PrawfsBlawg

Losing by Winning

So the news is out that the President and congressional leaders have agreed to a deal to raise the debt ceiling, comprising entirely of spending cuts.  The Washington Post notes, correctly I think, that President Obama will probably gain politically from the fact that any deal was reached at all.  A default would very likely have harmed the economy greatly, making reelection more difficult, and the fact that Obama can now campaign as a deficit hawk and a centrist compromiser who gets deals done are both political winners.  On the opposite side of the ledger, the Tea Party may have done long term damage to its brand by becoming seen as extremist.  In this sense, the deal may in fact help the Democrats win more elections.  Sandy Levinson made this point at Balkinization some time ago.

But what is the point of winning elections if the other side is getting all its policy preferences satisfied?  Of course, one might say that at some point the Democrats are going to win so overwhelmingly that they get all three branches of government with a 60 vote majority in the Senate, and then they will just reverse course.  But (1) that is unlikely and (2) even if it happens, the terms of debate have shifted so much that we are unlikely to see much backtracking.  What we are witnessing is the continued shifting of the Overton window.  Democrats will keep winning elections by implementing policies that ten years ago would be considered fringe Republican positions, where we balance the budget by cutting taxes (the shutdown deal) and slashing spending even more (the debt ceiling deal).  Whether one likes or dislikes these developments, I think it is important to recognize this reality, lest we start hearing of how politically smart the deal was for Obama.

Copyright as Overcriminalization

As an IP lawyer, I get frequent questions from friends and family members about whether such-and-such activity would infringe copyright.  My standard answer is, "if you need to ask me, don't bother, it definitely infringes."  Basically, the scope of modern copyright law so far exceeds the expectations of normal people that what normal people think is definitely legal is probably infringing, and what normal people think is borderline is definitely infringing (at least if we leave out the possiblity of a fair use defense, which is famously unpredictable and thus unreliable).

Take a simple example.  Suppose you go buy an Omega watch from Canada, from a legitimate store, and come back.  You then suffer buyers remorse and, rather than go all the way back to Canada to return the watch, simply resell it on eBay.  Normal people don't even think this has anything remotely to do with copyright, since they associate copyright with stuff like books and not watches, and also they think that buying things from legitimate stores should insulate them.  But, actually, this is an infringement.  The tiny little logo on the watch is copyrighted, and the resale is an infringing distribution under 17 USC 106(3).

Of course, normal people hardly have to seriously worry about getting sued by Omega for copyright infringement.  But that is simply because it is not economically and politically feasible for Omega to sue such individuals -- there are too many individuals with too small a recovery to make suit worthwhile, and if one of the defendants happened to be a sympathetic grandmother, there would be howls of protest.  In this sense, the problem that everyone is infringing dozes of copyrights every day is rather similar to the problem of over-criminalization.  All of us break numerous criminal laws, starting with tax evasion in failing to pay use taxes for internet purchases.  This is not a practical problem in so far as few people have to seriously fear getting prosecuted for these violations.  But a system that relies on the grace of prosecutors to keep it running is not so much the rule of "law" and more the rule of "discretion."

Litigating One's Way to a Faculty Appointment

Two years ago, I posted (after being tipped by Usha Rodrigues) over at Legal Profession Blog about the age discrimination lawsuit filed against the University of Iowa Law School by a "seasoned" lawyer who didn't get hired through the AALS Faculty Recruiting Conference process.  Courtesy of Paul Caron, I see there's a 2011 version, this time against Michigan State, filed by a fellow who was a couple years ahead of me at my alma mater - Nicholas Spaeth, a Stanford Law School alum (1977) and the former AG of North Dakota.  (I just noticed that Paul was tipped to Spaeth's lawsuit by the guy who filed the Iowa suit.)

I have the same reaction I did two years ago.  I haven't seen this complaint, but likely this is a debate about the nature of legal education dressed up as an age case.   As I said in the comments back then, it doesn't take much to make an initial prima facie  age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all the defendant has to satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA.

So now the claimant has to prove that the proffered reason (lack or quality of scholarship, no curricular need, better qualified candidate, etc.) for not getting the nod of the appointmenst committee and/or the faculty vote is false and that the real reason was that the school just didn't want an old person. I suppose if you were just trying to squeeze by a summary judgment motion so as to get to a favorable position to settle for damages, we could debate whether this has more than nano-thinness.  Or perhaps it's a way of making public his dissatisfaction with the system.

As I said in "Retire and Teach", there doesn’t seem to be any way out of getting long experience without at the same time getting older. Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive it is, based on my own teaching adventures. But it's not the only element to be considered in the management of law school hiring, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring.  The debate over the role of experience is warranted, but putting this all in the context of the burden shifting of an age discrimination case trivializes the issue, because, unless there's something really dumb in the file, the mere existence of the debate over qualifications kills the claim.

Can the Fed Use its Over-Draft Power to Get Around the Debt Ceiling?

In my eternal search for more arcane problems of statutory interpretation for my course in Administrative & Regulatory State, I am wondering if anyone has any insights as the statutory powers of the Federal Reserve and the Department of Treasury to manage any debt crisis resulting from failure to raise the debt ceiling. There have been, of course, a bunch of (to my mind) rather thin Fourteenth Amendment arguments about why the statutory debt ceiling is unconstitutional. But forget all of that constitutional stuff, for a moment. Looking only at the various statutes conferring power on Treasury and the Fed, could the magic of statutory interpretation dissolve the danger of default?

Specifically, what counts as "debt" for the purposes of the debt ceiling? Suppose that the Federal Reserve Board honors the federal government's various checks by selling off its own stock of U.S. bonds or simply printing more money. Felix Salmon of Reuters suggests that these exercises of the Federal Reserve's over-draft power would not count as "debt" for the purposes of the debt ceiling, and he lauds this method of finance as "the first best solution to the debt-ceiling problem." Is he right? The 1917 statute creating the debt ceiling (codified at 31 U.S.C. section 3101 et seq.) does not seem to have any definition of "debt" or "note" at all. (Section 3103 authorizes the Secretary of the Treasury to issue "notes," but it does not define the term or mention the overdraft power of the Fed). James Bullard, President of the St. Louis Federal Reserve apparently has denied that the Fed could honor Treasury's checks, but I have yet to hear an argument.

Is that argument obvious? I hope not: This could make a great question for Administrative & Regulatory State. Moreover, resolving the issue through the boring murkiness of statutory interpretation would seem to be the usual way in which (to use Adrian's Vermeule's phrase) "our Schmittian Administrative Law" allows agencies to do what they want to do. The advantage of using murky statutory interpretation over more dramatic constitutional arguments is precisely that such a move is so routine and boring that it will calm the relevant markets. (Oddly, Adrian and Eric Posner recently called for the President to take the much more dramatic step of publicly declaring that the debt ceiling was void citing "necessities of state" -- just the sort of Wagnerian exercise of emergency power that would make bond markets go all jittery and defeat the purpose of the declaration. Adrian and Eric might be right that the President can face down Congress, but bond markets are stronger than Congress -- and they like legal regularity, not charismatic politics).

But banking law is not my thing, so perhaps some reader could walk me through the statutory argument against the Fed's power?

A Plan for Forking Wikipedia to Provide a Reliable Secondary Source on Law

Recently Wikipedia rolled out a feedback feature (example at right) that allows readers to rate the page they are looking at. You can give the page a score from one to five in each of four categories: Trustworthy, Objective, Complete, and Well-written. Then, there's an optional box you can check that says "I am highly knowledgeable about this topic."

This may be good for flagging pages that need work. But, of course, Wikipedia's trustworthiness problem is not going to be solved by anonymous users, self-declared to be "highly knowledgeable," deeming articles to be trustworthy.

I do think, however, that if you forked Wikipedia to create a version with an authenticated expert editorship, then the ratings could evolve Wikipedia content into being a credible source. In fact, I think it could work well for articles on law.

"Forking," for software developers, means taking an open-source project and spliting off a version that is then developed separately. The open-source license specifically allows you to do this. Forking a project is not always productive, but I think it could be useful in creating an encyclopedia-type reference about the law that is both trustworthy and freely available.

There's a real need for such material in the legal sphere. Right now, there seems to be an accessibility/credibility trade off with secondary sources of legal information: Wikipedia is accessible, but not credible. Traditional binder sets are credible, but not very accessible – using them is generally either expensive (in terms of subscriptions fees) or burdensome (via a trip to the nearest law library).

If, however, you could take Wikipedia and apply credibility on top of it, you would have a secondary source that is both credible and accessible.

Imagine grabbing all the Wikipedia pages about law – which at this point are generally very well developed – and then, while continuing to make them viewable to the public, locking them so that only authenticated lawyers and law students could edit them. These expert editors could then correct errors where they find them. Where they don't find errors, they could click a box indicating trustworthiness. As time went on, pages would have errors weeded out, and trustworthiness scores would accumulate.

Trustworthiness ratings on pages editable only by experts would relieve the need for internal citations. Right now, the Wikipedia community pushes hard for citations in articles. Citations are important in the Wikipedia context because of the lack of credentials on the part of the writers. But if pages were only editable by authenticated lawyers, then cumulative positive ratings would make pages more reliable even without citations.

Admittedly, a forked version of Wikipedia edited by lawyers and law students would not replace the big binder sets. The depth of the material, at least as it stands now, is too limited. Wikipedia, even if reliable, wouldn't help a trust-and-estates lawyer with trust and estates. But if it were imbued with trustworthiness, Wikipedia content does have enough depth to be useful for lawyers orienting themselves to an unfamiliar field of law. Likewise, it has enough detail for non-lawyers who are looking to gain a general understanding of some specific doctrinal topic. 

So, what do you think? It would be fairly easy to put together from a technical perspective, but would it be worthwhile? Do you think people with legal knowledge would contribute by removing errors and scoring pages? Or would a forked law wiki sit fallow? (I do notice there are lots of lawyers participating actively on Quora, crafting very good answers to individual questions.)

Maybe it would work in other fields aside from law, as well. It does seem to me, though, that law is a particularly good subject for forking.

Why can't the Tea Party support genuine spending cuts?

Two quotes will illustrate the gist of my question. First, consider this passage from Charles Krauthammer's NRO column:

We’re in the midst of a great four-year national debate on the size and reach of government, the future of the welfare state, indeed, the nature of the social contract between citizen and state. The distinctive visions of the two parties — social-democratic versus limited-government — have underlain every debate on every issue since Barack Obama’s inauguration: the stimulus, the auto bailouts, health-care reform, financial regulation, deficit spending. Everything. The debt ceiling is but the latest focus of this fundamental divide.

Next, consider this criticism of President Obama froma NY Post column entitled "Bam, It's Time to Cut Spending-- Period," by Betsy McCaughey, former lieutenant governor of NY and "conservative" pundit:

What about "shared sacrifice"? The Obama health law imposed plenty of sacrifice on seniors and baby boomers: It slashed funding for Medicare by $500 billion over the next decade. It uses those "savings" to pay for two entitlements: a huge increase in Medicaid enrollment and new subsidies for middle-income Americans (families earning up to $88,000 a year) to buy private health plans.

These two quotes epitomize a deep confusion about Tea Party opposition to Obama's fiscal policies. Krauthammer's column suggests that the fight over the debt limit is a fight between dramatically different "visions" of government -- "social-democratic versus limited-government." But McCaughey's column suggests a different battle -- not about "how much?" but rather (in Lenin's pungent phrase) "who, whom?" After all, if McCaughey were really demanding that "Bam... cut spending -- period," then her statement that President cut $500 billion from Medicare ought to constitute high praise, not (as she intended it) an accusation. But, as Republicans' backing away from the Ryan Plan suggests, cuts for the middle-class elderly are not popular among Republican rank-and-file. It is the cuts in spending on the poor elderly (i.e., Medicaid) that mobilizes them. This is why H.R. 2560 (the so-called "Cap, Cut, and Balance" proposal) exempts Medicare from the Republicans' proposed spending limits: Republican rank-and-file are not really interested in capping spending as such. ("Capping" spending while exempting Medicare from spending limits is like dieting while exempting Bic Macs from one's food restrictions). Especially after initial Republican proposals to "cap" Medicare arguably handed an upstate NY congressional seat to Democrat Kathy Hochul, Republicans have focused on reducing spending perceived as benefiting indigent households.

So, no, Charles Krauthammer, there is no grand debate being conducted right now in Congress between the advocates of "social-democratic versus limited government" over "the very nature of the social contract". There is instead (and, as a conservative Republican, I write this with sadness) just another attack on social welfare programs by the middling gentry who dislike the dependent poor.

Law Review Submission for Satisficers: A Summer Placement Narrative

This is a narrative about submitting and placing a traditional law review article in a general student-edited law review over the summer, a process I just completed this morning.  With some hesitance about giving TMI on how the sausage gets made, I post it as a contribution to the available data about the process.

Like many people, I have mixed feelings about the system.  On the negative side, the whole process reeks of validation by proxy, and we at third and fourth tier schools undoubtedly suffer by the widely acknowledged "letterhead bias."  (Unless, of course, the system really does sort us well and we are at third tier schools because we are third tier scholars and teachers.  I discount that, but I'm biased.)  It just seems like such a silly way to run a railroad.   It's also why I've published several pieces along the way in blind peer reviewed journals.  Nevertheless, apart from whatever other positives the system presents, I have to admit, in a guilty way, of enjoying the game.  This falls into the same category as liking Barry Manilow music or the movie "Somewhere in Time."  You don't want to admit it to too many people, but I guess the secret is out now. 

