two interesting procedural points. First, the Court overruled the discussion of standing in Tennessee Elec. Power Co. v. TVA (on which the lower-court had relied) on the ground that it is inconsistent with modern understandings of standing. The case had improperly conflated the concepts of "standing" and "cause of action", with the latter going to the merits and not the justiciability of the action. The Court recognized the difficulty of separating the two concepts, but also emphasized the need to do so in order to avoid the very confusion we see in this case. What was going on in Tennessee Electric was that the plaintiffs did not have a state-law claim against the TVA--a merits issue. It is inappropriate to refer to that as standing, with its implications for jurisdiction. And it therefore had nothing to do with the arguments that Bond could raise in this case.

Also notable is Justice Ginsburg's concurring opinion here, in which she adopts the view (posited by Monaghan and Fallon in separate contexts) that the idea of "third-party standing" often is not a matter of standing at all, but a matter of the right of the individual not to be convicted under a constitutionally invalid law. It does not matter why the law is invalid or in what way it exceeds the bounds of Congress' prescriptive authority; an individual always can argue that the law is invalid.

Save the Dates: Oct. 27-28, 2011, in D.C., ABA-AALS Joint Conference "Reducing Reliance on Incarceration"

More details to follow soon, but please save the dates now for a joint venture of the ABA and AALS Criminal Justice Sections devoted to "Reducing Reliance on Incarceration."  One track of the ABA conference in October will be devoted to an "Academics' Colloquium."  Chris Slobogin will moderate a plenary session entitled "Decarceration: Taking Advantage of the Budget Crisis." Prawfs' own Shima Baradaran will moderate a break-out on "Decision-Making in Criminal Justice"; Sandra Guerra-Thompson and Lisa Smith are planning a panel on "Restorative Justice and Specialized Courts," and Cecelia Klingele is putting together a session  on "State Legislative Initiatives to Reduce Incarceration."  This will be an opportunity to discuss these timely and important issues in dialogue with practicing attorneys.  Confirmed speakers include a range of distinguished professors, judges, and criminal justice professionals, including Mary Fan, Todd Clear, Walter Dickey, Spurgeon Kennedy, Judge Nancy Gertner,  Judge Leonie Brinkema, Steven Chanenson, Michael Seidman, Judge Matthew J. D'Emic, Susan Herman, Michele Kirshbaum, and John Chisholm.  Stay tuned for additional details regarding opportunities for informal workshopping of works-in-progress.  Registration coming soon on the ABA web site.

What good can come from Kentucky or North Dakota?

So, I intended to shift gears away from amicus briefs , but I just had an interesting development I thought would be of interest to the Prawfs audience. Yale University’s counsel opposed the filing of the brief in a case seeking restitution of a Van Gogh painting confiscated during the Russian Revolution. Contrary to Yale University’s educational mission encouraging the dynamic exchange of ideas, its counsel seeks to muzzle amici. In fairness, the brief criticizes Yale’s counsel’s Act of State arguments, which all but ignored historical context.

As you can see (scroll toward end), the opposition to the motion relies on a case written by Judge Posner generally slamming amicus briefs. That opinion was ripped apart later by Justice—then Circuit Judge—Alito while he was still on the Third Circuit. Justice Alito noted that the party opposing the filing “cited a small body of judicial opinions that look with disfavor on motions for leave to file amicus briefs.” Justice Alito also noted that the description of the role of amicus in this small body of cases “was once accurate and still appears in certain sources . . . but this description became outdated long ago.” The minority view also was criticized in a Yale Law Journal article relied upon by Justice Alito. Justice Alito correctly concluded: “I believe that consent [to file amicus briefs] is now freely given in large part because it is thought that leave to file would be granted in any event if consent were withheld.” “[I]t is preferable to err on the side of granting leave. A restrictive policy with respect to granting leave to file may also create at least the perception of viewpoint discrimination.”

Yale’s counsel didn’t mention any of the criticism or any of the sixteen cases that cite the Alito opinion with approval. Basically, Yale’s counsel repeated the failure that drove amici to file in the case – ignoring (or ignorance of) historical context. Yale’s counsel also haughtily dismissed the interest of one amicus and me because we are based in North Dakota and Kentucky, respectively. The short reply amici asked to file today squarely addresses this and uses the line in the title of this post. I think you might enjoy reading it.

 

This episode brings to mind recent blog post of my colleague, Mike Mannheimer, theorizing about snobbery’s impact on law review article selection. I’ve still got teeth in case there is room for smiling after the next submission season – and maybe I’ll git to wear shoes ‘n git me a ‘possum dinner at a fancy ristorant if I kin dig me up some money! O!, but hold yer horses – all dem fancy pants 2L’s prob’ly jes thinks I be paddlin’ wit one oar in the watter! Gis I’ll jes play de State song on me fiddle ‘n swing me feet in de blue grass.

So, before you jump into amicus work, you should know that these sorts of flaps can arise, which increases the total amount of time to one should budget to perform such work. On the positive side, the reply was even a little fun to draft, and I imagine opposition to the filing of an amicus brief brings Shakespeare to the minds of most judges: “The lady doth protest too much." (Again taken out of historical context).

Finally, I want to provide a link to my first Supreme Court filing with my wonderful mentor Ed Gaffney. There are plenty of professors who signed on who you may know, for which we are thankful. We also had a little fun in this one dreaming up a dialogue between Harriet Boaltwoman and Sojourner Truth IV.

A New Twist on Customer Preference and Employment Discrimination

(The following is by my colleague Kerri Stone, who teaches and writes on employment and employment discrimination)

As an employment law and employment discrimination professor, I teach my students the same basic premises each year. Federal law protects many classes of people from employment discrimination. Title VII and its jurisprudence protect plaintiffs from defendant employers’ assertions that their biases are rooted those of their customers or clients. So-called “customer preference” as a justification for the intentional disparate treatment of employees will simply not fly; this would thwart the broad remedial purposes and the efficacy of the statute.

So you can imagine how delighted I was when a friend from my hometown of Long Island passed along a local, developing news story to me yesterday that, since then, has already been picked up by, among other media outlets, the Toronto Sun. This viral story has sprouted wings and taken off to such an extent that I believe that it will be getting exponentially more national media attention by the time this blog gets published. It is a story about what I will call “reverse customer preference”—about a single customer/bystander’s bringing to light and shaming a major national company over alleged employment discrimination, abuse, and bullying that is not unlawful under federal law—but should be.

     This is one of the most moving and compelling stories about workplace discrimination that I have heard recounted. Having litigated and taught in this field for several years now, I can’t say that the underlying facts are worse than the worst things I’ve read recounted. But I can say that the poignant way in which the story unfolded and was brought to light—a glaring national spotlight— is nothing short of extraordinary and spectacular. Missy Alison is a gay mom who writes a blog about her family—   the Lil Family Blog, which carries the tagline "2 Moms, 1 Toddler, and a Lot of Love." On June 13, she posted a letter that she had written to Starbucks after she returned from their store in Centereach, Long Island.  Because I don’t think that I can give a better, more vivid and earnest account of what she alleges occurred or how her role in all of this should be seen than she did, I will quote liberally from her letter.

As Ms. Alison recites, she is “a loyal customer with concerns.” She elaborates:

  I know probably 90% of the letters you receive trying to solicit something from you probably start the same way, but this is different. When I say, I am a loyal customer I mean you have had me for the better part of my adult life, hook, line and sinker. I will spend the extra $2.50 for a cup of your coffee. When I worked in Hoboken I would walk an extra three blocks for your coffee, walking past a Dunkin Donuts, Panera, Macdonalds and two bodegas to purchase from you. …When you roll out a new product, I flock to your nearest location like a moth to a flame.  …I know, and speak your “lingo” that …is sometimes so complicated I feel like I speak a second language. I even, as much as I am ashamed to admit it, buy most of the adult contemporary CDs you peddle in the front of the store. …I am your disciple. I am part of the Starbucks machine. I am your dream customer because whatever your company puts into the market, I have and I would have continued to buy. 

She continues to explain that she “never felt bad about my commitment to your chain …because I felt like you were a company that was ethically sound.  Your commitment to free trade, The Starbucks Charitable Foundation, your appearance as a diverse work environment. These are all things that I as a customer felt good about. I felt like I was supporting a company that although huge, I felt you were doing your best to “do good” and leave a positive mark on the world.”

This was, she said, “the case, until yesterday.” After clarifying that the preface to her letter was “not written to solicit anything from you. I do not want free coffee or a refund,” she proceeded to ask “as a loyal customer for the past 15 years that I have your attention. Your time and consideration.” She then proceeded to describe her experience in the store as having exposed her to

one of the most brazen and unapologetic displays of homophobia I have ever witnessed….  What was most concerning about it was it was perpetuated by …THREE of your employees and it was directed towards a fourth employee.  I don’t know this man, but I know his name is Jeffrey because the woman (who seemed to be in charge…)  loudly scolded [him]….  In the middle of your store. Two feet away from my table.   Then when Jeffrey, who was visibly shaken went to the bathroom to collect him self [sic], the women at the table went on a long…homophobic rant that lasted about five minutes. This …transpired two feet away from my table where I sat with my daughter. A three year old child, with two mothers. …

Ms. Alison then proceeded to recount the details of what I can only say sounds like, at the very least, a humiliating episode of bullying and a constructive discharge because of the employee’s sexual orientation:

The whole incident spanned about 15-20 min[utes]. It looked like it was …about something that had happened in the store, an earlier problem.  What that was, I couldn’t be certain. I do know however,…that Jeffery’s sexuality was brought into the conversation…. The …Manager[]…spoke to him in a sharp condescending manner. She told him that they were not interested in his politics or beliefs and his thoughts were down right offensive to his co-workers. They did not want to hear about his personal life. … She was even so condescending to tell him, “It might not be today, it might not be tomorrow, but ten years from now you will thank me for this…”

For what? … For learning to put up with bigotry in the work place? She kept reminding him, “You are not fired but….” as if to say, you are not fired but you are really not welcome here anymore. I assume this was a clever HR move so he would not be able to collect unemployment. He told her that he felt like he was being FORCED to leave because he felt like the “problems” at that location were not being addressed and the workplace had turned into a hostile environment.  She in turn told him that if he was not, “Part of the solution, he was the problem.” and his two weeks notice would not be needed. He asked if he would be marked by the corporation as “un-hireable. She smugly looked at him and said, “Well I don’t know. It’s not looking good for you.” Basically threatening his professional future.

…The event got more horrific, when he, who had kept his composure through the entire incident, not once raising his voice despite being attacked, got up from the table to go to the bathroom to cry in private. Then the three women turned on him like Vultures. “I’m done. I’m done. Nobody wants to hear it anymore.  I don’t care who he is dating. I don’t want to hear about it.” “He should not get upset at the things people say to him. He should be used to it. It’s not like he turned gay yesterday.” “I used to listen to it, now I’m just sick of hearing about it.” “Nobody does, but it’s over now. You won’t have to hear about it anymore.” It went on, and on and on.

The focus of their discussion… when he left the table, was not about an incident that occurred in the previous days.  It was about how they were intolerant to his lifestyle, nobody wanted to hear about the fact that he was gay, they didn’t want to be exposed to that.  …

This man, this Starbucks employee was losing his job, because he was gay. …Whatever Jeffrey’s offense might have been… that is how one of your loyal customers perceived the events as they transpired based on the actions and the statements of your “manager”.  …When Jeffrey returned from the bathroom she asked him for his keys. She was pretending to be sensitive and offered him her card if he needed to talk.  Which disgusted me because, she was anything but concerned for his well being.

