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Friday, December 30, 2011

Looking for Clarity in the Taxing Power

Since my New Year's resolution will be no more (or, more realistically, not much more) ACA litigation blogging, let me wind up this series with a thought about what courts have been doing when they ask whether Congress intended for the minimum essential coverage provision (the latest, if not the most euphonious, term for sec. 5000A(a)) to be a "tax."  I've suggested that in effect the courts are holding that Congress can bar other branches from invoking some constitutional power in support of a law. 

Why do I say that?  Well, because there is an excluded middle in the courts' reasoning.  They say 1. Congress didn't want this to be a tax and so 2. it's not a tax.  But what if the President or the Supreme Court thinks it is a valid exercise of the taxing power?  What relevance, then, does Congress' view have? 

On the other hand, some people have said to me, maybe the courts are just trying to figure out whether this thing is a "tax" -- are indeed exercising their own judgment, in other words.  That doesn't square with my reading of what courts actually are saying.  For example, the 11th Cir.  put alot of weight on the fact that Congress specifically invoked its Commerce power.  That sounds like "what did Congress want?" and not "what is this thing?"

After the jump, I'm a dewey-eyed innocent.

The other problem for the "independent judgment" theory is that it doesn't fit with precedent.  The Supreme Court says flatly that something is within the taxing power if it raises revenue.  Doesn't have to be called a tax.  Revenue.  So where is the room for these long, tortured readings of legislative history, if not in search of Congress' effort to relinquish its obvious taxing authority? 

Maybe that's too generous of a reading.  Another way to take what the 11th Cir. did was that it tried to massage Supreme Court precedent to invent a new category of thing, which it calls "penalty."  This new thing raises revenue but isn't within the taxing power.  Ah -- so now there would be some difficult line-drawing to figure out which is which.  But that's alchemy.  The only place this "tax/penalty" distinction is used (after 1937, when the Court thought it killed it) is for assessing due process rights of people Congress is trying to punish.  Nothing whatsoever to do with the taxing power.  Totally inconsistent with many, many repetitions by the Court that Congress' intent w/r/t a revenue-raiser has nothing to do with whether it's within the taxing power.  Why insist on the reading of these cases that creates, rather than avoids, a major conflict among precedents? 

And who would want it the other way?  Do we want the government budget (including the projected day the debt ceiling limit is reached and government crashes to a halt, for example) to depend on whether a Court will discover punitive intent in some tax expenditure?  If we're following the due-process cases, then not even magic words are enough; punitive intent is all that matters.

So I think I'm being pretty generous, actually.  Either Congress is disclaiming its own taxing power -- a startling new outcome for which we should expect much clearer evidence than we have.  Or the 11th Circuit and its defenders are cherry-picking phrases from irrelevant lines of decisions to try to muddy up what is a deliberately bright-line, unequivocal standard.  I say it's the first.  But maybe I'm just a bright-eyed naif.   

Posted by BDG on December 30, 2011 at 01:54 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Pity the Poor Moderate

I often hesitate before linking to posts or scholarship with which I strongly disagree, or which fill me with sadness.  When you like a piece of scholarship, blogging norms allow you to just say "Read it!" without explaining why you like it.  The same norm could apply to pieces you don't like, but it seems as if fairness dictates something more than that.  And then there is the reluctance not to pick a fight, especially if the author is well-regarded.  

That said, a while back I posted something on a recent symposium introduction by Shannon Gilreath, a strong supporter of gay rights who views both liberalism and religion with hostility and thinks it is more or less worthless trying to find common ground with his opponents, or even talking to them.  I was critical of Gilreath, as I was critical of a similar attitude by David A.J. Richards.  In that post, I wrote: "Most of us who write about law and religion . . . do make an effort to engage those we disagree with. . . . [I]n a sense [Gilreath's] dismissal is a worthwhile reminder that for some involved in these debates--both champions of gay rights and champions of religious rights--their premises are so far apart that genuine dialogue may not be possible.  It is possible that we 'moderates' are neglecting some important sectors of the debate, precisely by engaging with those who think engagement is possible, in much the same way that many liberal scholarly arguments can ignore or fail to engage with truly illiberal groups."  At some point I hope to write about this a little more deeply.  At the time I wrote it, I wondered whether it would be hard to find similar voices on the religious side of the debate.

Well, I found one yesterday, in this post by Robert George.

 You may judge it for yourself, but I don't find it much different from Gilreath's viewpoint.  For both, as I read them, the other side are liars, common ground is for fools, and the only thing left is total war.  (It also seems to me that both sides use the idea of "total war" to justify tactics that they would condemn if engaged in by the other side.)  I don't know whether George's post should be characterized as a Kulturkampf or as a fit of pique, but it is certainly one or the other.  I find it wholly distressing.  

It leaves me wondering about people like me, and many others working in law and religion, who line up on one side or the other but still care about exploring possible common ground.  We understand that church-state issues, including those that intersect with gay rights, at some point involve an absolute clash of values beyond which no compromise is possible.  But we are also aware that people live with such clashes of value all the time, imperfectly but manageably.  And we know that people can readily assume that the gulf is much wider than it really is.  We try to explore just what compromises are possible and what aren't, and to expand the ground on which people can find ways of coexisting.  That needn't make us naive or falsely optimistic; we can appreciate the genuineness of the conflict while still looking for a modus vivendi.  Both George and Gilreath, as I read them, think this is a fool's game, and view people like me (and many others who write on law and religion) as secret or inadvertent tools of their opponents.  

I wonder what George makes of a book like this, and of the efforts of people like Doug Laycock to find ways of accommodating both same-sex marriage and religious liberty.  Is Laycock a fool?  A knave?  Is he acting merely for "strategic or political reasons?"  Is he a secret "sexual liberationist?"  Or just a regrettable casualty in what both sides view as a necessary total war?  I can't say.  I can only draw two conclusions.  We law-and-religion types need to get out more; we need to stop talking to each other and pay much more attention to people who think compromise is impossible and undesirable in church-state relations.  And, in the end, I would still rather be counted alongside Laycock than with either Gilreath or George.  

Posted by Paul Horwitz on December 30, 2011 at 10:34 AM in Constitutional thoughts, Paul Horwitz | Permalink | Comments (12) | TrackBack

Fabulists and lawyers

Character-and-fitness discussions usually do not make for national, mainstream-media news. But the last two weeks have featured a great deal of discussion about the California Bar application of Stephen Glass, the former journalist and editor at the New Republic who in the late 1990s fabricated all or parts of more than 40 stories. His story was famously depicted in Shattered Glass. The bar committee denied his application (just as the New York Bar committee was expected to do before Glass withdrew his application). A state court rejected the committee's decsion and was affirmed by a divided appeals court; the Supreme Court of California agreed to hear the case and briefing is ongoing. Meanwhile, opinion in the journalism and media community is sharply divided, with some particularly strident opposition from journalists who write about the media and journalism.

There is a close connection between journalism and law. The jobs are similar, as are the skills necessary to practice both and the types of people likely to be attracted to both careers. In particular, both depend on the ability to think, analyze, write, and, above all, tell a story. In their most idealized forms, both trade in "truth." And, for what it's worth, both typically rank fairly low in Gallup polls of respected professions.

I often question the character scrutiny that bar applicants go through, because much of it has little to do with the ability to practice law ethically and properly. But this case can feel different. Lawyer jokes (e.g., since when does lying disqualify someone from becoming a lawyer?) aside, an applicant who in the past has made up entire people, companies, organizations, and events--and documents and evidence supporting those--while working in an industry that is about telling the truth may not be trusted not to similarly fabricate testimony or evidence in litigation. The Bar Committee may be especially wary because what journalists do is so similar to what lawyers do.  And while it is easy to say we should give him a second chance because if he tries this again he will eventually be caught, it would be impossible to measure the systemic and individual damage his actions would cause in the interim--damage likely far greater than the reputational ding Glass caused the New Republic (whose owner supports Glass' application and has acknowledged that the scandal raised TNR's profile) and the institution of journalism.

One interesting question is whether we can read tea leaves in the Supreme Court's decision to take the case. Do state supreme courts regularly take cases where the lower court admitted the person to the Bar? Or does agreeing to take the case suggest a likely reversal and rejection of his application?

Posted by Howard Wasserman on December 30, 2011 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

A Recent Illustration of Political vs. Comprehensive Retributivism

This post will exhibit fidelity to Paul's recent heuristic for determining which posts belong to which writers. Yes, this is about retributive justice, and punishment more generally. I raise it now in part because a couple of my favorite folks in the field are guesting on Prawfs, Michael O'Hear and Carissa Hessick, and perhaps they'll want to weigh in.

In some of my recent work, I've tried to elaborate the distinction between what I call political retributivism from comprehensive retributivism. I'm a fan of the former in liberal democracies but more likely to enlist with the comprehensive retributivists, to some extent, in wicked regimes. Part of the attraction to political retributivism is that it recognizes the special communicative language that state punishment speaks in, and it attempts to impose, calibrate, and justify only the liberal state's efforts at authorized punishment for criminal offenses, rather than trying to make sense of or justify the amount of suffering an offender experiences in response to his moral wrongdoing. So the emphasis is on punishment for offenses rather than suffering for wrongdoing. It's pretty difficult to tell which approach has more adherents within the retributive justice camp. I like to think the political approach is winning the hearts and minds of most criminal law theorists, at least within liberal democracies, but it's pretty clear that it hasn't happened yet. 

Criminal law theorists are not without their standard ways of drawing examples to illustrate the differences between the approaches: we often talk about the burglar who breaks his leg during the home invasion or the reckless driver who kills a family member as a passenger in his car. Should the fact of private suffering mitigate state punishment or liability, or in extreme cases, thwart liability by way of prosecutorial declinations?

Often, these examples seem abstract. Here's one ripped from the pages of the recent news. A couple weeks ago, a New York man perpetrated a crime of unspeakable cruelty: he doused a 73 year old woman in gasoline, and then lit her on fire in an elevator, and blocked her escape so she had to burn to death.  As the reporter for the Times put it:

Mr. Isaac, 47, methodically set the woman aflame, burning her alive in the elevator of her building in Brooklyn on Saturday, only a few feet from her apartment door, the police said. He sprayed the flammable liquid in the woman’s face and over her cowering body, and then lighted a Molotov cocktail to ignite the fire.

Within minutes, Ms. Gillespie was burning to death in the narrow cab, and her assailant had fled down the stairs. The attack lasted only a few minutes, all of it captured by surveillance cameras; the sheer, calculated brutality stunned even the most hardened of homicide detectives.

During the course of the crime, he experienced some severe burns himself. Now I take it as a given that his liability to murder charges shouldn't be influenced by his private suffering that he experienced as a result of his crime. (Notice that his suffering is a result of his crime but not a response by others to his crime.)  I also think I would be unmoved by any desert-grounded claim that his sentence should be reduced, even somewhat, as a result of his injuries, which don't appear to be life-threatening. But here, I constantly face challenges, not only from comprehensive retributivists, but also the various utilitarians out there who think that "extra-legal suffering" should be offset by reductions in legal penalties. To me, it's a crazy suggestion that indicates that people don't understand the social meaning of punishment correctly, but it's an intuition that remains rather obdurately.  


Posted by Administrators on December 30, 2011 at 09:02 AM in Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (0) | TrackBack

Thursday, December 29, 2011

Felony Prosecutions Are Cheap

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007).

The number that struck me the most was $2,792 — what BJS reported as the cost per felony prosecution in large jurisdictions.  This seems to me a remarkably low number in light of the very high stakes in a felony prosecution, both for the defendant and the community (incarceration costs, for instance, may average in the neighborhood of $30,000 per inmate per year).  Is $2,792 in prosecutorial costs really enough to ensure reliable decisionmaking at the charging and adjudication stages of a criminal case? For the cost of a family vacation to Disney World, we are deciding to send people to prison for five, ten, twenty years or more?

From the standpoint of private litigation practice anyway, this would be an awfully small legal bill.  Admittedly, the comparison is problematic in many respects, but I don’t think it entirely irrelevant.

To be sure, the $2,792 both overstates and understates the costs in important ways.

It understates the costs because it reflects a crude calculation: BJS merely divided the total budget of prosecutors’ offices by the number of felony cases.  However, prosecutors do much more than simply prosecute felonies.  For instance, BJS’s 2001 survey revealed that most prosecutors’ offices also handle misdemeanors, traffic violations, juvenile matters, and civil litigation on behalf of government agencies.  Close to half also do child-support collection.  If we took into account all of these other prosecutorial activities, the amount spent per felony prosecution would presumably be much less than $2,792.

Moreover, the $2,792 average also reflects all manner of overhead expenses.  To get a real sense of the scale of prosecutorial effort per case, it might be more illuminating to factor out some or all of the overhead (although this is probably much easier said than done).

Finally, the $2,792 figure reflects just the costs in jurisdictions of one million or more.  Costs probably tend to be higher in big cities than in other jurisdictions, which means that the overall national average is likely quite a bit less than the $2,792.  As I calculate it ($5.8 billion in total prosecution budgets divided by 2.9 million felony cases), the overall average would be $2,000.

But these numbers also significantly understate the societal expense in screening and adjudicating felony cases, for they omit the money spent on police, courts, and defense representation.

Still, it may not be entirely inaccurate to say that the prosecutor’s decisions are the most important ones for the criminal-justice system to get right.  Indeed, the charging decision is arguably the single most important decision in the entire process, based both on its immediate impact on a defendant’s life (stigma, risk of pretrial detention, costs of defense, etc.) and on the high rate of conviction of charged defendants (the new BJS survey indicates that 2.9 million felony cases in 2007 resulted in 2.2 million convictions).  The prosecutor’s decisions with respect to plea-bargaining and (in some jurisdictions) sentencing recommendations are also momentous.

Bottom line: the $2,792 figure misses an awful lot, but it does point to a mass-production, rough-justice quality to much felony prosecution and raises the question of whether spending more money on prosecutors would in some sense produce better outcomes.

(Of course, part of the problem with posing this question is that it is not immediately clear how one ought to measure the quality of outcomes in criminal matters, apart from avoiding wrongful convictions.)

In any event, the BJS report also gives us some insight into why felony prosecutions are cheap.

For one thing, survey respondents indicated that only 3% of all felony cases were resolved by way of a jury verdict.  This highlights how completely (cheap) plea bargains have replaced (expensive) jury trials as the dominant method of case resolution.  Again, one might pause here to question what (if anything) has been lost quality-wise by dispensing with jury trials in our criminal-justice system.

ƒƒThe BJS report also indicates that prosecutor salaries are not especially high:

The average annual salary for assistant prosecutors ranged from $33,460 for entry-level assistant prosecutors in part-time offices to $108,434 for assistant prosecutors with 6 or more years of experience in offices serving jurisdictions of 1 million or more residents.

Granted, $108,434 probably looks pretty good to many attorneys in the current legal market, but bear in mind that this is where experienced big-city prosecutors are maxing out.  Also, I wonder if this is one area in which the 2007 data are particularly out-of-date — my sense is that the last four years have hardly been kind to prosecutorial paychecks.


Posted by Michael O'Hear on December 29, 2011 at 05:19 PM in Criminal Law | Permalink | Comments (2) | TrackBack

Civ Pro Humor

Actual street in Morristown, NJ:












Sadly, it does not intersect with Iqbal Street, nor is it all the way across town from Conley Avenue. The question, though, is whether you'd rather have 8a or 12b as your street address.

