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Friday, May 18, 2012

Berger on Customs, Rituals, and Institutions

Peter Berger's blog is quickly becoming one of my weekly regular reads -- and as he explains in this post, blogging is a weekly affair for him.  One of the nicest points he makes is about the ritualistic qualities and regularized patterns of the institutions that we construct for ourselves -- a point that has not gotten as much attention with respect to legal institutions as it perhaps deserves.   Here's a portion on the relationship of habits, rituals, and institutions:

[E]very habit has the potential to become a ritual. Since ritual is at the very heart of religion, and since I have assumed the obligation to blog about religion at least most of the time, the topic is not out of order here.

Forming habits is a basic requirement if human beings are going to live in a society (which in turn is a requirement for surviving as a species). Society is only possible because its members share mutually predictable programs of behavior. We are different from even our closest zoological relatives in that our biological makeup falls far short of supplying the required programs. The social philosopher Arnold Gehlen interpreted our species as being instinctually deprived, a “deficient being” . . . .  Since our instincts provide us with only a few programs of behavior, we must invent such programs ourselves. These ersatz instincts are what we call institutions . . . . Let us assume that Adam and Eve, when they met for the first time, did have a built-in program driving them toward each other. Beyond this primal interaction, nature did not tell them what else they should do with each other. Consequently human beings constructed these immensely varied and complex institutions, which provide programs for tackling the problems of sexuality, procreation, child-rearing, nomenclature, the rights of property, and so on. If these institutions—we commonly call them kinship—did not exist, the rules of engagement would have to be renegotiated every time a man was attracted to a woman, down to the property rights of great-grandchildren. This process of endless renegotiation would take all available time: Nothing else would get done, including such urgent activities as agriculture and warfare.

For further reflections of a similar nature, see Berger's wonderful book from a few decades ago, The Sacred Canopy: Elements of a Sociological Theory of Religion.

Posted by Marc DeGirolami on May 18, 2012 at 09:02 AM | Permalink | Comments (0) | TrackBack

Scholarly journals, what are they good for?

I've been a bit busy recently because of this. Which is not to say I'm complaining, I'm not! I think it will be fun. 

But when I'm not scratching my head as I learn the online submission system, catching up with current and possibly future editorial board members, and trying to coordinate my email and to do lists across my different computers (it's becoming increasingly clear that email control is a necessary skill for editors), I have been thinking about journals and the big picture.

Specifically, what do they do?

 I'm not really interested, in this post at least, with the question of what they do (or should do) for us as authors. At some level, we all get that: They get us the publications we need for tenure. 

I'm more interested in how we use them as readers and scholars. And here, I really am not sure. When I was in grad school, we were taught (or expected, since I don't recall ever being explicitly instructed to do this) (but then, when I went to Chicago, explicit instruction was not part of the program) to identify a group of key journals in our areas of interest and to read them, cover to cover, when they came out. 

But these days, I can think of only one colleague who actually does that. I try to do the next best thing: I am signed up to have a number of journals send me their tables of contents, and I flip through those when I get them and read abstracts--and sometimes the texts--of articles that seem particularly interesting. 

But I'm not sure whether that's common practice, or not.

Not do I have a handle on how people typically use journals for their research (or teaching). Again, I know what I do, but I have no idea whether this is typical or not.

My scholarship lies at the intersection of a bunch of different fields of history and disciplines (social movements, law, history, criminology, constitutional study, political theory, etc--it depends a bit on what project we're talking about, and when). So when I want to look for articles, I use a bunch of data bases to hunt for stuff. For example, I may begin my search using the data base that gets me to journal articles and books on US History, and then turn to Lexis to see what law reviews are saying. Then I may search the data base for books and articles on non-US History, on the theory that a historian of France, say, may be dealing with something that is methodologically relevant to my work in some way. And then I probably follow up with a quick search of SSRN and google scholar, just to see if a key word search turns up really new (SSRN) or really old (google scholar is good for this) work that is relevant.  And then I have a list of journals that I consider "the best," and I go look at their tables of content for the previous 5-10 years to see what they've published that might be relevant. I do that because key word searches don't always get at the stuff that might be useful.

That seems like a lot, but in the end, I tend to wind up with a handful of key sources and a lot of articles that are only relevant at the margins. But what I do get is a pretty holistic idea of what's out there in journals on an issue I'm particularly interested in. And this also introduces me to new journals that deal with issues that I'm interested in, which is helpful for those occasions when I'm just looking to read up on an area without any particular project in mind.

What that also means, as a practical matter, is that I don't do much with journals when they come out. Instead, I use databases to aggregate article and reviews when I need to get a handle on an area for research, teaching, or just to think through a problem. 

The upside is that I've been exposed to, and read fairly widely in, a number of journals over the past five or ten years that are "outside my field." My work may not be more interdisciplinary or international (I'm not sure how much what I'v read has rubbed off), but my reading certainly is.

But I'm not sure what this means for how we package journals. We still need the journal apparatus, at least in history, since we require pre-publication peer review. But what else do journals do? Do they police disciplinary boundaries? Help push disciplinary boundaries or reshape fields?  Do they exist to curate, for lack of a better word, projects within fields?  Are they indicators of quality--if you publish in journal X you are the top in your field and readers who read your article from journal X know that?

I don't know what I think the answers to those questions are, so it would be interesting to hear your views.


Posted by Elizabeth Dale on May 18, 2012 at 07:08 AM | Permalink | Comments (1) | TrackBack

Religion, Hair, and Prisons

This post follows Sam's excellent comments on the Department of Justice's robust enforcement of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") under the Obama Administration.  I share Sam's view that the charge that President Obama is "waging a war on religion" is tough to square with his administration's significant RLUIPA enforcement efforts.  As religious liberty in the penal context is of particular interest to me, I wanted to add a few items to the conversation that Sam started.

Before doing so, a little background: RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . even if the burden results from a rule of general applicability,” unless the burden (1) “is in furtherance of a compelling governmental interest”; and (2) “is the least restrictive means of furthering that compelling governmental interest.”  RLUIPA -- passed after the Supreme Court's decision invalidating the Religious Freedom Restoration Act as it applied to States -- attempts to restore heightened protection for the religious freedom of incarcerated individuals.

The generally applicable prison rules that I'd like to focus on are inmate grooming standards, which, broadly speaking, restrict the ability of prisoners to grow their hair or maintain facial hair.  Georgia, for example, requires that inmates' hair must be no longer than three inches in length; mustaches that "extend beyond the edge of the mouth" are prohibited; and beards and goatees are prohibited.  Prison officials generally offer four basic justifications for these restrictive grooming policies: they prevent inmates from drastically altering their appearance and thus limit inmates' ability to evade easy identification in the event of an escape or major incident; they are necessary for security purposes in that they make it more difficult for inmates to hide contraband; they ensure good hygiene; and they promote order and discipline. 

These rules may conflict, however, with the religious requirements of inmates, such as Muslims, Sikhs, Native Americans, and Rastafarians, who are forbidden from cutting their hair.  The question, given this "substantial burden" on these inmates' religious exercise, is whether restrictive inmate grooming policies can survive strict scrutiny.  In an article forthcoming in the University of Miami Law Review, I highlight three questions that are relevant for courts asked to resolve this question in particular cases:

First, in defending the restrictive grooming policies, can prison officials rely on generalized statements that the policies further compelling state interests in say identification or security, or, by contrast, must the prison officials put forth particularlized evidence that the specific inmates challenging the rules have given rise to the concerns (e.g., security) that would justify restrictions on their religious freedom?  The Department of Justice seems to have taken the latter view, arguing in one case for example that the prison officials have “the burden of showing that security, their asserted compelling interest, is actually furthered by banning . . . specific Plaintiffs from having long hair.”  I agree with the Department's take, as such case-by-case adjudication is more consistent with RLUIPA's protections than allowing prisons to avoid meaningful judicial scrutiny by merely reciting their general penological interests.

Second, what is the relevance of medical exemptions to generally-applicable grooming policies under RLUIPA?  Some would say there is no relationship between the two.  The Eleventh Circuit, for example, stated that, “the existence of the medical exemption does not in any way defeat [the state’s] claimed interests in support of the shaving and hair length regulations.”  It seems to me that granting exemptions from grooming standards to inmates with medical issues undermines the argument that the policies must remain in effect as to those with conflicting religious requirements.