Finally, Ms. Alison ended her narrative by noting that she

followed Jeffery out of the store horrified by what I had just witnessed. I said to him, “That was unreal. …He …said, “Thank you.” I hugged him and he said, “I came to this company because I thought it was supposed to be better. I thought that it was a positive and tolerant work place to work. I was passed over for promotions, they hired from the outside,…. I couldn’t take it anymore. I didn’t have a chance here.”…I walked away from Jeffrey and I started to cry.  …I strapped my daughter into her car seat and I thought about how in this society we are so self congratulating as we …promis[e] our children, “It gets better!” I found myself wondering, “Better than what?”

So many things about this account are remarkable.  In the first place, Ms. Alison is the first person to concede that she is not an activist. An self-described ordinary person thrust into an Erin Brockovich-like  scenario  in which the impetus for her to respond was simply too great to ignore, she, by her own account is

not militant and I do not have an axe to grind nor am I looking for a soap box. I’m pretty boring to be quite honest with you.  I do not even march in pride parades and I swear I own not a single thing that has a rainbow on it. I don’t celebrate my diversity, That’s simply not the type of person that I am. In fact, I’m more the type to wallow in how mediocre I am.  I am an average American who just so happens to be gay. I live my life, I raise my family and I hope to also leave a mark on this world that is positive.

She also did not post her letter looking for any personal gain or to harm or precipitate any kind of boycott against Starbucks. In fact, as she noted, as she made her final entreaty to the company:

I want to still be able to walk into a Starbucks with my head held high. I want to drink your drinks, speak your code and even buy your newest record releases, even though they make me feel middle aged and unhip… and feel good about it. I want you to restore my faith that you are the company I always thought you were. Please don’t let this incident go unnoticed. Do something, anything you can to make this right. Please protect your (former) employee.

Her request did not go unnoticed. In this age of social media, the story has gone viral. Starbucks’s facebook page now has countless pleas from around the world for the company to “Please make good Starbucks. Homophobia - like racism - should never be tolerated,” and threats that customers “will no longer purchase any Starbucks products until there is Justice for Jeffrey. And I'm not even gay. I just abhor bullying of any kind. “

Starbucks, for its part, took to facebook and its website to acknowledge the incident  rather quickly, saying, pretty much, what one would expect them to say in this day and age:

At Starbucks, we pride ourselves on being a great place to work. We are deeply dedicated to our core values – to embrace diversity and treat each other with respect and dignity. We’re committed to providing an inclusive, supportive and safe work environment for everyone. … Starbucks has supported the LGBT community for many years, and we have zero tolerance for discrimination of any kind. We have one of the largest Employer Resource Groups for LGBT employees in the United States helping to raise awareness about issues in the communities in which we live and work. Our benefits program has always offered domestic partner benefits in the United States and Canada, and Starbucks partners actively participate and organize local LGBT events in their communities.

Starbucks noted that it was “disheartened by the allegations reported in an East Coast Starbucks store and are taking immediate measures to investigate and take any steps necessary to make this right. The actions reported do not correspond with our values, who we are as a company or the beliefs we try to instill in our partners.”

Those of us who monitor employment discrimination and the ways in which it is stoked or inhibited by the law and by society cannot help but marvel at how social media outlets, so often blamed for perpetuating and enabling expressions of bullying and discrimination, seem to have facilitated the publicity and the handling of this situation in a way and at a speed that more traditional outlets could not have. Although harassment  may be unlawful under Title VII, sexual orientation is not a protected class (although it is under certain state and local laws, including laws in New York). This fact and the fact that the threshold for actionable harassment is so high means that that it is not likely that what transpired would be unlawful in many places. It certainly does not look to have been unlawful under Title VII.  Workplace bullying that is not anchored to a cognizable protected class status is entirely (and some of us say, lamentably,) lawful.

Yet, lo and behold, a single “customer’s preference” for decency, civility, and nondiscrimination against one of the most discriminated against groups in the world was able to effect awareness and change that the law in most places could not. A woman who is most likely wholly unfamiliar with the jurisprudence that says that gay people are not discriminated against “because of sex” when they are stereotyped as nonconforming with their biological sex, the notion of a “mixed motive” jury instruction or the debate that has transpired as to precisely how a court should adjudicate a “mixed motive” case, or the concept of a constructive discharge; managed to impel action, where the same situation would have delayed, if not entirely stymied the law in its attempt.  This twist should not elude those who lament the impotence of employment discrimination law and jurisprudence, as so many of us who write and think about it do regularly.  Ms. Alison’s understated yet infinitely elegant and effective entreaty has ignited passions (and undeniably effective shaming mechanisms) and mobilized people to a degree and with a speed that it is doubtful that a lawsuit could have achieved.

 

 

District judge rejects recusal in Prop 8 litigation

Chief Judge Ware of the United States District Court for the Northern District of (the District of) California earlier today rejected a motion by Prop 8 supporters to vacate Judge Walker's decision invalidating Prop 8, on the ground that Walker, who was in a long-term same-sex relationship, should have recused himself or at least disclosed that relationship.

Three important pulls from the decision.

First, the court adopts as its controlling principle an idea I floated in a prior post:

In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge . . .

Second and related, the court declined to hold that Judge Walker's status as a gay man (or gay man in a committed relationship) gave him a greater interest than the rest of the public.

[I]t is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.

And note that the court could go there without even having to touch on the argument that same-sex marriage affects/harms opposite-sex marriage.

Third, on the issue of whether Walker should have disclosed his sexual orientation and relationship status, the court suggested that Walker was right not to do so and that doing so out of an overabundance of caution would have set a "pernicious precedent" by promoting a practice of judges disclosing highly personal information in future cases, a practice that itself would be detrimental to the judiciary.

I am curious to see whether Prop 8 supporters feel strongly enough to push this issue in the Ninth Circuit.

The Imaginary Constitution and Last Night's Republican Presidential Debate

In 2003 Ron Paul posted a short piece on line charging the federal courts with enforcing an “imaginary constitution.”   An imaginary constitution was very much in evidence during last night’s Republican Presidential Debate in New Hampshire, but the fictive foundational law in question was hardly the same one that Paul once accused “activist” federal judges of visiting on the nation.  Judge-made constitutional law said Paul in 2003, shortly after publication of the Lawrence v. Texas decision, was illegitimate as soon as it departed from the constitutional text and original intent of the founders.   Not only was the constitutionalism behind liberal judicial activism illegitimate in Paul’s eyes, but worse still it was unsavory, in that it lead to results considered distasteful by libertarians and social conservatives.  The obvious and overdue remedy said Paul nearly a decade ago was popular reconsideration of lifetime tenure for federal judges.   He did not stop to mention that tenure upon good behavior for federal judges is expressly and unambiguously guaranteed in Article III Section 1 of the Constitution, and he gave no indication that he had the amending process as opposed to legislation in mind as a prescribed solution to the ills he diagnosed.   Textualism and original intent one must suppose have their limits even for so principled a strict constructionist as Paul, and those limits are discoverable at the boundaries between political outcomes social conservatives find desirable and those they find abhorrent.   But perhaps it is uncharitable for me to suggest hypocrisy. It may well be that Paul has simply never read the Constitution (i.e. the written one as opposed to those imagined into being by dreamers of various stripes).  In any case, whether the cause was failure to abide by principle, ignorance, or an active capacity to fantasize, constitutional imagination figured everywhere in last night’s debate.   Consider the following short and in-exhaustive typology of constitutional orthodoxies proffered by the candidates last night at St. Anselm that depart markedly from the constitutional text ratified by selective groups of long since dead people inhabiting some regions of the current United States in 1787-89, 1789-91, and 1865-68.  I have grouped my observations into three classes, which I call text, tradition, and covenant.   Each of them will form the topic of a Blawg entry.  This entry deals with Text, specifically the Citizenship Clause and the Test Clause.

Former Minnesota Governor Tim Pawlenty lambasted Congress and the activist federal judiciary for recognizing birth-right citizenship for children of illegal immigrants, and touted his record of appointing conservative judges in Minnesota as proof that he was committed to ensuring the federal judiciary would not in future be staffed with liberals unwilling to take the Constitution seriously.  Given the enormous amount of attention directed at nascent movement to amend the Constitution to purge the Citizenship Clause of the Fourteenth Amendment, Pawlenty’s belief that birth-right citizenship is a judicial creation is hard to fathom.   Section 1 clause 1 of the Fourteenth Amendment states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  There are those who argue that the children of non-citizens are not subject to the jurisdiction of the United States and therefore fall outside the Citizenship Clause, but the more natural reading is surely that all persons in the United States except those who enjoy diplomatic immunity are subject to the jurisdiction of the United States, and that their children are therefore entitled to birth right citizenship.  After all, nobody could seriously argue that a person lacking diplomatic immunity who was detained in the United States for a crime allegedly committed in the United States was not subject to the jurisdiction of the United States because his parents were foreigners.  To be sure, Pawlenty may not be out of the mainstream of Republican Party thinking on the question of birth-right citizenship, as the Birth Right Citizenship Act of 2011, currently in committee in the House, purports to eliminate birth-right citizenship for children both of whose parents are illegally in the country, constitutional text notwithstanding.  Whether it would amount to activism or plain meaning textualism for the judiciary to hold this Bill unconstitutional under the Citizenship Clause should it ever become law probably depends more on the intellectual honesty of the observer than nice semantic questions.   One can’t but wonder whether constitutional change as inelegant as the Eleventh Amendment might not offer a slightly (and only slightly) less disingenuous way out for those who wish to deport the children of illegal immigrants and still feign fidelity to the Constitution:  Nothing in the Constitution (such as perhaps the Birth Right Citizenship Clause) shall be construed to confer birth right citizenship on the children of illegal immigrants, or other classes transient legislative majorities may find objectionable, and hence ineligible for constitutional protections cast in otherwise universal terms.

Godfather Pizza magnate Herman Cain, who held out his chief qualification for presidential office as complete lack of political experience, likewise favored using a rubric of cultural purity to establish fitness for civic participation. Where Pawlenty failed to account for the Citizenship Clause of the Fourteenth Amendment in assessing the eligibility of native-born children for continued residence in the United States, Cain chose to consider fitness for political appointment in blissful ignorance of the Test Clause of Article VI, which commands that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  When moderator John King asked Cain to clarify recent remarks suggesting he would never appoint a Muslim to a cabinet position, neither Cain nor any other candidate on the stage gave any evidence of familiarity with or loyalty to the Test Clause.  Cain appeared to retreat somewhat from the ironclad rule he had earlier described, implying that in some instances it might be possible to survive the additional tier of vetting appropriate when nomination of a Muslim was under consideration.   The two-tiered process for Muslims and no others would be very difficult to reconcile to constitutional Equal Protection principles, a serious constitutional concern that equally escaped all the candidates’ attention.  Then again, for federal as opposed to state action outside the area of appointment to office, it is generally possible for a principled textualist to make a case that Equal Protection is irrelevant, which comes close to what Robert Bork did forty years ago in arguing that Brown v. Board of Education was rightly decided, but Bolling v. Sharpe (requiring desegregation of public schools in Washington D.C.) was not, since the Equal Protection Clause does not by its own terms target the federal government.   The Test Clause however applies squarely to federal appointment, so from a purely textual basis, religion-based exclusion from federal office is on even shakier ground than race-based discrimination in hiring by federal actors.

Last night’s debate was fascinating and engaging, and though constitutional text was celebrated with much fanfare, the particular positions developed by the various candidates discussed above did not evince on an individual or collective level a rock solid commitment to knowing and enforcing constitutional text.  Entries on the role of constitutional tradition and constitutional covenant in yesterday’s debate will follow shortly.

Performance and Cheating

There was an interesting article in the Times last week, lamenting the six figures that parents were paying for tutoring. - yes tutoring - on top of the approx $38,000 annual tuition they were already paying for private school.