Posted by Howard Wasserman on December 29, 2011 at 10:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (3) | TrackBack

Blame Canada (and Everyone Else), Legal Scholarship Edition

Via The Faculty Lounge, a report from Danny Sokol about the relative paucity of citations in American law reviews to English/European, Canadian, or Australian law journals.  In Sokol's posts, and in the comments to the Faculty Lounge post, there are various speculations about why this might be so, some of which apply specifically to areas I can't common on, like antitrust law.  The same thing is true, I think, even in my own field of constitutional law, notwithstanding the continued relative popularity of comparative constitutional law.  Of course there are comparative constitutional pieces, but in general constitutional law pieces there are quite few citations to scholarship from other countries or regions, despite the fact that at a reasonably high level of generality (but a level of generality at which much con law scholarship operates) there are plenty of overlapping issues.  And the same thing seems true in other areas where one might reasonably learn from at least the other common-law jurisdictions, like private law generally and various public law subjects, especially criminal law.  Again, I'm not referring to genuine comparative scholarship here: just regular scholarship that draws on relevant scholarship from other countries.  Let me first say that this paucity of citation doesn't seem especially justifiable as a pure matter of scholarship.  If one's research in many areas does not involve searching these sources, it is inadequate.  

Are there other possible explanations for this state of affairs?  Let me offer a couple of speculations:

1) American exceptionalism.  Perhaps there are some areas where American law really is different.  That is not a good enough reason for the failure to research or cite law from non-American sources, however, both because different doesn't mean better and because it's hard to know whether American law is exceptional without actually finding out.  But, at least in con law, there's another way in which American exceptionalism is relevant.  To the extent that some dominant American interpretive approaches stress purely American sources and history, then it is more likely that foreign constitutional materials will be irrelevant to that scholarship.  I'm not saying this is a good or bad thing.  I have encountered some Canadian con law friends, and some Americans as well, who lament that the United States is not much of an active partner in constitutional dialogue with other countries, but I am less willing to call this lamentable without answering the question whether constitutional interpretation is really and legitimately a global enterprise relying on shared sources.  I should add, however, that even if one buys into those interpretive methodologies, that is still not good enough reason to fail to look at scholarship from other countries.  Even more or less originalist scholarship often canvasses judicial doctrine, factual contxt, and general policy, and in all these areas one might learn from other countries.    

2)  American ignorance.  This is a flip-side of American exceptionalism.  Perhaps American legal scholars are simply relatively ignorant of what is happening in other countries.

3) Economizing on time.  Building on the last point, it takes time and work to get up to speed enough on foreign law in various areas to make effective use of foreign legal scholarship, so perhaps American legal scholars have implicitly or explicitly decided it's not worth the effort.  One thing that further supports such an economizing decision is federalism: since we already have numerous laboratories of experiment in various legal fields, all of which we may understand better than we do the law of other countries, we already have an adequate store of material to choose from domestically.  Although there is something to be said for the efficiency point, I don't find it sufficient justification.  In some areas, the law in other countries may be sufficiently similar that the costs of getting up to speed are smaller than the value one might get from looking at foreign legal materials.  Moreover, to the extent that American jurisdictions end up incestuously drawing on one another, they may not provide enough variation to be truly useful.  In any event, we're not just talking about cases here: we're talking about legal scholarship.  As I said earlier, in many areas that scholarship operates at a sufficient level of abstraction that one might just as usefully draw from an English law review article as one from Wyoming.  

4) Quality and nature of foreign legal scholarship.  Sokol's post suggests that in antritrust, a good deal of foreign legal scholarship is more flatly doctrinal than in comparative American scholarship.  The same thing might be true in other areas.  It is also true that the quality of foreign legal scholarship is necessarily variable, and that an American scholar might not have the wherewithal to properly evaluate the quality of foreign legal scholarship.  This is a fair point, but it still seems perverse to me that the end result is that it is much more likely that an American law review article will cite a lousy American article than an excellent English or Canadian one.

5) Structural barriers to effective research.  For years, I was peeved that my earlier articles published in Canadian law reviews were not accessible via the basic Westlaw legal periodicals database, and so were less likely to be encountered by American legal scholars.  That's less true than it used to be; more foreign law reviews are now available on the basic legal periodical databases.  But they are less available, certainly, than comparable (or inferior) American legal scholarship; and since American law professors often search for their keys under the lamppost, that makes it less likely that they will encounter even useful scholarship from other countries.  

Other possible explanations, or comments? 

Posted by Paul Horwitz on December 29, 2011 at 08:50 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack

What Do Mentors and Mentees Owe Each Other?

At CoOp, Nicole Huberfeld has an interesting post about faculty mentoring of other faculty members, asking what being a mentor means.  Huberfeld asks what makes a good mentor, and offers some reasonable possibilities: "Is it a matter of providing navigational guideposts for advancement toward tenure?  Advice about publishing strategies?  Providing a friendly eye for early drafts?  Teaching aid and advice?  Support for other decision-making, such as child-bearing, and attempting the elusive ‘work-life balance’?"  She says her assumptions have recently been shaken because many people appear not to receive the kind of mentoring they desire, although she doesn't say why that should change her view of what a mentor does.

In my admittedly partial experience, when I hear people discussing mentoring of faculty, their discussions usually seem to break down into a few general categories: 1) The mentor, often a professor at the school where one was a student, helps the mentee to get a teaching job.  2) The mentor is a Virgil for the pre-tenure years, teaching the mentee something about faculty etiquette and politics, and about what is needed to write tenure-worthy scholarship (or how to avoid writing pieces that might harm one's tenure chances).  3) Often, mentoring is spoken of in broadly political terms, frequently related to identity or affinity groups.  The background assumption is that the web of old-school contacts that gave undue advantages to members of the (white, male) majority is still alive and well.  Accordingly, it's important, not to fight directly against that system, but to reproduce it for others who have been traditional outsiders.  

I suspect that with mentoring, as with many other topics of discussion, it might help to shift the ground a little and think more in terms of duties than rights.  We might ask not so much what the mentor does to help the mentee advance, but what the mentor and mentee ought to owe each other as a matter of ethical obligation.  The ethics here are broader than the relation between the two individuals: they may involve the profession as a whole.  We often focus more on certain kinds of positive aspects of mentoring--helping the mentee advance, providing him or her with emotional support, and so on--and less on the mixture of positive and negative advice that a mentor-mentee relationship with complete integrity might involve.  

Advice concerning tenure is a prime example.  It would be reasonable for a mentor who to counsel an untenured mentee to do some of the following: avoid getting involved in internal faculty controversies prior to tenure; cite one's own colleagues in one's pre-tenure pieces where possible; avoid clashing directly with a senior colleague in one's pre-tenure scholarship; avoid certain "controversial" issues, at least at some schools; in some cases, conceal one's politics; and so on.  All of these might constitute good advice in some cases, if tenure is the goal.  (Not to beat a dead horse, but even if this is good advice, instrumentally speaking, the relative ease of obtaining tenure may affect how essential it is.)  But, on a broader view of mentoring as involving a deeper duty to the mentee, and also a duty to the profession, it might be bad mentoring.  Festooning one's writing with flattering cites to one's colleagues, for instance, may be relatively harmless in the short term, but it does not serve a valid scholarly function and therefore detracts from the writing as scholarship; it may also teach bad long-term habits.  It is practically sound advice to encourage an untenured colleague to stay away from internal controversies while junior; but, at times, it may also amount to a recommendation that the junior scholar abdicate his or her duties as an academic and a member of an institution, and again may teach bad habits--and, still worse, may lead the mentee to counsel others to do the same when he or she in due course becomes a mentor.

I don't mean to be too perverse about it.  I suppose mentors ought not give advice that will harm their chances at tenure, all else being equal.  But there are reasons, it seems to me, to think that a mentor's primary duty is not to advance his or her mentee, but to help him or her become a good academic and not merely a successful one--and that, in turn, it is a mentee's duty to try to become a good academic, and to argue back against a mentor whose advice, while instrumentally sound, underserves important matters of academic integrity.

I wonder whether a mentor might also have a duty to become better educated, at times.  From what I have seen, it appears to be common that a mentor's advice to a mentee on the job market will be to take the best possible teaching offer--by which he or she often means nothing more or less than taking the job at the most highly-ranked law school available.  Some of these mentors appear to know little of what is happening at lower-ranked schools, whether good or bad.  But I'm not sure such advice is good for the academic profession, even if it makes sense from a point of view that takes our current values as a given.  If a mentor is going to give advice about which offer to take, perhaps that mentor should be obliged to know enough about both the schools involved and the particular personal and professional needs of the mentee to give more meaningful advice; perhaps that mentor should even be obliged, as a matter of academic duty, not to take our current values as a given in offering advice.  Conversely, it may be a mentee's duty to argue back against advice from a mentor that takes such conventional but often mistaken values and hierarchies as a given.         

Posted by Paul Horwitz on December 29, 2011 at 07:48 AM in Paul Horwitz | Permalink | Comments (8) | TrackBack

Wednesday, December 28, 2011

On changing one's mind

In a piece appearing in today's NYT, Adam Liptak explains the Eleventh Circuit's recent volte-face on whether the word "boy"  is racialized for purposes of employment discrimination. The piece itself is well worth reading, but one of the lines I liked best was the famous quote from Justice Frankfurter that Liptak used to end the essay: namely, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."

Since reversing course is something every wise person or body of leadership comes around to doing every now and then, our wise readership might also be interested in the various authorities one can invoke for changing course. Consider what Justice Jackson noted in the context of changing his mind:

Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, "The matter does not appear to me now as it appears to have appeared to me then." Andrew v. Styrap, 26 L.T.R. (N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: "My own error, however, can furnish no ground for its being adopted by this Court. . . ." United States v. Gooding, 12 Wheat. 460, 25 U. S. 478. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary -- " Ignorance, sir, ignorance." But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: "I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion." If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

(h/t: Liptak on FB.)

Posted by Administrators on December 28, 2011 at 11:00 PM in Article Spotlight, Blogging, Constitutional thoughts | Permalink | Comments (1) | TrackBack

Potentially Important Law Faculty Hiring Decision...

I'm not a First Amendment scholar, nor am I an employment discrimination scholar. I did, however, go through a hiring process twice, and this decision by the Eighth Circuit surprised the heck out of me. The gist of the opinion is that a jury must decide if a professor who was not hired at a public law school was discriminated against in violation of Section 1983. The allegation, quite simply, is that she was conservative and a liberal faculty (or more specifically, the dean following the recommendation of the faculty) refused to hire her.

The court held that this is a legally cognizable injury, and that a jury has to decide whether she wouldn't have been hired anyway.

For those of you on the market this year (or thinking about it), the case is also an insightful view into the black box of academic hiring. It shows how mixed signals can occur, and how uniformly positive feedback can still not lead to getting hired for all sorts of reasons outside of the candidates' control. I won't comment on the reasoning or facts in this case, because I just don't know them. That is, as they say, up to the jury now.

One final point - there is a key faculty governance nugget buried in this case. One factual question was whether the dean always followed faculty recommendations, and/or whether the dean must. While most deans follow almost all faculty hiring recommendations, they usually (technically) don't have to. One issue in this case is that no such policy was in writing. After this case, deans might want to put such a policy in writing for self protection, but maybe the deans (or university provosts and presidents) won't want discretion so limited.


H/T How Appealing

Posted by Michael Risch on December 28, 2011 at 04:08 PM in Getting a Job on the Law Teaching Market, Life of Law Schools, Workplace Law | Permalink | Comments (13) | TrackBack

Tuesday, December 27, 2011

A Visit From the Ghost of Jury Service Past

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Life Sentences.

Posted by Michael O'Hear on December 27, 2011 at 01:37 PM in Criminal Law | Permalink | Comments (0) | TrackBack

"Better Know a Justice" in 1L Constitutional Law?

Although I've been blogging more frequently as of late over @ Lawfare, I still hope to have relevant non-national security things to chat about here @ Prawfs. Further to that, among the tweaks I'm considering for my first-year Constitutional Law course this spring is an idea I'd "borrow" from Stephen Colbert--apropos his "Better Know a District" segments on The Colbert Report, I thought it might be fun to begin each of my 39 class sessions by giving the students background and biographical information on a specific Supreme Court Justice who's particularly relevant to that day's class (via Powerpoint--duh!). So, on Youngstown day, we'd begin with Justice Jackson, and so on... With a couple of doubles or triples and no repeats, I figure I can get through about 45-50 of the 110 different people to serve on the Court (Kagan is #112, but the official list counts Rutledge and Hughes twice.)

There are obvious shortcomings to this approach, including that the focus will invariably skew toward the modern Court (neither Justice Lamar makes the cut under my current draft); that every day can't be Justice O'Connor or Justice Kennedy day; that choosing a Justice on one side of a particular case versus the other might skew the students' perception of the decision; that focusing on Supreme Court Justices (as opposed to lower-court judges, Presidents, or key legislators) further entrenches the already overly court-centric view 1Ls take away from con law, and so on. So far, I haven't been convinced that any of these are dealbreakers compared to the payout on the students' part--which to my mind will include a deeper appreciation for the individual personalities who figure in our study of constitutional law, and, I hope, a greater ability to see the jurisprudence of individual Justices evolve over time. But I'm curious for additional reactions. Do folks think this is a decent idea? A really stupid idea? Both?

Posted by Steve Vladeck on December 27, 2011 at 12:13 PM in Constitutional thoughts, Steve Vladeck, Teaching Law | Permalink | Comments (10) | TrackBack

Monday, December 26, 2011

Happy Birthday, Paul!

There's been lots of sadness in the air lately, but today's a good time to celebrate the magical life of co-permaprawf, Paul Horwitz. His wife put it best, describing him as a "fabulous husband, wonderful father, prolific writer, dedicated teacher and uncomplaining patient! Here's to many, many more happy years!"


Posted by Administrators on December 26, 2011 at 01:16 PM in Blogging | Permalink | Comments (1) | TrackBack

R.I.P. Jane Larson

It's been a tough week. Via Brian Leiter (and some emails from law school friends):

Jane Larson, who was the Voss-Bascom Professor of Law at the University of Wisconsin and a leading feminist scholar, died recently (no details have come out yet). Jane began her career at Northwestern and I had her for property as a 1L, and she was terrific teacher (she won the primary teaching award there two of the three years). I remember having a clerkship interview in which the judge asked me what law school class I unexpectedly enjoyed; my answer was Property and I think it was mainly due to Jane's teaching. I didn't agree with her on a lot of stuff, particularly where free speech and feminism intersected (a hot topic in the mid-'90s). But she was always willing to talk and debate with her students.

Update: UW Law School's public statement is here.

Posted by Howard Wasserman on December 26, 2011 at 11:30 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1) | TrackBack

Saturday, December 24, 2011

What's on my Xmas Wish-List?

How about a vote for Prawfs on the ABA Journal Blawg 100? We've been fortunate to have been selected every year to be on the Blawg 100. This year, the editors even gave us a special shout-out, though their judgment should be scrutinized since they left off our friendly and worthy competition: ie., Co-Op, Faculty Lounge and Balkinization. Truthfully, I don't give a fig if we win, but I'm glad that our collective enterprise has garnered some recognition simply by being nominated. That said, I know Bodie and Garnett care *a ton*, and they're awfully sweet guys, so do them a favor and stick a vote in their stocking when you get bored over the next couple days. Merry merry.

P.S. A quick scroll reveals there really is a blog devoted to the law of the horse. I'm speechless.


Posted by Administrators on December 24, 2011 at 08:23 PM in Blogging | Permalink | Comments (0) | TrackBack

From the Dumb Props Department Files...

So, I read that Louis Vuitton is suing Warner Brothers for the line "Careful, that is a Louis Vuitton" in the movie "The Hangover II." This got my hackles up - after all this IS a nominative use, unlike Bella's Twighlight Jacket, and it is a non-trademark use - a description of the bag that's presumably being damaged by hijinx and shenanigans (I haven't seen the movie yet, so I don't know).