Third, what is the relevance of the fact that most States and the federal Bureau of Prisons do not have restrictive grooming policies, despite possessing the same underlying penological interests?  My fantastic research assistants have discovered that thirty-nine States and the federal Bureau of Prisons do not have restrictive inmate grooming policies on the books, leaving only eleven, including Georgia, that do.  The scoreboard is in flux, trending towards the thirty-nine.  In one of the cases that Sam links to, Basra v. Cate, the Department of Justice challenged California's restrictive grooming policies, leading California to settle the case -- it will allow inmates to maintain beards and long hair for religious reasons.  California houses approximately 144,000 prisoners; the federal Bureau of Prisons about 208,000.  It seems to me that States with restrictive inmate grooming standards must explain why it is necessary for them to maintain such requirements, even though most jurisdictions are able to satisfy the same penological interests without resorting to restrictions on inmates' religious exercise. 

At the end of the day, I call for a framework in which restrictive inmate grooming policies may not be imposed on inmates with religious beliefs that require followers to wear beards or have long hair, unless the prison officials offer evidence of actual or threatened risks to compelling penological interests as to the specific plaintiffs or inmates in question.  The Fourth, Fifth, and Eleventh circuits, at present, have upheld restrictive grooming codes. (Justice O'Connor is sitting by designation in a pending Fourth Circuit case, Couch v. Jabe, that involves a RLUIPA challenge to Virginia's restrictive inmate grooming policies; the Department of Justice has intervened in a pending Fifth Circuit case; and my article focuses on the Eleventh Circuit.)  

The Department deserves a lot of credit for dedicating itself to this area of law, which does not get a lot of press or attention, and for seeking to expand the religious rights of inmates to their statutory maximum.

Posted by Dawinder "Dave" S. Sidhu on May 18, 2012 at 06:36 AM in Religion | Permalink | Comments (3) | TrackBack

The New Info re: Trayvon Martin and George Zimmerman

The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.

1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.

2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.

3. Traces of pot were found in Martin's body at the time of his death.

4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.

None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).

A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.

P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.

5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.

6. There is no witness testimony or other evidence regarding who started the altercation.



Posted by Administrators on May 18, 2012 at 12:37 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (5) | TrackBack

Thursday, May 17, 2012

Mea Culpa on E-mail Correspondence, Blog Posts, & Student Privacy

As some may have noted, I've taken the liberty of deleting my earlier post on a student's accepting and then withdrawing from working as an RA. Deborah Merritt tells me that it was unprofessional of me to disclose the content of a student's e-mail, even though the student was not identified in the post, because classmates would infer the student's identity from the student's prior disclosures to third parties. (Other anonymous posters said the same thing, but I tend to discount anonymous responses).

Could the student have been identified from my post? I certainly did not think so, and I persist in the hope that anonymity was maintained. I hire several RAs each year. This particular student was one of many that I interviewed, and she never performed any work for me after accepting the job, because her work would not begin until June, two months after she withdrew from the job. I had never made a public announcement that she was one of my prospective RAs, so it simply did not occur to me that her classmates would figure out that (a) she had accepted a job with me, (b) she had withdrawn from that job, and (c) she actually wrote the message of which I complained.

But I am easily baffled by the internet and by students' social networks. Knowing the depth of my own ignorance on these matters, I really should have quoted the e-mail as a purely hypothetical message, without saying that it was from one of my actual students. On that point, Deborah Merritt is absolutely and completely correct, and, for that blunder, I sincerely apologize.

Not being able to put the genie back in the bottle, I decided to minimize the damage by simply deleting the whole post to cut off any further spreading of the correspondence. I remain hopeful that the student's identity was not actually revealed at all to anyone. (But she should feel free to e-mail me in person to let me know if she believes that she was "outed" by classmates: I'll apologize profusely to her as well, in person).

Lest anyone think that I deleted the post to hide evidence of the unpopularity of my stance, let the record reflect that the responses -- 75 of them by my last count -- ran heavily in the student's favor, with only seven or so agreeing with me that the tone of her message was too cavalier. The vast majority informed me that I was (using my words) a "hypersensitive curmudgeon." (There was some choicer invective as well).

Posted by Rick Hills on May 17, 2012 at 11:27 PM | Permalink | Comments (0) | TrackBack

Too Much Law?

I'm delighted to be following Howard Wasserman (usually a good idea) in blogging about a review essay I recently published in Fordham Law Review Res Gestae.  The essay is a review of Mila Sohoni's article, "The Idea of Too Much Law."  Sohoni's article considers claims of "hyperlexis" -- literally, claims that we have too much law.  She provides "accounts" of hyperlexis -- explanations that center on metrics such as the complexity and sheer volume of laws, as well as critiques that focus on the dynamics that generate hyperlexis.  She finds these accounts difficult to accept: the metrics because they require major assumptions (e.g., what makes a legal system complex), and the explanations of hyperlexis's dynamics because they are simply unconvincing as broad explanations for hyperlexis (assuming that it exists).  She concludes with what she describes as a "counsel of despair": hyperlexis claims are difficult to credit in the abstract, for the reasons she gives, but the hyperlexis critique of American law resonates powerfully, and corrodes citizens' faith in our regulatory system.

Sohoni's critique makes a lot of sense, and her focus on the hyperlexis concern is an interesting take on the ongoing debate about the scope and style of government regulation.  But, as I suggest in the essay, uncovering the popular concern about hyperlexis may require thinking about hyperlexis as it's actually experienced -- citizens' day-to-day encounters with the legal system that might generate claims that there's, literally, too much law.

As luck would have it, we have a recent Supreme Court case that illustrates a citizen's encounter with a potentially hyperlexified regime.   In Sackett v. EPA the Supreme Court held that pre-enforcement review was available when the EPA issued a compliance order to a couple who owned land that allegedly contained wetlands, and who were ordered to take significant remediation measures, backed by daily penalties for non-compliance, when they disturbed those alleged wetlands.

The legal analysis in the case was (pardon the pun) dry -- couched in the details of the APA.  What was more interesting for my purposes was the Sacketts' description of their plight.  The Sacketts described themselves in their briefing in ways that painted a picture of a couple doing everyday, normal activity -- clearing land on a lot in a residential subdivision so they could build their home -- when the EPA swooped in, issuing a compliance order that imposed onerous burdens based on conclusions (about the wetlands character of their property) that were difficult to verify.  To top it off, the order imposed daily penalities for non-compliance, but the EPA took the position (rejected by the Court) that the orde, and thus the liabilities for the penalties, were not subject to judicial review until the EPA brought an enforcement action (which it might never do).  Even though the Court's (unanimous) opinion was, as I said, couched in the dry terms of the APA, this picture was enough to make Justice Alito incredulous, both in his concurring opinion and at oral argument -- where, at one point, he asked the EPA's counsel if, when presented with these facts, a homeowner would exclaim that that simply couldn't happen in America.

The Sacketts' self-description, and Justice Alito's reaction to it, reflect a picture of hyperlexis that turns less on abstract metrics such as complexity or high-level dynamics such as over-delegation by Congress, and more on the lived experience of the legal system striking a seemingly law-abiding citizen like a lightning bolt out of the blue.  To be sure, this isn't the only situation that might lead a citizen to get a gut sense that there are too many laws.  Other pictures might be painted from other stories.  For purposes of my review of Sohoni's article, the point is that hyperlexis may be more experienced than understood as an intellectualized, abstract matter.  We still might be able to draw larger conclusions from those stories, but those conclusions perhaps should come from the bottom up -- as conclusions we reach from an inductive, experience-based, learning process.

Anyway, Sohoni's article is a nice contribution to the literature on regulation.  It deserves a read.

Posted by Bill Araiza on May 17, 2012 at 06:49 PM | Permalink | Comments (0) | TrackBack

Arizona Legislature Comes Out in Support of Ronald Dworkin

Perhaps that's not what it meant to do, but that's how I see it. I'm referring to a post by Eugene Volokh at the VC. (The man must employ half the legal librarians in Southern California. Either that, or he knows a lot about computers.) It discusses a recently enacted Arizona law. I quote Eugene quoting the law:

B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.

C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.

And “exercise of religion” is defined (in § 41-1493.01) very broadly:

“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

Eugene disagrees with the law, rightly in my view. He writes: "[T]his law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law."

What I find striking about this law is that law and religion scholars have written for years now about the difficulty or impossibility of distinguishing between religiously motivated views and policy or political positions, for purposes of rendering the former illegitimate in politics. Against this position, some scholars, including Dworkin, have argued that some laws can be viewed as unconstitutional because they represent legislators' religious views on policy questions and cannot be independently justified on "neutral," "secular," or "rational" grounds. (I see that argument much less these days in the literature, but Edward Rubin has made this argument in some recent work, as does a recent paper by Gary Simson.) Without saying more here, I think the mainline law and religion scholars have the better of the argument here.

In any event, the Arizona law seems to me to adopt a position that is remarkably similar to that of Dworkin and others who have argued for the applicability of the Establishment Clause to legislators' religiously motivated policy positions; it just happens to place the shoe on the other foot.