In the article, and the letters to the editor that followed, two themes emerged.  The first was that the tutoring demonstrated the presence of socioeconomic inequality in education (huh? this is new?). The second, and of more interest to me, was the suggestion that hyper-competitive parents and their children were cheating, or at the very least, engaging in morally questionable conduct.  Moreover, a number of commentators lamented the "academic culture" that would breed such activity.

This of course contributed to my continuing interest in the difference between cheating and performance.   Why are the students who hire tutors labeled "cheaters" and not persons intent on securing good performance?  Why is seeking help from the school's own teachers an appropriate source of performance-enhancement (as suggested by the article), whereas paying a third party for the assistance morally questionable?

Surely, it can't just be the fact that one source of help costs additional money whereas the other source is included in school tuition.   Once you accept the fact that there are private schools at all, tutoring imposes only a marginal increase on educational inequality.  In other words, the difference between the opportunities provided by an inner city public school and those provided by Riverdale (one of the private schools profiled in the Times article) is far greater than the inequality that exists between those Riverdale students who receive ouside tutoring and those who decide to stay "in-house" and seek help solely from the school's teachers.

Moreover, inequality has long existed among students within even relatively homogeneous populations.  Some students will have the blessing (curse?) of having a mom or dad like Amy Chua.  Some will have laid back slacker parents.  Some will be saddled with a mom who teaches high school French and a dad who is a mathmetician (thus, my decision to take Spanish in jr. high and stick with the humanities in college).  Finally, in a world where both spouses work, some students will have parents who decide to outsource the oversight and attention that was provided directly by parents and other relatives in the past.  Why are the offspring of the Chua's of the world deemed smart but overworked, whereas the offspring of the outsourcers deemed cheaters and morally bankrupt?

All this comes back to my question: what is the difference between cheating and preparation, and how do we distinguish "true" performance from "fake" performance?  The primary angle of the Times article on tutoring was to stress the sheer amount of money involved and the resulting inequality between students.  A better angle, I think, was hiding toward the end of the article, and it was this: some of the tutors possessed very specific information and advice regarding a very specific course taught at Riverdale.  Now, to the extent these guys were offering up private knowledge of the course, that sounds a lot like cheating to me.  But there is a very easy way for the school to fix the problem: change the course every year.  But if that is all the article were about, it would come off as a very specific complaint about a specific school.  Instead, the Times turned it into an article about how a bunch of rich Manhattan jerks are spending six figures to improve junior's already decent, but not spectacular, SAT score and high school grades.  Yuck.

The problem I have with the article is its implication that preparation is somehow bad, particularly if aided (for money) by a third party outside one's family.  I sometimes see this among my students as well: the "natural" who gets an A without even trying is somehow better than the "tool" who toiled in the library and studied like mad for the final.  Why?

To my mind, preparation is not cheating, and tutoring (assuming it does not involve advance notice of the content of a specific test or exam) ought not to be morally questionable.  Indeed, I find this anti-preparation strain in American media both tiresome and dangerous.  This idea that ability is "natural" and that we therefore should not try to perfect it in ourselves or our children is ridiculous.  No, I have no intent on spending six figures on tutoring (heck, I don't have the money anyway), but I see no problem with others who do.  Better they spend their money on preparing their children for school than on fancy parties, souped-up cars, or any number of items that provide short-term gratification with very little return on investment.

More on Brady

No sooner had I finished reading the ABA Journal's story about Connick v. Thompson, quoting law prof Rachel Barkow, when scotusblog, via Lyle Denniston, was reporting that the SCOTUS had granted cert in another Brady case--again out of New Orleans.  Denniston mentions a series of alleged Brady violations from the New Orleans office, including the seminal case Kyles v. Whitley.  It seems likely that office has some problems.  But I have wondered if even prosecutors acting in good faith might have trouble recognizing exculpatory evidence, due to litigation psychosis or just a difficulty seeing things from the defense perspective.  Keith Findley of Wisconsin has written about the role of "tunnel vision" in wrongful convictions.  Do some prosecutors have trouble recognizing that a piece of evidence that does not fit the government's narrative might actually point to an alternate explanation?  I have toyed with the idea of creating a Brady exercise in which students playing the roles of prosecutors and defense attorneys would be provided with certain (different) pieces of information about a case.  The goal would be to illustrate how a seemingly unimportant (yet exculpatory) piece of information in the prosecutor's possession might, when disclosed to the defense, prove extremely important.  I'd be interested in hearing others' thoughts.

The District of the District of Columbia??

This has to go down as the silliest distraction in the history of legal writing (and boy if that isn't saying something), but for entirely insignificant reasons, I've recently had to rehash one of the stupidest debates we ever had during my law journal days--what the proper name / citation form of the D.C. district court should be. And blogging isn't worth it if I can't share the silliness of my distractions, right?

Let's start with the obvious: The court refers to itself as the "United States District Court for the District of Columbia." In other words, the U.S. District Court for a place, i.e., the District of Columbia. But the South Carolina district court isn't the "United States District Court for South Carolina"; rather, it's the "United States District Court for the District of South Carolina," "D.S.C." in Bluebook terms. So, in the name of the D.C. district court, the second word "District" is serving two distinct purposes--one to refer to the judicial district, and one to refer to part of the name of the judicial district. Indeed, the Bluebook itself recognizes this, since the jurisdictional abbreviation is "D.D.C.," not "D.C." And 28 U.S.C. § 132(a) provides that "There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district."

So should the D.C. federal district court instead be named (and known as) the "U.S. District Court for the [Judicial] District of [Place] the District of Columbia"? Or should we drop the first "D." from the jurisdictional identifier for the (properly named) U.S. District Court for the District of Columbia? The fate of humanity itself may rest in the balance...

More Sad News: David Baldus, RIP

The University of Iowa College of Law reports: Professor David Baldus died peacefully at home early this morning. Please join us in extending our deepest sympathies to the Baldus family and in feeling gratitude for the opportunity to have known this great man. 

You can learn a bit more about this extraordinary person's body of work here.  Those who knew Baldus are invited to share memories in the comments.

 

Other Things to Consider Before Doing Amicus Work

Do you feel passionate about the issues? Is there repeat litigation? If so, your phone will ring. How far are you willing to go? Are you prepared to say “Yes” to the first case and “No” to all others? Where are you prepared to draw the line? By court (federal versus state, district versus court of appeals versus Supreme Court, particular jurisdictions where you are admitted)? By stage of the case (trial, appeal, cert petition, only after cert is granted)? By the particular facts? If based on the facts, are you willing to spend the time to understand each case’s facts? My advice is to know the cases in your field as they are filed so that you can know when to simply tell someone “No” up front instead of giving him or her false hopes.

Also, in terms of self-interest, do you have tenure? First see the posts above to get a sense for how much time filing amicus briefs demands. Second, will you be somehow retaliated against for saying something unpopular about someone popular? My faculty and Dean have been completely supportive. I don’t know whether all would be. I’ve filed briefs against these powerful and beloved museums: Museum of Modern Art, the Guggenheim and the Metropolitan Museum of Art (and I’ve written about others’ acquisition practices). I filed one brief against Yale University, where it seems almost 100% of legal academics have studied, taught or esteemed to publish at one time or another. The Yale brief speaks objectively about the application of the Act of State doctrine and the laches doctrine to historical claims. It takes no position as to whether Van Gogh’s The Night Café, taken during the Russian Revolution, should be restituted to the claimant, Mr. Konowaloff, but it clearly states that Yale did not meet its burden of demonstrating that the Act of State doctrine barred the claim. Will I ever get another speaking invitation during my next 30 years in the academy? Can I kiss that dream of publishing in the Yale Law Journal “goodbye.” (I’m sure the next article wasn’t going to be “the One!")

So, in the end, I’ve been content with my choice. I have strong views on a few more cases, but have made tactical decisions about the cases in which I’ll appear on behalf of amici. Perhaps with enough planning, I could structure a seminar around a particular brief or two? If not, I probably can’t keep up my current pace of amicus work on top of a (self-imposed) heavy teaching load while fulfilling my personal scholarship agenda. Nonetheless, I intend to continue getting involved in the practice-side of my field and reform efforts. This practice is understandably not viable or desirable for everyone in every field, but I think it has made me a better scholar, teacher and public citizen than I otherwise would have been.

Now, I’m going to shift gears for the rest of my posts.

Who would be your graduation speaker ...

if you could have anyone do it? Here's Conan O'Brien giving the commencement address at Dartmouth:

 

"Silly Season" 2011 Post

It's not even officially summer and the media is already abuzz with stories of scandal--Arnold, Anthony, and John.  Just more evidence that powerful men flout the rules?  Or would women also "behave badly" if only they were powerful enough?  Or do less important men and women also act out--only away from the media glare?  The New York Times this week-end ran this piece by Sheryl Gay Stolberg ("When It Comes to Scandal, Girls Won't Be Boys").  It argues that women in Congress don't engage in these compromising situations because politics is still dominated by men, and women are conscious of their relatively tenuous position.  In the words of Prof. Kathyrn Pearson of the Univ. of Minnesota, they have to "prove themselves," and so they are more earnest and diligent, with less time for train wrecks.  What do we think?  What's the explanation?  Next post: back to law.

Losing Steve

I've been off the box for most of the last few days so I haven't had a chance to share directly the news of the passing of my FSU colleague Steve Gey, but I am glad that Howard, Franita and Dan have already shared some news and links that give you a glimpse of Steve's wisdom, fortitude and humor through the best and worst of times.

Losing Steve is devastating to the students and family and friends who loved him, the colleagues who admired him from near and afar, the administrators whose tasks he eased with his enthusiasm for FSU, and the world of ideas and constitutional law that he illuminated over and over again with his passion and insight.

Our bright and beautiful world is dimmer without you, Steve, and we will miss you terribly.

In Memoriam, Steve Gey

I am saddened to report that Prof. Steve Gey, long of FSU, passed away yesterday, following a four-and-a-half-year battle with ALS. Steve was a prolific and leading scholar in Con Law, First Amendment, and federal courts, as well as a fantastic teacher, advocate for civil liberties and, just for good measure, one of the singularly nicest people you ever will meet. (I learned of his passing from Franita Tolson).

This is from FSU Dean Don Weidner:

I am deeply saddened to report that after a long and valiant struggle against ALS, Professor Steve Gey passed away June 9.

As you know, Steve was a magnificent teacher, scholar, mentor, and champion of civil liberties. He profoundly inspired colleagues and students alike. Steve’s contributions to the law school and broader legal community are immeasurable. We all mourn his passing.

Steve’s family asks for privacy during this difficult period. There will be no visitation or funeral services other than for family members at this time. However, we will have a public memorial ceremony at a later date. We will provide details in the coming weeks.

The family asks that in lieu of flowers, contributions may be made to the Gey Endowment for Civil Liberties. Contributions may be made online at https://one.fsu.edu/community/SSLPage.aspx?pid=815 or sent to FSU College of Law – Gey Endowment for Civil Liberties.

Dan had publicized the annual efforts of Tri-for-Gey, the team of colleagues, friends, and current and former students participating in Tallahassee's Red Hills Triathlon to raise money for ALS research; we also have gotten to read updates from Steve himself about his battle with the disease.

On a personal note, Steve was incredibly good to me during my two-year VAP at Florida State ten years ago. I am forever grateful for the help, guidance, and mentoring he provided me as I was starting out as a teacher and scholar.

He will be missed, not only at FSU, but throughout the legal academy.

57 is the new 40

In an earlier blog post, I inquired about the perceived strength of law reviews and specialty journals. I received a lot of helpful feedback. I've recently tumbled onto an attempt to crowdsource law journal rankings. The poll rated 170 journals, in pairwise comparisons. Journals are ranked on a 0-100 scale, where the number is the estimated chance that it will win against a randomly chosen idea. Stanford boasts the highest score of 90, while the Kentucky Journal of Equine, Agriculture & Natural Resources Law scored lowest with a 12. All 170 journals ranked are among the top 300 journals according to Washington & Lee's rankings.