Except, of course, that it wasn't a Louis Vuitton bag - it was a knockoff. And that can create problems. After all, the use is no longer nominative, and no longer a fair description. Now there is a chance of consumer confusion - people might think the knockoff is a Louis Vuitton and be fooled into thinking that the sub-par stitching (so clearly visible on the screen - yeah right) is Louis Vuitton's and of poor quality. Trademark people call this "post-sale confusion," like the kind that comes when you wear a $10 Rolexxx. You weren't fooled, but others might be fooled.

There's one problem with the argument - under the Lanham Act, Section 43(a), the unlawful behavior must use the mark in connection with goods and services. That is, a trademark use. Thus, we hold the seller of the Rolexxx liable, but not the wearer, because the wearer is not making a trademark use - they are not using it in connection with goods and services.

That, I suspect, won't stop Louis Vuitton (or sadly, the courts) here. I suspect that the finding will be that the movie is a "good or service" and that use of the name "Louis Vuitton" will be "in connection" with the movie, and confusing, and thus create liability. I can't imagine this is what the authors of the Lanham Act had in mind. Nevertheless, courts have accepted survey evidence that credits consumers who think that the movie must have gotten a sponsorship deal with Louis Vuitton, even if they did not. In other words, courts are willing to find a trademark use just because consumers think there was one, even if there wasn't.

So, this is another one of those "don't do it" cases. I'm all for pushing the envelope of non-trademark use by having studios refuse to pay just for the right to utter the name of a famous mark. But it is a bad idea indeed to then use a knockoff in the movie. 

Posted by Michael Risch on December 24, 2011 at 02:51 PM in Intellectual Property | Permalink | Comments (0) | TrackBack

Horrible News

I'm shocked, horrified, and saddened to hear of Larry Ribstein's passing.  There will be time to consider his wide-ranging, innovative, and incisive scholarship in the days, months, and years to come.  For now, I offer my sympathy to his family and colleagues at Illinois.  A very sad day for legal and corporate law academia.

Update: some remembrances by Lipshaw, Manne, and Solum.

Posted by Matt Bodie on December 24, 2011 at 12:18 PM | Permalink | Comments (0) | TrackBack

Friday, December 23, 2011

Sentencing and Institutional Coordination: A Wisconsin Example

I've posted a couple of times this month on the most recent incarceration data from Indiana, Minnesota, and Wisconsin. This post considers historical data. I’m particularly interested in the impact of a major change in sentencing law that was adopted in Wisconsin in 1998. Under the “truth in sentencing” law, parole was abolished for crimes committed on or after December 31, 1999. What impact did this have on the size of the state’s prison population? Two hypotheses occur to me. First, if judges continued to impose the same nominal sentences that they had been imposing, one would expect the prison population to grow because offenders would be serving longer real sentences. Alternatively, judges might have reduced their nominal sentences to account for the loss of parole release options, attempting thereby to achieve the same real sentences as before TIS; such discounting would presumably lead to stability in the imprisonment rate.

The data, set forth in the table below, seem to support the latter hypothesis, with the current rate of imprisonment almost exactly matching that of 2000, the first full year after TIS took effect. Indeed, since 1999, the state’s imprisonment rate has been remarkably stable. The single largest annual change since 1999 was a 5.8% drop in 2005. This makes for quite a contrast with the volatile 1992-1999 time period, when annual increases averaged 12%.

The picture becomes even more interesting if we focus on Wisconsin’s imprisonment rate relative to that of peer states Indiana and Minnesota.


Since TIS, Wisconsin’s imprisonment rate has dropped markedly in comparison with those of the peer states. In 1999, Wisconsin had an imprisonment rate 21% higher than Indiana’s, while the current rate is only 84% of the Hoosier State’s. Likewise, in 1999, Wisconsin’s imprisonment rate was more than triple Minnesota’s, but is now only a little more than twice that of its neighbor to the west.

Wisconsin’s strong improvement in imprisonment rate relative to its peer states does not seem merely a function of more significant gains in reducing violent crime. Although Wisconsin has reduced its violent crime rate most years (eight out of eleven) since 1999, Indiana has been no less consistently successful on this front, and Minnesota only a little less so (six years out of eleven). Indeed, Wisconsin’s rate of violent crime in 2010 was actually slightly higher than it was in 1999 (248.7 versus 245.8), while Minnesota’s (236.0 versus 274.0) and Indiana’s (314.5 versus 374.6) were much lower.

If not crime rate, what else might explain Wisconsin’s greater success in holding the line on imprisonment for the past decade than Indiana or Minnesota? Has TIS itself played a role? It is hard not to think so in light of the abrupt break that occurred in 2000 in what had been an established pattern of large annual increases in Wisconsin’s imprisonment rate.

It is not immediately clear why TIS would have put the brakes on a rapidly expanding prison population. One possibility is that sentencing judges in the tough-on-crime 1990’s were overestimating and overcompensating for the lenience of the parole board. Perhaps the parole board itself was something of a moving target, tightening up its standards in the ‘90’s in ways that were not understood by sentencing judges. If so, then the dramatic growth of the state’s prison population may have been in part due to a communication and coordination problem between the judiciary and the parole board. By taking the parole board out of the equation for new crimes, TIS may have mitigated a dysfunctional institutional dynamic.

WI Imprisonment Rate (per 100,000) Percent Change from Previous Year WI Rate as Percent of IN WI Rate as Percent of MN
1991 158.5 __ 64.6% 191.0%
1992 163.6 3.2% 66.3% 191.8%
1993 174.3 6.5% 68.6% 187.4%
1994 197.2 13.1% 75.6% 196.8%
1995 218.6 10.9% 78.7% 208.0%
1996 251.8 15.2% 87.0% 227.5%
1997 314.9 25.1% 104.0% 277.0%
1998 356.3 13.1% 110.8% 302.2%
1999 388.8 9.1% 121.3% 311.0%
2000 386.9 -0.4% 116.9% 305.1%
2001 397.6 2.8% 116.2% 300.1%
2002 406.9 2.3% 115.9% 286.8%
2003 413.1 1.5% 111.0% 266.0%
2004 417.3 1.0% 108.2% 242.9%
2005 392.9 -5.8% 98.3% 227.0%
2006 404.9 3.1% 98.0% 235.1%
2007 405.1 <0.1% 94.6% 227.1%
2008 401.8 -0.8% 90.6% 228.0%
2009 397.6 -1.0% 88.7% 217.6%
2010 387.2 -2.6% 84.2% 217.8%


Posted by Michael O'Hear on December 23, 2011 at 03:44 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Clear Statement(s) and the ACA

In our last episode, I suggested that a few of the courts ruling on the constitutionality of the ACA have, maybe without even realizing it, invented a new constitutional principle, namely, Congress' putative power to disclaim potential constitutional authority for a statute.  Let me go a little Memento on you and flash back one scene.  How did lower courts get to the point where they decided Congress had disavowed the taxing power? 

The evidence is pretty shaky -- basically, it's that one house of Congress (but not both) changed some of the uses of the word "tax" in the statute (but not all of them)  to "penalty".  Oh, and also that 60 Minutes interview with President Obama.  This against the background of a longstanding  Supreme Court rule that Congress didn't have to use the word "tax" to rely on its taxing power, which would seem to make any inference from their omission of that word pretty minimal. 

In fact, the evidence is so thin that I think what's actually happening is that the courts are inventing (contra that Supreme Court rule I mentioned) a new clear-statement rule for invocation of the taxing power.  Barnett has been explicit about this, saying that requiring Congress to tattoo the chest of a statute with the word "tax" somehow creates political obstacles that other words with implicit dollar signs on them (like "penalty," say) don't.  I guess he'd also have to be ok with "duties," "imposts," and "excises" tatoos, too, since those are also words in Art. I Sec. 8, although they don't really seem to support his political theory quite as well.  (Though admittedly who can forget George H.W. Bush's classic "read my lips, no new duties, imposts, or excises" speech?) 

Anyway, let's say that the magic-words rule made sense and wasn't already foreclosed by 150 years of precedent.   Here's the thing.  There's already another clear statement rule that requires the opposite interpretative approach.

 At one time (hey! it's a flashback within a flashback!), the Supreme Court really didn't like overturning Congress.  So they made a rule of interpretation for themselves that said, basically, if there are two permissible readings of a statute, the Court has to pick the one that will make the statute constitutional.    Now do a mental wipe-scene and come back to the ACA.  Let's say you think the ACA is constitutional if Congress called a piece of it a "tax" and unconstitutional if they didn't.  The best evidence against the "tax" reading was delayed 15 minutes by a football game.  So, yeah, it's at least possible that Congress intended it as a tax.  Under the classic avoidance rule, doesn't the Court *have* to interpret the statute as a tax? 



Posted by BDG on December 23, 2011 at 12:31 PM in Constitutional thoughts | Permalink | Comments (10) | TrackBack

Thursday, December 22, 2011

Holiday cards, former students . . . and The Circle of Life

I'm one of those tree-killing, self-indulgent people who imagines that sending out 3"X 7" Christmas cards with "smiling family in front of the year's best backdrop" pictures is actually a welcome and meaningful way of maintaining relationships with friends and aquaintances, old and new.  Facebook, twitter, e-mail, postage-hikes, and increased environmental awareness notwithstanding . . . I can't stop. 

This year, I was particularly struck by the fact that some of the similar (though, of course, more tasteful and engaging) cards I received from former students revealed that, well, they are doing really interesting things, forming and nurturing growing families, and maybe (like me) aging a bit.

I worry that this sounds patronizing, and I hope it doesn't.  The point is not, "Awww, the little dears!"  Instead, for me, there's something, well, nice about being reminded that these former students of mine, who have become my friends, are closer, in a way; they have joined me in the business -- the vocation -- of integrating life, work, family, community.  Once, I was (or, I tried to be) their teacher; now, we are in this together.  I know this sounds awfully Lion King / Circle-of-Life-ish but . . .  oh well.  Happy Hol(y)days.

Posted by Rick Garnett on December 22, 2011 at 01:14 PM in Rick Garnett | Permalink | Comments (0) | TrackBack

Burt, "In the Whirlwind"

My teacher Robert Burt (Yale Law School), has published a new book called "In the Whirlwind:  God and Humanity in Conflict."  Here is the blurb:

God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.

In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.

Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.

Looks fascinating!

Posted by Rick Garnett on December 22, 2011 at 11:40 AM in Rick Garnett | Permalink | Comments (1) | TrackBack

Wednesday, December 21, 2011

Name-Calling in Corporate Law Academia

Roberta Romano, Stephen Bainbridge, and Larry Ribstein all seem outraged at an unpublished, non-SSRN'ed paper by Jack Coffee that Romano (at least) has gotten her hands on.  Although I don't have a copy of the paper, they seem to be objecting that Coffee referred to them as "the 'Tea Party Caucus' of corporate and securities law professors."  Romano also says that they are referred to as "conservative critics of securities regulation," and that Ribstein and Bainbridge are Romano's "loyal adherents."  Romano calls this "serial name calling," Bainbridge complains that this is "insulting" and a "series of ad hominem attacks," and Ribstein says, "It’s sad a scholar of Coffee’s stature sees a need to resort to such rhetoric, though almost understandable since Romano’s devastating critique doesn’t leave him much of a ledge to sit on."

Somehow, I can't gin up much sympathy.  

Only one of those things in the "series of attacks" is really all that remarkable.  Being called a "conservative critic[] of securities regulation" is insulting?  Romano claims that the "conservative" adjective is erroneous, but c'mon -- you all are conservative!  Maybe not on all issues, maybe not in your heart of hearts.  And look, I've written before about how political labels in the context of corporate law can be misleading.  But I still don't think being called "conservative" is an ad hominem, especially if used in reference to the issue being debated.  On Sarbanes-Oxley, on Dodd-Frank -- you all are conservative!  As to the "adherents" thing, I suppose it makes Bainbridge and Ribstein into followers.  But Steve, you did use the whole "quack" meme after Roberta!

That still leaves the "Tea Party" remark, and sure, depending on what you think of the Tea Party, it could be pejorative.  (Not everyone would agree!)  But it seems pretty mild to me.  Plus, it's making a rhetorical point: these three are to corporate law what the Tea Party is to American politics.  I don't agree with the rhetorical claim, but it seems like a point one could make legitimately without being too offensive.

And this brings me to my real point.  There's the whole "Really?" thing that Seth Myers has going.  I find it kind of annoying.  But if you like it, then just insert "Really?" after each of these bullet points. 

So folks, you're upset about name calling when you've:

  • Called a major piece of federal legislation "quack corporate governance."  A quack is a fraud; someone who intentionally subjects others to harm and even death in order to make a quick buck selling bad advice.   So you're saying that the bill is equivalent to this?
  • Called a second major piece of federal legislation "quack corporate governance."  Did you not think that calling it "quack" might be offensive?
  • Referred to Gretchen Morgenson as "Morgenscreed."  And referred to the columns by said Morgenscreed as "lining Wall Street's birdcages."  Called one of her columns "the latest extreme idiocy." Called her a "clown[]."  And called her reporting "muck" and "fairy tales."  Not resorting to rhetoric, eh?
  • Called the Occupy Wall Street folks "a bunch of childish narcissists" and referred to the "moronic" campaign against corporate personhood. Called on state government to "kill" a nearby law school.
  • Said this about someone else: "I've spent the better part of my career crossing swords with these folks and I find them a remarkably thin skinned bunch. Call them 'self-appointed' or 'gad flies' or 'water carriers for left liberal organizations like unions' and they get all offended."

I feel like Jon Stewart here -- I could roll clips for twenty minutes.  The point is, these three are some of the most elbows-out academics that I know of.  And yet here they are, complaining about pretty soft stuff.  C'mon, people -- you're looking a little like Scut Farkus

UPDATE: Stephen Bainbridge responds.  He mentions that Coffee apparently compared him to Sergeant Schultz of Hogan's Heroes at AALS a few years back, which I left out because (1) it's not in Coffee's paper and (2) Romano & Ribstein didn't mention it.  Surely, that seems insulting, and I wouldn't blame Bainbridge for being upset by it.  And I also agree with him that blogging is less serious, more shoot-from-the-hip than scholarship, and different standards apply.  But even so, blogging is not a personal diary.  People do read it.  So perhaps it's less gauche to insult someone on a blog than at a conference.  But wherever you dish it out, you should be able to take it, too.

More importantly, I think Steve is wrong when he justifies his "quack" title with: "BFD. There's a huge difference between uncivil towards a person and being uncivil about a piece of legislation."  Saying a piece of legislation is "quack" legislation, in the title of your paper, is basically saying that only idiots or frauds could support that legislation.  So it's being uncivil to a large swath of people, rather than just one.  And it's not an aside at a conference -- it's the whole point of the paper.  If we're talking about civility in the context of scholarship, that is NOT civil.  Sorry!  When you call someone a "quack," you are not "avoiding insulting, demeaning or derisive language" or "genuinely listening to (and trying to make good sense of) what the other person says."  You're name-calling.  And that ain't civil!

Posted by Matt Bodie on December 21, 2011 at 04:54 PM in Blogging, Corporate | Permalink | Comments (11) | TrackBack

Improving Prawfs

Here's a handy way to procrastinate grading. It's hard to believe, but Prawfs.com will be turning 7 this coming spring. Whaaa?? Anyway, over the next few months, I hope one of our tech gurus (um, Derek, I'm looking at you) will be helping to tweak and improve the way in which you read and share your experiences on this site.