Posted by Paul Horwitz on May 17, 2012 at 11:48 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Obama's Secret War For Religion

A couple of months ago, it became common to hear the talking point that President Obama was waging a "war on religion."  Although I have a view about whether that talking point was accurate as a description of the Obama Administration's approach to, for example, contraception (hint: I don't think it was), those debates have long since lost any capacity they may have had to generate light.  So I don't want to rehash them here.  But I do want to at least call attention to an area that hasn't drawn a lot of notice in the press, but in which the Obama Administration has fought vigorously for religious liberty.

That area is the enforcement of the Religious Land Use and Institutionalized Persons Act.  RLUIPA, enacted in 2000 after the Supreme Court invalidated the Religious Freedom Restoration Act as it applied to state and local governments, imposes RFRA-like standards to state and local land-use decisions and the treatment of persons institutionalized in jails, prisons, and other state facilities.  RLUIPA was passed with bipartisan support, and the George W. Bush Administration, to its great credit, did enforce the statute aggressively in the land-use context.  The Obama Administration has continued that aggressive enforcement.  But the Bush Administration did comparatively little to enforce the statute in the jail and prison context -- the context in which individuals are totally under state control and so are entirely dependent on state accommodations to ensure that they can practice their religion.  This brief, filed in September 2008, was a rare exception.  (The Bush Administration did defend RLUIPA's constitutionality in Cutter v. Wilkinson, but I am talking about affirmative enforcement efforts.)  

That has changed significantly in the Obama Administration.  The Obama Administration's Justice Department has filed briefs supporting the requirement that prisons give a kosher diet to Jewish inmates who observe kashrut; filed briefs in several cases and intervened as a plaintiff in another to support the requirement that prisons provide Native American, Sikh, and Muslim inmates with an exemption from hair-length and beard-length restrictions where necessary to avoid a substantial burden on their religious practices; intervened as a plaintiff in another case to challenge a jail policy that restricted the religious materials inmates could receive (a policy that made it difficult for a Jewish inmate to obtain a copy of the Torah and for two Muslim inmates to obtain a copy of the Koran); and argued for broad application of RLUIPA's institutionalized-persons provision before the en banc Ninth Circuit.  (I should disclose that I supervised the work on a number of these cases, though the credit is very much due to the terrific career attorneys who worked hard on standing up this program and bringing the cases to fruition.)

I don't think this will change anyone's minds about whether President Obama is fighting a "war on religion."  But I do think it's an important and underappreciated part of the Obama Administration's record in this area.  I think it's fair to say that the Department of Justice has done more in the last two years to enforce the jail and prison provisions of RLUIPA than it did to enforce those provisions in the first ten years of the statute.  And that's something that should count in any assessment of the Obama Administration's record on religious liberty.

Posted by Sam Bagenstos on May 17, 2012 at 10:59 AM | Permalink | Comments (4) | TrackBack

Standing, sovereign immunity, and marriage equality litigation

My new essay, Rejecting Sovereign Immunity in Public Law Litigation, has been published at Fordham Law Review's Res Gestae. I am responding to Matthew Hall's Standing of Intervenor-Defendant in Public Law Litigation.

In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.

I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.

The space limitations of a law review supplement forced me to leave out some important pieces to this idea. But I hope to go back and dig a bit deeper into it in the future, so comments and thoughts on Matt's and my exchange are welcome. I will add that I am on a SEALS panel this summer on the future of Ex Parte Young and this essay will provide the starting point for my presentation there--if there is no sovereign immunity, there is no need for Ex Parte Young in its most common application.

Posted by Howard Wasserman on May 17, 2012 at 10:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Wednesday, May 16, 2012

The Missing Argument on the Tax Anti-Injunction Act

The following is a guest post from Yale 3L, Daniel Hemel

During the March oral arguments in the health care cases, the Justices seemed skeptical of the claim that the individual mandate was a “tax” for the purposes of the Tax Anti-Injunction Act (TAIA). (If the Justices find that the Tax Anti-Injunction Act applies, they presumably would withhold a ruling on the constitutional questions.) The Tax Anti-Injunction Act states that unless one of the enumerated exceptions applies, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” But as Justice Breyer said of the individual mandate: “Now, here, Congress has nowhere used the word ‘tax.’ What it says is penalty. . . . And so why is this a tax?”  His colleagues on the Court were similarly unwilling to countenance the claim that the penalty provision of the Patient Protection and Affordable Care Act (ACA) was a “tax” for the purposes of the TAIA.

Yet while the oral arguments focused on whether the individual mandate is a tax for the purposes of the TAIA, no one seems to have remembered that the lawsuit in question—Florida v. HHS—is not simply a suit to restrain the enforcement of the individual mandate. The complaint in Florida v. HHS “requests that the Court . . . [d]eclare the Patient Protection and Affordable Care Act, as amended, to be unconstitutional.”  The plaintiffs explicitly argue that the mandate is not severable from the rest of the Act, and thus that “[t]he Court should hold the ACA invalid in its entirety.”

So for TAIA purposes, the relevant question is not whether the individual mandate meets the TAIA’s definition of a “tax.”

Rather, the relevant question is whether anything in the Patient Protection and Affordable Care Act meets the TAIA”s definition of a “tax.” If it does, then Florida v. HHS is a “suit for the purposes of restraining the assessment or collection of a[] tax,” since it is a suit for the purposes of restraining the enforcement of every single provision in the ACA.
This latter question is not a terribly difficult one. Section 1402 of the ACA, entitled “Unearned Income Medicare Contribution,” imposes a 3.8% tax on the non-wage income of high-income individuals. It is clearly a tax; indeed, it contains the words “there is hereby imposed . . . a tax.” Section 1405 imposes a 2.3% tax on the sale of certain medical devices (again, using the magic words “[t]here is hereby imposed . . . a tax”). Section 1409 codifies the common-law “economic substance doctrine” and imposes penalties for purely tax-motivated transactions. Congress has unambiguously called these provisions “taxes,” and the plaintiffs in Florida v. HHS have unambiguously sought to restrain their assessment and collection.
Even if the Court rejects the plaintiffs’ claim that the individual mandate is inseverable from the remainder of the Affordable Care Act, that doesn’t save their suit from the TAIA. As the Solicitor General argued, and as at least some of the Justices seemed willing to accept, the TAIA is a jurisdictional statute.  When the Court decides whether it has subject matter jurisdiction over a case, it must “take[] the allegations of the complaint as true.” Warth v. Seldin, 422 U.S. 490, 502 (1975).  If, as the plaintiffs allege, the whole Act is unconstitutional, then the challenge to the individual mandate cannot be separated from the challenge to the rest of the ACA (including the sections that clearly impose taxes). In other words, taking the allegations of the complaint as true, a ruling for the plaintiffs in Florida v. HHS would restrain the assessment and collection of several sections that walk like a tax and talk like a tax. According to this logic, the Court should throw the suit out on TAIA grounds regardless of whether it finds that the individual mandate is itself a tax.

It may be too late in the day to revive the argument that the TAIA bars a ruling on the merits of the constitutional challenges. And even if the Court did buy the argument laid out here, a future plaintiff could circumvent the TAIA by styling her suit as a challenge to the individual mandate specifically, rather than the Affordable Care Act as a whole. But given that the plaintiffs in Florida v. HHS decided to shoot for the moon and seek the invalidation of the Affordable Care Act in toto, it is difficult to see how their suit survives the TAIA. The irony is that, because the plaintiffs in Florida v. HHS asked the Court for too much, the TAIA may prevent them from receiving anything at all.

Posted by Administrators on May 16, 2012 at 10:07 PM in Constitutional thoughts, Current Affairs, Tax | Permalink | Comments (5) | TrackBack

Benjamin, I just want to say one word to you -- 'robotics'

Of course, it was hard to get the phrasing from "The Graduate" just right in a post title, but there it is. A recent article in the New York Times suggests that robotics may hold great promise. Here's an edited excerpt:

Two people who are virtually paralyzed from the neck down have learned to manipulate a robotic arm with just their thoughts, using it to reach out and grab objects. ... The report, released online by the journal Nature, is the first published demonstration that humans with severe brain injuries can effectively control a prosthetic arm, using tiny brain implants that transmit neural signals to a computer. ... The two people in this study, a 58-year-old woman and a 66-year-old man, are quadriplegic, unable to use their limbs as a result of strokes years ago. ... With a little training, the two participants took control of the arm. It was the first time the man had used a limb of any kind in three years, and the first time in 15 years for the woman. Both were able to move the robotic arm and hand skillfully enough to pick up foam objects.