I'm also what the psychologists call a "satisficer" rather than a "maximizer."   (See Barry Schwartz, Swarthmore College, The Paradox of Choice for more on this.)  This is relevant to the summer placement narrative.  Most of the time, I make personal choices based on what I judge to be a satisfactory level of utility, rather than to trying to maximize the utility.  The best example I can think of this is how I shop - whether for little stuff or houses.  When I see one I like, I buy it, without worrying too much about whether I would have liked the next one more.   My wife and I have bought six primary residences in thirty-two years of marriage.  We've averaged looking at about four or five before buying.  I never visited the house we live in now before we bought it; I simply looked at the pictures and trusted her judgment that she knew what I liked.  Contrast others in my family who might look at 200 or 300 houses before choosing.

So as you read the narrative after the break, realize that this may not work for different personalities, different career goals, or different faculties.

Here's my narrative.  I began working on the piece Metaphor, Models, and Meaning in Contract Law last September.  By February, 2011, I thought it was ready for submission in the spring 2011 season.  I also thought it would be competitive in the selection process for the Stanford Yale Junior Faculty Forum. I submitted it to the Forum.  I also submitted it in the spring season but only to 25 general law reviews sitting at the top of the USNWR and Washington & Lee lists.   If it were accepted first by one of the law reviews, I'd withdraw if required from the Forum consideration.  If it were first accepted in the Forum, I would advise the law review editors, because this would be a significant proxy.  I was not particularly sanguine about success; both the Forum submission and the "top 25" submissions were "fliers."  The backup plan was to hold the piece for the "early August" submission season, at which point I would expand the submission to "top 100" law reviews.  

Not surprisingly, it didn't get selected for the Forum, and it didn't crack the "top 25" in the spring submission season.  Oh well.

On July 5, I happened to look at which law reviews were then open for submission on ExpressO.   There were quite a few. I decided to submit, limited to "top 100", and made 59 submissions.  I figured even if the reviews did not begin reading until August 1 or August 15, the piece would be there in the stack.  Here's the central consideration in a summer submission: if you get an offer, there may not be as many law reviews to whom you can address the expedite request.  Accordingly, if you are serious,* you should only to submit to reviews the placement at which would be satisfactory, assuming that you only get one offer.  Given that I'm a satisficer, that seemed, well, satisfactory.  (There's also no doubt that placement of an article in a top 100 review is perfectly satisfactory for purposes of tenure qualifications at our school.)

Two weeks after the submission, I received a publication offer from a top 60 law review.  This was a law review as to which I did not try to prime the pump - meaning that, in a couple cases, when I saw the receipt notice on ExpressO, I dropped a note to a friend on that faculty asking him or her to put in a plug for me.  The acceptance period was ten days, and I sent out an expedite request.  (I'm impressed by those who work up the expedite chain from offer to offer, but I've never had that happen.  I'm pretty sure that I've placed the overwhelming majority of my pieces with the law review that made the first offer.)  I also immediately sent withdrawals to all those reviews I knew I would not consider over the offer in hand.  Nevertheless, I would have been perfectly happy with a placement at the offering review.  Several days later, I received a second offer from a "top 80" review, although not as a result of the expedite process.  (One would think that you should either expedite or withdraw once you have an offer.  Mea culpa.  I missed a couple check boxes when I was going down the list.  But I liked the cachet of the second offer and wanted to think about it.)

The point of all of this is to say that there's accepted wisdom about the submission process, but you can fiddle with the accepted wisdom, such as submitting over the summer, and get decent placements, if you accept the limitations and risks involved.  In other words, I think it works for satisficers.

*I don't think much of the strategy of submitting to law reviews from which you wouldn't accept an offer if it were the only one.  That seems unfair to everybody involved.

Adios de Miami!

I want to thank Dan Markel and Howard Wasserman for the invitation to return for another month guest blogging -- an odd art form, if I say so myself.  It was an enjoyable summer diversion.

I wish everyone a happy and successful academic year.

Thomas E. Baker

Quick Reminders

Just a reminder that we're having the Prawfs Happy Hour at SEALS later tonight at Conroy's Lounge, which is in the Marriott Hotel here in Hilton Head.

Also, tomorrow morning at 10:15, Dave Fagundes will be leading a panel with Usha Rodriguez, Lesley Wexler and myself on the question of (How) Can Blogging Build Community in the Legal Academy? I hope to see you there.

Last, feel free to use the comments to discuss any interesting SEALS panels you've been to over the last few days. 

Oops: one more update. If anyone at SEALS is looking for shabbat meals, please contact Hillel Levin from UGA.  

"Things that are not Caesar's" . . . and the ministerial exception

Following up on Paul's and Lyrissa's posts:  Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.

This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”

In the chapter, I (among other things) offer a different "take" on the church-autonomy principle, and the ministerial exception, from the one offered in Caroline and Leslie's amicus brief.

In any event, keep your eyes open for the volume, which has a lot of really good pieces in it, by a diverse array of smart and interesting people.  (I note that Prawfsblogger Paul Horwitz has a great chapter on the football-prayer case.)  It's winding its way toward publication in the early Fall of 2011.  Go ahead and pre-order yours!

Questions About Consequences and Constitutionality in Hosanna-Tabor

I'm grateful to Lyrissa for her post about the Griffin/Corbin amicus brief in the Hosanna-Tabor case. I agree that it's important for a variety of perspectives to be aired on law and religion issues. Nevertheless, I have some questions and comments about their description of their brief and the reasons behind it.

What caught my attention in particular was the paragraph talking about the potentially devastating consequences of an adverse ruling in the case. That paragraph may be understandable, and even true, but it raises some serious questions about the brief.

Not to rehearse the obvious, but there is a difference under the Religion Clauses between what is constitutionally compelled and what is constitutionally permissible. Employment Division v. Smith (which I think was wrongly decided) said that a variety of religious exemptions from neutral and generally applicable laws were not constitutionally required. But it did not forbid legislatures from granting exemptions for religious believers from laws. One can conclude that the Religion Clauses do not require exemptions for religious believers even though one believes that they are absolutely vital and that legislators ought always to include them in their laws. Conversely, although fewer people take this position, one can conclude that religious exemptions from the law are constitutionally mandated even if one thinks they may lead to harmful consequences.

Given all that, I'm not sure what purpose the Griffin/Corbin line about devastating consequences serves. If they believe that legislatures would still be free to grant religious exemptions from the civil rights laws, then the consequential argument is simply irrelevant; even if the Court decides that the ministerial exception is not required by the Constitution, legislatures can still enact similar exceptions.

Then again, it may be Griffin and Corbin's position that such exemptions (presumably including existing exemptions that are already part of our civil rights laws) are not only not constitutionally required, but are in fact constitutionally forbidden, even if enacted by legislatures. I don't see any suggestion of that in the brief description of the brief offered in Lyrissa's post. But if they don't take this position, then their argument about consequences seems quite irrelevant. And if they do take this position, I would think people would want to know that before signing on to the brief. It's one thing to take the view that exemptions like the ministerial exception are not constitutionally required, and quite another to take the view that legislatures cannot grant such exemptions at all.

This raises another question, one touched on in a comment on Lyrissa's post. Reading the description of the brief, one might think that the authors of the brief think that those who have argued that the ministerial exception is constitutionally required are unaware of the possible negative consequences of the exception. I don't think that's so. Doubtless some champions of religious freedom out there take an unduly rosy view of such matters. But most of us understand that religious institutions, like any other institution (including, needless to say, the state and its enforcement agencies), are capable of abusing any discretion they are given. I personally think strong religious freedom advocates, and especially those of us who do believe the Constitution requires some exemptions from certain legal regimes for religious individuals and institutions, ought to talk more about the downsides of these exemptions. But that hardly means we are unaware of them. The question is not whether the ministerial exception and other religious exemptions from general laws are good or bad or have good or bad consequences, but whether or not they are constitutionally required. Period. It is interesting the way consequences end up working their way into these discussions. Again, that's not surprising; but it can have some significant implications for the shape and direction of the constitutional arguments in these cases.

Personal Jurisdiction, Goodyear v. Brown, and Homely Line Drawing

The Supreme Court's decisions often raise more questions than they resolve, especially when they address subjects that the Court rarely encounters.  These intermittent rulings can place lower courts in an awkward position by providing binding authority without useful assistance.  The basic problem is that the Court's opinions serve at least two distinct functions that do not easily coexist.  On the one hand, the Court is attempting to resolve a specific dispute, often on the narrowest possible grounds, and thus tailors its reasoning to the facts and legal authorities relevant to a particular case.  On the other hand, the Court sits atop a judicial pyramid in which judges seeking to follow precedent or predict the law's path look to the Court for guidance.  That guidance is helpful only if it is adaptable to the myriad cases that lower courts confront involving variations in facts, procedural posture, and substantive rules.  Yet narrowly written case-specific opinions are by definition not likely to offer much explicit instruction on questions beyond the scope of what the parties raised.  Lower courts—and lawyers and commentators who seek to influence them—therefore read between the lines of Supreme Court opinions to discern how precedent should influence analogous contexts that the Court either never imagined, expressly avoided, or coyly skirted.  Subtle dimensions of judicial reasoning—tone, structure, method, emphasis, etc.—can therefore have transcendent effects if they influence how judges adapt decisions to distinct circumstances.  Whether those effects are desirable is arguably in part a function of whether they have a legitimate foundation: one would want to know if readers of an opinion are picking up on subtle clues left for them to find and follow, or drawing viable inferences from the Court's implicit assumptions, or merely chasing their own shadows.

An interesting aspect of the Court's recent decision in Goodyear Dunlop Tires Operations, S.A. v. Brown addressing personal jurisdiction in state courts is that the opinion is missing much of the nuance that would be helpful in extrapolating the holding to future cases.  Courts looking for guidance therefore will find little foundation on which to build, but might be tempted to see more in the opinion than is really there.

In Goodyear the Court unanimously held that states can exercise "general" personal jurisdiction over defendants who have "continuous and systematic" contacts with the forum even if those contacts are "unrelated" to the subject of the litigation.  In contrast, if the defendant's contacts with the forum are "limited" and "sporadic," then only "specific" jurisdiction is available, which requires some nexus between those contacts and the plaintiff's claim.  The plaintiffs in Goodyear could not establish specific jurisdiction in their chosen forum of North Carolina: they were complaining about a bus accident in France caused by a tire manufactured in Turkey by a Turkish defendant.  (There were other co-defendants, but for present purposes we can focus on jurisdiction over the manufacturer.)  The case therefore required the Court to consider whether North Carolina could assert general jurisdiction.

The determinative question in Goodyear was whether the Turkish defendant's contacts with North Carolina were "continuous and systematic" or merely "sporadic" and "limited."  That will also be the pivotal question in future cases involving a state's attempt to assert general jurisdiction.  So one would hope to see language in the opinion explaining how lower courts should draw lines between "continuous" and "sporadic," and between "systematic" and "limited." And yet such guidance is missing.

The key language in the opinion is that contacts are sufficient to establish general jurisdiction only if they "render [the defendant] essentially at home in the forum State" and that the defendant in Goodyear was "in no sense at home in North Carolina."  (Elsewhere in the opinion the Court observed that its references to "home" addressed "paradigm" examples of general jurisdiction.  This apparently leaves open whether general jurisdiction is ever appropriate in non-paradigmatic cases, and what those might be.)

And so we now have the "home" test. But what does this mean in practice?  The Court never elaborates.  The word "home" seems to connote a single place, and the Court at one point defends a precedent upholding general jurisdiction because the forum was the defendant's "sole" place of business.  But we know that this connotation is misleading because the Court acknowledged, citing an article by Lea Brilmayer, that a defendant's home can be its "place of incorporation" and "principal place of business."  Wal-Mart, for example, is incorporated in Delaware and has its headquarters in Arkansas, and so it has at least two jurisdictional homes.  Indeed, Wal-Mart probably has more than two jurisdictional homes.  For example, Wal-Mart has dozens of stores in North Carolina, presumably racking up hundreds of millions of dollars in sales.  I doubt that the Court would hold that a North Carolina resident who slips and falls in a Wal-Mart store while on a once-in-a-lifetime vacation in Alaska could not sue in North Carolina, and must instead travel to Alaska (or Delaware or Arkansas) to file a claim.  Yet such a claim would require asserting general rather than specific jurisdiction, and so Wal-Mart would therefore be at "home" in North Carolina.  (One could instead conclude that jurisdiction in this hypo would hinge on implied or express "consent" rather than "home," but if fictional or coerced consent circumvents the home inquiry, then it is not clear what purpose the home inquiry serves.  One could also try to justify jurisdiction in the hypo based on physical service in the forum, but it is not clear that Burnham extends to corporate defendants in general jurisdiction cases, and if it did, then much of Goodyear's reasoning would be superfluous because defendants would already be easily amenable to general jurisdiction at their physical headquarters without the need to call such places homes, and would likewise be easily amenable to general jurisdiction in many places in which they have a presence but are clearly not at home).  If general jurisdiction would exist in the Wal-Mart hypo, then maybe what the Court means is that a corporate defendant is at "home" anywhere it has a robust physical presence.  But what about Amazon.com, which presumably lacks a physical presence in many states, and yet still does a huge volume of business in those states?  Would Amazon.com really be immune from general jurisdiction even if their brick-and-mortar competitor Wal-Mart would be subject to such jurisdiction?  Maybe, but that is far from clear and not necessarily sensible.  So perhaps what the Court means is that a defendant is at "home" wherever it has a substantial relationship.  But if contacts rather than physical presence create a home, presumably those contacts can be established by more than just distribution through a website.  For example, suppose that Wal-Mart decides to outsource all manufacturing of its store-branded products to a subsidiary in, say, Turkey, which then ships millions of units to every state.  Is the Court saying that Wal-Mart is at "home" if it sells products in North Carolina, but that its subsidiary that manufacturers millions of those products is not at home?  Does general jurisdiction really attach to stores, but never to the stuff that those stores sell?  Perhaps, but this sort of formal distinction seems unlikely to persist without at least a few exceptions.  The Court rejected the "sprawling view of general jurisdiction" under which "any" manufacturer could be sued "wherever" its products are sold.  But that holding leaves room for a less sprawling theory subjecting some manufacturers to jurisdiction in some of the places where they sell many products.  And if it turns out that the hypothetical Wal-Mart subsidiary in Turkey would be subject to general jurisdiction in North Carolina, why not Goodyear's subsidiary in Turkey, which sold "tens of thousands" of tires in North Carolina via its U.S.-based parent?