To that end, please feel free to email me (and/or Derek) with suggestions about the improvements you'd like us to make with respect to how you read this blog. One request I've received is for people to be able to get the posts delivered to their email inbox, either once a day or as they come up. Other suggestions we've rec'd include share buttons for FB or Digg, etc. Which of these (if any) are important to you? Should we tinker with the colors or banners etc? Get rid of comments altogether, or hold comments for moderation or leave them as is? Again, please feel free to email me with your reasoned preferences or suggestions. Thanks.

Posted by Administrators on December 21, 2011 at 03:46 PM in Blogging | Permalink | Comments (14) | TrackBack

Statutes of limitations, child sexual assault, and asking the wrong question

Child sexual assault has become the hot topic in the sports-and-law overlap, with allegations against several college football and basketball coaches, AAU officials, and most recently, a Hall of Fame sports writer Bill Conlin of the Philadelphia Daily News. One unifying theme is that many of these cases cannot be prosecuted because the statute of limitations has run on most of these cases (for example, Conlin's alleged assaults all occurred in the 1970s). So a frequently asked question--I was asked it in a radio interview last week and Slate's Jessica Grose raises it again--is why we have statutes of limitations for child sexual assault cases.

But I think that is the wrong question to ask.

On one hand, the answer is easy. We have statutes of limitations in sexual abuse cases for the same reasons we have statutes of limitations for every other crime (except murder, more on that below): Evidence and people disappear and memories fade or change or become distorted, thus we worry about the reliability of any result based on such stale evidence. Jessica interviews my former colleague Aya Gruber (now at Colorado), who argues that this is especially true in a case such as child sexual assault (and perhaps all sexual assault), where the key--and sometimes only--evidence is the victim's testimony. We also believe in a right to repose, or "rest easy," that at some point a person should be able to no longer fear prosecution and get on with his life and his affairs.

Murder long has not been subject to statutes of limitations because society has made a value judgment--murder is the most heinous crime, the ultimate criminal wrong, and that heinousness outweighs the procedural concerns for unreliable judgments and the substantive concerns for alleged perpetrator's right to repose. A good argument can be made that child sexual assault is as or more heinous than murder,* thus we should strike the same balance. And that is what many states have done, eliminating limitations (as some states have done) or making them extraordinarily long and/or tolling them until the child reaches majority. For example, Pennsylvania now can prosecute a case until the child victim turns 50, meaning a limitations period of anywhere from 33 to 50 years, depending on the child's age at the time of the assault. An even better argument can be made that the old limitations periods in effect in the '70s, '80s, and '90s were woefully short (Pennsylvania was 5 years for anything involving penetration and 2 years for inappropriate touching) and based on a fundamental misunderstanding of the nature of the crime and the psychology of how child victims respond.**

But thinking about whether there should be a statute of limitations for child sexual assault, or how long it should be, is the wrong question in considering the prosecution or non-prosecution of the current cases of interest. We are stuck with the reality that there is a statute of limitations for these crimes, that at the time of most of most of these crimes that limitations period was really short, and therefore the statutes have run on these cases and prosecution is barred. In 2003, SCOTUS held in Stogner v. California that the prohibition on ex post facto laws prohibited states from applying newly lenghtened limitations periods to crimes that occurred under an older limitations and that now are time-barred under that former limitations period. The 5-4 majority placed an extended limitations period in the second category, as a law that makes a crime greater than it was at the time of its commission. Most states statutorily avoid any possible ex post facto concerns by only applying these newly extended periods prospectively. Thus, what prevents prosecution of Sandusky, Conlin, et al., is not the statute of limiattions as much as the Constitution's prohibition on ex post facto laws.

    * I distinctly remember a class session in Stephen Presser's American Legal History in which we debated whether adult rape was more heinous than murder, with a majority of the class believing it was, because the victim lives with the effects of the crime forever. We can multiply that for child victims.

    ** Although what is interesting about Conlin's case is that many of the victims went to their parents and some of the parents confronted Conlin, who allegedly cried when confronted. But no one, not even the adults, ever went to the police.

Posted by Howard Wasserman on December 21, 2011 at 02:17 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Law School Service

As every law prof knows, our professional lives are supposed to be made up of three components — scholarship, teaching, and service.  Like many junior profs, I’ve spent most of my time focusing on scholarship and teaching.  But some recent discussions I’ve had with some other law profs about how faculty ought to be dividing their time and what role service ought to play in our professional lives have led me to reexamine the role of service in the life of a law professor.

 Let me begin with a quick observation that much of what I will discuss does not, at least in my mind, apply to junior faculty who have not yet been granted tenure.  That is because I think (a) untenured folks are generally expected to do less service than the tenured faculty (e.g., not serve as chair of committees, not serve on university committees), and (b) scholarship and teaching seem to be the primary factors considered in the tenure review process (I’d be surprised to hear that a law professor was denied tenure based on insufficient service).

But once a faculty member has received tenure, it seems that expectations regarding the amount of service change.  Those expectations seem to change in at least two ways:  First, more service is expected internally at the law school law school and sometimes at the university level.  Second, whether service can (or ought to be) prioritized over scholarship and/or teaching is suddenly a question open for debate. 


At first glance, the idea of expecting more service from tenured faculty members seems uncontroversial.  One could easily presume that both scholarship and teaching become easier; that is to say, the longer one has been a professor, the less time it takes to prepare for class or write an article.  If the other two components of a professor’s responsibility are easier to fulfill, why not ask him or her to take on more service?

I am suspicious of this line of reasoning.  For one thing, although writing an article or teaching a class may be easier, I think that law schools already tend to consume any excess time that a law professor might generate by obtaining tenure.  In the scholarship arena, tenured faculty are often expected to make more contributions (e.g., write a new law review article while simultaneously writing symposia articles about prior articles), longer contributions (the constant suggestions that one “use” tenure to write a book), or contributions that are more difficult (e.g., now that you have tenure, your articles should engage bigger questions, shift the paradigm, etc.).  In the teaching arena, some schools have course relief that disappears upon tenure, and at other schools tenured faculty are more likely to be asked to prep a new course or pick up an extra section.

For another thing, the additional service burden is rarely distributed in an equitable fashion; some tenured faculty are asked to sit on a number of committees every year, while others aren’t.  Now, the reasons for that inequitable distribution could be obviously objectionable (e.g., some faculty flat out refuse to do their fair share of committee work), not all that objectionable (e.g., some faculty members have proven themselves more adept at committee work than others, such that more socially outgoing faculty members might be asked to serve on the appointments committee more often), or open to debate about whether they are objectionable (e.g., asking female or minority faculty members to serve on the appointments committee more often in order to highlight diversity at the law school, or not expecting as much service from faculty members who the most productive scholars).  To the extent that we think more service can be expected of faculty members by virtue of the fact that they have been in the academy longer, it seems to me that we either need to ensure that the additional service burden is fairly distributed or that the reasons for disparate distribution are both articulated and defensible.

Whatever my reservations about the conventional wisdom that we ought to expect more service from tenured faculty members, they are insignificant as compared to my concerns regarding the second question --- whether service can (or ought to be) prioritized over scholarship and/or teaching.  I’m sure it goes without saying that there are certain circumstances where service will necessarily take precedence over teaching and scholarship.  For example, if a faculty member is asked to serve as associate dean, I think most would agree that the faculty member ought to have a reduced teaching load and/or reduced scholarship expectations during the time that he or she serves as associate dean.  (Those reduced teaching and/or scholarship expectations presumably end at the same time that the associate deanship ends.)  But I think that there are harder cases regarding service, especially once we start talking about service that is external to the law school.

Consider, for example, the common practice of law professors who do pro bono litigation work.  Let’s say the average faculty member who engages in this sort of work writes two appellate briefs per year.  Now imagine that one faculty member does far more --- writing 10 appellate briefs per year.  How should that additional service be “counted” by the law school?  I use the word “counted” because many schools seem to expect a certain amount of teaching, scholarship, and service from each of their faculty members.  Those faculty members whose scholarship is significantly above average in terms of quantity or quality are sometimes excused from some portion of the ordinary teaching or service load.  And those faculty members who take on a greater teaching load (which could be a higher course load or volunteering to prepare a new course) are sometimes excused if their scholarship publications fall below the average rate for a tenured faculty member, as well as sometimes asked to do less service.  (Yes, I  know that thinking in terms of averages for teaching amount, scholarship amount, and scholarship quality is almost certain to be highly contested, but just bear with me that such an average can be (at least roughly) identified.  Or at least agree that law schools need to occasionally assess whether their tenured faculty members are being productive members of the law school.) 

In light of how exemplary scholarship and exemplary teaching can result in lower expectations for the other components of a law professor’s duties, and in light of the commonly accepted practice for reducing teaching and scholarship expectations for exemplary internal service (such as serving as associate dean), one might expect that exemplary external service --- such as taking on a significant amount of pro bono litigation work --- ought to result in reduced expectations for teaching and/or scholarship.  Yet, despite the logic of the forgoing argument, I suspect that many law professors would find the argument unconvincing.  Indeed, my own intuition suggests that exemplary external service ought not “count” in the same way as exemplary teaching or exemplary scholarship when assessing faculty productivity. 

While there are a few reasons I can identify that support this intuition, I’d be more interested to hear from thoughts from readers on this topic.  So, any thoughts on how to “count” external law school service?

Posted by Carissa Hessick on December 21, 2011 at 01:07 PM in Life of Law Schools | Permalink | Comments (9) | TrackBack

JOTWELL: Walsh on Levy on the mechanics of federal appeals

The latest piece in the CourtsLaw section of JOTWELL comes from Kevin Walsh (Richmond), reviewing Marin Levy's The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, published in the Duke Law Journal.

Posted by Howard Wasserman on December 21, 2011 at 12:03 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Boobies and ta-tas and racks (oh, my)

I've written previously about recurring controversies over students wearing breast-cancer awareness "I (Heart) Boobies" bracelets in public schools. In April, a judge on the Eastern District of Pennsylvania held that a district ban on the bracelets violated the First Amendment. A new controversy has arisen in White Cloud, Michigan, where four high school students were suspended when they refused to remove their bracelets; on Monday, the school board held a public meeting and heard from parents and students about the dispute, as it tries to figure out whether to overturn the suspension. The ACLU also has entered the mix, so litigation is likely. A couple of interesting things in this case.

First, the school permits clothing for breast-cancer awareness containing other slang terms for breasts, including "ta-tas," "funbags," and "rack." The superintendant has said he considers those OK, if borderline, but that boobies is a step too far. I think he is going to have a really hard time explaining that difference as anything beyond his sort-of-inexplicable personal preference. Especially since many would find "funbags" and "rack" more offensive than boobies, which, as one parent stated at the meeting, is really an infantile term. In the Pennsylvania case, the judge noted that the school had announced the ban over the school PA system by actually using the word "boobie," which, the court said, cast doubt on the school's insistence that the word is vulgar. Similarly, the school will have to explain how "boobies" is vulgar when all these other slang terms are not--and I doubt it can.

Second, in response to the suspensions, students hung flyers in the school discussing the Pennsylvania decision and its meaning; school officials removed those flyers. The posting of the flyers would appear to be pure political expression, protected even in public schools and even after Morse. On the other hand would be the question of the status of the school's walls and bulletin boards as fora for student speech and whether pulling the signs down was impermissible content discrimination or something else. This could be an interesting side issue in any litigation. But it also is a unique civics lesson for the students: Government and those in power will often do really petty things to avoid criticism. Although perhaps that is not the lesson the school wants to teach.

Posted by Howard Wasserman on December 21, 2011 at 10:31 AM in Constitutional thoughts, Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (1) | TrackBack

The Empty Idea of Dignity?

While I'm commending other writing, let me also point to Leslie Meltzer Henry's recently published piece, The Jurisprudence of Dignity, which Danielle Keats Citron recently plugged on CoOp.  Here's the abstract:

Few words play a more central role in modern constitutional law without appearing in the Constitution than “dignity.” The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts.

The typology refers to these conceptions of dignity as institutional status as dignityequality as dignity, liberty as dignity,personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.

It's an important issue--not just, or even primarily, in the United States, but elsewhere in constitutional law: many courts, including the Canadian Supreme Court, have relied heavily on the concept of dignity in recent years.  Henry deals with it very thoroughly and well.  

I do wonder, after having read Henry's piece (although too quickly),

whether our ultimate conclusion shouldn't be that "dignity" is basically an empty concept (and yes, she cites Peter Westen's classic piece on the empty idea of equality) -- not in the sense that it's wrong or bad, but in the sense that it does not do a lot of work and instead stands in for other concepts.  Just look at the first sentence of the last paragraph of the abstract.  In each of these cases, it seems to me, "dignity" per se is not what's doing the work; rather, it's a placeholder for a variety of other substantive concepts.  Henry's piece is typological, not critical, so I hardly blame her if she doesn't emphasize that point; even if dignity is a term that really refers to other substantive values, it's useful to know what those substantive values are.  I have found the Canadian Supreme Court's opinions relying on human dignity quite weak and unpersuasive, precisely because the Court so often invokes dignity as if that term settles the question rather than just raising new ones.  And one might say about dignity something like what I said in my last post, about constitutional losers: to say that dignity is a constitutional value or concern is not to say that it must be an overriding or dispositive one.  Sometimes, the best way to dignify the dignity of others is to disagree with them bluntly and clearly, if respectfully and empathetically.  

Nonetheless, I commend Henry's piece -- a nice bit of holiday reading!  (I haven't read it, but given what I've read of him in the past, I don't doubt that George Kateb's recent book, Human Dignity, is also well worth reading for those interested in the concept of dignity.)  


Posted by Paul Horwitz on December 21, 2011 at 10:26 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Emily Calhoun's Losing Twice

I mentioned Emily Calhoun's recent book Losing Twice: Harms of Indifference in the Supreme Court in a post the other day and said I couldn't wait to read it.  I had a chance to read it yesterday and want to commend it to readers (and Christmas shoppers).  Here's OUP's description of the book:

Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. 

In Losing Twice, Emily Calhoun . . . [argues] that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judges needs to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss.

Now, by way of self-promotion (I too am interested in the Christmas shopper market!), I want to say I address some of these issues in The Agnostic Age.  But Calhoun develops these ideas at length (but not lengthily -- the book is reasonably short) and far more richly.  It's also a very readable book, pitched just right for law professors and students but also for general readers.  And it's a tremendously valuable topic.  For a variety of reasons, we do not think enough about losers in constitutional cases.  Obviously we care about who wins or loses, but once having concluded that someone must lose, our concern for the losers drops off dramatically.  That's too bad.  Calhoun is absolutely not arguing that no one ought to lose in constitutional cases, or that we ought to always cut the baby in half.  But there are all kinds of ways to tell someone, "you lose," and those different ways can be fairly important.  (Not all-important, but fairly important.)  It seems to me Calhoun's book intersects nicely with two different questions.  The first has to do with the role of empathy in the law, including all the debates in recent Supreme Court nominations.  Even an empathetic judge can and must say that someone wins and someone loses, and compromise is sometimes just not an option--at the Supreme Court level, at least.  But empathy, whether it plays a role in judging cases or not, can play an important role in how we express those decisions.  I especially commend Calhoun's discussion of the trial court's announcement of his judgment in Colorado's Amendment 2 case, which is an exemplar of how to speak meaningfully to both sides in a highly divisive case.

Second, the book can tell us much about a perennial concern: how to address illiberal groups in a liberal society.  That's the point of my discussion in The Agnostic Age: in cases like the famous Sixth Circuit case of Mozert v. Hawkins County, we may think that an illiberal group (in that case, religious objectors to the use of a general reading primer for primary school students) has to lose.  But just because they have to lose, that doesn't mean we need to deny the existence or importance to them of their claims, or to speak to them in language that 'shuts them out.'  There is always at least the possibility of trying to reach out to illiberal groups and to tell them that even if they lose, they are still members of the constitutional community and deserve to be taken seriously; even as we rule against them, we can still try to embrace them.  