I have heard repeatedly that a given specialty journal is roughly equivalent to a main journal at a law review ranked 40 steps lower by USNWR. I thought the crowdsourced rankings might bear that out, so I sorted the journals according to the crowdsourced rankings, and compared the 3-year average USNWR ranking of each specialty journal's home institution with the 3-year average  ranking of the nearest law review. So what's the average difference between specialty journal and its nearest law review neighbor?

57.36, with a median difference between specialty and law review of 53.16. This suggests that, on the whole, the +40 heuristic may overestimate the relative strength of specialty journals.

What I like about the crowdsourced rankings is that they hold out promise of disclosing an overall indication of how other academics rank specialty journals. Unfortunately, votes are entirely volunteer basis, by those who found the survey, so it is unlikely that the votes are representative of the legal academy as a whole.

There are also at least two potential problems with my calculations. First, as of today, there were only 14,271 votes cast, enough to compare each journal to 84 others, or roughly half of the total journals included. Stanford and Chicago were 1 and 2, and more votes might change the relative placement. Thus, the crowdsourced ranking strikes me as a tentative projection, assuming that we can rely on the anonymous individuals doing the voting. (The poll is still open, so we could get more votes, and I would be happy to recalculate if there was reason to do so).

Second, some journals ranked in W&L's top 300 come from instutitions that are unranked by USNWR, either because they are in the new "Tier 2," or because they are not hosted by a U.S. law school, so there are awkward gaps. In addition, for some schools, I don't have a three-year rank, because they've just emerged from behind the alphabetical anonymity of the USNWR rankings, so I used this years ranking. Unfortunately, I have rough proxies all the way down.

Finally, you may wonder why we should care. Like other authors, I want the best home for my articles. I write in intellectual property, and there is some indication that law review editorial boards tend not to accept more than one IP article per cycle. Placement is important, and I still hold out hope that I can find something more than "feel" to guide me here. You may feel much the same, and I hope this at least opens up new questions to ask. You can download the spreadsheet used to make these calculations. Feel free to play around with it and see what conclusions, tentative or otherwise, you can draw. Download Rankings

With that, I need to get back to writing that next article. Thanks to Dan for the platform, and to all the gracious commentors for engaging with my lines of inquiry this time through.

 

Unanticipated Side Benefits of Pro Bono Amicus Work

 First, it has opened my eyes to the realities of cases I had been writing about from a bird’s eye view and made me more passionate without sacrificing objectivity. Second, it has made me more organized and productive on all fronts, including the scholarship front. Third, it has allowed me to network with a wider array of people within and outside of the academy. Fourth, it has helped me see that bridges should be built between the cultural property restitution field and other fields, such as international human rights. Fifth, my students seem to like that I can still “walk the walk.” Finally, while all work and no play has no doubt made me a boring person, but people tend to think the work is interesting so I get to spread awareness about the issue via invited lectures and cocktail conversation. People seem legitimately interested (or perhaps are infinitely polite).

 

Hetero-Normativity in the Rape Law Canon

The Crim Prof list serve has been having a lively discussion about the Ohio Supreme Court's recent decision in a juvenile matter that the Ohio statutory rape law is unconstitutional as applied to children under 13.  The Court reasoned that, in situations involving kids under 13, the statute violated due process because it permitted prosecutors to determine which child was the victim and which the aggressor.  The Ohio case involved a 13-year-old and an 11-year-old, both boys.  I wonder if the Court would have seen the case in the same way if the 11-year-old had been a girl?  This got me thinking about an excellent recent post by Erin Murphy at Jotwell, discussing Bennett Capers' new article Real Rape Too and criticizing the hetero-normativity of the rape law canon that we currently teach in the typical criminal law course. 

Murphy writes that both she and her students increasingly take issue with the hetero-normativity of the rape law material that we typically teach.  She commends Capers' article for attempting to make male rape victims visible.  Murphy says that she tells her students that she focuses on male-female rape because such charges make up the overwhelming number of cases in the criminal justice system.  I tell my students that the current canon is hetero-normative, but that we are reading cases (and article excerpts) that tell a story of a feminist law reform effort in the final decades of the last century.  One of our jobs is to understand that law reform effort; another to critique it.  Has it gone too far, or not far enough?  I am interested in hearing from others who teach rape law.  Do you address the hetero-normativity of the current materials?  Do you supplement with other materials that engage male victimization or same-sex situations?  And what's your take on the recent Ohio decision?

Originalism, Foundation Mythology, and Paul Revere's Midnight Ride

I probably disagree with Sarah Palin on most political issues, and in the unlikely event I ever sat down to chat with that most conversational of former governors, she and I would probably find little ideological common ground. Beyond that, I am not quite sure I can trust anyone who appears as gifted as she surely is as a salesperson. My psychological intuitions are not keen enough to discern whether she fully believes in what she’s selling, or whether she simply believes that what she’s selling is highly saleable. I doubt very much that anyone else (not even Ronald Reagan) could have successfully packaged the American “foundation” as a family holiday bus tour, and offered it up for public consumption with apparent conviction and genuine aplomb.

The Paul Revere matter presents a more particular and more delicate case in point. Images of his midnight ride endure faintly for me as blended childhood memories of my parents reciting Longfellow and of me taking in Bicentennial Minutes broadcast on CBS just before bed time when I was nine. Objectively speaking, those sources can’t justify any firm faith on my part that Revere did not ride out ringing dem bells like a Christmas elf, aiming to warn the British not to seize American arms [I’ll leave commentary about conflicted and contested national identities during the British North American Civil War of 1775-1783 for a later post]. But when it comes to the question of whose arms the British were to refrain from seizing, my visceral response to Palin’s account becomes somewhat more cynical, and my suspicion that she departs from Longfellow’s narrative for calculated and designing reasons that much stronger. The arms, one learns when listening to her clarifying remarks offered the day after the visit to Boston, belonged to “private militia”. When reporting that the arms Revere rode forth to guard from the confiscating hands of the King’s men were held by private militia, Palin employs (quite deliberately in this instance I believe) coded speech signaling to fellow travelers her endorsement of a right to revolution even for light and transient causes. Her belief that the militia of the Second Amendment, or the Army of the Constitution, was no creature of provincial law but a spontaneous manifestation of pooled privatistic resistance to authority serves as a perfect synecdoche for her vision of a restored America in which there is very little in the way of governance and a great deal in the way of flag waving nationalism.

Now, it may well be that her vision is noble and principled, and that it holds out hope for redemption of the greatest possible number of residents of these shores. My question is why must it appeal to imagined history for authority? In 2011, why do people who know very little history debate the merits and demerits of gun control and the advantages and disadvantages of the regulatory state by reference to historical events they understand only on a mythical level, or that they willfully misconstrue? I do not agree with originalism of the original public meaning variety for many reasons (principally its demonstrated failure to lead to “neutral” judging), but I acknowledge the philosophy is at least coherent. If one believes that governance by judiciary is illegitimate, and that doubtful constitutional text admits of a single interpretation allegedly dominant at the time the text was ratified, then judicial recourse to original public understanding presents a possible answer to a pressing problem. Nor do I believe in the continuing viability of the constitutional compact-based justification for judicial review first offered up by Chief Justice Marshall in Marbury v. Madison, chiefly because I agree with Jefferson that past generations should not govern the living. But if in some abstract sense judges are not usurping the people’s will be merely checking the people’s legislative agents who would otherwise abuse the will of the people on fundamental questions reduced to written form in the constitutional compact, then judicial veto of legislation is less anti-democratic then it may appear.

What I cannot understand at all is how Sarah Palin’s implicit claim that cultural preferences that allegedly prevailed in 1775 or 1787-89 continue sacred and inviolable today acquires legitimacy. Quite apart from the former Governor’s lack of expertise on late eighteenth century North American cultural history, why does the assumption that Paul Revere’s rode for anti-statism in 1775 require right thinking Americans to be anti-statist today? Palin’s claim goes several levels beyond the distinct desires of Justice Scalia or Chief Justice Marshall to discipline judges or legislators by the express terms of a constitutional compact. Palin’s presumption enshrines principles alleged to dwell outside the constitutional text and makes of them un-amendable law. On an intuitive level, tens of millions agree with Palin that the United States was libertarian in its foundations and that loyalty to the American character requires continued faith in libertarianism in the here and now. Their beliefs, I suspect, are under-theorized, in the sense that their adherents can offer only circular explanations for their faith. Right-thinking Americans are duty bound to be libertarian today, the believers proclaim, because right-thinking Americans were libertarian in the beginning. I’d be intrigued to hear more compelling accounts for the continued relevance of Paul Revere. I submit one could argue as cogently for or against constitutional restraints on gun control if Paul Revere were left out of the picture entirely. Then again, when Longfellow commemorated the famous ride of ’75 the year was 1861, and instrumentally at least, the poet’s patriotic appeal served a very powerful and entirely legitimate purpose indeed. Unless of course one endorses a right to secede for purposes of perpetuating oppression, but that is another question for another post.

See, umpires are like judges

And this is kind of like calling the judge in the middle of a depostion to get a ruling.

Would Amy Chua make a good CEO?

I was thinking this during a panel I attended at the Law and Society Association's annual meeting last week. The panel, which was organized as part of the New Corporate Governance group (big shout-out to Joan Heminway for organizing it), addressed several issues relating to corporate officer accountability and executive compensation. One of the themes that emerged was that unreasonable or excessive demands on performance could create negative outcomes in and among corporate firms. (Lynne Dallas' criticism of demands for short term performance is already up on SSRN).  The demand for performance strikes me as potentially problematic, but perhaps not as much as some of the presenters felt it was.  

Performance and wrongdoing are substitutes;  requests for performance can be met with actual performance, or with fake performance posing as actual performance.  That doesn't mean you give up the demands for performance, but it probably does mean you have to take adequate measures to make sure that performance is reasonable and that you have good structures in place to prevent and catch cheating.  So, for example, law schools demand performance from our students in the form of end-of-term exams.  Students who do well will receive any number of good things (from scholarships to placement on law reviews, good jobs, clerkships etc), and those who do poorly will unfortunately experience negative consequences.   

Despite the demands for student performance, cheating is not rampant at law schools.  Yes, I have heard of the occasional scandal here and there, but for the most part, I think most students do their own work.  You can attribute this to social norms (which was largely the basis of Lynn Stout's presentation on the aforementioned Law and Society panel, which was drawn in part from her new book), but I assume some of it has to do with the costs and the likelihood of getting caught.  I might add, from what I can tell, far fewer professors give take-home exams than was the case when  I attended law school (early to mid nineties).  I assume that has something to do with the ease by which students would be able to cheat in today's very wired world.

Okay, so here's why I thought of Amy Chua.  As you all know by now, Chua is famous for her recent book on parenting.   Many critics argued that Chua was unnecessarily tough on her kids.  Chua's defense (I saw her say this during one of her many television appearances defending the book) was that she was simply trying to get her children to perform at the level that matched their capability.  That is, she truly and genuinely believed her children could perform at a very high level and for that reason, she pushed them (very very hard) to reach what seemed like unreasonable performance goals. 

Although Chua's children seem happy and successful, critics have forecasted some dire consequences as a result of Chua's parenting style.  Some have argued, for example, that Chua's offspring are bound to lack creativity or social skills.   Quite interestingly, no-one has brought up the possibility that the kids might substitute false performance for the real thing.  As someone who studies corporate crime and compliance, I find this very interesting.  When shareholders demand performance, we worry that corporate officers will cheat.  When Amy Chua demands performance from her kids, we worry that they will become deficient in social skills.  Why aren't we worrying about cheating too?