We've seen television and movies detailing what this might look like - all the way from The Six Million Dollar Man to promises of advanced robots (I'm sorry, "Androids") on Star Trek: The Next Generation, Battlestar Galactica, and The Terminator movies and TV series. The article is somewhat cautious as to future of robotics as an industry, but I imagine that much like calculators in the 1970s, the price prohibitiveness will diminish as the phenomenon takes hold. Of course this brings to mind a myriad of political, social and legal issues (some dealt with in BSG's ill-fated spinoff Caprica). I touched on a pretty basic one - criminal liability concerning Brain Computer Interfaces (BCIs) - here. But I'm wondering - what are the primary legal issues that rapid development in the field of robotics and artificial intelligence might present?




Posted by Dingo_Pug on May 16, 2012 at 05:02 PM | Permalink | Comments (2) | TrackBack

Contrarian Statutory Interpretation Continued (CDA Edition)

Following my contrarian post about how to read the Computer Fraud and Abuse Act, I thought I would write about the Communication's Decency Act. I've written about the CDA before (hard to believe it has been almost 3 years!), but I'll give a brief summary here.

The CDA provides immunity from the acts of users of online providers. For example, if a user provides defamatory content in a comment, a blog need not remove the comment to be immune, even if the blog receives notice that the content is defamatory, and even if the blog knows the content is defamatory.

I agree with most of my colleagues who believe this statute is a good thing for the internet. Where I part ways from most of my colleagues is how broadly to read  the statute.

Since this is a post about statutory interpretation, I'll include the statute:

Section 230(c)(1) of the CDA states that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In turn, an interactive computer service is:

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Further, an information content provider is:

any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

So, where do I clash with others on this? The primary area is when the operators of the computer service make decisions to publish (or republish) content.  I'll give three examples that courts have determined are immune, but that I think do not fall within the statute:

  1. Web Site A pays Web Site B to republish all of B's content on Site A. Site A is immune.
  2. Web Site A selectively republishes some or all of a story from Web Site B on Site A. Site A is immune.
  3. Web Site A publishes an electronic mail received by a reader on Site A. Site A is immune.

These three examples share a common thread: Site A is immune, despite selectively seeking out and publishing content in a manner that has nothing to do with the computerized processes of the provider. In other words, it is the operator, not the service, that is making publication determinations.

To address these issues, cases have focused on "development" of the information. One case, for example, defines development as a site that "contributes materially to the alleged illegality of the conduct." Here, I agree with my colleagues that development is being defined too broadly to limit immunity. Development should mean that the provider actually creates the content that is displayed. For that reason, I agree with the Roommates.com decision, which held that Roommates developed content by providing pre-filled dropdown lists that allegedly violated the Fair Housing Act. It turns out that the roommate postings were protected speech, but that is a matter of substance, and not immunity. The fact that underlying content is eventually vindicated does not mean that immunity should be expanded. To the extent some think that the development standard is limited only to development of illegal content (something implied by the text of the Roommates.com decision), I believe that is too limiting. The question is the source of the information, not the illegality of it.

The burning issue is why plaintiffs continue to rely on "development" despite its relatively narrow application. The answer is that this is all they currently have to argue, and that is where I disagree with my colleagues. I believe the word "interactive" in the definition must mean something. It means that the receipt of content must be tied to the interactivity of the provider. In other words, receipt of the offending content must be automated or otherwise interactive to be considered for immunity.

Why do I think that this is the right reading? First, there's the word "interactive." It was chosen for a reason. Second, the definition of "information content provider" identifies information "provided through the Internet or any other interactive computer service." (emphasis added). This implies that the provision of information should be based on interactivity or automation.

There is support in the statute for only immunizing information directly provided through interactivity. Section, 230(d), for example, requires interactive service providers to notify their users about content filtering tools. This implies that the information being provided is through the interactive service.  Sections 230(a) and (b) describe the findings and policy of Congress, which describe interactive services as new ways for users to control information and for free exchange of ideas.

I think one can read the statute more broadly than I am here. But I also believe that there is no reason to do so. The primary benefit of Section 230 is a cost savings mechanism. There's is no way many service providers can screen all the content on their websites for potentially tortious activity. There's just no filter for that.

Allowing immunity for individualized editorial decisions like paying for syndicated content, picking and choosing among emails, and republishing stories from other web sites runs directly counter to this cost saving purpose.  Complaining that it costs too much to filter interactive user content is a far cry from complaining that it costs to much to determine whether an email is true before making a noninteractive decision to republish it. We should want our service providers to expend some effort before republishing.

Posted by Michael Risch on May 16, 2012 at 04:01 PM in Blogging, Information and Technology | Permalink | Comments (4) | TrackBack

Non-White Friends

In my last post, I wrote about some of my recent research arguing that the diversity rationale -- as set forth most explicitly by the Supreme Court in the University of Michigan affirmative action cases -- has rendered non-whiteness a commodity.  That commodity is valued by non-white institutions.  Schools like to be able to advertise the diversity of their classes.  Employers like to advertise the diversity of their workforces.  In both instances, non-whiteness yields social and economic benefits to the predominantly white institution.  Of course, I'm not claiming that all of this is the result of the Supreme Court's reliance on the diversity rationale.  But that decision both reflects and reinforces an intense legal and social preoccupation with diversity in which non-whiteness has acquired a specific value to predominantly white institutions.

The value placed on non-whiteness extends beyond institutions and also affects the contours of relationships between white and non-white individuals.  At the most atomized level, we see this in white individuals' desire to have -- or at least to claim that they have -- racially diverse groups of friends.  Comedy provides a window into this ongoing social preoccupation.  Half-jokingly -- but only half-jokingly -- one commentator observes that "[o]bviously, whites want black friends so as not to appear racist."  Or recall the episode of Seinfeld in which George's boss accuses him of racism, and George desperately wants to prove him wrong.  "It'd be great if he could see me with some of my black friends," George muses.  "Yeah, except you don't really have any black friends," Jerry observes.  (Spoiler alert: the episode culminates with George paying Jerry's pest exterminator, the only black person he knows, to go to lunch with him in the presence of his boss; the plan backfires when the scheme is uncovered and George's boss tells him that he has "sunk to a new low.")

Comedy aside, society assigns a great deal of implicit significance to interracial friendships and affiliations.  Consider the slowly unfolding drama surrounding Trayvon Martin's death, in which repeated testimonials by a "black friend" that George Zimmerman was not racist (see here, here, and here) captured headlines.  It's difficult to believe that the same significance would have been attributed to a similar testimonial by a white friend.  Or recall the the fallout in response to the Bush administration's response to Hurricane Katrina, including, most notably, Kanye West's assertion that "George Bush doesn't care about black people."  The following year -- after declining invitations to do so for five years in a row -- Bush spoke at the NAACP's annual meeting, during which he colloquially referenced his black friends Robert L. Johnson (the founder of Black Entertainment Television), Reverend Anthony T. Evans (a prominent pastor in Dallas), and then-Secretary of State Condoleezza Rice.

Empirical research indicates that these prominent examples reflect larger social trends.  For example, research by sociologist Eduardo Bonilla-Silva (Duke) reveals that white people tend to inflate both the number and closeness of their non-white friends.  Likewise, in interviews, white subjects tended to accompany assertions of arguably racist views with citations to (often anonymous) non-white friends or acquaintances.  A reanalysis of the sociological research cited in the University of Michigan affirmative action cases reveals similar tendencies.  A Gallup survey polled students at the University of Michigan and Harvard regarding how many cross-racial friendships they had.  Ninety percent of white students report having three or more close friends of other races, as compared to only 37% of black students, 29% of Latino/a students, and 53% of Asian students.  The reanalysis suggests that if all the white students were telling the truth, then every student of color reporting three or more cross-racial friendships must have had an average of nineteen close friendships with white students.  Possible?  Sure.  Likely?  Not in my view.

A fascinating recent article by Professor Justin Driver (University of Texas), even suggests a judicial variant of the "non-white friends" argument.  Professor Driver's meticulous research uncovers substantial variation in the circumstances when courts choose to explicitly identify the race of parties or other individuals discussed in their opinions.  One trenchant example is Ricci v. DeStefano, in which the Supreme Court held that the New Haven fire department's decision to ignore standardized test results that disparately affected racial minorities violated Title VII.  Justice Kennedy's majority opinion discusses three witnesses who testified before the New Haven Civil Service Board regarding standardized testing and the fire department's method for determining promotions.  The opinion identifies two of the witnesses only by their professional credentials; of the third, Vincent Lewis, the opinion states explicitly that he "is black" and emphasizes that Lewis testified most strongly that the exam was nondiscriminatory.  As Professor Driver succinctly explains:  "This identification is striking because, in a decision that cautions against the dangers of racially disparate treatment, it treats Lewis disparately by race."  The emphasis on Lewis' race is particularly striking because one of the other experts was also black -- yet Kennedy chose to racially identify only Lewis, the expert whose assessment of the test best harmonized with the result the Court ultimately reached.  One way to read this otherwise gratuitous racial emphasis is as a species of the "non-white friends" defense.  That is, if a black expert believed that a test was nondiscriminatory, it's more likely that it was.