With the caveat that I read the book quickly and need to spend more time with it, let me add a criticism or two.  Inevitably, I don't find all of her examples or arguments convincing (especially her discussion of the BSA v. Dale case).  And I think there was much, much more room for a discussion of law and religion, which seems an especially fertile place for thinking about constitutional "losers."  That said, I think there are good reasons for any constitutional scholar to care about these issues and to read Calhoun's book.  And her bibliographical essays at the end of the book are absolutely terrific.  I encourage you to pick up and read this book.   

Posted by Paul Horwitz on December 21, 2011 at 10:03 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Tuesday, December 20, 2011

Patenting Medical Diagnostics...

The Supreme Court heard oral argument in Mayo v. Prometheus Labs.  The case will hopefully provide some guidance on the patenting of medical diagnostics, but because the patent suffers from some real drawbacks, I'm not so sure.  I'll explain why below. If you are interested in more detail, my 2008 article "Everything is Patentable" discusses the issues in depth.

The types of patents we are talking about are methods, not things. So, let's say I discover that pregnant women have measurable levels of the hCG hormone, where non-pregnant women do not. Having discovered this, I might try to claim the following:

A method for diagnosing pregnancy in a human female, comprising:

a) testing for the presence of hCG in blood; and

b) diagnosing pregnancyif such hCG is present.

This is not a patent on any particular test - it is a patent on every use of the test that measures for the hormone. Of course, one can measure for hCG without trying to diagnose pregnancy, and that would not be infringing. That said - and here's the problem for labs - if there is no other purpose for the test, or if the test is ordered for a particular purpose, then one may be liable for administering the test even if one is not doing the last step - the diagnosing.

 Among others, there are three primary complaints about these types of claims.

First, some worry that such claims bar thought (the diagnosing). I'm not worried much about such worries. The claim is for more than thought - it is for the ordering of a particular test to diagnose a particular condition (and note that doctors are generally immune from infringement). Also, it should make little difference that the diagnosing step is in the mind - imagine a machine that reads the number and a light goes off (or a stick that shows a plus sign if you are pregnant). Whether you think that these types of methods should be patented or not, the reason to go one way or the other shouldn't depend on the happenstance of form.

Second, some worry that such claims are simply a patent on the prior art with thought added to the end. For example, if there were pre-existing hCG tests, then one should not be able to patent practicing the prior art with the added "correlative" step of diagnosing a pregnancy. I'm on the fence about this concern. On the one hand, if the solution is obvious, then we shouldn't allow patents. On the other hand, we have long given patents for new uses of old stuff. This includes new treatments using known medicine - Viagra, for example, was developed to treat blood pressure. We grant such patents because we want inventive activity to find these new uses, and it is not clear why new uses of old tests should be any different. Of course, people may develop better tests, or use existing tests for other purposes.

Third, some worry that this type of claim covers "laws of nature." This is where the action is. Courts have long said (mostly in repeated dicta rather than actual rulings on disputed patent claims) that laws of nature are not patentable. But what exactly is an unpatented law of nature, and what is a patentable application of a law of nature? Even if we were to accept that laws of nature are unpatentable, the natural law in the above example appears to be the production of hCG by pregnant women. So, if I tried to claim production of hCG by pregnant women, I could not patent that. 

Viewed this way, of course laws of nature are not patentable - they aren't new, they aren't invented by the patentee, and they lack practical utility because they don't do anything - they just are. Furthermore, they aren't processes at all because they are not a series of steps that achieve some end. But when you use the law of nature to provide some new public benefit that is discovered by the patentee, that is an application of a law of nature, and that is patentable. My coauthors and I make a similar argument with respect to the application of abstract ideas in our Stanford Law Review article  "Life After Bilski." Indeed, there are many, many creative diagnostic/measurement tests dating back to the early 1800's for measuring one thing by looking at something else that's "naturally" related. These are not all laws of nature - they are applications of newly discovered laws of nature to a useful end.

Despite the seemingly unassailable logic of the preceding argument, many people (shockingly!) disagree with me. Their argument is that allowing the application of the law of nature would preempt all uses of the law of nature itself, and that is a bad thing. I'm skeptical of this counter-argument for three reasons. One, everything boils down to something natural, and deciding when naturalness ends is too difficult an inquiry. Two, except in very rare cases, a diagnostic test does not bar the natural principle, it just rewards those who figure out why the principle is important. If we are worried about the inability to perform medical tests, then we should handle the problem with compulsory licenses rather than removing the incentive to invest in invention from the equation. Three, there is nothing naturally occuring about the test in the Prometheus case. The drug administered is human-made, and the metabolite measured in the claim does not exist in nature. Thus, testing for the metabolite is something that only happens if you change nature with something unnatural. But it would make little sense for that to be the dividing line on diagnostics - whatever concerns one has about them, they don't go away if just because they are measuring something that doesn't happen naturally.

Both those who agree with me and those who don't are hoping for some clarity from the Prometheus case. Sadly, I think that clarity is not going to come, just like it did not come in Bilski with software and business methods patents. I think clarity is elusive in these cases because clarity is impossible to achieve, as I argue in Everything is Patentable; defining the exception is just too difficult.

But, more than that, clarity won't come because of the peculiar facts of this case - in short, the patent claim is problematic:

(1) A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:

(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and

(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,

wherein the level of 6-thioguanine less than about 230 pmol per 8x10^8 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and

wherein the level of 6-thioguanine greater than about 400 pmol per 8x10^8 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.

Here are some of the problems:

  1. There is no diagnosing step. It's a minor point, but an important one. If there is no diagnosing step, then one can infringe the patent by merely performing the test - a test that I believe was already known. It may be a small point to add an element of actually adjusting the dosage, but doing so takes the claim out of the realm of exactly the prior art and into the realm of diagnosing. Bear in mind that Mayo was sued in part because it developed a new test for the metabolite.
  2. This is not really a diagnostic patent. It is not measuring something to determine some condition. Instead, it is a dosage adjustment patent. This, too, should be patentable on general principles, but it seems awfully obvious. If there's too little, then give more. If there's too much, then give less. Granted, the patent claims specific numbers, but finding the right range is something that would be obvious to try once you have a test in the first place. Anyone with a thyroid disease knows this - you start with the lowest dosage of synthroid and then go up until the TSH falls within a range.  The patent here is claiming such a range, but finding the range seems obvious- when people get sicker or have side effects, you are outside the range and when people get better, you are inside the range. The real invention is discovering how to measure the metabolite of the drug, but the test for finding the metabolite isn't a subject of this patent.

These two problems mean that the patent should be rejected outright, and that the patent isn't really even claiming a natural principle. Instead, it is claiming the use of a pre-existing test and some obvious thought about one might do about the test (but holding people liable even if they don't do it). Thus, there are many reasons to reject this patent without speaking to the core question - what to do about patenting medical diagnostics. We'll see how the Court handles it, but my worry is (as it was in Bilski) that a problematic claim will cloud the key issue. A better test would have been a really great, inventive diagnostic test that relies on a natural principle. The Court had such a case in the past (the Lab Corp. case), but procedural failures by the defendant precluded real consideration of the issue.


Posted by Michael Risch on December 20, 2011 at 07:02 PM in Intellectual Property | Permalink | Comments (0) | TrackBack

Losing ideas amid the noise

Newt Gingrich has surrounded his court plans with so much ideological noise, and has been met with so much noise about in response, mostly about how Gingrich is trampling over an independent judiciary. Unfortunately, the noise in both directions ignores the likely constitutional legitimacy--if not necessarily policy wisdom--of some of what he is talking about.

Gingrich is fundamentally correct that a president could disagree with judicial decisions and could act on that different understanding--in other words, he could ignore what the Court has said in its opinions. The president can use that different understanding in many contexts--in making enforcement choices, in enacting regulations and other executive-branch rulemaking, and in proposing, supporting, and signing legislation. And Congress could do the same. In Fed Courts this semester, we spent time discussing the Congressional Accountability for Judicial Activism Act (proposed in 2005, it never went anywhere), which would have allowed Congress to override Supreme Court decisions invalidating federal legislation by 2/3 supermajority in both houses. It seems to me this would be a valid congressional practice, a position the entire class unanimously and loudly rejected. But it seems uncontroversial that Congress and the president could together reenact (and by just simple majorities) legislation identical to the one just invalidated by the Court, which would be an implicit override of the Court's decision. So what is different about a formally adopted congressional statement rejecting the Court's decision?

Contrary to much of the criticism, this is not about judicial independence; none of this affects or inhibits judicial power or discretion. Federal judges are not threatened in any way--we need not talk about impeachment or jurisdiction stripping or defunding courts. Nor are judges hampered in their power to decide cases according to their best constitutional judgment, since the Court need not accept or recognize the overriding legislation or the contrary constitutional vision. The Court could keep invalidating the re-enacted law.

What it sets up instead is a constitutional conversation among the branches and, presuambly, an eventual resolution when some branch alters its constitutional understanding. Maybe it will be Congress, which gives up if the Court keeps striking that legislation down. Maybe it will be the Court, which eventually gives the reenacted (or overriding) legislation its constitutional blessing.

Gingrich somewhat crassly argues that the winning position will be whichever one gets the support of two branches. Andrew Cohen of The Atlantic calls this a "shuddering vision" of separation of powers reduced to Rock-Paper-Scissors. But  this seems to be precisely how separation of powers and departmentalism are supposed to work--out of the conflict and competition among the branches emerges some constitutional consensus. This is admittedly ugly to watch in practice and could result in some risky stalemates. It also may work somewhat as Gingrich suggests, with the third branch taking sides to determine the winner: Imagine the Court invalidates Statute X and Congress attempts to override the decision by enacting Statute Y, which is identical to Statute X, containing a finding of how the Court's prior decision was wrong; the success of that override effort would depend on which side the president takes and whether he will sign and enforce the overriding legislation. It also may depend on where the public comes out on the issue and whether one side or the other may face electoral advantages or disadvantages for their role in any stalemate.

Things get somewhat trickier if the executive's differing constitutional vision leads him to either: 1) ignore a judgment and order in a given case, such as an injunction prohibiting enforcing of a statute (this is the line that many departmentalists draw) or 2) make arguments in court that are premised on disagreement with controlling precedent (this is the fine line the Justice Department has tried to walk in litigating DOMA). Gingrich has suggested a real willingness to ignore specific orders in specific cases, such as one invalidating bans on same-sex marriage or limiting the president's power over detainees. Here the inter-branch conflict becomes more concrete. He is right that the president can ignore a judicial order (as can any other litigant); he just runs the risk of being held in contempt for doing so. Then we see whether the court would hold the president (or the AG or some other top executive official) in contempt and, if it did, whether and how that order would be enforced. Similarly, DOJ attorneys can make constitutional arguments that depart from or ignore controlling precedent; they just risk the court's sanctioning power (again subject to questions of enforcement). All his sets up a conflict and competition of ideas between the branches that will end when one branch alters its constitutional view (perhaps because the third branch or the People stepped into the mix on one side).

Gingrich critics, such as Cohen, assume that any of these inter-branch conflicts are dangerous, that the Constitution (properly understood) must prevent them, and thus a constitutional vision that would allow them must be wrong. To be sure, the conflict is potentially dangerous (at least if it occurred too often and went on too long); it also is ugly to watch, and should be avoided. But critics go wrong by misidentifying the origins of that avoidance; it comes not from the Constitution, but from sub-constitutional politics and inter-branch comity that have carried the day as a matter of history.

What makes Gingrich's anti-court diatribes troubling is his rhetoric. His starting point is that federal judges are out-of-control dictators seeking to impose an un-American vision who must be stopped, rather than this being a product of differing good-faith constitutional visions. His rhetoric then justifies exercise of this power, likely far more frequently than has been done historically. And that, ultimately, is where the criticism should lie: Not that Gingrich insists that the Constitution allows for these sorts of inter-branch conflicts over constitutional meaning, but that he seems to be itching to get into it with federal judges.

Update: Eric Posner makes some similar points, including how the important ideas--which is basically a simple rejection of judicial supremacy--are lost in Gingrich's bombast.

Posted by Howard Wasserman on December 20, 2011 at 10:05 AM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Monday, December 19, 2011

A Structural Defense of the Individual Mandate

I’ve had the chance to debate the constitutionality of the individual mandate a couple of times over the last year, and on each occasion my opponent (arguing against the ACA) has relied both on Randy Barnett’s (et. al.) activity/inactivity distinction, and on Timothy Sandefur’s (et. al.) claim that the mandate does not “regulate” commerce.  And on each occasion I have conceded that, though these are valid observations (there is, in fact, a difference between “activity” and “inactivity”), they are not particularly relevant to an argument about the constitutional architecture of federalism.   An argument about federalism is, after all, principally an argument about constitutional structure, and so I think we should lean most heavily on the structural modality of constitutional interpretation, rather than the doctrinal or textual modalities.  And when we turn to structure, I don’t think Barnett or Sandefur’s objections present much of a worry.

You probably know that Charles Black revitalized the structural interpretive modality in his Edward Douglass White lectures at LSU in 1968, published under the title Structure and Relationship in Constitutional Law.   Briefly put, the modality draws inferences from the structural relationships the Constitution establishes between democratic institutions.  A paradigmatic example of the form as applied to federalism (which Black utilized) is found in the second half of Marshall’s opinion in McCulloch:  A state cannot tax a federal entity because it amounts to taxation without representation—the “federal” citizens of other states have no voice in the Maryland legislature.  Simple, clean, constitutional structure. 

I have long thought that the Commerce Clause is best understood in structural terms.  It establishes the federal government’s institutional authority (or supremacy, if you prefer) over economic questions that the states are ill equipped to resolve amongst themselves.   These include problems of externalization, protectionism, race-to-the-bottom, internationalism, etc…  In such cases, the federalist solution is resort to a higher, transcendent authority, which must establish baseline kinds of standards.   Now, admittedly, the word “commerce” does suggest that this structural inference is limited to commercial or “economic” kinds of problems; and in this respect I think the Lopez Court got things right.  But it is hard to see how the behavior (be it activity or inactivity) that causes the commercial problem is structurally relevant at all.  Likewise, it is not structurally clear why the “regulation” (normalization, prescription, mediation) of an interstate commercial problem can only target certain kinds of behaviors.

In fact, I think these doctrinal and textual attacks on the mandate in the name of federalism are disingenuous.  Rather, the real motivation behind these arguments is discomfort with any government—either state or federal—forcing us to buy something.   I think objectors are really just as upset about a Massachusetts mandate as they are about a federal one (maybe the latter is worse based only on scope).   But the structural modality suggests that the Commerce Clause points primarily to jurisdictional authority, not substantive authority, concerns.  If the targeted problem is commercial, and it is one the states are poorly equipped to handle between themselves, then it falls within federal jurisdiction.  Once a problem is within that jurisdiction, the federal government’s authority is plenary (leaving aside inapposite 10th Amendment questions)—it can do anything a state government could do.

With this in mind, all the chatter about the feds making us eat broccoli or buy particular cars is best seen not as federalism problem, but as a substantive due process problem.  People just don’t think that’s the kind of thing any government should do—make us buy things or enter into particular contracts.  Again, that’s a substantive due process question, one that we have debated for over a century.  Since 1937, the Court has been very deferential to legislative decisions on economic/contractual matters, and, while it’s possible, I think it’s unlikely the Justices will revive Lochner here.  So if you don’t want to have to eat broccoli or buy a Ford, your remedy is probably where it has been for 75 years—at the ballot box.