I imagine cheating is less of a problem for Chua because Chua closely monitored her children's progress (which she can do while they are living under her roof).  She didn't just tell her kids "learn music."  She spent every waking moment with them making sure they practiced their chosen instrument.  And she was skilled enough to know when they played their instrument incorrectly.  Notice that this model would not work outside of a relatively small family.  Nor would it work very well once her children took up activities in which their mother was not an expert. She could delegate monitoring to a really tough coach or she could teach herself the skill, but she still would be at a relative disadvantage.  

So the not surprising conclusion is: No, a CEO who made demands similar to Amy Chua would likely fail as a CEO, and his or her firm would likely experience dysfunction and cheating.   The CEO would lack the ability to back up her performance demands with credible threats of monitoring.  As a result, cheating -- and defection -- would almost certainly occur.  The demanding CEO either would have to adjust his or her goals, or at the very least, input monitoring devices that would mimic the 24/7 oversight that Chua provided as a parent.

Notice that the analysis ought to carry over to CEO's who are used to governing small, tightly knit firms and who then move into jobs in which they have to govern more decentralized, multi-tasked firms.  Without adequate safeguards against cheating, unreasonable performance demands will create negative consequences. 

So to return to the subject that set me off on this path: the problem in corporate life is not, as some contend, with demands for performance.  It is that we demand performance unreasonably and without credible mechanisms to catch and deter cheating.  Performance isn't the problem.  Cheating is.  

Mandatory service hypothetical

On the law and courts discussion email listserve Lief Carter just posted this hypothetical on mandatory service (I reprint it with his permission):

Would anyone care to comment on the following hypothetical?:  Congress passes a mandatory national service act in which, for the improvment of the economic and social infrastructure of the United States, all able-bodied Americans must, between the ages of 18 and 25, devote two continuous years of service in their choice of the U.S. Military or a National Service Corps or a comparable organization.  They will work for minimum wage.  Would this law not pass constitutional muster?  Would such a blanket requirement have any closer a connection to interstate commerce than mandatory health insurance?  [In this regard has anyone seen an estimate of how much $$s ought to be saved via the fewer inefficient emergency room treatments of the uninsured poor once the new system goes into effect?]  Are there significant quantitative differences in the degree of intrusion on personal liberty between requiring people to shell out some X dollars/month for health insurance (which a majority of Americans already do) and devoting two years of their lives to something they would not freely choose to do themselves?

It's an interesting question. Of course Lief is not the first to think on this issue - many have posited he basic idea of mandatory service in the US. However, I find the Constitutional issue less interesting than the potential social and policy implications of such a law. If we did have such a requirement what would be the limits - could you get out of service with a doctor's note? What would we do with people who refused to serve? Could the government, in times of need, recall servers to serve again at a much older age? Would this be analogous to the military draft or a very different proposition?

Hey, That's My Line

If you follow pop music, you probably heard about the cheeky claim of the ex-beau of neo-soul sensation Adele. Adele recently released a spectacular album, 21, chronicalling a disastrous break-up. Heart-rending stuff. Adele has repeatedly acknowledged that the break-up provided the fuel for the songs. It turns out that the her previous album, 19, was also fueled by a break-up with a different beau. The cad from 19 apparently called her up and asked for a cut of album royalties, operating under the logic that since the mental anguish he put her through inspired the music, she owed him for it.

The notion that people inspire songs is not new. Carly Simon pilloried some egoist in "You're So Vain." Bob Dylan was allegedly talking to someone when he wrote "Like a Rolling Stone." Angela Bowie, David Bowie's ex-wife, claims to be the subject both of Bowie's "Golden Years" and the Rolling Stones' "Angie." On the sadder side, Eric Clapton wrote "Tears in Heaven" after a tragic accident claimed the life of his son.

We know that Adele's ex-paramour is the inspiration for 19, but could he bring a successful copyright claim? In other words, is inspiration equivalent with ownership?

In a word, no. In the majority of circuits, a putative co-author must establish two things to succeed in a claim of joint authorship. First,  s/he must have contributed something independently copyrightable to the final work. (The Seventh Circuit, in Gaiman v. McFarlane, and the D.C. Circuit in dicta on remand in C.C.N.V. v. Reid, both suggest that the individual contribution need not be copyrightable, and the Nimmer treatise is in accord). Second,  the various authoring parties must have intended both that their independent contributions be merged into a unitary whole, and that they would become joint authors.

Customary or contractual relationships might define who is an author of a creative work. While Paul McCartney has asserted sole authorship of gems like "Yesterday," it is attributed to Lennon/McCartney, and at least under U.S. law, Lennon's estate would be entitled to a cut. Ownership of the copyrighted work can be transfered by contract, and some contractual relationships allow the employer / contractor of the copyrighted work to be the de jure author.

In other situations, a contributor might do less than the creative activity which we label "authorship" under the copyright act, but might still feel--perhaps rightfully--that the contribution made was irreplacable. And these boundaries of authorship can be somewhat fuzzy. Tristan Tzara and William Burroughs, among others, practiced a method of "cut-up" composition, where source material was cut into strips and selected at random to create a poem. Is it authorship to repeatedly stick your hand into a bag of word strips and to "copy conscientiously the results in the order in which they left the bag"? Does an author who composes a work in this fashion owe anything to the contributors of the source material? More or less than Adele "owes" to the subject of her disaffection in "19"?

Recently, Neil Gaiman, Amanda Palmer, Ben Folds, and Damian Kulash set out to compose and record 8 songs in 8 hours as part of their participation at the Rethink Music conference jointly sponsored by the Berkman Center and the Berklee School of Music. They finally produced 6 songs in 12 hours, crowdsourcing the topics (or so they said during a stage show at Berklee that night). Online  contributors suggested historical figures (Nikola Tesla and Joan of Arc were central participants in two songs) or reasons relationships go bad: "One tiny thing out of place" and "because the origami" were the crowdsourced seeds for the best two offerings of the experiment.

It's hard to imagine the authors of those brief snippets successfully claiming the non-existent profits (all proceeds from the experiment went to charity), but closer calls are not hard to come by.

Cary Bonnecaze, former drummer of the band Better Than Ezra, sued for an accounting of profit based on a claim that he co-authored some of the band's compositions on the mid-90s hit record, Deluxe. Kevin Griffin, lead singer and guitarist, claimed he brought finished songs to the band, which Bonnecaze merely helped polish. The band conceded that Bonnecaze made a copyrightable contribution to the sound recordings (the audible performance of the band's music), which the court concluded was a derivative work of the songs written by Griffin. Bonnecaze unfortunately lacked evidence to show that he made independently copyrightable contributions to the underlying songs, nor was there a contract making him a co-author. Thus, he could not assert joint authorship of the songs in question.

The same goes for Adele's ex. Without proof of either a creative contribution or contractual authorship one or the other, he is out of luck.

 

Students and their pre-existing knowledge

Here is an interesting Slate piece by James Lundberg, a history professor at Sacred Heart University. Lundberg teaches a course on the Civil War, which is always packed with students whose interest, knowledge, and understanding of the Civil War has been formed by watching Ken Burns' landmark 1991 PBS documentary, which Lundberg argues was brilliant but deeply misleading.

This triggered for me an interesting concern/problem for us prawfs: How much pre-existing knowledge and understanding of the law, lawyers, and the legal system do students bring to the classroom, often founded on popular culture (Law & Order, etc.), cable talk shows, and (now) the internet? How much of that pre-existing knowledge is dead wrong--or, at the very least, grounded on a simplistic or misleading understanding of law and the legal system? And what, if anything, should we do about it?

Fear and culture

My first purpose in this post is to direct readers to a fascinating research endeavor headed by Yale law professor Dan Kahan and George Washington University law school professor Donald Braman - the Cultural Cognition Project. Here is a brief description of the project from its website:

The Cultural Cognition Project is a group of scholars interested in studying how cultural values shape public risk perceptions and related policy beliefs. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. Project members are using the methods of various disciplines -- including social psychology, anthropology, communications, and political science -- to chart the impact of this phenomenon and to identify the mechanisms through which it operates. The Project also has an explicit normative objective: to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking.

I've been doing some reading in recent months on the topics of fear and risk and find the topic very compelling, especially with regard to how it plays out in our day to day lives (sometimes on rather mundane matters). My second purpose in this post is to pose to you, dear readers, a quick question: Can you think of any fears that could be described as distinct to a country you are familiar with - this doesn't mean that it only occurs in a given country, but rather that it is much more prevalent or pronounced in that country. Alternatively we might think in terms of regions within the United States. Sunstein offers the example of European nations taking a much more precautionary approach to genetically modified food than the United States. I'm thinking more along the lines of individual fears - are there things that you have seen people fear greatly in this country that are largely ignored in others? Or vice versa?

"Similarly Situated"

Spoiler alert: this post contains a plug for an article, thinly-veiled as a thank-you (see Ori Herstein's June 1st post "All Errors Are My Own").  Last summer, the prawfs community contributed significantly to the development of an article that I wrote on the "similarly situated" requirement in equal protection.  That article, entitled Similarly Situated, has now appeared in the George Mason Law Review.  The piece traces the origins of the "similarly situated" concept in equal protection doctrine, and argues that it is not, as some some opponents to marriage equality recently have argued, a "threshold" requirement that must be met to merit equal protection review on the merits. 

You may be asking: "Shay, don't you usually write about prisons?"  Well, as I explain in the piece, this "threshold" variant of similarly situated analysis really gained traction in cases involving women prisoners' equal protection challenges, which were criticized by commentators at the time.  In part, I believe that the fact that this doctrine has migrated illustrates how doctrinal "cheats" that emerge in disfavored areas (like prisoners' rights) can "go viral" and distort development of other areas of the law.  This is yet another toxic consequence of mass incarceration and the disfavored legal regimes that govern it.  To those who have read this far, thanks for your indulgence in allowing me this moment of self-promotion.  And thanks once again to those who commented on the article.

Downside of Pro Bono Amicus Work

First, see my last post. It’s a lot of work! I’m taking two days off!

 

On the Training of Editors

On my way back into the LRR office, I tripped over Matt's gauntlet: justify student-edited journals, reform them, or abandon them.  I read him to say that, though student-edited journals may have flaws, they may also have strengths, and in any event the institution looks pretty durable at the moment.  Instead of just cursing journals for what they're not, why not figure out what they could be? 

The comments, all of which are well worth reading, offer some great nuggets of ideas.  One I especially liked, from "Jason," suggested offering a 2-credit course on legal scholarship for 2L editors.  I'd add that such a course would probably also be attractive to non-editors, especially at schools that regularly produce academics.

Now, look, 2 credits ain't a Ph.D.  But it's a lot more than nothing.  I'd be interested to hear more detailed thoughts and reactions to the idea.  Is it worth doing?  Has your school offered such a course, and if so how did it go?  (I feel like chicago has -- any others?)  What would you teach in it?  (I'd probably have a section on methodology/professional norms, and the bulk of the course reading exemplars of important recent intellectual movements.)  How would you grade it?  (I'd go mostly with weekly response papers, but perhaps the experience of writing original legal scholarship would also be valuable). 

What else should we be doing to help student editors help us do our jobs?

Congrats to a colleague and unexpected visitors

My FIU colleague Scott Norberg has been named Deputy Consultant to the ABA Section on Legal Education and Admissions to the Bar. Scott was the school's first Associate Dean for Academic Affairs and has been active in ABA accredidation activities, so he should do a great job. And he gets to spend a couple of years going to Wrigley Field.

But in what we might call the Academic Butterfly Effect, FIU now has an emergency need for a visitor in Sales, possibly Contracts or Torts, and other courses (depending on what opens when we move people around). So, yes, it is really late, but if you are interested in visiting here, e-mail me.

To post or not to post? That is the question

Yesterday's post on Foreskin Man received far more attention than I could have imagined. This has picked up some steam in the past two days and may not be going away anytime soon.