The critical distinction between the hypothetical Wal-Mart subsidiary in Turkey and the actual Goodyear subsidiary in Turkey is that tens of millions of in-state sales are more "continuous and systematic" then tens of thousands.  But that observation takes us back to the line drawing problem.  How many sales in the forum are enough to establish general jurisdiction?  Is a small defendant who sells a small number of items in the forum that nevertheless constitute a large percentage of its business more amenable to general jurisdiction than a large defendant who sells a large number of items that are a small percentage of its business; and if so, what ratio marks the inflection point?  If it matters whether the defendant controls stores in the forum, how many stores are sufficient?  If stores are not necessary, what other kinds of distribution arrangements create general jurisdiction?  The fact that the Court did not give precise answers to these questions is appropriate given that it was asked to rule only on the case before it.  But the fact that the Court silently lumped these questions together and disposed of them in a few opaque sentences about "home" is frustrating in light of the decision's precedential effect.  Lower courts and lawyers must now develop the architecture for jurisdictional homes without an authoritative blueprint or a solid foundation.

The Court may of course clarify Goodyear through its customary iterative process. But given that the most recent iterations before Goodyear came 27 years ago (Helicopteros) and 59 years ago (Perkins), clarification might not be imminent.

Bedtime Reading

If you are in that window of parenting where your kid is too old to have picture books read to them at bedtime, but too young to be able to read chapter books for themselves, I can recommend Lemony Snicket's A Series of Unfortunate Events, in particular Volume One, The Bad Beginning, which has legal maneuverings as one of its principal plot devices. It contains this charming passage, which, if you are a law professor, will allow you to open up a dialog with your little one about what exactly it is that you do for a living:

There are many, many types of books in the world, which makes good sense, because there are many, many types of people, and everybody wants to read something different. … But one type of book that practically no one likes to read is a book about the law. Books about the law are notorious for being very long, very dull, and very difficult to read.

It also records a short judicial opinion, uttered by the fictitious but insightful jurist, Justice Strauss:

"I'm afraid this dreadful nonsense is the law."

And my son still wants to be an veterinarian. What gives?

Amicus Support Requested: Hosanna-Tabor

Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.  They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief.  Here's their description of the case and the issues, which I am happy to pass along:

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she will probably win.  After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.  

The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.  

 As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:

Leslie C. Griffin & Caroline Mala Corbin
[email protected]; [email protected]

Backdating and a culture of endemic corruption

Larry Ribstein continues his campaign against the campaign against backdating by referring to said campaign as an "overblown" "so-called scandal" that essentially led to the Madoff fraud and the 2008 financial crisis.  How, you ask?  By sucking up enforcement and journalistic resources that would otherwise have ferreted out these more nefarious deeds.  In support, he cites a recent paper by Stephen Choi, Adam Pritchard, and Anat Carmy Wiechman that claims the SEC spent more time on backdating that was justified by the subsequent results.  It's an interesting theory.  But I wanted to point out a few things quickly, just in response to Ribstein's post.

Backdating violates the law, by definition.  It is a misrepresentation about the date on which the stock option was granted.  Ribstein has done his best to play down, mitigate, justify, rationalize, brush off, scoff at, and ridicule this basic reality, but it's inescapable.  Executives lied about when their options were granted in order to get more money than they were legally entitled to.  It's a fact -- discovered by a business school professor -- and there's no getting around it.  And it happened at many companies, likely hundreds.

Luckily, there proved to be a quick fix to this problem -- change the required time of reporting the option grant.  So the problem no longer exists; it is essentially impossible to backdate anymore without being obviously in violation of the law.  So in terms of punishing the crime, deterrence, of at least that particular crime, is no longer an issue.  That may counsel for civil sanctions rather than criminal prosecutions.  To that extent, I agree with Larry -- it seems whimsical and capricious to single out some of the backdaters for jail time when the problem was much more widespread.  (Although the Comverse case seems particularly egregious.)

But if anything, I think the backdating scandal has been underappreciated, at least from a corporate governance perspective. Here you had hundreds of executives blatantly lying to their shareholders, federal agencies, and in some cases even the board about their compensation.  That to me indicates a culture of corruption -- a culture of "I will get as much as I can, even if I have to lie about it."  Sandwiched as it was between Enron and WorldCom before and the financial crisis after, it is yet another indication of the rapaciousness of some significant segment of the corporate and financial communities.  It is further indication that executive compensation has deep flaws within its structure, and we need to keep thinking about ways to change the structure and the culture.  Even though it has been "solved," with regard to the particular problem, it is a symptom of a much deeper condition.  To that extent, the corporate law community should not dismiss backdating as simply an overblown footnote in the annals of finance.  Perhaps the criminal prosecutions were overly zealous, in some instances.  But that does not mean there wasn't corruption.

Michel Leiris on Learning the Law?

One of my favorite opening chapters in all of literature is from the French author Michel Leiris's autobiographical novel Biffures (first published in 1948, as the first in a 4-book series). It begins with Leiris, as a young boy of maybe 3 or 4 years, playing alone in a room with his toy soldiers. As he is playing, one of the soldiers falls from the table and lands on the hard floor. Afraid that it has broken, he rushes over to pick it up and, seeing that it was not broken, spontaneously utters "reusement!" -- an informal (or childlike) shortening of the French word "heureusement," which means "fortunately" or "happily," or here perhaps best translated as, "thank goodness!" He then hears an adult, who has presumably been standing in the doorway watching him during some or all of this incident, correct him: "Heureusement," the adult says. This is when the young Leiris realizes that what he thought was a spontaneous utterance of relief is actually a word, one that is correctly said as the adult has indicated.

This is a very rich scene, and I can't capture here all that it represents. But at least in part, it represents the child's entry into what Leiris calls the spiderweb of language - its "tissu arachneen." The child, still at the early age of acquiring language, thinks he is generating a spontaneous, purely emotional response, but he realizes that his apparently off-the-cuff utterance is in fact a part of a bigger, completely interconnected system of language, one that he has already partly learned -- and more importantly, one that has been there all around him all along, much like the watchful adult whose presence he only just then noticed.

This is a fascinating meditation on language, and our socialization into it, but -- perhaps insofar as learning the law is like learning a language - it reminds me also of the experience of being a law student. It recalls the realization, slowly developed over the first year of law school, that the terms and even concepts are interconnected in a broader "web," as we say (a "tissu arachneen"?). One also comes to see how much of what happens in the world around us (but of course, by no means all of it) is motivated by legal realities, rules, and incentives that we never knew existed or were only dimly aware of; and how the process of learning the law is one of socialization into this larger network, as much as it is anything.

 

Roundtable: Evolution or Revolution? American Civil Procedure in the 21st Century

I am off to SEALS tomorrow morning, unfortunately sans famiy (we need to plan our summers better). In addition to Thursday evening's Prawfs Happy Hour, on Friday afternoon I will be participating in a Civil Procedure Roundtable, Evolution or Revolution? American Civil Procedure in the 21st Century. It will be a three-hour discussion, moderated by Mike Allen (Stetson) and Tom Metzloff (Duke), with twelve people giving short prepared remarks and an otherwise broad, open discussion among a large room full of particpants. Prepared remarks will be presented by Dustine Buehler (Arkansas), Donald Childress (Pepperdine), Scott Dodson (William & Mary), Richard Freer (Emory), Lonny Hoffman (Houston), Sarah Ludington (Campbell), Lumen Mulligan (Kansas), Rocky Rhodes (South Texas), Cassandra Burke Robinson (Case Western), Glen Staszewski (Michigan State), Evelyn Wilson (Southern), and me. Everyone else is free to comment.

My remarks are on an essay I am putting together, The Roberts Court and the Civil Procedure Revival (comments welcome). I argue that the Roberts Court seems to be making civil procedure its doctrinal project, deciding more than 20 cases in areas that are part of the core Civ Pro course (even more if you include Fed Courts topics such as standing), making some pretty significant doctrinal statements and changes in doing so. And I expect this interest to continue, given the relative youth of some on the Court and the inclusion on the Court of four justices (three of whom are new to the Court) whose backgrounds seem to make them solicitous of, and interested in, civil litigation.

Solvency Is Not An Issue Here!

Over at The Volokh Conspiracy, Kenneth Anderson has a post asking what would happen if Congress increased the debt ceiling so high that it were effectively infinite. What would happen, Anderson asks, if "the markets[] now have to focus on the longer term ... question, is the debt sustainable?" 

It's a good question, if only because so few people seem to understand how completely the answer contradicts the premise that financial markets think the federal government is a bad long-term bet.

On this page, you can see reports of the yields the market is requiring the Treasury to pay for its debt. On July 25, the day Anderson asked his queestion, the market was requiring Treasury to pay well less than 1 percent for a 3-year loan, 3.03 percent for a 10-year loan, and 4.31 percent for a 30-year loan. 

Two points here. First, the financial markets already focus on the longer term question, because bond purchasers are choosing to lend over the long term.

And second, the markets aren't worried about the government's capacity to make good on long term loans. People with capital to invest are lending it to the U.S. Treasury at very low rates for very long periods of time. The notion that the U.S. government faces anything like a solvency crisis is wildly inconsistent with what financial markets are telling us. The real risks from the current political crisis are (i) the possibility of default on short-term debt,* and (ii) the huge negative shock to aggregate demand that would accompany switching to a de facto balanced-budget fiscal policy in the middle of a serious downturn.

 

*The yield-curve data at the page linked above shows that 1-, 3-, and 6-month yields have ticked up somewhat over the last week or two. This pattern is consistent with a concern that the probability has risen that Treasury might not be able to make good on short-term debt issues; of course, there might be other explanations, too.

Killer SCOTUS APP

The Oyez Project and IIT Chicago-Kent College of Law launched OyezToday in the Spring -- a new iPhone app full of information and media related to the current Supreme Court docket  (press release).  OyezToday is free and available through the App Store.

Even someone like me -- one of the few people left who does not own a cell phone  -- was so impressed with its promised versatility and convenience that I posted a web link to it on my con law TWEN site.

NPR's Take on Patents: Politicizing Litigation

I absolutely adore the NPR program This American Life.  I wait for the new episode every weekend.  I laugh.  I cry.  I congratulate myself for donating to WBEZ Chicago.  But I must say that I was disappointed by this week's episode, When Patents Attack.  Perhaps disappointed is the wrong word, but definitely puzzled.

The episode was reported by Laura Sydell and Alex Blumberg who is also a co-host of Planet Money -- an NPR podcast I like so much that I have assigned several episodes to my International Business Transactions students.  The hour-long episode is devoted to the evils of patent trolls and the destructive litigation that they bring.  

Now, I'm not an IP attorney, so I'll try to steer clear of commenting on the story from a patents perspective.  But what I found interesting about the reporting was the political take.  The reporters begin and end from an unapologetic stance that patent litigation is destructive (and believe me, there is no love for lawyers in this story).  They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation.  This is a perfectly reasonable position to take -- I've seen it done plenty in scholarly commentary and the mainstream press.  I've also seen the opposing position defended.  

What bothered me was the very hostile take on litigation.

 The talking points about meritless litigation and nuisance lawsuits could have been taken word for word from the tort reform lobby.  If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.  

I was also unimpressed by the tone of the reporting.  Sydell and Blumberg purported to uncover a massive chain of shady deals and holding companies, which appeared to me to just be normal ways of conducting transactions, not a reason to indict (or approve)  the underlying asset being transferred.  They also cited statistics such as "80% of software engineers surveyed believe that the patent system hinders innovation rather than promotes it."  But this doesn't prove much -- it simply reflects what software engineers believe, and tells us nothing about how they actually behave.  Good economists and social scientists can answer that question with much better data.  The use of such figures again harkens back to the talking points of the tort reform folks who will tell you that surveys of judges and lawyers reveal massive discovery abuse.  In fact, studies of actual discovery practices show a very different picture.  For those interested in more about these facts, Linda Mullenix has several great articles about this.