But why is it problematic if white people exaggerate their non-white friendships, or if white people emphasize convergences between their own views and those of non-white individuals?  As I see it, the concern is that white people are using non-white people as a source of social capital and racial credibility without actually attempting to engage in meaningful interracial relationships.  Because of the value associated with non-white racial identity, white people see non-white people as a means to benefit themselves rather than as intrinsically valuable friends and associates.  Of course this isn't true of every relationship between a white person and a non-white person, or even of most such relationships.  But the value associated with non-whiteness -- a value both reflected and reinforced by the diversity rationale and the surrounding social preoccupation with diversity -- creates incentives for shallow relationships and affiliations without creating parallel incentives for the harder work of cross-racial engagement and understanding.

Posted by Nancy Leong on May 16, 2012 at 12:33 PM | Permalink | Comments (5) | TrackBack

Fair Use and Electronic Reserves

For several years Georgia State was involved in litigation over the fair use doctrine. Specifically a consortium of publishers backed by Oxford, Cambridge and Sage sued Georgia State over copyright violations by many of the faculty. Many of my colleagues in the department were specifically named in the suit. A decision has now been rendered. You can read abou the decision here, and you can read the decision here.

The Court backed Georgia State in almost every instance, finding no copyright violation. However, the Court did lay down some rules - in particular you can use no more than 10% or one chapter, whichever is shorter, of any book.

Oh, and my colleagues were all found to have not violated copyright laws. For two of them the Court found that the plaintiffs could even prove a copyright.

Posted by Robert Howard on May 16, 2012 at 09:23 AM in Information and Technology, Intellectual Property, Things You Oughta Know if You Teach X | Permalink | Comments (0) | TrackBack

Tuesday, May 15, 2012

In the mail

I don't get to read books as much as I'd like, even in the summertime, but I wanted to bring a few new books to your attention, since I think they will be of wider interest, and perhaps you'll have good fortune to get them to the front of your reading queue.

First, Jeremy Waldron has reworked his Holmes Lectures and published them as a book entitled, "The Harm of Hate Speech." Waldron is one of my favorite legal philosophers and in this book, he takes on American exceptionalism having to do with free speech laws that protect bigots from censure, tort liability or punishment. I'm looking forward to seeing what he has to say.

Second, Eduardo Penalver, who regularly guestblogs here, has a new book on property theory that he has written with his colleague Gregory Alexander. It's called, suitably enough, An Introduction to Property Theory, and you can download the introduction here on SSRN and buy it here.

Last, for now, is a book by Princeton historian, Hendrick Hartog, called Someday All This Will Be Yours. Appropriately enough for a post-Mother's Day blog post, it's a modern history of inheritance and old age! If you have Prufrock on the brain, or are simply interested in the construction of contemporary familial mores, you will want to read this book. In the meantime: I grow old, I grow old, I shall wear the bottoms of my trousers rolled.

Happy reading!

Posted by Administrators on May 15, 2012 at 03:15 PM in Books | Permalink | Comments (0) | TrackBack

Citations to the Federalist by The Supreme Court

Sorry I have been away. I am teaching a three week course, five days a week. Trying to teach Civil Liberties and Civil Rights to undergrads is never easy and this - well, that is best left for another topic. I want to briefly mention a paper that I along with two colleagues, Mike Evans, in my department, and Pam Corley of Southern Methodist University, will present at the upcoming Law and Society Association meeting in Hawaii (still another topic). Several scholars argued that there was an increased citation and use of The Federalist by Liberal justices and that in fact liberals use it more than conservatives. We found that is was true, but only for about a ten year period - from 1996 to about 2006, and that it was driven by Souter and Stevens, who have both departed. Kagan and Sotomayor rarely cite the Federalist, while Roberts was intitially reluctant, but now cites the Federalist frequently. The bottom line - if you think of citing the Federalist as the use of Originalism, once again conservative justices are using the approach more than liberal justices.

Posted by Robert Howard on May 15, 2012 at 11:17 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Jotwell Con Law Pieces Welcome

Are there any recent constitutional law articles or books you like (lots)? If so, please consider writing about them for Jotwell, of which yours truly is the constitutional law co-editor. We have had some great recent submissions in our field but are looking to fill our virtual pages for the next few months. Here's a relevant excerpt from Jotwell's submissions info:

Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.

Ordinarily, a Jotwell contribution wil

* be between 500-1000 words;

* focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;

* begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.

I will add that I have enjoyed reading and writing for Jotwell and I find some value in spotlighting, amidst the welter of words and words out there, some recent article, book, or other piece of writing that you think really contributes to the conversation in valuable ways. And I will add that the point isn't and certainly need not be to pen a paean to the piece. The fundamental reason to write a Jotwell piece is that there's some recent scholarship out there that you think deserves positive attention lest it disappear in the mix. But there are all kinds of reasons to find a piece worthy of such attention -- because of its substance, because of its (genuine and useful) novelty, because it finds a new way to approach an old subject or revives arguments that have been forgotten, because it takes an interesting methodological or rhetorical approach, and so on. And you needn't agree with the piece to think it deserves the attention.  

Posted by Paul Horwitz on May 15, 2012 at 10:40 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

More Tests, Please!

Sam's post on timed exams and disabilities is too interesting not to weigh in on. I appreciate the thoughtfulness he and many of the commenters contributed to the discussion. I will add my two cents here about one of the primary issues he raises. I share some of the commenters' concerns about 24-or 48-hour exams: namely, that the burden for them can fall heavily on people with family and/or work obligations or health concerns. As a chronic pain sufferer, I am all too aware that "sub-disabilities" like mine can make it difficult to engage in sustained efforts of this kind over something like a 48-hour period. Mind you, I don't expect any testing approach to satisfy everyone, and I appreciate the thought Sam has put into the issue. Naif that I am, I will say that at schools with a strong honor culture, I think it's at least possible that stated restrictions on the amount of time one puts into the exam within that period may help. And I definitely agree with the commenters who talked about the importance of word limits; would that I used them more often.

One thing that struck me about the discussion was the extent to which it assumed that a 100 percent final will be given, so that the disagreement was mostly over what kind of final to give. I suspect it's nowhere as true as it used to be, but 100 percent finals still have a strong hold over law school culture.

This is one of the many areas in which the hidebound nature of American legal education, and the relative lack of preparation for the academic discipline and especially its pedagogical elements that characterizes most candidates for teaching jobs in law schools, really shines through. A recent commenter on another blog, who shall remain nameless,* opined that "the point of grading is to tell prospective employers information about the relative knowledge and skills of different students to aid them in deciding who should get a job." As much as I appreciate realist perspectives on these matters, that doesn't seem to me to be the only point of grading. It's a teaching exercise! From that perspective, it just seems impossible to me to justify 100 percent finals. Rather than simply discuss whether to give take-homes or in-class exams, I think it makes more sense to think about the variety of skills and knowledge bases you want students to take away from your class, think about the different ways in which students learn and demonstrate their learning, and give multiple evaluations aimed at looking for evidence of learning in students. 

Let me add two notes to this. One is to point out that in addition to law school administrators often not being crazy about multiple tests throughout the year, students themselves will sometimes complain. I proposed to my con law students this year that rather than sit take a 100 percent final, they could have a midterm exam worth some 20-30 percent of the grade, which would give them (in theory, since I was terrible at returning the practice questions this year) a chance to retool for the remaining final, and in any event would put less pressure on them in the final exam. Although some students privately told me they thought it made much more sense pedagogically, the overwhelming vote was against it and in favor of an all-in final. I can understand some of the reasons for this: they're busy with work during the semester, don't want to drop everything to study, and feel as if they can be more methodical about studying for everything at the end of the year. But my first concern ought to be with how well they are learning, not with their desires, and I doubt they ultimately learn and retain material or skills better through a 100 percent final. Next year my decision won't be subject to a vote. 