But here is a side issue: Should I have included the pictures from the comic (especially the one of Monster Mohel)? Several people whose views I like, trust, and respect, have suggested I should not have or that I should take them down. Would it have been better just to link to the pictures, so that interested readers could proactively seek follow a link to seek them out, but those likely to be offended would not be confronted by them? Would it have been better just to link to the comic book? Should I not have included any links at all?

My thought at the time was several-fold. As a general proposition, we cannot discuss whether some words/images are _____ (offensive, anti-Semitic, racist, etc.) unless we view those words and images. You have to look at that picture to decide--and even then, opinions will vary. Of course, blogs allow us to incorporate those words/images into the immediate discussion, something scholarhip/commentary in other media does not allow. The post likely carried more emphasis and immediacy by having them in the text itself. I also wrote the post so as to contrast the depiction of the hero with the villain, which was made more forceful and clear by having the images on the post (even more so than providing links).

So I believe I made the right call in posting the picture and keeping it up there. The question, I guess, is whether this means I would post everything in my free-speech posts--pornography, bloody photos, all racist imagery, offensive lyrics and words,  etc. For the moment, the best comparator is the Mohamed cartoons initially published in a Danish magazine back in 2006; Eugene Vololkh included the cartoons (not just a link) in his post arguing that the cartoons were quite tame, often artistically attractive, and should not be censored. And he was motivated by the same thought--to discuss what to do about these cartoons, we must be able to see them. Beyond that, it may be about judgment in each case. Although I do find the imagery in the comic offensive and grounded in anti-Semitic stereotypes, I do not find it far enough beyond the pale that I felt uncomfortable directly including them in the post itself. On the other hand, I am not sure where the line is or when some image does fall beyond the pale. Maybe I just know it when I see it.

One of the best posts on health care I've seen, ever.

As yet one more insidious Canadian, I feel duty-bound to send you over to The Incidental Economist for some very interesting information about the comparative advantages of health care provision in Canada vs. the US. This brief post by Dr. Aaron Carroll should help you explain to your American friends and family that single-payer systems should not be so scary. Hopefully this kind of info-mongering will have an impact during the coming election season. Anyway, here's how Carroll begins:

Paul Krugman has been on a tear the last few days with a number of posts defendingCanada’s Medicare. This was all leading up to his latest column, where he questioned why Medicare should be unsustainable in this country, when it’s sustainable there.

I’m sure we’re going to now face the usual howls of protest, comparing Canada’s health care system to a death sentence.  So let me summarize a few of my past posts to try and pre-empt some of the false rhetoric.

 

Is deliberation overrated?

I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.

Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?

For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.

I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list  group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.

The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.

Amicus Work in a Nutshell

So, this is my ten-step process in a nutshell, which can be modified, of course:

 

1. Draft at least an outline of the brief and an e-mail explaining to potential amici the importance of the filing. If possible, identify and call amici first; then follow up with the e-mail. (Ethics rules don’t allow solicitation of clients, but those rules contemplate litigation for a fee, so there is no prohibition against asking others to join you in a pro bono amicus brief.)

2. Do you want co-counsel? I would choose someone for a combination of most of these reasons: (a) it’s someone you enjoy working with; (b) it’s someone who can walk the final brief down to the courthouse in a faraway city if necessary; (c) it’s someone who can help bring in amici; (d) it’s someone with a depth of substantive knowledge and writing talent to keep you honest and completely accurate in drafting the brief.

3. Circulate the draft brief to amici who have indicated a likelihood of joining. You need people to support what you have to say (against whom it must be said) without compromising the objectivity of the points you know as an academic should be made. This does not mean you must abandon passion.

4. Check all applicable rules and comply with them, including the usually short deadline triggered by the filing of whatever motion or brief in the litigation you intend to support. Hiccups: If you changed your name, then you need to make sure that is up to date in the court. This is another reason why co-counsel can be helpful – if he or she is current, and you are not, you can file in his or her name.

5. If the rules require you to ask for each side to consent, you will have to draft a separate motion if both sides do not consent. This is not necessarily a bad thing, but it requires additional effort.

6. Where to find the applicable rules? If the case is in the Courts of Appeals, Federal Rules of Appellate Procedure 29 and 32 apply. Supreme Court Rule 37 controls there. U.S. District Courts don’t have specific rules, but my research shows that you need to file a Notice of Appearance, Motion (with the Brief attached but individual judge’s rules may differ), then the Brief if the Motion is granted. The motion can ask the court to deem the brief attached to avoid another filing. Comply with all local (and judge-specific) rules and adhere to the spirit of Fed.R.App.P. 29 and 32.

7. Deal with all of the technical aspects of the brief well in advance of the filing date: Court admission for all attorneys on the brief or motion (full admission or pro hac vice; some courts may have “library fees” and what-not that need to be rendered current before you can file), register for Electronic Court Filing (ECF) in that court (if you’ve been out of practice for a while), comply with all of the ECF requirements (searchable PDF with exact pagination in Word and the PDF), file the Notice of Appearance, possibly you’ll need a Civil Cover sheet. The clerk needs to enter your appearance with all names of represented amici BEFORE you can actually file your brief or motion. This can take a day or two even without any hiccups.

8. After #7 is completed, you can file the Motion, if necessary, and the brief. You’ll need to comply with all filing requirements, including providing originals and hard copies to the court and counsel as necessary (despite ECF). Check Local Rules carefully. There is some expense here. A philanthropist who believes in the cause may be willing to cover these.

9. At my institution, students have a 50-hour pro bono requirement to graduate. Students know I do this work and often ask me whether I have any available. I keep a running list of interested students to contact later. I also get good responses to e-mails seeking help. I can’t in good conscience have them work during the last 2-3 weeks of the semester or during finals. I did have one wonderful almuna help me on one brief during this gap. So, timing is important. Some students, particularly those who have served as my Research Assistant, are capable to take the first stab at drafting discrete parts of the brief under a deadline. Others can provide citations and parentheticals where you identify a need, cite check, take care of the technical aspects of the brief (#3-#7) and the filing. If you’re going to involve students, you basically need to be available by phone at all times if their responsibilities will push up against the deadline. Involving students can slow up the process (and occasionally result in errors that need correcting).

10. Hope the court appreciates the friendly advice! Blog on Prawfs about it.

Kansas and the Mexican Question

In my last Prawfsblawg entry titled Feral Pigs, Communist Pigs, and Incitement to Genocide, I stressed the point that vocabulary matters enormously in the context of explaining and attempting to justify violence against human beings.  In a marginally well adjusted society, one might hope, it should be more or less axiomatic to most people that killing fellow humans cannot be justified by likening persons or groups to animals, and that killing explained by no more convincing rationale than the victim classes’ alleged pig-like or cockroach-like attributes is morally repugnant.   Yet international and inter-ethnic conflict and oppression today appear as closely intertwined with the false science of dehumanization as were their antecedents in the medieval and ancient worlds.   The rhetoric of extermination deployed in Rwanda or Nazi Germany seems as little touched by the sensibilities of the Age of Enlightenment as were the primitive impulses of hate and fear that shaped the deontological opposition of Muslims and Christians in the Middle Ages.   Barbaric sensibilities might be cabined or controlled in modern culture, but they awaken all too quickly in all too many people when summoned to support inhuman projects by evil or unthinking speakers.

Kansas state representative Virgil Peck, who Wikipedia lists as Chairman of the Republican Majority Caucus, recently suggested machine gunning illegal immigrants from helicopters as a useful public policy option, given the reported successes in thinning the state’s feral pig population by similar means.  A decade before champions and opponents of slavery’s expansion into Kansas fought the infamous prelude to the American Civil War known as Bleeding Kansas, the slaveholding United States fought free Mexico in a two year war leading to the annexation of one third of Mexico’s territory into the United States.   Some cultural imperialists justified the War principally by invocations of Manifest Destiny and articulated arguments that allegedly stronger races were destined to conquer allegedly weaker ones.   But for President James K. Polk and then Congressman Abraham Lincoln, at least as a matter of public discussion, the war’s justice or injustice hinged  not on the politics of race, but on decidedly U.N. Charter-era considerations that today would be cast in terms of illegal aggression and lawful self-defense.  In his speech in the United States House of Representatives on January 12, 1848, Lincoln characterized his dispute with Polk as follows: "The President [Polk], in his first war message of May, 1846, declares that the soil was ours on which hostilities were commenced by Mexico, and he repeats that declaration almost in the same language in each successive annual message, thus showing that he deems that point a highly essential one. In the importance of that point I entirely agree with the President. To my judgment it is the very point upon which he should be justified, or condemned.”

Lincoln and other war skeptics took it for granted that only self-defense could justify collective violence.

  Alleged animal attributes or racial inferiority did not figure in his calculus. Looking back on the Mexican War in his post-presidential Memoirs in 1885, Ulysses Grant offered a similar assessment.  By the standard that aggression was illegal and that only self-defense could justify violence, Grant measured the U.S. decision to wage war against Mexico in the balance, and found it wanting:  “[T]o this day [I] regard the war . . . as one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory. . . . The occupation, separation and annexation were, from the inception of the movement to its final consummation, a conspiracy to acquire territory out of which slave states might be formed for the American Union."

The first generations of G.O.P. leaders had a far sounder understanding of basic principles underlying the illegality of collective and individual killing than the leader of the Kansas Republican Caucus does today.  Lincoln and Grant’s Whig forbear Daniel Webster spelled out these fundamental principles memorably in the context of the Caroline Dispute from 1838-42, and Webster’s insistence that defensive force was justified only when necessary and proportionate to repulse an existing or imminent attack accurately represents both municipal and international law to this day.  Virgil Peck would have done well to internalize the basic maxims understood so clearly by Grant, Lincoln, and Webster and to disown forever the politics of racist incitement.   The fact that Peck has so far not resigned his position and his seat is troubling, for it signals to the world that a man willing to endorse profound evil can ascend to high office in the United States.   From this writer’s perspective, the fact that the people of Kansas and of the United States have not been adamant in demanding his resignation is more troubling still.

Enhancing "Ability to Transfer" in Law Schools

The New York Times has an article about perceptual learning that arguably has implications for law school teaching. The article cites experiments that suggest that  when subjects/students are exposed to "visual, fast-paced" materials that "focus[] on classifying problems rather than solving them," they quickly learn to identify patterns and discern relevant facts. As one of the scientists quoted in the article notes, "[t]he brain is very good at sorting out patterns if you give it the chance and the right feedback” (emphasis mine).  This research arguably has implications for how traditional law school teaching methods might be reformed or supplemented to enhance students' "ability to transfer" abstract legal principles to new factual situations, and I'd love to see a study of this kind conducted at the law school level .  At a minimum, such a study might confirm for students that one of the most effective methods of studying for law schools exams (or the bar) is by working as many problems of the relevant type as possible beforehand. I vaguely remember reading a study (in the Journal of Legal Education?) some years ago that reported that a group of students who worked a professor's old exams at regular intervals throughout the semester got better grades at the end of the semester than a group of students who had been subject to extra tutorials with the professor each week. I'd like to see a similar study based on the perceptual learning techniques mentioned above. Any takers?

Anthony Weiner admits he did it (whatever that may be)

In case you have not been hiding under a rock, New York congressman Anthony Weiner has been the subject of intense scrutiny (and a plethora of penis jokes) relating to the picture of a person's engorged underwear that was tweeted from his account. Although Weiner initially insisted that his account had been "hacked," he strangely refused to deny the picture was of him, and after the drip-drip of revelations today (he apparently has sent other suggestive pictures of himself to women), Weiner held a tearful press conference today to admit that yes, he has a problem and yes, he lied about it. Expect deep reflection, and marital and personal counseling, and overwrought confessionals on morning and afternoon television to follow. (Too bad Oprah retired). One point though: at least of now, it seems premature to compare Weiner with John Edwards or Eliot Spitzer. The latter two gentlemen not only violated their marital obligations in more disgusting and spectacular ways, but they also quite arguably violated the law. Edwards has been indicted for violating the federal election laws, and Spitzer was the subject of an intense federal investigation that might well have gone forward had he clung to his office. Unless, I am missing something, Weiner may have ruined his career (for now), but appears not to have broken any laws. Perhaps that is why he just might be able to hang on without resigning -- until we hear something new.