Finally, the story didn't do much in the way of discussing the issues of ex ante or ex post patent enforcement.  They mention the number of redundant patents and hammer home the idea of a litigation-heavy environment, but did very little to explore the idea that the U.S. has made a regulatory choice to have a relatively relaxed patent approval regime reliant on ex post private enforcement.  Would an approach which requires vigorous and expensive prosecution of patents ex ante have more or less of a chill on innovation?  We would never know from this story that this is even a question that one should ask about a regulatory and adjudicatory system.  

It is an interesting topic and an interesting story, but falls short of some of the better reporting that I expect from the TAL and Planet Money teams.  It also reinforces that pursuit of a political agenda or conclusion in one arena (high tech innovation) might not suit your tastes in another, namely larger issues of court access, litigant behavior, agency design, and regulatory enforcement.

(cross-posted at Civ Pro prawfs blog).

Will Ireland compel Catholic priests to reveal what they hear in Confession?

The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession.  The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:

 . . . Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”

Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime. . . .

I doubt that Minister Fitzgerald believes, as a general matter, that "if there is a law in the land, it has to be followed by everybody", or would want to live in a community where this was true.  In any event, this might be a good occasion to take advantage (?) of the oppressive heat and watch the old Montgomery Clift film, I Confess.

Justice Ginsburg Unplugged

 

Our colleague Ruthann Robson over at Constitutional Law Prof Blog has edited a recent speech by Justice Ruth Bader Ginsburg in which she candidly assesses the recently completed October Term of the Supreme Court.  Here is the link to Ruthann's handiwork.  SCOTUS watchers will want to take a look at what the Justice has to say about some of the Term's big cases, serving on a Court with three women, etc.  (One of my own favorite speeches of hers was this delightful dinner speech on "The Lighter Side of the Supreme Court" that she delivered at New England Law School back in 2009.)  

Amicus Briefs and the Academic-Judge Divide

In discussions about the supposed uselessness of legal scholarship to judges, I often ask: “should law professors file more amicus briefs?”  Responses are mixed, but my general impression is that judges see law professor amicus briefs as just about equally, if not more, useless than their articles.

This, to me, is a pretty illuminating attitude.  The usual complaints about law review articles—that they are too abstract and don’t grapple with legal materials like case precedent in a serious way—really can’t be said about law professor amicus briefs, which usually do make legal arguments in a lawyerly way.  If what judges are really seeking from law professors was help in legal analysis from a group of reasonably intelligent individuals with expertise in an area and time to conduct research, then an amicus brief should answer all of those requirements.

But help in legal analysis and decision-making is not what judges are really looking for.  A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy.  The contribution that a law professor can provide on top of this is minimal.  What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

And if I am wrong, then we have a really simple solution to the Academic-Judge divide.*  Instead of calling for more doctrinal law review articles, judges should call for the same doctrinal analysis to be filed as amicus briefs.  I'm sure many law professors will be more than happy to comply.

 

* I should note that my skepticism of the "legal scholarship is useless" argument applies only when judges make this argument.  I am rather sympathetic when the complaint comes from practicing lawyers, who don't have the mechanism of amicus briefs, and who often do appreciate the  insights that law professors have the ability (but little inclination) to bring to legal practice, as demonstrated by the fact that they will hire professors to be consultants and seek professors as speakers for CLE seminars (and, of course, it would be chutzpah to say that consulting works as a substitute for practical scholarship).

Jet-Lagged Thoughts About Investments in, and the Amortization of, Course Preparation

We completed the two week session in our U.S. and Global Business Law LL.M. program in Budapest on Friday.  I'm back in the USA figuring out how to take melatonin effectively when traveling six time zones west (I have it down for eastbound travel).  I will spare you additional travelogue, and instead reflect on investments in new class preparation, particularly when it is likely that the class is to be a one-time event, as in a summer program.

I have taught U.S. Securities Regulation in Budapest twice now, once in 2009 and this year.  Including the regular offerings of the course in Boston, I've taught the course seven times.  The course is three credits in Boston, meaning thirty-five hours of instruction, versus the twenty hours of instruction in Budapest.  So the big chunk of work the first time around was paring the course down to fit the hours (and yet remain coherent), as well as to include something I don't teach in Boston, which is the exemption regulation for offshore offerings (far more relevant to the students here).   The question that arose Friday, in the throes of saying farewell to some very bright and committed students (half of whom would be returning next year), was whether I would teach in the program again next year.  The problem is that, because of structure of the three entering classes, we cannot offer the same course two years in a row.  So if I return it would have to be a new course entirely.  I do not have something akin to Securities Regulation in my current repertoire - a class that fits the program and which can simply be condensed for a twenty hour instruction period. 

The reality is that, after seven iterations of Securities Regulation, I've honed some pretty good pedagogical devices.  And although the subject matter is not quite like constitutional law in terms of the gift that keeps giving, I have a segment now in which we walk through the mechanics of the securitization of residential mortgages (including the role of the rating agencies and AIG's credit default swaps), and another in which we use the SEC's recent complaint against Goldman Sachs regarding synthetic CDOs to explore the question of materiality.  For dealing with the conceptual difficulties of things like control person resales, I've figured out some nice visuals and narratives.  Even the condensed version contributed to the full version - I learned how to do some parts of the course much more crisply without losing much of the content.  In other words, I've managed to fight off staleness and manage to freshen the investment in the course every time I've taught it.  It's simply a much better package now than the first (and even the third or fourth) time around.

Would you ever invest in the preparation of an entirely new course for a one-off teaching commitment?   And assuming "no," what is the minimum and maximum useful life of a new course prep?   I taught a two-credit business planning course on tech startups and venture capital at IU-Indianapolis in 2005.  It would be a natural for this program.  But looking back at my notes from the perspective of somebody starting his seventh year of teaching, they don't measure up to my own standards.  Notwithstanding the appearance now of a nice text on the subject from Therese Maynard and Dana Warren, and the materials available through the Kauffman Foundation and elsewhere, preparation of a twenty hour class from the get-go is still likely to be a 100 to 200 hour project.  But it's not just the time.  It's the fact that it takes at least three or four iterations finally to make it really good! 

To prep or not to prep: that is the question.

Are our Politics becoming "Weimarized"?

Since the mid-'00s, the blogosphere has been rife with what I regard as a happy but diffusely defined neologism -- "Weimarization." Users of the term argue that our American politics are becoming "Weimarized" presumably because, in important ways, they believe that American politics are beginning to resemble the politics of the so-called "Weimar Republic" of Germany (meaning the constitutional regime in force between 1919 and 1933). But which precise aspects of Weimar Germany resemble our current politics? Most references to "weimarization" seem to pick out an isolated aspect of the Weimar republic's dysfunctions such as the polarization between authoritarian anti-modern factions and liberal democrats or an increase in discretionary executive authority a la Carl Schmitt.

All of these references, I suggest, leave out the really distinctive aspect of Weimar politics -- that is, interaction between bad institutional rules and polarized politics that led to the impulsive empowerment of temporary polarized factions by presidential power unchecked by legislative scrutiny. More specifically, I would reserve "weimarization" for the combination of three characteristics that were peculiar hallmarks of the Weimar Republic's dysfunctionality -- viz.: (a) a polarized electorate, (b) an institutionally induced paralysis in the legislature, and (c) an institutionally induced hyperactivity in the executive. The Weimar Constitution allowed the first condition to interact with the second and third to produce an avoidable Nazi regime. By setting the vote threshold very low for a party to win seats in the Reichstag, Weimar's electoral rules encouraged fragmentation of the Reichstag among small parties, making it hard to maintain a majority coalition. Thus, the legislature was paralyzed: After the Mueller cabinet (formed by the SPD, the DVP, and the DDP) proved incapable of compromising over unemployment insurance in March of 1930, there never was again a parliamentary cabinet under the Weimar Constitution. At the same time, Article 48 gave the President broad powers to rule by decree in an "emergency": The last four governments of Weimar -- Bruening's (which lasted two years), Von Papen's (which lasted a few months), Schleicher's (which lasted a few weeks), and Hitler's (which ended in permanent dictatorship) -- were all "Presidential cabinets" holding power only because President Hindenburg personally backed them with his article 48 and article 53 powers to rule by decree and to appoint chancellors.

By this definition of "weimarization," are we "weimarized" yet? I'd say we are halfway there. We've got much more intensely polarized voters lately, albeit nothing like the powerful position of the KPD or the NASDP, which commanded a Reichstag majority (296/584 seats) in November of 1932. Tea Partiers might risk destroying our economy, but they do not seek to destroy democracy itself. We have a Congress deadlocked by arguably excessively deadlocking rules, although we still enjoy, with our single-member plurality districts, the benefits of Duverger's law and its suppression of all but two effective parties.

The third piece of Weimarization -- a Presidency that can rule by decree -- is largely missing. Our latter-day Carl Schmitts, Eric Posner and Adrian Vermeule, are urging to embrace this last Schmittian innovation. Should we fully weimarize our politics by taking their suggestion that President Obama should settle the debt limit crisis with an executive order?

I think not. The problem is that, in a hyper-polarized political environment with a paralyzed legislature, presidents are unlikely to deliberate with sufficient care about their decrees. Unchecked, they can freeze into place a bad status quo tossed up by volatile and polarized politics that cannot be reversed by a gridlocked Congress. Sure, Obama is a competent and cautious guy: So was President Friedrich Ebert, the first President to rule by decree in Weimar (from 1919 until 1923). But Ebert's use of Article 48 emergency decrees created a sense that such plebiscitory presidential rule was normal and even desirable, thereby paving the way for Hindenburg's catastrophic decisions in '32 and '33. Whatever value might be created by an expeditious presidential settlement of (for instance) the current crisis over the debt limit should be offset by the risks posed by the unknown decrees of future and less deliberate president.

Neal Katyal has suggested that internal deliberation within the executive branch could act as a check on impulsive presidential decisions that an internally divided Congress cannot supply. But I tend to buy William Howell's riposte that "[e]ven if internal checks on presidential power do some good—and it is not clear that they do—they are neither perfect, nor even approximate, substitutes for external checks." Moreover, presidential decretal rule can perversely affect the capacity of Congress to govern responsibly. If the two parties in Congress believe that the President stands ready to take the political flak for, say, raising the debt ceiling, then it is possible that they will be tempted to engage in more uncompromising posturing for the edification of their respective bases, even though this results in congressional paralysis. (The Mueller cabinet collapsed in 1930 because the SPD and DVP were squabbling over unemployment insurance -- a trivial cause for the the string of "presidential cabinets" culminating in the Nazi takeover in January 1933).

So I would be reluctant to weimarize our politics completely by embracing a Posner's and Vermeule's unilateral Presidency. At least, I'd like a little more argument for why a model that performed so dismally in 1930-1933 should be expected to be a success in our semi-weimarized America today.

Contra McConnell's "Contrary to the President"

UPDATE: SEE EDITS BELOW, IN ITALICS.

Citing columns by Thomas Saving and by Mark Scarberry and Nancy Altman, Michael McConnell argues that there is no reason to worry about whether Social Security checks will be payable in the event that Congress does not raise the debt limit. Based on the "Trust Fund FAQs" page maintained by Social Security's Office of the Chief Actuary, though, there is a major hole in the argument McConnell & company make: it ignores the revenue side of the Social Security system, assuming that these revenues can be treated as assets of the Treasury rather than of the trust funds.

Before I detail the McConnell argument, it will be useful to note some basic details of the SS system. Supplemental Security Income (SSI) payments are typically made on the first of the month, and other SS payments are made on the 3rd of the month, which I assume helps explain the importance of Aug. 2, as well as the 2nd, 3rd, and 4th Wednesday. At the same time, the OASDI tax revenues that fund the SS system come in to the Treasury on a daily basis.

Why does this matter? Suppose for simplicity that the system will pay out $80 billion in August, in four equal payments of $20 billion, and suppose that there are 20 business days on each of which $4 billion of OASDI revenue is collected (nothing important hinges on the exact details of these assumptions--they're just for clarity's sake). Effective operation of the SS system requires that the system have a way to make a small number of lumpy payments even as it receives a smooth stream of revenues over a longer number of days. According to the "Trust Fund FAQs" page, trust fund income is immediately invested, on a daily basis, in special Treasury securities. Each dollar of such securities that are issued increases the debt held by the public by one dollar. On the day when checks are to be issued, the trust funds redeem just enough of their Treasury securities to make good on the system's benefit obligations. 

This brings me to the McConnell argument, which boils down to the claim that when the debt limit binds, the SS system can redeem its securities from Treasury in a way that does not increase the net debt held by the public. Since each dollar of principle redeemed will reduce the debt held by the public by one dollar, the argument goes, Treasury can then auction off a standard bond in the amount of one dollar and deliver the proceeds of this bond sale to the SS system. The net effect of these transactions would be to leave the total debt held by the public unchanged, argues McConnell, and voila, the SS system has made good on its liabilities.

The problem with this argument is simple: it ignores the two facts that OASDI revenue belongs to the trust funds, and that that revenue arrives smoothly over time rather than as the system's lumpy liabilities come due.  Consider my example again, with the added assumption that the debt limit exactly binds as of 11:59pm on August 2. Now, on August 3, the SS system will have to make $20 billion in payments but will receive only $4 billion in revenues. This means it will seek to redeem $16 billion in special Treasury securities; a la McConnell, Treasury could finance this redemption via a new issue of $16 billion in standard debt without violating the debt limit.*

Fine.