The second, in keeping with the view that one ought to put one's money where one's mouth is, is to share what I've been doing to avoid 1oo percent finals in all my classes. In law and religion, I give students a choice. They can write a full research paper worth 80 percent of the grade. (Few people took me up on that option this year, to my regret.) Or, over the course of the semester, they can submit two "close readings" consisting of closely argued responses to two out of a set of selected cases or texts (e.g., Madison's Memorial and Remonstrance). Secondary sources are discouraged if not forbidden for this exercise; I want them just to engage with the material itself. I stole this idea from my former teacher Vince Blasi, who has done something like this because he's convinced students don't get enough of a chance to engage with the full version of cases in law school, and don't have enough opportunities for sustained close reading of legal texts. The remainder of the evaluation is class participation. In professional responsibility, students are evaluated in three ways. First, there's participation. Second, over the course of the semester they have to turn in a five-page, single-spaced analysis of one of the "problems" in our problem-based casebook, which gives them a chance to delve closely into the Rules in a particular context and also consider broader ethical and professional considerations. Finally, there's a one-hour MPRE-like multiple choice final worth 50 percent of the grade.

I welcome other, and no doubt better, ideas and information about what kinds of evaluations law professors (probably 30 years behind the rest of the academy) have used or should, according to educational research, be using.  

* It was Orin. 

Posted by Paul Horwitz on May 15, 2012 at 10:29 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack

Drakon's Law on Homicide

For all of you criminal law professors who are looking for a draconian homicide statute for yourSolon next exam, here's a bit from the real thing -- Drakon's law on homicide (ca. 621 BC) (a portion dealing with involuntary homicide), which Solon (pictured) reformed thereafter.

Even if a man not intentionally kills another, he is exiled.  The basileis [chieftains of a kind] are to adjudge responsible for homicide either the actual killer or the planner; and the Ephetai [judges as to, inter alia, involuntary homicide] are to judge the case.  If there is a father or brother or sons, pardon is to be agreed to by all, or the one who opposes is to prevail; but if none of these survives, by those up to the degree of first cousin once removed, if all are willing to agree to a pardon; the one who opposes is to prevail; but if not one of these survives, and if he killed unintentionally and if the fifty-one, the Ephetai, decide he killed unintentionally, let ten phratry [a type of organized kinship group] members admit him to the country and let the fifty-one choose these by rank.  And let also those who killed previously be bound by this law.  A proclamation is to be made against the killer in the agora by the victim's relatives as far as the degree of cousin's son . . . .  

Posted by Marc DeGirolami on May 15, 2012 at 09:30 AM | Permalink | Comments (1) | TrackBack

Monday, May 14, 2012

Diversity and the Commodification of Non-Whiteness

As the Supreme Court prepares to confront affirmative action in Fisher v. University of Texas next term, a careful examination of some of the consequences of the diversity rationale seems timely.  In a forthcoming article, I argue that the diversity rationale has had the effect of reducing non-white racial identity to a commodity.

How and why does non-whiteness function as a commodity?  I argue that the diversity rationale and diversity thinking more generally has fueled an intense legal and social preoccupation with diversity.  As the result of this preoccupation, non-whiteness has become something to be desired and displayed.  In a previous post, I wrote about the incentives that the diversity rationale creates for predominantly white institutions to display their racial diversity.  For both educational institutions and businesses, this might involve calling attention to non-white individuals in promotional materials -- even, at the extreme, by photoshopping them into such materials.  Both educational institutions and businesses often feature pictures of non-white individuals prominently on their websites, or include links to statistics regarding the institution's diversity.  Indeed, most large companies have an entire section of their website devoted to diversity.  All of this contributes to the commodification of non-whiteness.

And such showcasing often has quite tangible economic benefits for the predominantly white institution.  For a business, hiring and displaying non-white individuals can improve relationships with potential clients who value racial diversity.  Likewise, showcasing non-white employees can facilitate recruitment of other talented non-white individuals or of white individuals who, for any number of reasons, value racially diverse work environments.  A similar phenomenon can occur with colleges and universities: diverse student bodies often please influential trustees or donors, and racial diversity is often a selling point in attracting a well-qualified student body.  The presence of non-white individuals throughout an employer's workforce also yields more concrete economic benefits by helping to provide a defense against ongoing employment discrimination suits or by preempting future suits.  And apart from this litigation benefit, an employer's demonstrated efforts to diversify its workforce can help to protect the company's image and reputation in the face of litigation.  One notable example of such successful image management is that of Wal-Mart, which undertook a well-publicized initiative to diversify its workforce with the result that even in the face of various sex and race discrimination suits the company received an array of awards and recognition for its efforts at achieving diversity.

This commodification of non-white identity presents a range of troubling consequences.  I'll raise one here, and discuss others in future posts.  One problem with thinking of non-white identity as a commodity is that it values non-whiteness in terms of how it can benefit predominantly white institutions.  This fosters an institutional view of non-whiteness as something from which the institution can profit -- while obscuring broader concerns of racial justice whose benefit to the specific institution may be less clear.  That is, showcasing non-whiteness prioritizes the aesthetic appearance of diversity over tangible improvements in racial relations both within particular institutions and in society at large.  So an educational institution focused on finding photographs of non-white students for its brochures may give little attention to the fact that its campus is highly segregated by race, or that the campus is plagued by interracial tension.  Or a business focused on improving its diversity numbers may give little thought as to whether its non-white employees are thriving, or to whether its workplace culture is one in which many non-white individuals feel subtly unwelcome.

None of this is to say that racial diversity is a bad thing.  Indeed, I think that the presence of racial diversity and with it the opportunity for interracial interaction are important steps in improving racial relations in America.  But fostering racial diversity is a necessary step rather than a sufficient one.  And I am concerned that the way that the diversity rationale is presented sometimes makes racial diversity -- or even just the appearance of racial diversity -- an end in itself, rather than a means to a much more complex end goal of progress toward interracial understanding.

Posted by Nancy Leong on May 14, 2012 at 05:59 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

On Timed Exams

Every year I teach Disability Law, I spend at least one class on exam accommodations.  We talk about accommodations for people with physical disabilities, vision disabilities, and, of course, learning disabilities and ADHD.  It won't surprise anyone that the accommodation that generates the most discussion is the provision of extra time to take an exam.  In fact, my casual empirical conclusion is that testing accommodation is the area of disability law that draws the most interest from both students and faculty at law schools across the country.  Basically whenever I give a talk at a law school, some faculty member engages me in a discussion of whether it's appropriate that some students with some disabilities get extra time on their exams.

Still, I must say that I was a bit unprepared for just how much discussion the topic provoked in my Disability Law seminar this past semester -- and how upset so many of the students in my class seemed to be about the number of students (whom they believed to be) getting extra time accommodations.  It wouldn't surprise me that the current economy and job market anxieties are making students more concerned about anything that might give their colleagues an unfair advantage (and at the same time making students more inclined to seek an advantage by obtaining extra time themselves).  Also, the passage of the ADA Amendments Act of 2008, which overturned a series of Supreme Court decisions that narrowed the definition of disability, means that more ADA challenges to the failure to provide testing accommodations are likely to be successful than in the past.  But, in any event, the discussion of the issue, and the level of skepticism of testing accommodations, was more fierce this past semester than at any time I can remember in the dozen or so years I've been teaching Disability Law.

Many of the people I talk to about this issue (including a lot of faculty and a number of my students this past semester), see two basic, mutually reinforcing, problems with extra-time accommodations on tests.  First, many students and faculty believe that everyone would benefit from extra time on their exams, so that even for people who legitimately are diagnosed with learning disabilities the accommodation gives them an unfair advantage.  Second, many students and faculty believe that the criteria for a learning disability or ADHD diagnosis are fuzzy and that students of greater financial means are more likely to be able to find a clinician who will make such a diagnosis -- so that people who don't really "deserve" extra time will get it, and that the extra time accommodations will, if anything, reinforce existing inequities.  This leads lots of folks to conclude that we shouldn't give extra time on law school tests, at least for people with learning disabilities and/or ADHD.  

I sympathize with some of these critiques.  But I think the problem isn't with the testing accommodations so much as it is with the tests themselves.  More below.

First of all, I think it's clear that on most law school exams, everyone would benefit from extra time.  There is a dispute in the testing literature regarding whether people with learning disabilities will benefit more than others from extra time.  But my sense from talking to many students and faculty members in a number of law schools is that basically everyone feels time pressure on most law school tests.  What that means is that our exams don't just test for understanding or mastery of the substantive material; they also test for speedy processing -- the ability to formulate and provide a response quickly.  So, as Mark Kelman and Gillian Lester argue, on most law school exams giving a student with a learning disability extra time isn't like giving a blind student the exam in Braille (nor, to adapt the facts of a recent case, with accessibity software like JAWS and ZoomText).  There is a real sense in which extra time makes the exam "easier," not just "different."  Especially if learning disability or ADHD diagnosis is fuzzy, and/or easier for wealthier students to obtain, this means we really should be concerned about extra-time accommodations on law school exams.