"Laying Claim to the Constitution"

My friend and University of Virginia law professor Jim Ryan has released a paper / report, for the Constitutional Accountability Center, called "Laying Claim to the Constitution."  In the paper, Jim reports that "[l]iving constitutionalism is largely dead[,]" as is "old-style originalism."  He continues: 

[T]here is increasing convergence in the legal academy around what might be called ―new textualism.‖ The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure and enactment history, of what the language in the Constitution actually means. This might not sound revolutionary. But it is. This Article explains how we have arrived at this point, why it is significant, and what work remains to be done.

Jim is an accomplished scholar, of course, and so it would make sense for me, and anyone else, to start with the assumption that any disagreements I have with the paper simply reflect either philosophical / political disagreements -- Jim's paper is aimed at "progressives" and has the aim of convincing them that they should not allow "conservatives" to occupy without a fight the "the Constitution supports our views" ground, and I'm more "conservative" than "progressive" -- or my being otherwise misguided.  That said, I came away from the paper wondering whether there was, in the end, more to the paper than a well crafted call to allies in the policy and political arenas to counter conservatives' Constitution-talk.

Jim says that "[o]f course, not all constitutional provisions line up perfectly with a progressive agenda."  I agree.  I missed, though, in the paper, any discussion of specific matters regarding which "progressives" who embrace in a more-than-instrumental way the "new textualism" are told that they have to resign themselves to the "conservatives" being right (until the Constitution is amended).  Yes, with Prof. Dawn Johnsen, Jim says that progressives need "an approach to the Constitution that respects what the Constitution says . . . that embraces the Constitution's text rather than downplays or elides it[,]" but I didn't come across (again, I might have missed) any actual occasion in which this "respect" was predicted to constrain the success of left-leaning politics.   Like Jim, I admire greatly the work of Akhil Amar and, like Jim, I think it is a mistake when "conservatives" act (though, in my experience, few in the academy do act) as though the meaning of the Constitution remains what it was before the Reconstruction and later amendments.  In Prof. Amar's work, though, what Jim calls a "holistic" approach to the Constitution's text, meaning, and structure clearly yields outcomes which, while sound and welcome (e.g., the Establishment Clause does not preclude public-scholarship programs that include kids attending religious schools), tend to be opposed by those on the political left.  (Though, if I recall, Jim has, in other work, taken the same view that I do with respect to school choice.)

Jim criticizes (respectfully, of course) David Strauss's recent book, The Living Constitution, in part because the latter relies too much on the objection that originalism would "lead to bad outcomes."  But, again, it was not clear to me that Jim's understanding and application of the "new textualism" allows for many of what he might regard as "bad outcomes."  After all, near the end, Jim writes:

Were the Constitution, in whole or in its parts, a thoroughly conservative document, disavowing its text might be the only route to follow.

So, it sounds like the main reason why we ought to "respect" the text is not because constitutional text in fact binds and constrains -- not because we in fact ought to act in fidelity with it, as our organic law -- but because it turns out (happily) that respect-for-the-text need not be seen as standing in the way of desirable outcomes, and may in fact bring them about.

Anyway . . . for more, here is Larry Solum; here is Stephen Schwinn; here is (Jim's sometime collaborator) Doug Kendall; and here is Mike Rappaport.

Why Do Amicus Work?

I’ve been asked about this a bit, so I thought it might be a useful topic for blogging. Should profs do amicus work? I imagine it will cause some people to wonder whether one’s scholarship is just advocacy in disguise, but in my next few posts, I’ll explain some of the reasons why I’ve decided to do pro bono amicus work. Your mileage may vary, of course.

My primary area of expertise, which I’ve been developing for the last twelve years, is Holocaust-era art claims. Obviously this is quite narrow, but the number of claims is high and there is important, not yet fully written history about Holocaust-era art trafficking at the highest echelons of our society. Closing the door now on the claims that don’t settle probably means never writing that history. The claims are difficult to litigate well, and many of the opinions dismissing them tend to be written in an overly broad, formalistic manner that does not heed historical reality.

When I was first asked to do an amicus brief, I did not jump in immediately with both feet.

I did so after I really dug into the facts of individual cases and became much more bothered by the state of affairs. I came to feel that academic objectivity should not mean neutrality. Playing Switzerland would be a coward’s move. I felt that it would be wrong to have all of this specialized knowledge in a critical time for the field (multiple cert petitions and other litigation pending; reform efforts in the Dep’t of State and Uniform Law Commission; international negotiations) and not do anything with it. Failure to act would ultimately be judged by history – and weigh on my perpetually guilt-ridden conscience. Here are links to my amicus work already up on ssrn in case it’s of interest:

 

Nazi-looted Art:

1. Bakalar v. Vavra Motion to File Brief Amicus Curiae,

2. Bakalar v. Vavra Brief,

3. Brief Amicus Curiae Filed in Grosz v. The Museum of Modern Art

 

Act of State & Laches:

1. Brief Amicus Curiae Filed in Konowaloff v. The Metropolitan Museum of Art

 

Definitely tasteless, possibly anti-Semitic (Updated)

I more-often-than-not disagree with the Anti-Defamation League's reactions to most things , and I reject its tendency to find anti-Semitism around every corner.  But this one may be well-founded:

San Diego-based Male Genital Mutilation Bill group, whose political goal is obvious, has started an on-line comic series featuring Foreskin Man (secret identity: Miles Hastwick, the head of the Museum of Genital Integrity), who looks like this:

In the latest issue, Foreskin Man takes on "Monster Mohel" (and his henchmen), who look like this:

In the story, a Jewish man secretly and against his wife's wishes brings in Monster Mohel to perform a bris on their newborn; Monster Mohel says things like "Nothing excites Monster Mohel more than cutting into the penile flesh of an eight-day-old infant boy."

And the leadership of MGMBill is shocked, shocked to be hit with accusations of anti-Semitism. Both the ADL and Jewish Community Relations Counceil (JCRC) have responsed as would be expected. This also raises anew the religious v. secular underpinnings of the arguments for banning circumcision, which, Sarah Waldeck argues at CoOp, may actually defeat the ballot measures and set the so-called intactivist movement back. Linking the movement to this sort of imagery will not help.

Matthew Hess, the head of MGM Bill, had an interesting response to the anti-Semitism allegations, saying: "I might understand such an accusation if our proposed legislation applied to everyone except Jews. That would be like saying we care about all boys except the Jewish ones." In other words, we like all the people protected by the circumcism ban, so if we hated Jews, we would allow them to continue to be circumcised.

Clever, if largely clueless.

Update: Eugene Volokh weighs in. He argues hat the comic is not anti-Semitic, but anti-Rabbi/Mohel, and it cricitizes them because of what they do (advocate for and perform circumcisions), not because they are Jewish. Volokh addresses the broader question of how we can/should (and how we can't/shouldn't) harshly criticize (through words and pictures) of religious leaders over practices that (the speaker believes) cause real secular harms. In other words, if Hess's point is that mohels and rabbis are evil because of what they do rather than who they are, is it really anti-Semitism? And if so, how else is a secularly motivated critic of this practice make his point?

I take Volokh's point. And it is one reason that, as I said at the top, I generally resist labeling criticism of Jews or Israel as anti-Semitism, because I think we are too quick to throw that word around. And I ordinarily would not so label most arguments from pro-ban advocates criticizing Jews as the highest-profile performers of the practice. But as I said in the comments, it was the imagery combined with the suggestion that performing the bris gave the mohel some mystical powers that comes a bit too close to the line, at least for my taste. And, if we go back to the title, that may be the point: This was in really bad taste and may, in the end, hurt Hess' cause.

Second Update: Mike Dorf discusses the likely constitutional analysis of any circumcision ban, concluding that the ban probably survives rational scrutiny but fails strict scrutiny. He argues that Foreskin Man, and the Monster Mohel edition in particular (which Dorf sees as anti-Semitic), could undermine the ban in the courts. The cartoon suggests religious animus underlying the ban, which would subject the law to strict scrutiny under Lukumi, and likely cause it to fail that scrutiny, being evidence of anti-Jewish sentiment.

Update Your Antidiscrimination Syllabi

In a move that could foster classroom discussion about social movements and the role of state legislatures, the Connecticut Senate voted late last week to add gender identity as a protected category in the State's antidiscrimination law.  It rejected a proposed "carve-out" for public restrooms.  According to the Hartford Courant, Gov. Malloy has stated that he will sign the bill.  CT News Junkie quotes Gov. Malloy as saying, "Connecticut has led the way in other civil rights issues, and I'm proud to be able to support and sign this bill."  This development reflects in part the work of my WNEC colleague, Professor Jennifer Levi, just one of our WNEC Law faculty resources in the SOGI area.  While serving as a full-time, tenured member of our faculty, Jennifer remains intensely involved in the work of the GLAD Transgender Rights Project (Jennifer describes the earlier House vote on the measure here).  

Greetings!

Many thanks for Dan Markel for allowing me to return to Prawfsblawg!  Last fall I plugged a paper I had completed, "Mass Torts and Due Process," which is now available on SSRN.  This month I plan to post on the Supreme Court's class action cases this term.  The first case, AT&T Mobility LLC v. Concepcion, has already been decided, and I plan to write something up next week.  As a bit of a preview, I will argue that the case is a lot harder than some of the commentary has suggested.  The Court will decide three more class action cases by the end of this term - Smith v. Bayer, 09-1205; Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403, and the granddaddy of them all, Wal-Mart Stores, Inc. v. Dukes, No. 10-277.  The cases are likely to close out the term, but I will try to write some thoughts on each throughout the month.  

Finally, I know there has been some criticism of  "pimping" current projects on Prawfsblawg, although I don't think that is the correct, nonprostitution use of the word "pimp."  Nevertheless, I want to "pimp" the work of another scholar.   Kevin Clermont has written an excellent essay on Penn Law Review's PENNumbra on the Smith v. Bayer case, entitled "Class Certification's Preclusive Effects."  In the immortal words of Lawrence Solum, download it while it's hot!!!

Good to be back

Greetings, Prawfs readership. It is a pleasure to come back in the summer and share my thoughts on white collar crime, corporate wrongdoing, and the legal profession and academy. I just came back from Law & Society, one of the large conferences I regularly attend. For me, the conference is particularly useful because my scholarship tends to focus on multiple fields and draws from several disciplines. So it is a form of one-stop shopping for me. Usually, I leave the conference with a keener idea of what I want to write over the next eighteen months. So let me register one very odd sounding complaint: next year, the conference is in Hawaii. Yes, I am complaining about that. First, it vastly increases the cost of the trip for many of us, which our schools may or may not cover, depending on various policies (yes, it may be cheaper for my west coast friends, but they already benefitted from the fact that the conference was in San Francisco this year). Second, it lengthens unnecessarily the amount of time many of us have to spend away from our families through extra travel (and no, I cannot bring my family because my kids are still in school at the beginning of June). And third, I think it undermines the seriousness of the conference with our respective home school administrations. We are, after all, asking our schools to pay the costs of our attendance because we believe the conference will further our research agendas and contribute to our understanding of other disciplines. I don't think it helps us when the conference takes place in such an obvious resort/vacation spot. That is not to say that we shouldnt enjoy the home city in which the conference is held (San Fran was great, except it was really cold!). But I don't think it has to be such an obvious vacation locale. Am I in total left field on this one?