But what happens on August 4? On that date, the SS system will make no benefit payments and thus redeem no Treasuries. However, another $4 billion in OASDI revenues will come in...and be immediately invested in Treasuries. This means that the debt held by the public will increase by $4 billion, putting Treasury over the debt limit.

The only way that Treasury won't wind up over the debt limit in this scenario is if somehow the OASDI revenues are treated as general federal income tax revenues, so that they are not immediately invested in Treasury securities on August 4. The WSJ column by Saving to which McConnell links assumes this is true, based on Saving's discussion of the 1937 Supreme Court opinion in Helvering v. Davis, but that can be right only if the Trust Fund FAQs page linked above is wrong, which I do not believe to be the case (if you think Saving is right, ask yourself how the current stock of trust fund-held securities got there in the first place). My understanding is that, by statute, these revenues are immediately invested in Treasuries.

Assuming this is correct, the only way to make all SS benefit payments on the regularly scheduled dates in my example would be to reduce the flow of other types of spending sufficiently, ahead of time, to run a general-fund surplus on dates when no SS checks are cut. If the Treasury did that, then it would have a $16 billion cushion on August 3. the SS system would be in balance over the full week, and  But notice that to do this, Treasury would be running a general-fund surplus, in the week before August 3, six days a week whose aggregate savings exactly equaled the deficit incurred by paying SS benefits on the scheduled date. This means that Treasury would have to reduce general-activity spending by an average of $3.2 billion per day the week before August 3. My rough calculations suggest that this is a huge share of Treasury's normal expenditures, causing the approximate equivalent of a one-week shutdown of the federal government's non-SS activities.

I’ll put up another post concerning the impact of such a policy. To conclude for now, Thus, in the absence of other measures, making SS payments on their scheduled dates in the absence of a debt limit increase requires more than the simple accounting trick McConnell and company have suggested: it requires Treasury to run a general fund surplus rather than a balanced budget before August 3. Unless the Office of the Chief Actuary is wrong about the mechanics of the SS system's financing, making these payments as scheduled might therefore lead to a substantial disruption in normal government activities in the non-SS sector. would require Treasury to reduce its other required payments even more than if SS payments were made as OASDI revenues arrive.

There might be an alternative approach, depending on the technical capacity of the SS system's check-cutting facilities. Starting August 4, SS checks could be paid ahead of time, as Treasury receives revenue. The result would be that the SS system would be issued no new Treasury securities on non-payment days, which would keep the debt held by the public from rising as a result of these revenues' receipt.

*I'm ignoring everything else the government pays for, which is beside the point of McConnell's argument.

Pine Tar: Of baseball and law

Today marks the 28th anniversary of the "Pine Tar Game." In 1983, the Royals were playing the Yankees at Yankee Stadium on a Sunday afternoon. With two out in the top of ninth and the Yankees up 4-3, George Brett hit a two-run homer. But Yankee manager Billy Martin protested, saying that Brett had used an illegal bat containing pine tar more than 18 inches up the bat handle;R. 1.10(c) prohibited pine tar or any other grip-improving substance on the hitting area of the bat. The umps measured the amount of pine tar, found it higher than 18 inches, and called Brett out, giving the Yankees the win. In one of the iconic video images in baseball history, Brett came charging out of the dugout and tried to attack the umpire and had to be restrained by teammates, coaches, and other umpires. The Royals protested and the protest was upheld by AL President Lee MacPhail, who reinstated the homer and ordered the game resumed from that point.

Long before John Roberts went before the Senate Judiciary Committee, this game had people talking about baseball and the law, even prompting some legal scholarship on the case as demonstrating statutory interpretation, judicial decisionmaking, and legal processes.

R. 1.10(c) called for the removal of the tainted bat from the game, but did not specify what should happen to a player who used such a bat or to a play in which such a bat was used. The home-plate umpire invoked his gap-filling power under R. 9.01(c) to "rule on any point not specifically covered in these rules" and decided that a player should be called out for using an illegal bat on a play.

In reversing that decision, McPhail made an intentionalist "spirit v. letter of the rule" decision. R. 1.10(c) was not about regulating performance, it was about economics. MLB wanted players to keep pine tar off the hitting area of the bat because if pine tar got on the ball, the ball would have to be thrown out, requiring teams to provide more balls each game. But pine tar did not affect the "performance" of the bat, in the sense of how far or hard or well the ball would travel off the bat (compared with, for example, doing something to make the bat lighter). Thus, the only appropriate sanction was removing the bat from the game, as provided in R. 1.10(c). Calling a player out was an unnecssary additional sanction, because Brett's violation of the rule did not give him an unfair competitive advantage. The umps, if you will, abused their discretion in turning to 9.01(c) for that additional sanction.

This also shows that the posture of an issue on appeal and the administrability of any ruling affects its resolution. This was one of the rare cases that a league upheld an appeal of an umpire's ruling--in fact, it was the only time in MacPhail's ten-year term as AL President that he overruled the umpires. He was able to do so, in part, given the timing of the play at issue--it was the final play of the game. This meant there were only two possiblities: game over if MacPahil affirmed or pick the game up from a known point immediately after the challenged play if he reversed. But imagine the administraive difficulties if the challenged play had come in the fifth inning. The game would have been played to a conclusion "under protest," then the challenge would have gone to the league (in essence, a Final Judgment Rule). If MacPhail makes the same ruling, what happens? Does the game resume from after the challenged play and everything that actually happened is erased from the record books? Does it depend on whether those two runs would have made a difference in the game, in essence, a harmless error analysis? Should the game resume only if it would affect the pennant races (both teams were in contention, although neither won its division), in essence a mootness analysis?

MacPhail ordered the game replayed from the point of the call--two outs in the top of ninth, Royals up 5-4. There was more conflict over when the game would be played or if it should be played. The Yankees wanted to wait until the end of the season and resume it only if it affected the penant race. The AL ordered the game to be picked up on Thursday afternoon, August 18.

Then there was some real legal wrangling. The Yankees sued to stop the resumed game, citing security and administrative burdens; a trial court issued a preliminary injunction, which was quickly overturned on appeal. So the game resumed, with about 1200 fans in the stands. The first move by manager Billy Martin was to appeal to every base, arguing that Brett and the runner ahead of him had not touched the bases on the home run. The four umpires working the resumed game were not the same umpires who had worked the original game, but each signalled safe. They then produced an affidavit from the four original umpires swearing that both players had touched all the bases on the home run.

Finally, to see separation of powers at work: MLB amended the rules to handle the situation in the future, adding a Note to R. 1.10(c) stating that the use of a bat with too much pine tar would not be the basis for calling a player out or ejecting him from the game and a Comment that if excessive pine tar is not objected to prior to a play, it cannot be a basis for nullifying a play or protesting the game.

Umpiring--it's a lot more than calling balls and strikes.

Posner and Vermeule: Cynical about Law, Dewy-Eyed about Politics

Eric Posner's and Adrian Vermeule's op-ed piece in the New York Times, urging President Obama to raise the debt limit unilaterally, is just a specific application of their general theory, outlined in their book, The Executive Unbound: After the Madisonian Republic, that Presidents should be free of legalistic limits on their power to initiate policies. The basic message of the book is both positive and normative. On the positive side, Eric and Adrian retail Terry Moe's line (more recently pressed by William Howell) that Presidential power to make policy unilaterally is inevitable. The public wants Presidents to respond to crises quickly without waiting for Congress' imprimatur, and Presidents will accommodate this public desire, regardless of legalistic limits, because neither Congress (bogged down with collective action problems) nor courts (lacking information) will stop them. On the normative side, Eric and Adrian retail a kinder, gentler Carl Schmitt: We should not worry about Presidents' unilaterally claiming powers to (for instance) raise the debt limit, because they will be adequately cabined by politics. Presidents want to win re-election or a favorable place in history, so they will try to accommodate opposing views to signal to the public that they are not tyrants. The plebiscitory limit of regular presidential elections suffices to constrain Presidents: We do not need law to do so.

There is a lot one could say about this briskly written, energetically argued book, but one simple, blog-worthy point leaps out at me: Eric and Adrian are cynical tough guys in dismissing legal limits, but dewy-eyed and naive idealists when it comes to politics. They have a view of presidential politics that I have seen expressed elsewhere only on the more saccharine episodes of "West Wing" (the ones where Alan Alda, the reasonable conservative guy who would not take the Ethanol Pledge in Iowa, was running against Jimmy Smits, the macho but sensitive lefty). They proclaim that voters will be able to distinguish between phony and genuine signals of Presidential trustworthiness, because “[p]eople who seek the office [of the President] have strong incentives to discover and disclose negative information about those in office,” a task in which they are aided by “powerful institutions that are not part of the constitutional structure – most prominently, the media and political parties.” (Pages 115, 119). But this assessment of press and party strikes me as a tad optimistic coming from guys who believe that members of Congress cannot overcome their own collective action problems to stop an aggressive President.

Take, for instance, the press: There seems to be a lot of evidence that the press is the President's Little Helper (to use Jonathan Zaller's phrase). According to this "indexing" theory of reporting, reporters simply repeat -- "index" -- the press releases of the White House, ignoring rival stories offered by scientists and bureaucrats that (for instance) those aluminum tubes imported to Iraq had nothing to do with WMDs. (See Chapter 6 of William Howell's and John Pevehouse's book, While Dangers Gather: Congressional Checks on Presidential War Powers for exhaustive evidence of the "indexing" theory).

There are limits to the "indexing" theory of Presidential omnipotence over the press, but Eric's and Adrian's urging of a unilateral presidency might seem reasonably calculated to destroy those limits.

Howell, Pevehouse, and Douglas Kriner report, for instance, that, if members of Congress stand up to the President by holding hearings, issuing press releases, and generally making a fuss, then the press reports their opposition, and voters seem to listen. These political scientists do not explain why members of Congress can get public attention that others cannot attract.

Here's a theory of causation: Members of Congress are perceived by the public as being politically relevant actors without whose imprimatur the President cannot lawfully act. Eric and Adrian want to eliminate precisely that perception of Congress by pressing their "legal-authority-does-not-matter" theory. Why would reporters flock to the press conference of a senatorial committee chair whom the President could easily bypass with an executive order? Would not such a blowhard seem just as unnewsworthy as a member of, say, the House of Lords or the European Parliament?

It might be, in short, that constitutional structure has an effect on the behavior of the press. Destroy the structure that makes Congress the preeminent lawmaker, and you destroy the press coverage that members of Congress earn from their constitutional position.

Of course, my view that the power of the press might depend on a vigorous enforcement of separation of powers is just a theory. I have no evidence. Nor does Eric and Adrian cite any evidence about the intrepid press's carefully policing presidential missteps. Until there is more to support what I am inclined to view as their Norman Rockwell view of presidential politics, however, I am inclined to side with Madison over Carl Schmitt.

JSTOR: What is it Good For?

Swartz is facing 35 years behind bars for allegedly cracking JSTOR. (Photo: Demand Progress)

Information-liberation guru and alleged hacktivist Aaron Swartz is facing 35 years in prison on a federal indictment [PDF] for breaking into MIT's systems and downloading more than four million academic articles from JSTOR. So, I can't help but see Stuart Buck's point that his doing so wasn't a good idea.

But is JSTOR a good idea?

JSTOR is a non-profit organization that digitizes scholarship and makes it available online – for a fee. JSTOR was launched by the philanthropic Andrew W. Mellon Foundation in 1995 to serve the public interest. But it seems to me that today, JSTOR may be more mischievous than munificent.

For instance, on JSTOR I found a 1907 article called "Criminal Appeal in England" published in the Journal of the Society of Comparative Legislation. I was offered the opportunity to view this 11-page antique for the dear price of $34.00. And this is despite the fact that my university is a JSTOR "participating institution," and despite the fact that this article is so old, it is no longer subject to copyright.

What's more, by paying $34.00, I would take on some rather severe limitations under JSTOR's terms of service. I could not, for instance, turn around and make this public-domain article available from my own website.

You might ask, why can't JSTOR just make this stuff available for free? After all, JSTOR says its mission is "supporting scholarly work and access to knowledge around the world."

Why indeed, especially considering I CAN GET THE ENTIRE 475-PAGE JOURNAL VOLUME FOR FREE FROM THE INTERNET ARCHIVE and GOOGLE BOOKS. (That includes not just "Criminal Appeal in England," but also such scintilators as "The Late Lord Davey" by the Right Honourable Lord Macnaghten. All for the low, low price of FREE.)

And it's not just old, public domain articles. Current scholarship is increasingly being offered for free from journals' own websites as soon as it is printed. Not to mention the quickly accreting mass of articles on free-access sites SSRN and the Arxiv.

Maybe JSTOR seemed like a good idea when it was launched 16 years ago. But today, if other organizations are doing for free what JSTOR is charging for, then perhaps JSTOR should be dismantled or substantially reworked. JSTOR in a big enterprise, and I am not familar with all of its parts. It may be that JSTOR provides important services that otherwise wouldn't be available. I don't know. But I do know that, at least with part of its collection, JSTOR is playing rope-a-dope, hoping to shake money out of chumps too unlucky to know they could have gotten the same wares for nothing if they just had clicked elsewhere.