Posted by Ian Bartrum on December 19, 2011 at 10:43 PM | Permalink | Comments (6) | TrackBack

The ACA and Congress' Power (?) to Say What the Law Isn't

As regular Prawfs readers know, I’m, eh, fairly interested in a taxing-power analysis of the Affordable Care Act.  You might think at this point, after numerous circuit court opinions, a goodly number of law review essays, and something like a kajillion amicus briefs, that there’s not much more interesting to be said.  And you might be right about “interesting.”  But I have what I think is a novel set of arguments I’d like to air here for your collective consideration.

            So far, there’s no court that has said that enacting the “minimum coverage provision” of the ACA would be beyond Congress’ power to tax.  What courts have mostly said instead is that Congress chose not to use its taxing power, and so they refuse to consider the question.  Some have gone so far as to say that if Congress had explicitly called the “mcp” a tax or rearranged its structure a shade, it would obviously be constitutional. 

            My claim is that these decisions rest on an extraordinary, novel, and potentially important principle no one has considered in any meaningful way.  The ACA says nothing directly about the Taxing Power; it simply uses the word "tax" in some places and "penalty" in others.  This, it is said, means that Congress has chosen not to rely on the Taxing Power.  I suppose the assumption is that it necessarily follows that a court cannot uphold the statute on that basis.  But that assumption is a doozy.  In effect the courts hold--implicitly, no less---that Congress has the power to tell the Executive it cannot argue, and the Court that it cannot decide, that a statute Congress enacted is valid under a particular clause of the Constitution.  (*:credit where it’s due: Dorf’s been on this issue, too.)

            After the jump, some fun with hypotheticals. 

First, think about the Civil Rights Act of 1964.  Of course, the Court upheld the CRA64 by pointing to Congress’ power to regulate commerce.  That path allowed the Court to duck a head-on confrontation with the Civil Rights Cases, which (if I remember my con law I) might have prohibited Congress from relying on its powers under the 14th Amendment to justify the Act.  But what if Congress, confident that the Court wouldn’t dare strike down the Act, had instructed that the law would have to stand or fall on the 14th Amendment alone?

            Here’s another one.  What if Congress suddenly gets really excited about decentralization, and (overriding the President’s veto) enacts a statute declaring: “In litigation in the courts of the United States, or of any state or territory thereof, the Attorney General of the U.S. shall not assert that, by reason of the Supremacy Clause of the U.S. Constitution, the laws of the United States take precedence over the laws of the States”?  Or, more simply, what if Congress prohibits the AG from asserting the principle of the “unitary executive” in any court?         

            I don’t want to suggest from these admittedly over-dramatic hypos that I think the answers are easy or obvious.  Quite the opposite.  Which is why I think it’s extraordinary that courts so far have assumed the existence of this power -- the power to dictate what constitutional arguments are out-of-bounds for other branches -- without even pausing to consider whether it exists, or if so, when.  Is the ACA distinguishable from the hypos I posed?  To give an answer to that question, I think we’d need a fairly thick theory of what might be troubling about the hypos, and explain why that isn’t happening here. 

            Next time: nope, I’m not going to answer these questions.

Posted by BDG on December 19, 2011 at 10:32 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Breaking the Net

Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.

There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward. 

Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 19, 2011 at 01:49 PM in Blogging, Constitutional thoughts, Corporate, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Television, Web/Tech | Permalink | Comments (1) | TrackBack

Bullshit, judicial activism, and running against the courts

A few thoughts, piggybacking on Paul's post on Newt Gingrich and bullshit (and I share most of his views about Gingrich as a walking collection of buzzwords) as well as this post from Al Brophy on Gingrich's (ahistorical) focus on the federal courts as his new electoral straw man. A couple of thoughts.

First, I wonder if "bullshit" doesn't somehow double back to the concept of hypocrisy. So part of what makes something bullshit is not only that the speaker does not care if it is wrong, but that adherence to the stated idea is situational and inconsistent. That inconsistency demonstrates that the speaker is bullshitting--that he does not care whether what he is saying is true or not For example, Gingrich is so outraged by the work of federal judges that he believes that, as president, he is free to disregard judicial decisions he believes are incorrect. He cites Boumedienne as an example, as well as a hypothetical case invalidating bans on same-sex marriage. But he rejected the idea that President Obama could ignore the Supreme Court if it invalidates ACA's individual mandate. His explanation? The president's power to do this is limited to "extraordinary" or "rare circumstances." What is extraordinary? He does not say, although in all likelihood it is when he disagrees with the decision. So this strikes me as a good example of bullshit--the statement of a principle to which the speaker purportedly adheres but to which he will not, in practice, meaninfully adhere, and which he knows he will not meaningfully adhere

Second, Gingrich's attacks are going beyond the argument against the imaginary "judicial dictatorship" or in demand of a "modest" judicial role or a judiciary that "resrict[s] itself in what it is doing." All those buzzwords logically suggest a greater unwillingness to invalidate federal or state legislation. Gingrich is talking about hailing judges before Congress for decisions with which members of Congress "disagree," which appears to apply regardless of which way the courts come out. So he will be just as outraged if SCOTUS upholds the individual mandate. That perhaps would be an example of judicial modesty and deference, but he still disagrees with it. And, under what he is arguing, is the type of judicial misbehavior that warrants being called to the principal's office, if not outright impeachment.

Third, does it seem odd that Gingrich is still running against the federal courts and creeping secularism, when we had eight years of George W. Bush appointments and three years of Senate resistance to Obama appointees? It obviously makes a useful strawman and, as some have suggested, plays well to the Republican primary voters. But it also seems so Culture-War Era 1990s--i.e., back when Gingrich last was in power--and disconnected from the very different realities of 2012 policy concerns.

Fourth, Paul is right that the use of buzzwords from politicians and political candidates is nothing new. And while I believe Gingrich is an extreme case, he is hardly the only one who does this. But I wonder if the reaction to the buzzwords on this subject is a lot like the reaction of many lawyers to movies and TV shows that get the law wrong--we notice these particular buzzwords, and are bothered by them, because our familiarity with these concepts means we understand just how badly they are being mangled in the political discussion.

Posted by Howard Wasserman on December 19, 2011 at 12:44 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

On Ties, Tragedy, and Kissing Your Sister

Let me say another word, in addition to what I said in the comments on that post, about what I'm thinking about in terms of the connection between ties in sports and law and religion.  I recently attended a terrific symposium on law and religion run by Austin Sarat at my own University of Alabama School of Law, called "Matters of Faith."  The general question had to do with the proper balance between what religious entities are entitled to do as a matter religious freedom or institutional autonomy, and what the state can require of them (as in the Hosanna-Tabor case).  What fascinated me was that there was a rather stark 2-2 split between the main speakers about which should be privileged: generally applicable state interests and values, especially values like non-discrimination, or church autonomy.  (There was a fifth speaker, not a law professor but a religious studies professor with a historical bent.  But she gave a historically oriented paper with little by way of normative conclusions.  Just like a historian to refuse to tip the balance in the argument among the law professors, who were all arguing normatively!)  It seemed to me a clear deadlock: there was no way to declare a winner, no word or formula (like "autonomy" or "non-discrimination" or "equality" or "liberty" or anything else) that could make it evident that one side of the debate should prevail over the other.  It was a tie, pure and simple.  Austin chose his speakers very well, and there was a lot of terrific mutual engagement and self-criticism (although not enough of the latter to suit me).  But there was certainly no resolution.

It seems evident to me that this kind of deadlock is a constant in church-state relations and jurisprudence.  

(And not just church-state law, by any means.  It is a constant in constitutional law, and law more generally.)  That's true for any number of reasons, but certainly one of them is that these issues raise a plurality of values, and often incommensurable ones at that, none of which has any clear lexical priority.  We can simply declare by fiat that one value wins over another--generality over accommodation, liberty over equality, and so on--but we can't reason our way to a victory, and indeed, sometimes the more we try to do so the more apparent the impossibility of doing so becomes.  The more one appeals to, say, "equality," or the generality of the "rule of law," the more visible the porousness or even emptiness of those terms becomes and the clearer it is that only force can settle the issue.  

In one sense, we could say that as far as the caselaw itself is concerned, courts have to decide cases no matter what, so if fiat is what's called for, fiat is what we should have.  But, of course, the same requirement does not apply to scholars.  Furthermore, even for courts, it's usually silly to talk about some final victory for one value or another, especially in the church-state area.  Rather, we see pendular movements back and forth between one value and another, with one value or another ascendant during particular periods but no one value prevailing once and for all.  What we have in church-state law, often enough, is a tie.  This, I take it, is one reason that both Marc DeGirolami and I have emphasized the "tragic" nature of church-state law.  (Although I take it Marc thinks I am less of a thorough-going tragedian than he is in this area.)

Now, I'm obliged to write a comment on one of those pieces: happily, I'll be writing about my friend and co-blogger Rick Garnett's excellent contribution to the symposium.  So I thought that rather than cast my lot on one side or the other (although I've done so, more or less, on other occasions), I would think and write about the deadlock itself.  Hence my interest in thinking about ties in sports, and especially about the philosophical arguments for or against them.  (Cites are still welcome!)  A classic phrase describes ties in sports as being like "kissing your sister."  The title of my comment will be something like "Why Law and Religion is Like Kissing Your Sister."

I should say that although I don't think we can resolve the tie, we can think more productively about how to approach it given certain arguable facts: the fact of the impasse itself, the fact of religious pluralism in our society, the fact (and problem) of illiberal groups, and the possibility (I would say the fact, but others may disagree) that the liberal consensus itself, which might at one time have offered a way out of the deadlock, no longer commands sufficient agreement to break the tie anymore.  Indeed, a major aspect of my book The Agnostic Age (still not to late to order it as a Christmas or Hannukah gift!  Please, please buy it and give me your time, attention, and money.) is its argument that given our current circumstances in what Charles Taylor calls a "secular age," the best we can hope for is an approach that takes questions of religious truth seriously and calls on us to do our best to approach these questions with a degree of empathetic agnosticism.  But I am also careful toward the end of the book to emphasize that I think that even if empathetic agnosticism is terrific and better supports our church-state jurisprudence, neither it nor any other strategy or value can truly resolve these issues.  A certain measure of incommensurability, deadlock, and tragedy, I write in the book, is encoded in the DNA of our church-state relations, and there's ultimately nothing that we can do to totally eliminate the moral remainder.  I hope that thinking and talking a little about ties in sports will help illuminate and clarify this idea in church-state law.  

One last point, and a reference to someone else's work besides my own (!).  One point I make in the book is that even if empathetic agnosticism can't resolve difficult church-state cases, it might helps us to better address the losers in those cases.  If someone has to win and someone has to lose, that doesn't mean we shouldn't care about how we talk to the loser (and the winner).  Many of those who, for instance, favor the claims of the plaintiff against the church in the Hosanna-Tabor case, display in their writings a distrust of, if not a hostility towards, illiberal groups.  (See also the CLS case, and the famous Mozert v. Hawkins case.)  In my view, even in cases where everyone agrees the illiberal group must lose, we need to find new and better ways of addressing those losers in a way that will keep them roughly within the fold of liberla society, or at least not too far outside it.  No one likes to be told that they lose, but there are better and worse, and more or less respectful and empathetic, ways of doing so.  (See, for instance, Judge Boggs's opinion in Mozert, which rules for the school but takes seriously the plaintiffs' claims rather than dismissing them as irrational nonsense.)  Just as there are better and worse ways to resolve ties in sports, so there are better and worse ways of declaring victors in an area, like church-state law, in which, even if one side has to win, the underlying issues are incapable of final resolution.  And I have recently noticed the publication of a book that apparently deals with a very similar topic.  I haven't read it yet, but I will soon and I encourage others to take a look at Emily Calhoun's recent book, Losing Twice: Harms of Indifference in the Supreme Court.  Here's the book description; I can't wait to read it.

Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. 

In Losing Twice, Emily Calhoun draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judges needs to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss. Filled with lucid discussions of well known cases, Losing Twice offers an intellectually powerful argument for transforming the decision-making process in Constitutional rights disputes. 


Posted by Paul Horwitz on December 19, 2011 at 10:42 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

More on Framing the Con Law Course Around the ACA Litigation

Further to Michael's post about using the healthcare litigation as a frame in teaching con law this semester, I wanted to discuss some other benefits of doing so.

First, some background.  Many, probably still most, con law professors begin their con law courses with Marbury v. Madison.  I did until recently, and am still unpersuaded by Sandy Levinson's arguments against doing so.  But for the past couple of years I've switched to using the Heller decision as my first case.  It seemed to me to offer a nice introduction to a host of issues covered in con law, without the problems--the time suck, the temptation to use the case to show how clever the professor is, and so on--entailed in starting with Marbury.

But I had already decided before Michael's post to switch to leading off with the ACA litigation in the coming semester--not just the 11th Circuit decision, but several of the major appeals court decisions, as well as, eventually, some of the briefs and the oral argument--and returning to it from time to time as a framing device for the class.  The problem with Heller was that although much conventional constitutional argument uses a variety of standard methods--text, history, precedent, structure, tradition, policy, and so on--the Heller opinions are largely historically based.  Neither my students nor I have the wherewithal to deal with those questions well or quickly.  And it locks us into a discussion of originalism rather too much than I want.  

The healthcare case, I think, will be an even better platform.  For one thing, it's very timely, and my students generally respond well to using timely litigation in class.  For another, and this is a point that's probably been overlooked in some of this dicsussion, it centrally involves a statute.  Most constitutional litigation centers on statutes and involves a good deal of statutory interpretation.  Granted that this legislation is too large and unwieldly to effectively examine in class, but one can certainly cherry-pick, and thus force students to see that statutory interpretation is an essential part of constitutional interpretation.  Third, it raises, of course, a host of relevant issues for a standard first-semester con law course: structure, federalism, congressional power and its limis, how and where to find and make "new" arguments on "new issues," the effect of prior precedents, preemption, individual liberty, and so on.  Finally, especially because of how much this case is likely to turn on past Commerce Clause precedents, without ignoring questions of the original meaning or expected understanding of the Commerce Clause, the healthcare litigation is better than Heller at pointing students to a key source in constitutional argument: common-law-like reasoning from prior precedents of the Supreme Court.  (And, of course, this also leaves open the possibility of discussing how much those prior precedents should matter and whether common-law-like reasoning has any r0le in constitutional interpretation, and what role it should have.)  I'm really looking forward to this semester of con law and I think my students will get a lot out of it as well.


Posted by Paul Horwitz on December 19, 2011 at 08:11 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Would Someone Please Tell Me What the Hell Newt Gingrich is Talking About?

Much of the news reaction to Newt Gingrich's appearance on Face the Nation yesterday focused on his statement that when substantial numbers of the members of Congress disagree with a federal judge's ruling, they can and should subpoena that judge to appear before Congress to explain the ruling.  (Here's a search result.)  I would like to focus on something else: what he has to say, precisely, about his disagreement with federal court rulings involving church-state issues.  He begins by discussing:

...Judge Biery's ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there's no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What's the recourse? Well, one recourse is impeachment.

I have not found the relevant opinion on Westlaw, and welcome assistance.  I would note that the Fifth Circuit apparently overruled the district court's order.  The case is discussed further in a white paper by Gingrich which can be found here.  Gingrich goes on to say:

The lawyer class defines America. We've had rulings that outlawed school prayer, we've had ruling that outlawed the cross, we've had rulings the outlawed the 10 Commandments, we've had a steady secular drive to radicalize this country away from all of its core beliefs. I mean what got me into this was the 9th Circuit saying that one nation under God is unconstitutional. We live in a country where judge Biery can literally say I will put you in jail for saying the word benediction. There's something profoundly wrong with the judicial system that has moved to that kind of extreme behavior. . . . And I'm just suggesting to you...I got into this originally because of two things -- The steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president's commander in chief powers, which is enormously dangerous.