So Long and Thanks for All the Fish

Well, I leave Prawfs as I entered:  late.  I just wanted to give a quick thanks for the opportunity to post, rant, and stir the pot a little.

I also wanted to leave off with a mention of my latest project, which I just presented at Law and Society on Thursday, entitled "Cruel and Unusual [Federal] Punishments."  In a nutshell, I argue that the jurisprudence on the Eighth Amendment disproportionality of carceral sentences is extraordinarily deferential to legislative judgments in large part because of considerations of federalism; and that, because those considerations do not militate toward deference when applied to federal sentencing, a more robust standard is called for in that context.  Ultimately, my argument is that, in judging when a federal sentence is "cruel and unusual" we ought to use what the States do as the appropriate benchmark:  if a federal sentence exceeds what the offender could receive under State law, the sentence is, by definition, "cruel and unusual."  This is a follow-up to my 2006 piece on the federal death penalty, which I mentioned in my first post here.

I wanted to get the paper up on SSRN so I could link to it here but alas, as Big Daddy Kane famously, and offensively, opined, pimpin' ain't easy.  But look for it on SSRN in the next couple of weeks.

As a good friend of mine remarked upon our high school graduation:  Let's all get together and do this again real soon.

Summer Reading Lists for Rising 1Ls

Someone recently asked me for help generating some thoughts about reading lists for entering 1Ls. I'd love to crowdsource some serious thoughts about this, particularly with an aim toward bolstering the sections on Current Issues, Supreme Court, and Legal History. If you have access to what your school recommends to rising 1L's please share.  I've listed some thoughts (not of my own) below, but I would love to give this person some more suggestions, so have at it!

1L RECOMMENDED READING LIST

Current Issues in the Legal Profession

• Paul Carrington, Stewards of Democracy: Law as a Public Profession (1999) (Westview Press).
• Mona Harrington, Women Lawyers: Rewriting the Rules (1995) (Plume).
• Larry Krieger, The Hidden Sources of Law School Stress
• Anthony T. Kronman, The Lost Lawyer: Failing Ideals in the Legal Profession (1995) (Belknap Press/Harvard).

Legal Figures

• G. Edward White, Oliver Wendell Holmes: Sage of the Supreme Court (2000) (Oxford University Press).
• Gerald Gunther, Learned Hand: The Man and the Judge (1994) (Knopf).
• Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005) (Times Books).
• Andrew Kaufman, Cardozo (1998) (Harvard University Press).

The Supreme Court

• William H. Rehnquist, The Supreme Court (2002) (Vintage Books).
• Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998) (Times Books).
• Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007) (Random House, Inc.).
• Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (1979) (Simon & Schuster).

Legal History

• Anthony Lewis, Gideon’s Trumpet (1966) (Vintage Books).
• Lawrence Friedman, A History of American Law (2005) (Touchstone).
• Kermit Hall, The Magic Mirror:  Law In American History (2008) (Oxford University Press).
• Peter Irons, The Courage of their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (1990) (Penguin).
• Randall Kennedy, Race, Crime and the Law (1997) (Pantheon Books/Vintage Books).
• Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1976) (Knopf).
• Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction (2008) (Henry Holt).
• Richard Lazurus, The Making of Environmental Law (2004) (University of Chicago Press).

Jurisprudence

• Randy Barnett, The Structure of Liberty: Justice and the Rule of Law (1998) (Oxford University Press).
• Richard Epstein, Simple Rules for a Complex World (1995) (Harvard University Press).
• Ronald Dworkin, Taking Rights Seriously (1978) (Harvard University Press).
• James Boyd White, The Legal Imagination, Abridged Edition (1985) (University of Chicago Press).
• Edward H. Levi, An Introduction to Legal Reasoning (1962) (University of Chicago Press).
• K.N. Llewellyn, The Bramble Bush: Classic Lectures on Law and Law School (2008) (Oxford University Press).
• Cardozo, The Nature of the Judicial Process (1921) (Yale University Press).
• Grant Gilmore, The Ages of American Law (1979) (Yale University Press).

Legal Nonfiction

• Jonathan Harr, A Civil Action (1996) (Vintage Books).
• Edward Larson, Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion (2006) (Basic Books).

Classic Novels

• Gerald M. Stern, The Buffalo Creek Disaster: How the Survivors of One of the Worst Disasters in Coal-Mining History Brought Suit Against the Coal Company—and Won (1977) (Vintage Books).
• Harper Lee, To Kill a Mockingbird (2006) (Harper Perennial Modern Classics).
• Herman Melville, Billy Budd, Sailor (2006) (Simon & Schuster).

Legal Composition

• William Strunk, Jr., The Elements of Style (2007) (Filiquarian Publishing, LLC).
• Richard Wydick, Plain English for Lawyers (2005) (Carolina Academic Press).

 

Call for Papers: AALS Section on Federal Courts

The AALS Section on Federal Courts is pleased to announce a call for papers in conjunction with the 2012 Annual Meeting of the Association of American Law Schools, to be held January 4–8, 2012, in Washington, D.C.

The topic of the section program at the 2012 Annual Meeting (Saturday, January 7, 1:30–3:15 p.m.) is “War, Terrorism, and the Federal Courts Ten Years After 9/11.” To that end, the panel will focus on the unique issues that federal courts have confronted during (and relating to) the conflict against al Qaeda and related terrorist groups, and how that body of jurisprudence has—and may yet—affect the role of the federal courts more generally going forward. Papers submitted in connection with the call should focus on this topic, or any specific aspect thereof, and should be between 15,000 and 30,000 words, including footnotes. [More details below the fold...]

One paper will be selected from the call, and will be published in Volume 61 of the American University Law Review, alongside contributions from the invited panelists—including Curtis Bradley (Duke), Judith Resnik (Yale), Steve Vladeck (American), and the Honorable Brett Kavanaugh (U.S. Court of Appeals for the D.C. Circuit). In addition, the author of the selected paper will be invited to participate in the Federal Courts section panel at the 2012 Annual Meeting.

To be considered, papers must be submitted via e-mail to Steve Vladeck, American University Washington College of Law ([email protected]). All full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

The deadline for submission is 11:59 p.m. (EDT) on Monday, August 29, 2011. Papers will be selected after review by an ad hoc committee composed of members of the Executive Committee of the AALS Section on Federal Courts. The selected author will be notified by Monday, October 3, 2011, and will be responsible for paying their annual meeting registration fee and travel expenses.

The End of the NFL as We Know It

 

Greetings from the Thomas F. Eagleton Courthouse.  I was fortunate enough to attend the oral arguments for Brady v. National Football League this morning at the Eighth Circuit.  As you can tell from this notice, the Eighth Circuit was expecting quite a crowd; congrats to Clerk of the Court Michael Gans and his staff for their excellent handling of the event.  Since this is a football case, I feel free to use sports metaphors, so this morning's argument was like an all-star game -- nay, a heavyweight bout -- between two of the country's top attorneys. Paul Clement represented the League, and Theodore Olson represented the players.  It was a terrific show.  But more importantly, I was really struck by how huge this case is to the future of the NFL, and perhaps the future of all U.S. sports leagues.  Whether or not the league wins the battle over the injunction, there is a lot left to come.  And we could end up with a completely new landscape.

The case is a great example of how the law makes strange bedfellows.  The NFL is relying primarily on the Norris-LaGuardia Act to strike down the injunction against its lockout of the players.  Yes, that Norris-LaGuardia Act -- the one that was passed to prevent state federal courts from enjoining unions from forming.  Clement acknowledged as such in his argument, which I think was a savvy move, because the thrust of his argument was that this is all really a labor dispute and it should be treated as such.  Although he did not, until the very end, insinuate that the NFLPA's disclaimer was not legitimate, he essentially said that the union should not be allowed to jump back and forth between labor coverage and antitrust coverage as it suits their needs.  Collusive activity is perfectly legal and even encouraged in the nonstatutory labor exemption context, but suddenly it's illegal once the union has disclaimed.  Clement analogized this to turning a light switch off and on, and he made this back and forth seem unfair to the NFL.  After all, he argued, a lockout is one of the "classic tools" of labor law that employers can use in an attempt to resolve a dispute. 

Olson, representing the players, emphasized that the players had voted to get rid of the union, and it was gone.  "That union does not exist," he said, at least a few times, with emphasis.  The players were therefore entitled to antitrust protection.  Olson maintained that players could elect whether to have a union and enjoy collective bargaining rights under labor law, or disclaim the union and get the protection of the antitrust laws.  If not, players would be stuck in a "no man's land" where neither labor law nor antitrust protections applied.  Characterizing the NFL as antitrust "recidivists," Olson convincingly contended that the players needed some form of protection, and he made it clear that the decision to disclaim should mean that the antitrust protections apply.

The oral argument was fascinating to me, because it illuminated the jury-rigging that is necessary for modern sports leagues to exist in their current forms.  They are clearly collusive, and they clearly dominate their respective industries.  So antitrust liability seems to naturally follow.  The leagues have escaped this quandry (when it comes to the players) by falling under the nonstatutory labor exemption.  But what if the players don't want to play ball, as it were?  Brady v. NFL is the result.

That's why this injunction may not matter that much.  Let's say the court holds that Norris-LaGuardia prohibits the injunction.  Well, that only removes the injunction against the lockout; it does not mean that the NFL won't ultimately be liable for antitrust violations.  In fact, Judge Benton seemed to indicate that antitrust damages would continue to accrue even if the lockout could not be enjoined under the NLA.  Or, let's say that the injunction is lifted because the nonstatutory labor exemption still applies.  Well, even Clement admitted it can't apply forever -- so how long?  Clement seemed to be pushing for at least a year, but Benton seemed comfortable with six months -- which would be, according to his calculations, September 11.  Would the antitrust violations and the injunction kick back in then?

So the hearing ultimately convinced me that (a) the players took a truly radical move by disclaiming and (b) this problem is not going away, even after the Eighth Circuit rules on the injunction.  I had thought that the longer the lockout lasts, the more it favors the owners -- players need paychecks after all.  But what if the longer it lasts, the more antitrust damages that pile up against the league?  It's one thing for players to resist a deal in the hopes that the league will cave before they do.  That's a hard one to win, and I think the NBPA showed how disastrous such a strategy can be in the late 1990s.  But what if the players resist a deal in the hopes that one day soon, it will be all free agency all the time.  No draft, no salary cap, no restrictions whatsoever.  Could you hold on for a few more months in the hope that there's no salary cap -- hard, soft, or otherwise?  Seems like a lot more to fight for.

So for those of you -- like me -- who thought that the disclaimer was just a clever, but ultimately discardable, negotiating tactic, think again.  When the news went out that (former) NFLPA president De Smith was calling for "war," I now understand those ramifications.  I believe the league brought this upon itself by a series of moves: characterizing the last deal as way too player-friendly, hiring Bob Batterman, opting out of the deal early, and enforcing a lockout.  They opened the can of worms. But this could get away from the players, too -- do all players really want a world with no collective bargaining agreements?

In his argument, Clement said that the lockout would be "a self-inflicted wound" and "suicide" if it were not intended to ultimately bring about a settlement of the labor dispute.  He's right.  And I think the league now, far more than the players, needs to settle that dispute to save itself.

An Arrow for Your Quiver: Contextomy

One engages in "contextomy" when one selectively takes words from their original context to distort their intended meaning.  In other words, contextomy involves quoting out of context.  This fun and useful coinage has been attributed to historian Milton Mayer.

 

Prawf-ku (Terribly Executed)

Volunteered to blog

Stretched thin like meat in ‘20s

Depression stew pot

 

Pavlovian “Yes”

Stimulate mommy prof brain!

Rejoice! e-debate!