JSTOR should act now to make as much of its database free as it can, including all public domain materials and all copyrighted materials for which the requisite permissions can be obtained. It seems to me that the only reason JSTOR would not do so at this point is because JSTOR has become so entrenched that it's more interested in self-perpetuation than public good. And if that's the case, JSTOR may constitute a continuing menace to the preservation of scholarship and access to it – the very things it was founded to promote.

Man tries to get house by adverse possession

Every 1L taking property thinks of a nefarious scheme like this at some point in time, but a Texas man has gone further by actually attempting to claim a $330,000 house through adverse possession (h/t: Above the Law). He says that by filing an affidavit asserting ownership, he will get ownership in three years (assuming he is not kicked out by the mortgage holder in the meantime).  Apparently he concoted this scheme after "months of research."

A couple of classes of 1L property, however, would probably tell him that he is on a fool's errand.  Texas does have a three year adverse possession statute, but only if the possessor is claiming ownership under "color of title."  The term is a legal term of art -- contrary to what ordinary people might think, mere filing an affidavit in the record office saying that you are claiming the property does not "color" the title.

Texas does have a 10 year statute that requires little more than bare possession.  But good luck waiting 10 years.  And our good squatter is accruing probable civil and criminal trespass liability in the meantime.

Winn, Hein, or Both?

This is for the Fed Courts teachers in the audience. And I guess this is what constitutes a bleg:

In teaching taxpayer standing, are you planning on using Hein v. Freedom From Religion Foundation (from 2007), ACSTO v. Winn (from this past term), or both? And what is the reason for any approach? Both cases are fairly long (Hein runs about 22 pages in the casebook and Winn runs 41 pages in the slip op) and I am reluctant to assign to substantial cases for what is a fairly small topic in a sprawling class. The majorities both do a pretty good job of tracing the development of the Flast doctrine. And Winn is particularly notable for Justice Kagan's well-written dissent. But they are different enough in coverage as to not be fully fungible.

Please feel free to leave ideas in the Comments.

NYT's Room for Debate this week features: "The Case Against Law School"

The online debate over the existing paradigm of legal education should be of interest to readers of Prawfsblawg.  (I saw a reference to it posted on our sister blog The Faculty Lounge by our colleague Kevin Maillard, who also is an invited commentator .)

Look for The Case Against Law School, N.Y. Times (July 21, 2011).  You can read the online discussion and posted comments here.

Question for discussion: Should the standard three years of law school, followed by the bar exam, be the only path to a legal career?

Here is a list of commentators: David Van Zandt, president, The New School; George Leef, Pope Center for Higher Education Policy; Kevin Noble Maillard, law professor, Syracuse University; Rose Cuison Villazor, Hofstra University Law School; David Lat, editor, Above the Law; Geoffrey R. Stone, University of Chicago Law School; Linda Greene, law professor, University of Wisconsin; and Bryan A. Garner, editor in chief, “Black’s Law Dictionary."

Winning and losing legal battles and the legacy of Curt Flood

HBO Sports has produced an excellent documentary (narrated, of course, by Liev Schreiber), The Curious Case of Curt Flood, examining Flood's career, unsuccessful federal-court fight to establish free agency, and life after baseball. Among the commentators is Wisconsin Prawf Brad Snyder, who wrote a fantastic book on Flood's case, A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports.

One of the subjects the movie tackles is Flood's precise legacy. The popular myth (and I use myth in both its meanings) is that Flood successfully challenged baseball's reserve system (which essentially allowed MLB Clubs to continually renew a player's one-year contract) and created free agency. But Flood did not win, losing in a 1972 decision that has become infamous for two things: 1) Justice Blackmun's otherise-pointless paen to the glory and history of baseball (which Chief Justice Burger and Justice White refused to join and which excluded Joe DiMaggio from the list of greatest players) and 2) a logical progression of, essentially, "We were wrong in our two prior precedents holding that MLB is not engaged in interstate commerce and thus not subject to the Sherman Act, but at this point it is for Congress, not us, to change it." Free agency came about three years after Flood, as a result of a labor arbitrator's decision (that may well have been legally incorrect, according to some) in a griveance filed by two other players, Andy Messersmith and Dave McNally.

So why is Flood widely spoken of, especially by the media and other professional athletes, as the person who made free agency possible? And what does that tell us about what it means to win and lose legal-reform battles?

1) Several commentators in the film argued that Flood put free agency in moral terms, something Messersmith and McNally did not and could not do. Rhetorically this is true. Flood, who had been active in the Civil Rights Movement, spoke of the reserve system as slavery and argued that "a well-paid slave is still a slave" (the quotation which gave Snyder his book title). Whether Flood was right to speak in terms of slavery, no white player could have done the same. In any event, the point was that the existing system was morally wrong and had to change.

But putting his own lawsuit in moral terms did not help Flood himself, who aroused the ire and opposition of the old guard of very conservative, largely white sports writers who were closely tied to teams and owners and were shockingly (compared with today) hostile to players who stepped out of line. And it did not help him in his lawsuit. But did the moral rhetoric ultimately affect the outcome of the legal battle? Did it influence the later resolutions in arbitration?

2) Snyder argues that Flood's case, even if ultimately unsuccessful, swung public opinion in the players' favor. Perhaps that gave the players greater leverage in labor negotiations or even influence the subsequent arbitration decisions. This becomes another instance of public opinion affecting legal decisionmaking. Of course, the change in public opinion still ahd to overcome the hostility of most sports writers, particularly columnists.

3) Snyder argues that the real effect of Flood's lawsuit was to accelerate free agency by accelerating the collective bargaining process between MLB and the Players' Association. MLB's argument during the Flood trial was that this was not an antitrust matter, but a matter for collective bargaining. The players and owners were negotiating what became the 1970 Basic Agreement during the trial in 1979; that agreement ultimately included a 10-and-5 rule (a player with ten years MLB experience and five with the same club could veto any trade--this would have allowed Flood to veto his trade from the Cardinals to the Phillies) and independent grievance arbitration, which ultimately produced decisions rejecting the reserve system. Snyder argues it was not a coincidence that MLB gave the players through collective bargaining the things that it insisted warranted rejecting Flood's antitrust argument. He quotes then Union head Marvin Miller as saying that the owners rejected an independent grievance process in December 1969, prior to Flood filing suit, then agreed to it six months later.

If Snyder is right, it tells us something about the need for legal movements to proceed on multiple fronts. Just as the civil rights agenda had to be pursued through both the courts and Congress, the players had to pursue free agency and higher salaries in the courts, at the collective-bargaining table, and even in Congress (where the threat of removing MLB's antitrust exemption lurked for years). Ultimately, the movement may achieve some success in each arena. Or at least the arguments made in one forum necessary influence conduct and results in another.

4) The fourth possibility is that Flood was a martyr to the cause. And successful social movements arguably always need martyrs, those people who sacrificed something but failed in their efforts to establish some change and never enjoyed the benefits or fruits of that sacrifice. Flood is like, say, John Brown or Harvey Milk. The players who successfully challenged the reserve system in arbitration got their pay days (or in McNally's case, retired following the arbitrator's decision). Flood attempted to come back in 1971, but retired after just 13 games, his skills having eroded from his year off; so, in effect, he sacrificed his career to change the system. The next two decades of his life, the movie shows, were spent in a spiral of business, financial, legal, and alcohol problems, as well as a failed stint as an announcer. He never got his payday. Morover, he was something of a late-discovered martyr. His sacrifice was not widely acknowledged until the 1994 players' strike. At that point he became the public face of challenges to MLB's power, only to contract cancer and die at age 59 in 1997. Legislation to eliminate baseball's antitrust exemption was introduced shortly after his death and named in his memory.

SCOTUS's free speech doctrine & Grover Norquist: Both Lost in Baseline Hell

What do Grover Norquist and the SCOTUS's free speech doctrine have in common? Both are lost in baseline hell. Whenever one refuses to put forward a good-faith theory of distributive justice by which to define "neutral" treatment, one must labor in Baseline Hell at the Sisyphean task of screaming about whether some financial exaction is loss of a "subsidy" (to which one is not entitled) or imposition of a "penalty" (that confiscates one's property). One must scream because reasoning about "neutrality" is impossible without a normative theory about proper distribution.

Consider, first, Norquist's op-ed this morning in the New York Times defending his "no new taxes" pledge from critics like David Brooks who charge that Norquist is a beltway bandit holding America's full faith & credit hostage to his peculiar fanaticism. Such critics argue that eliminating a tax loophole should count on the conservative side of the ledger as a spending reduction -- cutting a "tax expenditure" -- and not a tax increase. To this charge, Norquist writes:

Others have tried to redefine 'tax increase,' specifically by arguing that eliminating a tax credit, exclusion or deduction in order to rake in more tax revenue should not count as a tax hike. The theory is that any dollar the government failed to take from you in taxes had in fact been given to you in a spending program. By this reasoning, the deduction-killing Alternative Minimum Tax is not a tax hike — a cruel joke on the millions of Americans who get hit by it every year. When a mugger passes you on the street leaving you unmolested, he did not in fact give you your wallet.

This is status quo fanaticism with a vengance: By Norquist's logic, taxpayers are entitled to every current tax credit as a matter of property rights, even if the tax credit in question is morally indefensible according to Norquist's own self-declared conservative theory of taxation. To extend Norquist's analogy, a storeowner's pledge not to "raise prices" means that a shopper who has routinely shoplifted goods from the store in the past cannot be forced to open up his wallet to pay for what he has hitherto stolen, because making people pay their fair share for what they consume would be "raising prices." This reasoning leads Norquist to defend (for instance) the ethanol tax credit, apparently on the theory that farmers should continue to rob the rest of us taxpayers by paying less than their "fair" share of taxes (as "fair is defined in conservative circles -- viz., no special treatment for industries that government happens to like), simply because farmers got away with it in the past. Even bona fide conservatives like Tom Coburn (who voted to repeal the ethanol credit) choke on that piece of logic. Of course, Norquist's mindless defense of current tax baselines position has landed Norquist in Baseline Hell, where he suffers mockery from every thinking conservative while he futilely explains why we must risk the full faith and credit of America to stand by ethanol subsidies.

But before you snigger at Norquist, consider the SCOTUS's failure in Arizona Free Enterprise Club's PAC v Bennett to distinguish Regan v Taxation With Representation. If public subsidies for one's campaign opponent cannot vary with one's own "speech" (i.e., spending), because the selective bestowing of a subsidy based on the content of speech constitutes a "penalty" on speech, then why is not the selective withdrawal of deductibility for 501(c)(4) organizations based solely on their engaging in lobbying not also a "penalty" on speech that is squarely within AFECPAC's prohibition?

Taxation With Representation reasoned that, because no one was entitled to the "subsidy" of tax deductibility for lobbying, the loss of this deductibility based on a specific type of speech activity visited no burden on freedom of speech. In a question-begging passage worthy of Norquist, the Court stated:

The Code does not deny TWR the right to receive deductible contributions to support its nonlobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise a constitutional right.

How can AFECPAC escape this "logic"? As with deductibility, no one also has any entitlement to an opponent without public funding for their campaign expenses. The complaint in either case is that a financial burden on speech is imposed selectively, based on protected speech activities (either one's fundraising in AFECPAC or one's lobbying in Taxation With Representation). If selectivity of subsidy suffices to violate the First Amendment AFECPAC, then the current system of selectively imposing massive tax burdens on organizations that lobby should be overturned. If, by contrast, selectivity dos not matter when the burden in question is characterized as the withholding of a subsidy, then Arizona's scheme should be upheld.

Yet the majority in AFECPAC ignored Taxation With Representation and, more generally, the subsidy-penalty distinction, airily responding to Justice Kagan's dissent by stating:

"In disagreeing with our conclusion, the dissent relieson cases in which we have upheld government subsidies against First Amendment challenge, and asserts that '[w]e have never, not once, understood a viewpoint-neutral subsidy given to one speaker to constitute a First Amendment burden on another.' Post, at 16. But none of those cases—not one—involved a subsidy given in direct response to the political speech of another, to allow the recipient to counter that speech. And nothing in the analysis we employed in those cases suggests that the challenged subsidies would have survived First Amendment scrutiny if they were triggered by someone else’s political speech."

True enough: The Court's other cases like Taxation With Representation did not "involve[] a subsidy given in direct response to the political speech of another, to allow the recipient to counter that speech." Those other cases also did not involve a respondent whose name began with a "B": So what? Why should this distinction matter? If the federal government can reduce your funding because you speak to a congressperson, then why cannot they reduce your freedom from a well-funded opponent because you spend more on a political campaign? If the government's directly taking away money that you would otherwise have constitutes a permissible burden on protected speech, then why is the government's indirectly burdening you by giving more money to your opponent less permissible?

The Court did not bother to explain for precisely the same reason that Norquist invoked the cack-handed analogy between the Congress' eliminating farmers' ethanol tax credit to a thief's taking one's wallet: To engage more deeply with the problem of defining the right baseline of entitlement would be a major headache that would detract from the rhetorical force of simple and largely meaningless slogans. The peculiar version of Baseline Hell that this intellectual laziness condemns the Court is 5-4 decisions with no staying power but lots of invective. As soon as a Democratic President replaces Kennedy and switches the balance of power on the Court, the Court will uphold payment schemes functionally equivalent to that struck down in AFECPAC based on the same sort of formalistic distinctions that the AFECPAC Court used to distinguish cases like Taxpayers With Representation. Meanwhile, intelligent observers discount the Court's so-called "reasons" and count noses based on spatial attitudinal analysis.