Not having read either the district court ruling or the Fifth Circuit opinions or orders, I can't say too much about the merits of this case--although what the Gingrich campaign describes as the appropriate first-order response to Biery's ruling, to impeach and remove him from judicial office, seems a tad steep to me.  If Gingrich's description is accurate and doesn't omit important details, then I certainly would agree that such an order, if aimed at students, would be highly improper unless the graduation speaker policy was designed to privilege rather than allow religious speech.  (See here and here.  What orders may be aimed at school officials, and under what circumstances, is a different matter, as I also argue in those papers.)

But that's not my problem.  My problem is twofold.  First, rarely have I seen such a confusing mixture of words, phrases, and ideas about a complicated subject, each of them with different meanings and implications, jumbled together more thoroughly and incomprehensibly.  What, exactly, does "[t]he steady encroachment of secularism through the courts to redefine America as a non-religious country" mean?  Not what does it sort of mean, or what do we think it kind of probably means, but what exactly?  People who take these issues seriously--not just "academics," Heaven forfend, but philosophers, theologians, citizens, clergy, and many others--have grappled for years with what the words "secular," "secularism," and "non-religious" mean; they can't agree on much, but they can certainly agree that both in theory and practice they're not all synonymous.  There are perfectly respectable arguments that America is, in official terms, a "secular" country with a secular Constitution, including arguments by many who believe it that the Constitution may be secular but that the United States is neither a secularist country nor a non-religious one.  And is it an accurate description of what has, in fact, been happening in the courts in the last several decades, which have seen many more victories for equal access for religious speech in public places than defeats?  In short, try as I might, I genuinely can't understand exactly what Gingrich is saying, aside from seeing a whole host of buzzwords vomited forth all at once.  

The second thing that bothers me is Gingrich's statement that "I got into this originally because of two things -- The steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president's commander in chief powers, which is enormously dangerous."  Really?  Note that the transcript of the announcement of Gingrich's candidacy says nothing about either issue at all.  Go figure: it talks all about the economy, with a little mention here and there of national security and federalism.  Nothing about the courts, religion, or even the powers of the presidency.  

Does Gingrich mean what he says?  Does he care whether he means what he says?  I find it hard not to doubt it.  And that, one will recall, is the now-standard philosophical definition of bullshit: not a statement that is wrong, but one as to which the speaker doesn't really care whether it's right or wrong.*  Now, I don't want to have undue expectations of a presidential candidate, and Gingrich would not be our first bullshitter as candidate (or president), on either side of the aisle.  But he does strike me as a sterling example of a bullshitter.  And for one who cares a good deal about law and religion (and much less about presidential politics), the whole thing is both bothersome and confusing: not just because it's clearly not why he got into the race (like most candidates, he entered the race because he wants to be President; is there some reason we're not allowed to say so anymore?), but because even if it were, he demonstrates no actual understanding of the complicated issues he's addressing.  Perhaps someone can give me a good-faith explanation of what Gingrich's actual views on church-state law are, and I would wecome it; but I doubt anyone can if he himself cannot, and I don't think he can.  

* I should add that although every reasonably educated person, including myself, has long been familiar with Harry Frankfurt's work on bullshit, it was mentioned on the legal blogosphere quite recently, by Paul Campos.  I disagree quite strongly with the way he dealt with that concept.  I think he used it as a weapon, a tool pointed only outward toward his real or perceived adversaries.  I think the only way to explore the idea of bullshit with any integrity, at least as a scholar rather than a social activisit (and probably even then), is to treat it, at best, as a two-sided weapon that cuts the person who wields it just as much as it does the people he wields it against.  To talk about bullshit without examining one's own propensity for bullshit is, in my view, to fail in scholarly integrity, to wholly corrupt the idea, and even to exemplify it.  But although I wanted to talk about Campos's use of the idea (and his use of a great recent bok by William Ian Miller) at length, I ultimately decided I had neither the time nor the energy to do so properly.  I added this footnote both to give him his due for recently using the idea and reminding me of it, and to note my serious reservations concerning his use of the concept.      

Posted by Paul Horwitz on December 19, 2011 at 07:39 AM in Paul Horwitz | Permalink | Comments (9) | TrackBack

Sunday, December 18, 2011

"Our Boggling Constitution" wins! Congrats to Paul!

The Green Bag has honored Paul Horwitz's "Our Boggling Constitution:  or, On Taking Text Really, Really Seriously" (which appeared in Constitutional Commentary) as one of 2011's pieces of "exemplary legal writing."  The short, and very funny, piece is here

 This light essay takes a jaunty two-step beyond textualism and beyond intra-textualism, and offers a new approach to constitutional interpretation: intra-intra-textualism. Just as textualism involves taking the whole text of the Constitution seriously, and intra-textualism involves taking the words of the Constitution seriously, so intra-intra-textualism proposes that we take the letters of the Constitution seriously. Inspired by Boggle, and by the various text-twist type games I can't seem to stop playing on my Iphone, intra-intra-textualism, or "Our Boggling Constitution," argues that if the words of the Constitution have authoritative interpretive meaning, then so must its letters -- especially when they are jumbled together and rearranged. Besides offering new sources of legitimacy, flexibility, and professional advancement, Boggling Constitutionalism, unlike most other theories of constitutional interpretation, is also fun for the whole family. This humor piece, which was initially published anonymously, is a nominee in the Green Bag Almanac & Reader's list of exemplary legal writing over the past year.

Posted by Rick Garnett on December 18, 2011 at 05:27 PM in Rick Garnett | Permalink | Comments (4) | TrackBack

Ties in Sports: A Request

Crimson Tide excepted, I don't give a damn about sports, so I'm hoping my reader(s) can help me out. I'm looking for information about ties and/or draws in sports or games. I'm interested in the details and history but also, God help me, in the policy and philosophical issues: why some sports/games allow ties and some don't, why the trend seems to be moving away from them, and even what ties "mean" in some broader sense. Any citations, especially but not exclusively to policy or philosophical discussions, as well as your own opinions, would be greatly appreciated. Thank you! Obviously, it's for a paper on law and religion.

(By the way, I generally refuse to use the ugly neologism "bleg.")

Posted by Paul Horwitz on December 18, 2011 at 03:36 AM in Paul Horwitz | Permalink | Comments (20) | TrackBack

Friday, December 16, 2011

Turkey Atheists Invoke Thanksgiving as Proof

Christopher Hitchens is gone.  I suspect he was most well-known for his vigorous atheism, which prompts this post’s playful title.  Entirely separate from his actual positions on things (with which I am far from in complete agreement), Hitchens was among my favorite writers.  Prolific, pugnacious, witty – a genuine thrill. 

I am sad that his voice is gone; I enjoyed reading  him.  I similarly grieved the loss of David Foster Wallace a few years ago; whatever the substance of DFW’s views, I loved reading the offerings of such a gigantic and rich intellect.   So it goes with Hitchens. 

How does this relate to law? It doesn’t, not directly.  But for the many of us in the academy who love to write, to explain, to speculate, to argue – to actively discharge our duties as teachers and thinkers –  Hitchens’ departure for the silent shores of eternity, however inevitable, is unwelcome.  

Hitch famously contended that spirits – he only believed in one type – improved his life and work.  Whether alcohol has such qualities for the rest of us is unresolved.  I think there’s something to it; it’s no accident fermented beverages are as old as civilization.  So I’ll conclude my virtual toast, and then conduct a real one.  Hitchens would no doubt approve.

Posted by Brendan Maher on December 16, 2011 at 06:16 PM | Permalink | Comments (1) | TrackBack

Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction.

If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill.  Some states do indeed recognize this distinction for sentencing purposes, but others do not.  For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers.  The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.

With the Enmund/Tison line of cases in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.

The cases both involve fourteen-year-old murderers sentenced to life without parole.  In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  In the two new cases, Miller and Jackson, the Court will consider whether to preclude LWOP sentences for very young juveniles convicted of murder.  The Court might simply ban (or accept) LWOP for fourteen-year-olds on a categorical basis, but the two cases also permit (perhaps even invite) the drawing of distinctions between relatively high- and low-culpability defendants.  Where Miller seemingly had an intent to kill, and did so in a particularly brutal fashion, Jackson’s role was quite different:

He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, Jackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face.

Jackson v. Norris,  2011 Ark. 49 (Danielson, J., dissenting).  If the Court were to grant Jackson relief, but not Miller, on the ground that the one was less culpable than the other, the holding might have some interesting implications for Tison.  Although Tison deals with adult felony-murderers sentenced to death, not juveniles sentenced to LWOP, Graham demonstrates that the line between the death penalty and LWOP jurisprudence is not nearly so impermeable as it once seeemed.

Whatever happens in the JLWOP cases, a new article by Joseph Trigilio and Tracy Casadio (“Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” 48 Am. Crim. L. Rev. 1371 (2011)) makes a strong argument that the Court ought to revisit Tison in light of its more recent Eighth Amendment decisions.  I think that Trigilio and Casadio are especially persuasive in showing that the “objective” prong of the Eighth Amendment analysis in Tison would have to be handled quite differently today.

This is in part because the way the Court performs the objective analysis has changed, and in part because several states have changed their laws since 1987.  You can read Trigilio and Casadio for the details (1400-01), but their bottom-line assessment is this: where the Tison Court found that only about one-third of jurisdictions required an intent to kill in order to impose the death penalty on a non-triggerman, the Court would today find that about three-quarters of jurisdictions rule out death in those circumstances, which might be enough to conclude that there is a national consensus against it.  Trigilio and Casadio also note a number of other “objective” factors that would provide additional support for overturning Tison, such as the direction of change in state laws.

As to the subjective prong, Trigilio and Casadio observe that the Court’s cases since Atkins v. Virginia, 536 U.S. 304 (2002), have emphasized two considerations:

First, a categorical approach is utilized to limit juror discretion that creates an intolerably high risk of an unwarranted death sentence.  Second, a focus on the penological goals of retribution and deterrence places culpability at the center of the Court’s subjective analysis.  (1406-07)

On the first consideration, Trigilio and Casadio point out (correctly, I think) that an intent requirement would work better as a categorical rule than the conceptually uncertain Tison framework.  I’m not quite so convinced, however, by their claim that “[j]urors rendering judgment on felony-murder accomplices are highly likely to feel the need for retribution for a killing that occurred in the course of a rape, robbery, or kidnapping, and to impute that need onto the non-triggerman defendant regardless of his participation in the actual killing.”  (1408)  Indeed, the claim seems somewhat belied by the data they present in their objective analysis regarding how rare it is in practice for non-triggermen lacking intent actually to be executed.  (1404)

I think they are stronger ground, though, in arguing that the Court has recently been more insistent that the death penalty be reserved for the worst of the worst from a culpability standpoint, and that the non-triggerman lacking an intent to kill does not belong in the “worst of the worst” category.

Cross posted at Life Sentences.

Posted by Michael O'Hear on December 16, 2011 at 05:44 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Thursday, December 15, 2011

Thanks and One More for the Road

Thanks to Dan and the Prawfsblawg crew for allowing me to blog the past few weeks. And thanks for the commentators for making it great fun (who would have guessed bathroom divisions would be more controversial than abortion?).

Yesterday, the American Journal of Public Health put online a paper I wrote with  Dean Eli Adashi  "In the Wake of the Guatemala: The Case for Voluntary Compensation and Remediation," which the journal  accepted through peer review a few months back. Unfortunately, you need to be a subscriber to access it, but here is the abstract:

Recently unearthed records reveal that between 1946 and 1948, researchers with the US Public Health Service engaged in nonconsensual inoculation of vulnerable Guatemalan populations with syphilis, gonorrhea, or chancroid.

The US government has issued formal public apologies to the Guatemalan government and its people, and the Presidential Commission for the Study of Bioethical Issues has been tasked with reviewing the historical record and the adequacy of protection of human research participants.

We argue that the US response is insufficient and call for a restitution program directed at the aggrieved parties. We review the lessons of two earlier analogous cases and propose guiding principles upon which such a restitution program could be crafted with the Guatemalan people in mind. (Am J Public Health. Published online ahead of print December 15, 2011: e1-e3. doi:10.2105/AJPH.2011.300543)

Thanks again for having me, Glenn

Posted by Glenn Cohen on December 15, 2011 at 11:16 PM in Article Spotlight, Current Affairs | Permalink | Comments (2) | TrackBack

Wednesday, December 14, 2011

Teaching the Affordable Care Act Litigation in Con Law

I'll be teaching Con Law for the first time in the spring.  I'm planning to devote a significant amount of time to the pending challenge to the Affordable Care Act.  Our basic 1L Con Law class focuses on structural concerns, so the ACA case should nicely complement the rest of the course content.  In particular, I'm hoping that the case will help students to appreciate more fully the contemporary relevance of old chestnuts like McCulloch v. Maryland, as well as provide a platform for studying various aspects of current Supreme Court practice (e.g., cert. petitions, amicus briefs, and oral argument). 

If any other Con Law teachers have similar inclinations, I'd be very interested in ideas about how to pull this off most effectively.  My current plan is to spend the first class session discussing the Eleventh Circuit opinion -- I've just finished editing it down to a size that I think will make a fair first-day reading assignment (happy to share if anyone is interested) -- and then return to the case once every two or three weeks for the rest of the semester, assigning portions of briefs or other documents that relate to the cases from the casebook that we've just discussed.  I hope that we'll be able to listen to some oral argument, too, although I don't know how quickly that will be made available.

Posted by Michael O'Hear on December 14, 2011 at 11:09 PM in Constitutional thoughts, Teaching Law | Permalink | Comments (11) | TrackBack

Six Things Wrong with SOPA

America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)

  1. Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve CrockerPaul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
  2. Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
      • primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
      • with a limited purpose or use other than such infringement
      • that facilitate or enable such infringement
      • that promote their use to engage in infringement
      • that take deliberate actions to avoid confirming high probability of such use

    If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.

  3. Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
  4. Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
  5. Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
  6. No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.

The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.

Cross-posted at Info/Law.

Posted by Derek Bambauer on December 14, 2011 at 09:07 PM in Constitutional thoughts, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Web/Tech | Permalink | Comments (1) | TrackBack

On the Move

Jane Yakowitz and I have accepted offers from the University of Arizona James E. Rogers College of Law. We're excited to join such a talented group! But, we'll miss our Brooklyn friends. Come visit us in Tucson!