Now, a lot of people stop there and say that the solution to this problem is to stop giving extra-time accommodations, or to give them a lot less frequently.  But the key question, it seems to me, is why we give such time-pressured exams in law school to begin with.  There is no doubt that speedy processing is one important skill for a lawyer.  Most lawyers will have to think quickly "on their feet" in a variety of settings: court proceedings, negotiations, client presentations, etc.  Sometimes litigators have to write emergency motions.  And lots of lawyers have to bill a large number of hours and be sufficiently productive during that time to justify a high hourly rate.  

But my sense, from having practiced law and seen a lot of law school exams, is that our exams vastly overvalue the skill of thinking quickly on your feet relative to the importance of that skill in practice.  For many issues in most practice settings, time is, within reason, on your side.  Most briefs don't have to be written in a couple of hours, most research and discovery projects don't require the sort of speedy processing that our exams tend to test for, and virtually nothing in legal practice much resembles the act of writing a memo in an hour and a half identifying issues in a complex fact pattern.  The skills of thinking through different and conflicting lines of precedent and developing legal theories and litigation strategies are often quite important in legal practice, but the ability to do those things in a three-hour period is far less so.  Yet on our exams we highly value the ability to think through these issues quickly -- even though in most practice settings you would never rely on a synthesis of precedents or legal strategy developed in only three hours, and the people who can come up with the best synthesis of precedents or legal strategy in a three-hour period are not necessarily the same people as those who would come up with the best answers over a few days of thinking about the problem.  (Obviously there are differences across subjects here.  I would think that an evidence class should value speed more than a jurisprudence class, to take an extreme comparison.)

If, as I think is often true, our examinations overvalue processing speed in relation to the importance of that skill in legal practice, I believe that the solution is to give all students more time.  For this reason, I give take-home exams wherever possible.  Particularly with 48-hour take-home exams, I believe that every student will have an ample amount of time to demonstrate his or her skills, and no student will need extra time.  This avoids overvaluing speedy processing and avoids any potential unfairness of giving some students, but not others, extra time.

Yet I often find that colleagues are resistant to giving exams of this length.  In part, this reaction reflects a legitimate concern with the increased potential for cheating.  In part, it reflects a compassionate if paternalistic concern for the students who will work constantly on the exam for 48 straight hours.  But I fear it also reflects at least in part an unexamined assumption that the way we have always done things must necessarily be the best way.  I wonder what folks who read this blog think, and whether they have any better ideas than I have come up with.

I've blogged a fair amount on these issues over at my Disability Law Blog, if anyone's interested.

Posted by Sam Bagenstos on May 14, 2012 at 02:55 PM | Permalink | Comments (37) | TrackBack

Telecommuting for lawyers in a digital age?

I remember having a conversation with someone about a decade ago on the promise of telcommuting for attorneys and wondering why it wasn't more popular. The technology that would facilitate such a movement has increased rather dramatically since that time. Lawyers are generally required to work a lot of hours (at least in large firms and in some smaller ones) and the prospect of spending at least a some portion of those hours at home would seem to be a powerful recruiting advantage for firms competing over top associates (and partners). One survey suggests that 71% of lawyers report that they telecommute "sometimes," but this number also includes working on the road (at least that's how I read it). About half of the respondents reported telecommuting 10-24 percent of their time. While this does suggest a rise, it seems that telecommuting should be more pervasive - it's a win-win - or is it?

It seems that it offers a number of perks for a firm - it should lower office space requirements (would you trade your office for a cubicle if 50% of your work could be done from home?); it should boost morale (I think); and you might actually get more billables out of the situation since attorneys are more efficient (that hour and a half spent commuting could be used to work). Essays promoting the idea can be found here and here.

But there are concerns (real or perceived): Does it cause problems with confidentiality or possible leaks (remember the Apple employee leaving the new iPhone prototype at the bar?). Could it cause office friction if certain practice groups get more time at home due to the nature of the work involved (relative to other groups)? Are clients going to respect and want to retain a firm where there aren't as many lawyers milling about the office when they visit?

I'm guessing that the reasons for firm resistance to expanded telecommuting might fall along the following lines: First, "I'm paying you a large salary - you can do me the favor of showing up for work." Second, inertia "we've always done it this way, why stop now?" And, third (and perhaps most importantly), "I don't really trust my employees." On this last point it seems that the monitoring problems are perhaps a serious concern - especially for new employees. But, on the other hand, you did hire them because you thought they were competent and honest (I presume) - surely they can work without your having to keep an eye on them. In sum, it seems that a good bit of the concerns detailed here can be handled through the massive expansion of technology that we have experienced in the last twenty years or so (e.g. Go To My PC, Skype, Dropbox, etc.).

I am quite sure that I haven't covered everything here and I certainly do not pretend to have all (or any) of the answers on this issue. I would be interested to hear your concerns on and experiences with telecommuting.


Posted by Dingo_Pug on May 14, 2012 at 11:10 AM | Permalink | Comments (9) | TrackBack

Why Not Regulate Marriage and Parenting *More?*

I am a frequent reader of Ryan Anderson's material and links, sent via daily email, to Public Discourse and other publications, offering a particular kind of social conservative response to daily events. Late last week, he provided a link to a co-written blog post at a Heritage Network blog titled "Obama and the Truth About Marriage." Some key passages:

[T]he President’s so-called “evolution” on the timeless institution of marriage marks an unfortunate turn. Society has a civilizational interest in promoting marital childbearing and the faithfulness of husbands and wives to each other and their children. Marriage is a vital social institution that promotes that interest.

The reason the state is in the marriage business in the first place is because sex makes babies and babies need mothers and fathers. As one source has put it, “but for children, there would be no need of any institution concerned with sex.” That “institution” is marriage, and it brings together men and women as husbands and wives to become fathers and mothers to any children their unions bring forth.

This binding together doesn’t happen by accident. Binding fathers to mothers and their children requires strong cultural and legal norms to channel adult sexual desire and behavior into an institution where childbearing leads to responsible childrearing.

Furthermore, undoubtedly one reason voters in 32 states have voted to protect marriage is the belief that, for children, the ideal situation is to have both a mother and a father. This belief is supported by social science, which demonstrates that children do best when reared by their married biological mothers and fathers. Mothering and fathering are not interchangeable phenomena. The ideal for children is love and attention from both a father and mother, as well as the role modeling that each can provide of masculinity and femininity. . . . 

There is a truth about marriage, and most people intuitively grasp that it has something to with mothers and fathers, the offspring they bear through sexual union, and the mutual cooperation required to effectively rear offspring throughout many years of dependency. 

I am grateful to Anderson and his co-author, Thomas Messner, for providing a clear exposition of their views. And it is evident that Anderson and Messner are seeking to ground their argument in a set of policy considerations and not "just" moral or metaphysical claims. (Not that I think the latter is impermissible, on either side. But doing so does tend to lead the matter back to simple political contestation, given insurmountable disagreement about moral or metaphysical claims.) Taking their policy claims seriously, however, does seem to me to raise at least two questions:

1) Why shouldn't government, on Anderson and Messner's view, be far more intrusive in regulating heterosexual marriage and childrearing? If the purpose of marriage is essentially child-focused--to ensure "responsible childrearing," to ensure that children are "reared by their married biological mothers and fathers," and to ensure "the mutual cooperation required to effectively rear offspring throughout many years of dependency"--shouldn't government be far more active in attempting to ensure these goals? Why not insist on marriage between couples who bear children? Why not impose heavy legal presumptions against giving one's child up for adoption? Why not make it far more difficult to obtain a divorce or to remarry? Why not insist on, at the very least, continued cohabitation by parents who find it impossible to remain married? And if the policy behind a particular instantiation of marriage is to protect children, shouldn't the state police married couples' treatment of their children, and each other, far more vigorously? Neither "the belief that, for children, the ideal situation is to have both a mother and a father," nor social science suggesting "that children do best when reared by their married biological mothers and fathers," are the whole of the story. A host of beliefs and social science findings about sound parenting extend beyond the simple fact of same-sex marriage and involve particular views and findings about how best to parent for the sake of sound child-rearing. Of course those views and findings are contested, but what isn't? To the extent that there are findings and beliefs about what constitutes sound child-raising, shouldn't government actively and frequently monitor and regulate marriages and parenting practices--including parenting styles and practices, home-schooling, and any number of other issues--and insist that parents act as required to comply with these requirements? 

2) What do we do about childless couples? Here I'm not making the standard argument that if marriage is about procreation, then childless couples pose a challenge to this justification. I take as a given that not every couple can or chooses to have children. But what public policy response should be appropriate for such couples? Should we ensure that our tax regime penalizes those married couples that could have children but choose not to, or refuse to adopt in those extraordinary cases in which adoption is still necessary? Should such couples, absent children, be shunted into a second-tier form of government recognition such as civil union? Do some of the same social policies that favor protecting marriage even for those couples that do not have children extend to marriage or civil union for same-sex couples?