I hasten to add that I take no position as to whether either or both AFECPAC or Taxation With Representation were rightly or wrongly decided. I argue only that one cannot make any claim to intellectual coherence if one invokes the distinction between "subsidies" and "penalties" in one case (Taxation With Representation) to eliminate a First Amendment violation only to ignore the distinction in another case (AFECPAC) to create a violation. Such maneuvers invite -- indeed, practically require -- the accusation that the Court's distinctions are based on nothing more than its unspoken moral beliefs about spending inequalities in elections. As with Norquist's beliefs about what constitutes a fair tax code, we cannot tell from the Court's selective invocation of the subsidy-penalty distinction what those beliefs really are from its disingenuous hand-waving about baselines and neutrality.

Who is this man? And why is he jumping?

 

 

It is an unlikely image of Learned Hand -- at age 87 -- taken by celebrated photographer Philippe Halsman (1906-79).  It appears in a collection published in 1959, The Jump Book.  I saw it in the latest issue of Wilson Quarterly (Summer 2011), one of my favorite periodicals. The picture was not available online at WQ so I clipped it from Designmodo.com which elaborates as follows:

 Being a successful photographer for LIFE magazine, Halsman had taken pictures of some of the most famous people at that time: politicians, writers, artists, judges, Nobel Prize winners, movie stars. But the idea of “jumpology” came to his mind after working with some comedians in the early 50’ies. When Halsman compared the pictures of all those comedians to the other people, he noticed that they often jumped while they were photographed, so Philippe decided to try this on other people as well.

“May I take a picture of you jumping?’” ended up to be one of the most successful questions in the history of photography as intense as it might sound. The question first came up at the photo shooting of the Ford company at their 50^th anniversary. Philippe liked the results and soon some of the most famous people were photographed while jumping including Audrey Hepburn, Marilyn Monroe, Salvador Dali, Judge Learned Hand, the Duke and Duchess of Windsor and many other celebrities that are all included in Halsman’s book called “Jump”. However this book doesn’t only showcase pictures of these people but explains the concept of jumpology as there is a whole story behind it.

Source: http://designmodo.com/the-art-of-jumpology/#ixzz1SfQiuL3x

 

 

NFL Agreement? Don't Count Your Chickens

The theme of my NFL blogging, which you can see here (post-Eighth Circuit hearing) and here (post-Eighth Circuit decision) is that the players' antitrust litigation strategy was really much more effective than the owners anticipated.  It totally reversed the usual roles you see in a lockout.  Generally, when an employer locks out its employees, it has time on its side.  The company closes its gates and waits for the workers to start missing paychecks.  (That's what's happening in the NBA.)  Ever since the district court enjoined the lockout, however, it's been the NFL owners who can't wait to get an agreement.  Check out this remarkable paragraph from ESPN's "Owners approve proposed lockout deal":

In their proposal, the owners told players that they must re-establish their union quickly for the proposed CBA to stand. The NFL also said it wanted evidence by Tuesday that a majority of players have signed union authorization cards.

In the history of labor relations, I don't think I've ever seen employers so eager for employees to (re) join a union.  In fact, the point of a lockout is generally to break a union -- or at least, a hoped-for side effect.  But the NFL owners can't wait to get the union back in place and, in effect, put back together the Humpty Dumpty CBA they foolishly pushed off the wall.

But wait -- maybe the players aren't all that eager to agree!  There's this ominous paragraph:

However, Smith wrote in an email to the 32 player representatives shortly after the owners' decision: "Issues that need to be collectively bargained remain open; other issues, such as workers' compensation, economic issues and end of deal terms, remain unresolved. There is no agreement between the NFL and the players at this time."

So what's going on?  The players' representatives are still working things through, but the NFL is using its vote to pressure the players into agreeing to the proposed CBA.  Otherwise, why would the lead owner in the negotiations say this?

"That's baffling to me," Panthers owner Jerry Richardson told ESPN's Sal Paolantonio [in response to Smith's email]. "We believe we have handshake agreement with the players."

Although details are somewhat spotty, the deal looks like a decent one for the players.  At the very least, it's a much better deal than the owners were talking about when they first went to the negotiating table.  It's also a ten-year deal -- much longer than the standard 3 to 5 year agreement.  Why?  So the players can't bring another antitrust challenge for ten years.

But I think the players have smelled the owners' fear.  That's what this is about:

A high-ranking NFLPA executive committee member told Mortensen that the owners' approval "puts the onus on players to make a decision to agree -- paints us into a corner with fans. We'll discuss tonight but the idea of reconstituting as a union has never been a slam dunk as the owners have already assumed."

Said another high-ranking NFLPA official: "We are not happy here. We had to honor to not vote on an agreement that was not final (Wednesday). This is not over. This actually takes away incentives from players to vote yes tonight."

We'll see what happens with the eventual CBA details.  But the players have already won.

What Makes it Okay for Reporters to Trespass After Disasters?

Brian Williams, reporting in April 2011 from tornado-ravaged Tuscaloosa, Alabama. In the bottom image, Williams is bending over to inspect a bride-and-groom cookbook apparently given to the newlyweds who had occupied the house. I should say that, in this particular clip, Williams seemed to know so much about the residents, it's plausible they were consulted and gave permission. (Top image from an NBC Special Report, next two images from Charlie Rose.)

Am I alone in being bothered by the fact that so many television news reporters, on the scene of a natural disaster, consider themselves at liberty to traipse through people's ruined homes and buildings, rifling through what they find there?

I recall after the Tuscaloosa tornado in April 2011, Brian Williams went into some home – or what was left of it – and found a DVD of University of Alabama football in the remains of someone's home. He picked it up and attempted to say something poignant about it on camera. It struck me – why does he think he has the right to do that?

Maybe television reporters sometimes get permission from owners before they go into homes or buildings. It's possible Williams did in that circumstance. But I certainly doubt that's the custom and practice. A common lack of permission also seems evidenced by the way reporters often speculate about who may have lived there and what may have happened.

As my fellow torts professors know, the law of trespass to land is quite strict. No damages are needed to make out a claim. And there's no need for bad intent. Plain-old going on to someone's land is actionable. That doctrine reflects our society's deeply felt commitment to the integrity of a person's land and domicile.

I'd bet most evening news viewers imagine there's some sort of legal privilege for reporters to do this. But, of course, there's not. Unless they've gotten permission from the lawful possessor, it's trespassing. It's also invasive. Of course it's not exactly the same as News of the World's phone hacking, but it is certainly similar.

I know, of course, why it's not a scandal. It's not done surreptitiously. Moreover, there's now a well established practice of post-disaster rummaging by TV news crews. We've become inured to it. Granted, it's also probably harmless. In fact, it's not hard to argue that it's beneficial, since we generally consider it to be a good thing when the journalistic press offers in-depth reporting on issues of public interest. But I'm not convinced that makes it right.

 

Law Review Rankings

Maybe it’s the hundred-degree heat talking, but I think law review rankings are a little bit useful.
As a reader and researcher, I do make some use of an article’s placement as a screen for how close of an initial read to devote to it. When I look at the c.v.’s of two scholars whose work I’ve never read, I’m probably inclined to look more attentively at the work of the one with the fancy cites.  Yeah, I said it. Put away the pitchforks, dear readers: I don’t think I’m alone. Satisficing is not going away.  And, by the way, perceived prestige is an important motivator for the nonprofit labor force.

It would be nice, then, if there were reliable guides to the signaling value of a given journal placement.
U.S. News gives us a decent if limited signal; since most authors agree that at the pinnacle its rankings are roughly meaningful, we get scarcity.  So we can assume that journals at the top are more selective than others.  Whether they make good decisions when picking the few from the many we don't know.  And in the end, using selectivity as a measure of quality leads us, um, to this.  Is there a better way to rank journals?  

An under-appreciated problem here is that this throws us back into the problem of defining what is good legal scholarship.  Given that journal editors are likely to respond to the incentives of an explicit ranking system, some care has to go into constructing it.  An approximation of a value-neutral approach might be to simply rank publications based on the use others scholars make of them.  (For a thoughtful review of why that method works and what its problems are, see Russell Korobkin, 26 FSU L. Rev. 851, and Ronen Perry.)  Korobkin argues that, basically, citation counts create the least bad set of incentives; usefulness to others seems like a decent result even if it's somewhat distorting of the real scholarly mission (which, of course, is to be completely useless).

Well, the Washington & Lee Law Library, as many readers will know, offers a ranking of law journals based on total citations and “impact factor,” or IF. IF in the larger scholarly world is a widely-used metric of the quality of journal editors’ judgment; it represents the mean number of citations per article per year for the journal. It’s not actually a great measure, since it tells us nothing about the quality of the citing articles, and reputation probably produces IF as much as the other way around.

As weak as IF is in general, W&L’s implementation is particularly problematic.  

If you probe the W&L description of their methods closely, you find that they aren’t really calculating IF. What they’re doing instead is counting how many times each journal is cited at least once in a given article. That method tends to shrink the distance between top journals and others (and, probably, to underweight specialty journals), because it gives journals no credit for being cited more than once per article. A real IF would count citations separately for each published article, add them up, and then divide by the number of articles published per year.

Also, there’s gaming, as some have noted around here recently. Thomson Reuters, which compiles IF rankings for non-law subjects and sells the results to journals for their advertising purposes, reports self-citations for each journal. Users can then make up their minds whether they care.

Finally, to be parochial, W&L only uses Westlaw to generate its citation counts, and Westlaw doesn’t include Tax Notes, a major publication for us tax types. (This is also our gripe with Leiter). So tax articles are (sniff) even more under-appreciated.

None of this is to pick on W&L. It’s wonderful that someone has taken on the task of generating information that’s useful to all of us. But hopefully they are open to reform. Another path forward is Thomson to enter the law market.

Either way, what I'd particularly like to see is some kind of quality-weighted influence measure, along the lines of google pageview, as described here.

Bad Ideas

It turns out that it's not a good idea to break into MIT's computer system and download over 4 million JSTOR articles, even if one's intent is to research the sources of funding for the articles in question.

Sundry: SEALS, scholarship updates, and the writer's studio

The annual SEALS conference is coming up next week, which I'll be excitedly attending. Our crew will be staying next door to the Marriott at the Palmetto Dunes--so please message me if you're there and want to celebrate Benben's 2d bday on the 29th.  Notwithstanding the happy hour the night before, the (sincere!) motivation for the trip is a panel I'll be doing with Larry Solum, Usha Rodriguez, and Dave Fagundes on the question(s) of: (How) Can Blogging Build Community in the Legal Academy? I think blogs like ours (particularly Bodie's wonderful book club series) have done some great things toward cultivating community (at least defined in some ways), but Usha is right to ask her readers what else can be done. So...as a new school year awaits in the shadows, I thought I'd ask for readers of this blog to share thoughts they might have (either via email or in the comments) about what more Prawfs can do to build a warm and engaged community in the legal academy. After all, I'll need something to talk about on the 29th at 10:15am!

While I'm typing on the intertubes, let me take this moment to conclude my recent short series of posts with updates on what I've been working on. Mercifully, this will be the last of the batch for a while. 

First, the other day I put up on SSRN the final version of a chapter entitled What Might Retributive Justice Be?, which appears in the recently published volume, Retributivism: Essays on Theory and Practice (edited by Mark D. White).  As the piece is, for me, relatively short, it's worth mentioning that this chapter might be somewhat helpful as an introduction/overview of contemporary retributive justice theory for those (1) less familiar with punishment theory and (2) tasked with teaching (or studying) criminal law or sentencing law in the coming year. By the way, there will be a conference at St. John's Law in NYC on Friday Nov. 4th devoted to discussing the chapters and themes in the volume. If you're interested in attending, let me  or Marc DeGirolami know. 

Second, thanks to a teaching leave made possible by the good folks at the Searle foundation and FSU, I've spent much of the last five months working on a piece trying to connect the literature on political obligation (ie., is there a moral duty to obey the law) to criminalization and punishment theory. The resulting marriage is a paper entitled Retributive Justice and the Demands of Democratic Citizenship. Not sure why, but I'm still holding this one back from SSRN right now. Nonetheless, it's now in a sufficiently complete draft(!) form that I'd be happy to share it with any folks who want a sneak preview and a chance to help me avoid various errors.  

Third, I've also just put up a short essay (entitled A Judge for Justice) on related themes of disagreement, deference, and democracy in the context of crime and punishment (and in particular shaming punishments). By looking at the somewhat famous Gementera case carefully, the piece is intended as an homage to my former boss, Judge Michael Hawkins on the Ninth Circuit, who transitioned to senior status recently. To mark that transition, the editors at the ASU LJ convened a celebration/symposium earlier this year with some of his former clerks who are now prawfs; accordingly, the issue in Volume 43 with my essay also includes thoughtful reflections on Judge Hawkins' jurisprudence from Profs. Lenni Benson,  Thomas Healy, and Carlton Larson.