Posted by Derek Bambauer on December 14, 2011 at 05:39 PM in Current Affairs, Getting a Job on the Law Teaching Market, Housekeeping, Information and Technology, Intellectual Property, Life of Law Schools, Teaching Law, Travel | Permalink | Comments (2) | TrackBack

Tuesday, December 13, 2011

5 Lessons from 5 years in the Legal Academy (with Credit where it is Due)

About 5 years ago, while a fellow, I accepted the generous offer of Dan M. et al. to blog on Prawsblawg. I thought I'd take the opportunity to reflect on a few lessons I have learned that might be useful to others starting out, and to give credit to those who taught them to me:

  1. Office location matters: Especially in a big school where all the faculty are not together, where you locate your office matters. I largely lucked out by choosing a location which was near at least one other person who taught Civ Pro, whose office I could pop into when I didn’t understand something the first time through (which was often!) and who was extremely patient and generous with their time.  By contrast, I am a bit far in location from the other two faculty members who are closest to me in terms of subject matter of writing, but we make appointments and otherwise look for opportunities to catch up.  Think about what you need and want because there may only be a limited number of people with whom you can have a “water cooler talk” type of relationship.
  2. The optimal level of tenure anxiety is what you should aim for, neither the maximal nor the minimal. I worry about not getting tenure. I think this is just a fact of life in my home institution, and is true of all the juniors to some extent. What I did not immediately recognize is that this is a good thing…to a point… I would not push myself nearly as hard or be as entrepreneurial if I did not feel the need to distinguish myself in my field in order to maintain my job. What I constantly have to do, though, is aim for the optimal anxiety over tenure. I don’t lie awake at night paralyzed with fear or ever feel plagued with self-doubt, but a little anxiety can be very healthy.
  3. Not everything you communicate has to be communicated verbally to your students. There are many things that your students need to learn, for which in-class time (be it lecture or socratic) is a total waste because it is just not suited for that format. Martha Minow gave me the advice, that sometimes the best way to communicate material is in writing. Thus I have inserted into my “reader” for Civ Pro several “cheat sheets” that walk students through particular subjects (like service of process) I want them to know but do not want to lecture on in class. It has gone very well thus far.
  4. Monitor your food intake. At least at Harvard, there is very often food provided at various meetings and times of the day. It is easy to get fat. At the same time, I have come to realize that I need some caffeine and sugar flowing into my system while teaching. Through trial and error I have discovered the odd combination o Coke Zero and Swedish Fish make an excellent in-class snack. The fish are small enough that I can chew them while my students are answering a question I just asked.
  5. Learning names matters to students. In my 1L contracts class, Christine Jolls (who taught me) memorized all 140 of our names by day one of the class. This stuck with me all these years, so I undertook to do the same the first year I taught Civ Pro (luckily class sizes had shrunk to 80 by then, which makes Jolls’ feat even more remarkable). I combine it with a trick I picked up from Peter Hutt to get them to submit one page information sheets on themselves and then call them for particular cases or hypos based on things they had done (e.g., “Mr. X, you were a beat cop in NYC, how would you evaluate the chase in Scott v. Harris? Would the court’s holding change the way you approached your job?”) I had thought this would be a good parlor trick of sorts, that it would make the students believe I was watching out for them and also that I took teaching seriously (both of which I do!) What I never anticipated was how much of a difference it made to them. They routinely tell me in person and on evaluations that it made them feel as though someone in the law school really knew and cared about them. So even though it is a pain every year to do it, I have kept doing it and recommend it to anyone.

Posted by Glenn Cohen on December 13, 2011 at 11:07 PM in Teaching Law | Permalink | Comments (15) | TrackBack

Writing For Citation

One facet of the current attack on legal education is the claim that students help bear the exorbitant costs of a great deal of ‘useless’ or ‘irrelevant’ legal scholarship.   Leaving aside the empirical claims about how exorbitant those costs are, I’d like to focus briefly on the second claim—that legal scholarship is largely out of touch and irrelevant.  The evidence usually given for this claim is a general lack of academic citation in judicial opinions, particularly at the appellate level, where we might expect to see judges turn to the academy more regularly. 

I am certainly no empiricist (though I’d like to get better—help anyone?) and so I can’t make any credible arguments about the number or trend of such citations, but I do want to raise at least one theoretical concern about the thought that we should be trying to write pieces for citation.  It’s a pretty basic concern, and I want to make clear that it may not, in the end, be important enough to inform our thinking, but I wanted to raise it anyway.   The problem is this: We all know how to write stuff that gets attention if we want to, but does that produce the best and most valuable kinds of work?

 As just a rough and ready example, I did a little experiment with my first two posts here this month.  The first one (on tenure review standards) deals with a hot, controversial topic (legal education reform), and, as I expected, got a fair amount of commentary.  The second, which lays out the general thesis of a theoretical piece I’m working on, got almost no commentary.  Again, not surprising—and the reason could simply be that my theory is completely and totally uninteresting.  My hunch, however, is that some topics—in the case of blogging, those which everyone has an opinion on—get a lot of play, while others just don’t, even if they are worthwhile and interesting subjects. 

Judicial citation is, of course, very different than blog commentary, but I think some of the same principles apply.   One is more likely to get cited if one does the kind of work that regularly shows up in citations.  Roughly, that might be doctrinal summaries in unsettled areas, or empirical work about contested normative claims, or historical work that aligns with particular theoretical or political preferences, etc…  In my case, I really have no illusions that I can ever get a Supreme Court citation, but I could probably come up with a strategy that would make it at least more likely.  Maybe if I did a thorough historical review of the original public meaning of “commerce”, one that demonstrated the impossibility of “substantial effects” analysis as an originalist matter, I could get Justice Thomas’s attention somewhere down the line.  Probably not, but that might be my best shot.

 My concern is that a scholarship driven by citation seems likely to be an impoverished, and perhaps even outcome-oriented, model.  I wrote a piece a few years ago about the historiographical dangers of writing for a judicial audience, in which I suggested (among other things) that the result might be a “binary kind” of analysis, one that has:

historians lining up eagerly on either side of a judicially imposed dividing line.  After all scholarship that squarely supports one side of [a legal] debate could turn up in a constitutional opinion, while more sophisticated studies rendered in delicate shades rarely have an impact on national policy.  Thus, the scholar tempted by the constitutional spotlight not only must pick a side, she must also simplify her account for easy judicial access. 

Now maybe I am overwrought on this.  Maybe I’m just being protective of my own inability to get cited in an opinion.  There are, after all, a great many practical benefits to tailoring scholarship to citation.  Such scholarship is, by at least one definition, clearly more useful and relevant.  It’s the stuff that’s making a difference in cases, and there’s certainly very real value in that.  I just wonder about the potential costs if we were to move whole-heartedly down this road as an academy.

Probably the answer, as ever, is somewhere in the middle.  We need both kinds of work—relevant and seemingly obscure—and we’re just reopening the debate about the proper balance point.


Posted by Ian Bartrum on December 13, 2011 at 05:19 PM | Permalink | Comments (16) | TrackBack

Imprisonment Rates and the Racial Threat Hypothesis

In a post last week, I highlighted a wide gap in the incarceration rates of three medium-sized, midwestern states.  The ordering of the three states from highest incarceration rate to lowest (Indiana, Wisconsin, Minnesota) corresponds with the ordering from highest rate of violent crime to lowest.  However, for reasons I explained in the previous post, I don’t think  the analysis ought to end with the simple assertion that high crime drives high incarceration.  For one thing, there is Minnesota: with a crime rate only a little lower than Wisconsin’s, Minnesota has an incarceration rate that is much lower.  There must be other factors at play besides just the crime rate to account for Minnesota’s incarceration rate.  For another, to focus on the crime-incarceration connection begs the question of what drives the very different crime rates of the three states.

In this post, I’ll explore another possible way of accounting for differences in the three states’ incarceration rates, the racial threat hypothesis.  The basic idea is this: a larger racial minority population causes the majority to feel more threatened by the minority and consequently to prefer to stronger social control measures.

Here are the key numbers from Indiana, Wisconsin, and Minnesota:





Black Population (2010)




Blacks as Percentage of Total Population (2010)




Imprisonment Rate (2010, per 100,000)




As you can see, the incarceration-rate order tracks the order based on the size of the each state’s black population.

Interestingly, the pattern does not hold if you focus on the size of the white population.  The three states are almost indistinguishable in how white they are, and the order of “whiteness” does not follow the incarceration-rate order: Wisconsin is number one (86.2% white), followed by Minnesota (85.3%) and Indiana (84.3%).  We might hypothesize, then, that there is something about having a relatively large percentage of a particular minority group that tends to push incarceration rates higher.

A similar pattern is evident nationally.  Consider the top ten states by imprisonment rate (from highest to lowest):


Ratio of Blacks to Whites

Rank Among States Based on Black:White Ratio

Ratio of Hispanics to Non-Hispanic Whites

Rank Based on Hispanic Ratio



















































Thus, among the top ten imprisoning states, eight are also among the top ten in the proprtion of blacks or Hispanics.  A ninth, Arkansas, is only a little outside the top ten for blacks.  The tenth, Oklahoma, seems to deviate from the pattern, but is still in the top half of both the black and Hispanic scales.

Now consider the bottom ten imprisoning states (from lowest to highest imprisonment rate):


Ratio of Blacks to Whites

Rank Among States Based on Black:White Ratio

Ratio of Hispanics to Non-Hispanic Whites

Rank Based on Hispanic Ratio



















































Note that not one of the bottom ten for imprisonment is among the top ten based on the proportion of either blacks or Hispanics.

A possible explanation for these patterns comes from scholars who write about the “racial threat” phenomenon.  I’ll crib a little bit from a fascinating new article by Christian Breunig and Rose Ernst, “Race, Inequality, and the Prioritization of Corrections Spending in the American States,” 1 Race & Justice 233 (2011):

“Racial threat,” in the most simplified terms, describes a group of theories positing a relationship between the sizes of the Black population in one area to the extent of social control measures aimed at that population.  Broadly speaking, this theory posits that the presence of a racialized “other” in a population increases fear and/or hostility among White Americans toward this other group which, in turn, provokes support for social control policies.  Social control policies include but are not limited to social service policies such as “welfare,” as well as a host of criminal justice policies.  For example, Pamela Irving Jackson’s work in the area of policing has found a connection “between minority group size, competition for sociopolitical dominance, and the level of policing resources.”  (235)

In order to test the racial threat hypothesis, Breunig and Ernst have studied data from all fifty states over a fifteen-year time period and attempted to control for many different variables.  Their focus was on corrections spending, not imprisonment rates per se (my focus), but one would expect a correlation between the two.  More specifically, their dependent variable was what they call the “corrections priority index” (CPI), which is simply the percentage of state spending that goes to corrections.

Surprisingly, Breunig and Ernst found that CPI does not seem to be determined by any of the obvious political factors, such as which party is in power or whether the population is more liberal or conservative:

An intriguing aspect of our analysis is that we did not discover any evidence that institutional and political factors, including partisanship, divided government, referendum, and citizen ideology, influence the prioritization of corrections spending.  (243)

If not those factors, then what?

On the whole, our analysis suggests that structural factors, specifically racial threat and inequality, are the dominant forces in determining the prioritization of corrections spending. . . . We also find that the number of people incarcerated in state prisons as well as murder rates are statistically significant but have only small effect.  (243)

Breunig and Ernst more precisely quantified the racial effect as follows: “[A] 1% increase in the percentage of the African American population in a state leads to at least a 0.2% increase in the CPI.”  (244)

One potential response to this research is that race per se may not matter since we know that race is closely correlated in this country with poverty.  In other words, one might wonder if the “racial threat” theory should be recast as a “poverty threat” theory.

However, Breunig and Ernst also considered the effect of economic inequality on the CPI, and found that the racial variable had a distinct effect.  At all levels of inequality, increasing the black percentage of the population also increased the CPI.  Breunig and Ernst did find that inquality mattered, but only in states with relatively low black populations.  They suggest that “racial cleavages” are the primary social division that politicians exploit, but that class cleavages become salient in their own right in states in which there is little racial threat (238).

Putting all of this together, we might hypothesize that one explanation for Indiana’s high imprisonment rate (relative to Wisconsin’s and Minnesota’s) is that Indiana has a much larger black population, which triggers racial threat dynamics and a more powerful demand in the political system for social control.

But, if that’s right, how do we account for the fact that Indiana has much lower racial disparities in its prison population than its two neighbors to the north?  If Indiana’s whites feel more threatened by blacks, shouldn’t that translate into more vicious racial disparities?

Not necessarily.  This is all quite speculative, but let me suggest three possible reasons why strong racial threat dynamics might not necessarily produce high racial disparities.  First, the political demand for more aggressive social control must be mediated through a legal system that may be more committed to racial equality norms than the population at large.  Second, a relatively large black population probably means not only stronger racial threat effects, but also a greater voice for blacks in a state’s political and legal systems.  Blacks may not be able to (and indeed may not wish to) blunt the state’s demand for penal severity, but may be able to exercise some influence in minimizing the extent to which the demand is met through racially discriminatory policies and practices.  Finally, racial threat dynamics may serve to undermine social trust generally across a state’s population, leading to relatively higher white crime rates.

To be clear, I don’t think anything in my analysis here demonstrates that racial threat dynamics play an important role in explaining the relative imprisonment rates of Indiana, Wisconsin, and Minnesota.  But, to my mind, the racial threat hypothesis remains an intriguing possibility that may warrant further research.

The next post in the series will examine how imprisonment rates in the three states have changed over the past twenty years.

Cross posted at Life Sentences.

Posted by Michael O'Hear on December 13, 2011 at 03:18 PM in Criminal Law | Permalink | Comments (3) | TrackBack

A Few Thoughts on Kiobel

I'd like to share some brief thoughts on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law.

Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from "general and consistent practice that states follow from a sense of legal obligation." According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms--i.e., those that are "accepted by the civilized world" and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases--such as those involving prohibitions against piracy, offenses against ambassadors, and torture--the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a norm has the requisite levels of state acceptance and definitional precision.


The circuit split underlying the decision to grant cert in Kiobel suggests that the norm of corporate liability falls into the latter category. After canvassing selected treaties, precedent from international tribunals, and scholarship, the Second Circuit concluded that corporations have never been prosecuted for violating customary international law, and that a custom of liability therefore does not exist. But upon completing the very same inquiry, the Seventh Circuit reached precisely the opposite conclusion in Flomo v. Firestone National Rubber Co. Notably, Flomo found that the Second Circuit had simply overlooked an important example of corporate liability--that of the German company I.G. Farben after WWII.

Assuming the Seventh Circuit was correct, the Second Circuit's failure to recognize the I.G. Farben precedent seems significant. But from the standpoint of judicial process, the failure was also understandable, for federal courts lack the resources to systematically identify all relevant international practice for the purpose of resolving 12(b) motions. A thorough inquiry would seem to require reviewing even the mundane, day-to-day behaviors of the entire "civilized world"--to use Sosa's words--over a course of years, perhaps decades. And yet, there is no database of such practice, no analogue to the essentially complete and well-organized federal and state case reports on Westlaw and Lexis. Thus, standard legal research techniques won't necessarily generate reliable answers. Courts can take shortcuts by focusing their research on salient indicia of state practice in the form of treaties and important decisions from international tribunals, but those examples usually seem to tell only part of the story. 

One conclusion to draw from this observation is that the disagreement between the Second and Seventh Circuits does not necessarily itself show that the norm of corporate liability lacks the acceptance and precision that Sosa demands. Instead, the split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second Circuit simply overlooked relevant precedent. Perhaps both circuits did. Absent a rigorous historical inquiry, it's hard to say with certainty. Either way, to conclude that it is difficult to accurately identify whether any given customary norm enjoys the acceptance and clarity necessary to create ATS jurisdiction is not to say that the norm lacks such characteristics. 

Another possible conclusion to draw is that federal courts should look for ways to supplement their capacity to ascertain international custom. One potential solution lies in Rule 53 of the Federal Rules of Civil Procedure, which permits courts to appoint special masters "to address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district." If the problems of research method that I have described prevent courts from "effectively and timely" identifying customary international law, then the Rule would seem to permit them to use special masters to supplement their efforts. Chosen special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would thus have a more comprehensive and nuanced understanding of state practice than the court could possibly obtain through standard legal research techniques. Briefly looking at the Federal Reporter, I did not come across any examples of courts using special masters in this way, but perhaps it's a step worth considering.  

Posted by Ryan Scoville on December 13, 2011 at 01:41 PM in International Law | Permalink | Comments (1) | TrackBack