I was going to include something about our new "writer's studio" at FSU in this post, but I'll save that for a separate post, as this one has probably gone on long enough. More later. Happy Thursday.

The Umpire Analogy Revisited

My recent post on Chief Justice Roberts predictably ignited another flame war on his umpire analogy.  Orin Kerr writes in a comment that “no actual judges” believe in the extreme version of formalism in the sense of mechanical jurisprudence, that is, law as a system of rules and logic where the identity of the judge is irrelevant.  Orin also says that realists like myself unfairly impute a belief in mechanical jurisprudence to judges.

Stated as a proposition about what judges actually believe, nobody thinks that judges actually believe in mechanical jurisprudence.  Nor does anybody else really believe it, since Americans have known since the Midnight Judges Act that different judges with different political inclinations will give predictably different results.  Rather, the point is that judges spend a lot of time pretending and espousing a theory of mechanical jurisprudence in which their decisions are dictated by logic and doctrine and nothing else.  And the umpire analogy is a part of that pretense.

Saying that judges basically engage in a noble lie--one that fails miserably at that--drives various people crazy.  So a great deal of effort is made to show that the umpire analogy does not actually say that judicial decisions are completely rule-bound, because umpires exercise some amount of discretion in calling strikes and balls.  And it is possible to twist the analogy to suggest a robust judicial role where the identity of the judge actually matters.  But lets get real.  In the context of a Senate Judiciary Committee hearing, and given our modern rhetoric about the role of judges, is there any doubt about what Roberts knew his audience would take from the comment?  And is there any doubt about why the umpire analogy has immediately entered the vernacular?

Legal academia and the Court

By and large, it is not particularly surprising that Chief Justice John Roberts would take a dim view of legal academia and its work.  The Chief is famously known for his mechanical jurisprudence view of the law, where judging is umpiring.  Legal academics spend most of their time demolishing this view.  So of course the Chief Justice will find nothing worth citing in law review articles.

But one striking thing about the famously collegial Chief Justice attacking legal academics and their relevance to the work of judges might be the fact that a majority of his current colleagues are former academics.  Justices Scalia, Kennedy, Ginsburg, Breyer, and Kagan are all former law professors, and at least Justice Kagan is a fairly recent one.  To say that modern legal scholarship is irrelevant to the work of Supreme Court judging is at least an implicit attack on the qualifications of all these justices (since their background is now "irrelevant").  Added to this is that many of the most respected court of appeals judges are also well known for their legal scholarship -- Posner, Easterbrook, Calabresi, and Douglas Ginsburg come to mind -- and one wonders whether the Chief is really aware of how many colleagues he is insulting.

Must Be Nice

Despite being tempted to strangle the next person who tells me how nice it must be that I have the summer off, I know that I will nod and smile and not even try to explain what it is my employer expects me to be doing during the summer or how publishing and administrative obligations hang over me like the Sword of Damocles even when my childcare is unpredictable and my family obligations multiply like rabbits.  Not only is it unbecoming to complain about one of the few downsides of a pretty perfect job; no one will believe me anyway.  

Justice Clarence Thomas: bobblehead

 

The creative folks over at The Greenbag (you gotta love those guys) have released their latest bobblehead of a Supreme Court justice: Clarence Thomas is so honored.

This illustration is too small to make out the details, but here are links to the annotations and the accessories.  I would have included this quote from his dissent in Kelo, which is engraved on the side of my coffee mug: "Something has gone seriously awry with this Court's interpretation of the Constitution."  Indeed.

(Rick Garnett previously posted here that the Yale Law Library is the official depository for the bobbleheads.)

Memorial for Prof. Steve Gey, Sunday Sept. 18 at 130pm.

As readers of Prawfs know, my colleague, Steve Gey, passed away this summer after a long struggle with ALS. The FSU community will be having a memorial service to celebrate Steve's life and career on Sunday, September 18^th, at 1:30pm here at the FSU law school.  All are invited. For those of you who did not have the opportunity to get to know him, here is an article from our alumni magazine in 2007 about him. Steve’s contributions to the law school and to the fight for civil liberties were immeasurable, and we look forward to this opportunity to gather in his honor.  Please help us pass the word about this memorial for this remarkable man.

 

Legal Realism Revisited

I'd be interested in people's thoughts on the following study on the outcomes of parole hearings in Israel: "Extraneous factors in judicial decisions," by Shai Danziger, Jonathan Levav, and Liora Avnaim-Pessoa. The abstract:

Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.

Perhaps a rule mandating hourly snacks for judges, or even a constant stream of intravenously-administered fluid, would be in order. Seriously, the drop in favorable rulings as judges get hungry is rather alarming, isn't it?

Two Thunderously Trivial Thoughts on "Transformative Deans"

Thanks to a colleague's tip, I came across Brian's interesting post  where he identifies nine transformative deans during the last decade. (I guess it's the mid-summer doldrums that prompt this collective navel-gazing!) Anyway, as usual, he has some acute observations about who's been able to shake things up effectively, and certainly he's correct in his assessment of FSU's wunderkind dean...unlike Brian, I am happy to be objective without being neutral :-)

But I want to register a small point of caution related to something I wrote last year about one of these transformative deans (whom I happen to love). While it's true that effective deans can do a lot to win faculty retention challenges, I think we need to avoid overstating how much credit deans can take regarding the hiring of high-quality faculty.

Faculty hiring at most schools is a very collaborative process, and in most cases, it should be. While deans at some schools can appoint who sits on the hiring committee, other schools leave that decision to the faculty itself to vote on.  Even at schools where the dean appoints the appcomm, the dean cannot be assured that the committee will read/invite/approve those people the dean wants (assuming the dean even specified who she wants).  Nor can the dean, at most schools, expect to have all the non-appcomm cats herded on voting days and have them vote as she wants. This may not be true in DVZ's world, where he is said (on what I take to be spectacular authority) to have fined people who didn't fall into line with his vision, among other aggressive tactics. But most schools do not have deans that are so, um, empowering of (or susceptible to) the unitary executive...and at least in some cases, the deans who assert such authority are regarded as rapscallions and worse.  In light of this complex sausage-making reality of faculty hiring, one has to be cautious with praise in this dimension, just as one should be careful with criticism that deans are "responsible" for the failure to hire libertarians or women or any other group. After all, and put simply, faculty hiring is a they, not a s/he.

A second minor point worth mention: when it comes to noting the spending habits of deans, one has to also be aware of whether the successors (and the other stakeholders) are as thrilled with the resulting balance sheets as those who made the decisions. A law school's transformation that is built on shaky financial ground may share the same half-life as an O'Connor or Brennan opinion.

Last, Brian didn't open up comments on his post. So feel free to weigh in with your own thoughts here, but bear in mind the usual rules of the road here. 

Can the President really coin us out of this mess?

So what began as a reductio ad absurdum on my part is now a still-a-joke-but-not-nearly-as-much option that Jack Balkin is exploring.  The argument (better elaborated by commentator Brad than myself) is that 31 USC 5112(k) seems to authorize the Treasury to coin money in unlimited amounts and in any denomination.  So the Treasury can just mint some $1 billion coins to plug the deficit.  From a purely legal perspective, this really does seem the most feasible option come debt limit time, in as far as coining new money to cover appropriated spending violates no constitutional or statutory provision I am aware of.  Given how fast these things move, I can easily imagine this becoming the new "constitutional option" in the next week.

From an economic perspective, however, this could very well be worse than just defaulting outright.  The problem is not so much the immediate increase in money supply causing inflation -- given the existing money supply, adding a few billion is unlikely to cause too much inflation.  The bigger problem is that printing money to plug your deficit is probably the most glaring sign of a political system that is broken beyond repair.  If the financial markets go berserk after August 2, it won't be because bondholders are upset at getting a coupon payment late (first, the coupon payments won't be late given incoming tax revenues; second, even if they are late, the missed payments by themselves are not the issue), but because they conclude that Congress is crazy.

Obama's judges

This month's issue of Judicature, the official publication of the American Judicature Society, contains an extensive (40+ pages) analysis of President Obama's appointments to the federal judiciary:  Sheldon Goldman, Elliot Slotnick & Sara Schiavoni, Obama's judiciary at midterm: The confirmation drama continues, 94 Judicature 262 (May-June 2011).

The article is not available without a subscription, but federal court wonks should be sure to read it. The article substantiates the amateur observer's impression that nominations and confirmations have not been a legislative priority of either of the political branches.  The authors' own blurb says: "Barack Obama's stunning achievement of promoting gender, ethnic, and racial diversity on the federal bench, including two Supreme Court appointments, is counterbalanced by a slow and problematic nominations process and partisan obstructionism resulting in relatively small numbers of confirmations."

The D.C. Circuit Amends Omar -- And Makes it Worse?!?

Last month, I wrote a pair of posts about the D.C. Circuit's June 21 opinion in Omar v. McHugh, which held, for the first time, that Congress has the power to completely divest the federal courts of jurisdiction over a potentially meritorious habeas petition in a case where the detainee was protected by the Suspension Clause. Suffice it to say, I was somewhat critical at the time of Judge Kavanaugh's reasoning for the majority.

In a rather curious move, the Omar panel has sua sponte amended the original opinion (here's the order; here's the new opinion). And while it's not at all clear what prompted these amendments (perhaps an effort on the majority's part to weaken the case for en banc review?), I think it's safe to say that the changes are far more than semantic. Below the fold, I try to explain both why the changes matter, and why, in my view, they make this opinion that much more indefensible.

First, here's the one paragraph that the majority added to its original opinion (it begins on page 20 of the new slip opinion; the emphasis is mine):

None of this means that the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer. In light of the Constitution's guarantee of habeas corpus, Congress cannot deny an American citizen or detainee in U.S. territory the ability to contest the positive legal authority (and in some situations, also the factual basis) for his detention or transfer unless Congress suspends the writ because of rebellion or invasion. See Boumediene v. Bush, 553 U.S. 723, 785–86 (2008). In the earlier iteration of this litigation, Omar raised the habeas argument that the Government lacks constitutional or statutory authority to transfer him to Iraqi authorities. The Supreme Court addressed Omar's argument and determined that the Executive Branch had the affirmative authority to transfer Omar. See Munaf v. Geren, 553 U.S. 674, 704 (2008). (For wartime military transfers, Article II and the relevant Authorization to Use Military Force generally give the Executive legal authority to transfer.) Here, we are addressing Omar's separate argument, not about the positive legal authority or factual basis for his transfer, but rather about conditions in the receiving country. The Supreme Court addressed that argument as well in Munaf, and it concluded that a right to judicial review of conditions in the receiving country has not traditionally been part of the habeas or due process inquiry with respect to transfers. See id. at 700–03. Therefore, Congress need not give transferees such as Omar a right to judicial review of conditions in the receiving country.

Although the above paragraph clearly reflects an attempt by the majority to dilute the impact of its original holding, it nevertheless suffers from three critical flaws, each of which Judge Griffith points out in his (amended) concurrence in the judgment: First, as I explained in more detail in one of my earlier posts, it just doesn't follow that the absence of prior examples of meritorious claims proves that there was no right to judicial review--it could just as easily mean, as it does here, that there was no statutory basis for relief in such cases prior to the enactment of the FARR Act. Thus, once more, the Omar majority conflates the jurisdiction of the federal courts with the detainee's entitlement to relief.

Second, it's just ridiculous to suggest, as the majority appears to here, that its analysis of Congress's power follows from Munaf. The Omar majority cites Munaf, but once again fails to consider its critical limiting passage (from the cited pages; emphasis again is mine; citations omitted):

Petitioners briefly argue that their claims of potential torture may not be readily dismissed on the basis of these principles because the FARR Act prohibits transfer when torture may result. Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue. The Government treats the issue in kind. Under such circumstances we will not consider the question.

Third, and more fundamentally, rather than ameliorate the damage done by the original opinion, the amended opinion introduces a new, novel, and ultimately unconvincing distinction into habeas jurisprudence: the difference between the government's "positive legal authority" for detention/transfer and a statutory right forbidding detention/transfer. Thus, the majority suggests, Munaf affirmed the existence of the former, and Congress properly took away jurisdiction over the latter. 

I think Judge Griffith has it exactly right that "the difference [is] no more than 'empty semantics.'" Worse than that, it completely ignores the extent to which habeas, in requiring the government to show that it has legal authority to continue to detain the prisoner, necessarily encompasses claims both that the government lacks authority, and that whatever authority the government has is overridden by the prisoner's individual rights. Detention can be unlawful either because the government lacks the authority to detain (as in many of the Guantanamo cases), or because otherwise lawful detention is nevertheless in violation of the defendant's constitutional, statutory, or treaty-based rights. Even if one didn't think this were true as a matter of constitutional law, it's written right into the habeas statute in 28 U.S.C. § 2241(c)(3).

In short, then, if the majority's goal was to mitigate the damage of its original opinion, my own view is that they failed--and rather forcefully, at that. When Omar merely stood for the proposition that Congress, without suspending habeas, lawfully may divest the federal courts of jurisdiction over an existing substantive claim for relief simply because it could never have created that ground for relief in the first place, it was inconsistent with Boumediene and wrong in its own right. But now, standing for the distinct proposition that the Suspension Clause protects challenges to the government's "positive legal authority" for detention, but not claims founded on the individual rights of the prisoner, Omar isn't just wrong and/or inconsistent with precedent; it's utterly incoherent.