I'm not saying, of course, that this is what Anderson and Messner want. They don't say how intrusive they think government should be in policing marriage, beyond arguing that it should not extend to same-sex couples. But even--or perhaps especially--taking their policy arguments as a given, I can't see why they should stop there. Surely, given the weighty policy considerations they advance, government should not stop at the threshold of the opposite-parent home. It seems to me that what they are arguing for, at least if one takes their arguments seriously, is a far more active and intrusive government regulatory regime. I take no position on whether that's good or bad, or on what legal limits apply. But surely government, on their view, has a far more active regulatory role here with respect to sound child-rearing than it has traditionally undertaken.  

Posted by Paul Horwitz on May 14, 2012 at 08:48 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Online research groups?

During an earlier stint here, I wrote a bit about creating online research groups that crossed institutional boundaries.  I've started thinking about this possibility a bit more, because I had an idea for such a group. Other things may make it difficult (if not impossible) for me to actually implement this particular scheme, but even if I grudgingly accept the possibility that I can't do everything I can think of, I see no reason not to think about things I can't do. (Or something).

So anyway, since I was thinking about the idea, I thought I'd see if anyone out there had done something like this and, if so, how it worked.

Let me briefly sketch my plan. I'm thinking of something that is sort of a cross between the Homicide Database that Leigh Beinin has set up at Northwestern and the History of Violent Crime database that Randy Roth, Doug Eckberg, Cornelia Dayton and others have set up. (My database would also be historical and would have a criminal justice component, but is not focused on violent crimes, FWIW).

I'd like to make the database an online archive for both historians, scholars of criminal justice and practitioners.  Unfortunately, for a variety of reasons, the collection is going to have to be culled from court records and newspapers, the data I'm looking does not get collected by any particular institution (which is, of course, the reason to try to gather it).

That means lots of data collectors are needed. And that's where I start to get bogged down.

I know a few historians interested in the sort of material that this collection would involve, and I know some others who research may uncover evidence of it, even though it's not their precise focus. But it's a pretty small goup. So I'm guessing we'd need to hire some research assistants. That can be done, though it would require grant writing, and I'd rather put that off until I know whether the idea would work.

So I was thinking I'd try to set up a project focused first on a few key places, where I do know people doing related research. We could then use the data we collect in our research to set up a preliminary database, and then use that to get grants, if the project seems viable.

But to do even that requires a good, and expandable, database program or something that allows the creation of an online archive. It also requires some sort of coordination.

I've seen some articles about online archive programs, particularly Omeka.This seems to be what I'm looking for, but I don't have a real sense about things like this. Does anyone have any views on how they work? Suggestions for similar systems? I'd like something that does not require a full time expert to maintain and update, but that might be unrealistic--so I'd really like input here.

What about coordination? Even if I do a stripped down initial project, it could never just be me doing the work. So I need to think about creating a research team of sorts. I was thinking we'd need to meet, probably by conference call, once every month or two, to keep things on track, and otherwise chat or exchange emails. But maybe that's overkill. Or maybe it's not enough. Any thoughts on that?

Any other issues I'm not thinking about? I'm sure there are.





Posted by Elizabeth Dale on May 14, 2012 at 08:06 AM | Permalink | Comments (0) | TrackBack

Saturday, May 12, 2012

"The Focus of Public Hopes and Expectations"

There's been so much commentary on President Obama's announcement that he supports same-sex marriage rights that I've been hesitant to wade into the matter.  (Don't worry, this post doesn't.)  But all that commentary did get me thinking about the role of the President in simply saying things that moved public debate by virtue of the fact that that President himself said them.  I'm thinking here of Justice Jackson's concurrence in Youngstown, where he notes the influence the President enjoys by virtue of his unrivaled prominence, making him "the focus of public hopes and expectations."  At least in the immediate aftermath of the President's announcement of his new position on same-sex marriage, it seems like this may be one of those moments where he is, in fact, that focus (though it's way too early to say that with confidence).

So here's my question: what other examples in modern history are there of presidential statements that have had similar impact?  My criteria are admittedly vague, but what I'm getting at are presidential statements that may not have had immediate policy implications, at least beyond actions the President could take on his own initiative, but which nevertheless significantly impacted public debate or thinking.  Thinking about this over the sweep of history since Youngstown itself (which is an arbitrary cut-off, but FDR probably had a number of such moments and I simply don't know enough about the Truman Administration to know what he might have said that would qualify), I can think of just a few.  These are highly impressionistic; maybe some don't count and maybe others do.  I'd love to hear edits to the list.

1. Dwight Eisenhower's warning about the military-industrial complex.

2. LBJ's speech to Congress about the Voting Rights Act.  (I know this speech was a proposal for legislation, but the thought is that it had independent force as a statement of political principle.)

3. Gerald Ford's pardoning of Richard Nixon and Vietnam-era draft evaders (if you want, encapsulated in his "Our Long National Nightmare is Over" statement on his accession to the Presidency).

4. Ronald Reagan's "Tear Down This Wall" speech in Berlin.

I can't think of any others.  Other thoughts?

Posted by Bill Araiza on May 12, 2012 at 10:15 AM | Permalink | Comments (6) | TrackBack

Politics or science? On the fate of NSF funding for political science

Given that I've seen this topic pop up in a number of social media places, I feel compelled to pass it along as a weekend post. On the Monkey Cage blog, Christopher Zorn addresses the recent vote in the House to defund the National Science Foundation's program in political science.

I appreciate all the demonstrations of the value of political science research, both at the Monkey Cage and elsewhere. But while I agree our research is valuable, framing our institutional response to the amendment in that way is just engaging Representative Flake on his own terms. The value of political science research is not—by a large margin—the most important aspect of the amendment’s passage, nor is focusing on that value the way to win any debate.


... the precedent this sets is seriously dangerous. The idea that individual members of Congress should sit in judgment over individual programs of scientific research opens up the possibility of the politicization of the scientific process by people across the political spectrum. This is of course not limited to NSF: NIH, NIJ, DOD, etc. could all see their research arms’ funding compromised by legislators looking to make some political hay.

You can see the entire post here.


Posted by Dingo_Pug on May 12, 2012 at 08:37 AM | Permalink | Comments (0) | TrackBack

Friday, May 11, 2012

New York Times on Child Abuse in the Ultra-Orthodox Community in New York, and the Brooklyn DA

Another Friday, and another depressing story, but one that again is well worth reading for students of church-state issues. This time, it's a two-part series on child abuse in the ultra-Orthodox Jewish community in New York, and on whether the close political ties of Brooklyn DA Charles Hynes to that community have affected how he deals with the issue. I offer it without further comment, and in the spirit of my post last week about TBN--namely, that those of us who defend an expansive view of religious liberty and church autonomy have a special responsibility to spotlight, rather than minimize, problematic conduct. A quote from that sage Tom Reagan seems more or less apt here: "I'd worry a lot less if I thought you were worrying enough." 

Posted by Paul Horwitz on May 11, 2012 at 04:46 PM in Paul Horwitz | Permalink | Comments (6) | TrackBack

App Enables Users to File Complaints of Airport Profiling

Following the terrorist attacks of September 11, 2001, Muslims and those perceived to be Muslim in the United States have been subjected to public and private acts of discrimination and hate violence.  Sikhs -- members of a distinct monotheistic religion founded in 15th century India -- have suffered the "disproportionate brunt" of this post-9/11 backlash.  There generally are two reasons for this.  The first concerns appearance: Sikh males wear turbans and beards, and this visual similiarity to Osama bin Laden and his associates made Sikhs an accessible and superficial target for post-9/11 emotion and scrutiny.  The second relates to ignorance: many Americans are unaware of Sikhism and of Sikh identity in particular. 

Accordingly, after 9/11, Sikhs in the United States have been murdered, stabbed, assaulted, and harassed; they also have faced discrimination in various contexts, including airports, the physical space where post-9/11 sensitivities are likely and understandably most acute.  The Sikh Coalition, an organization founded in the hours after 9/11 to advocate on behalf of Sikh-Americans, reported that 64% of Sikh-Americans felt that they had been singled-out for additional screening in airports and, at one major airport (San Francisco International), nearly 100% of turbaned Sikhs received additional screening. (A t-shirt, modeled here by Sikh actor Waris Ahluwalia and created by a Sikh-owned company, makes light of this phenomenon.)

In response to such "airport profiling," the Sikh Coalition announced the launch of a new app (Apple, Android), which "allows users to report instances of airport profiling [to the Transportation Security Administration (TSA)] in real time."  The Coalition states that the app, called "FlyRights," is the "first mobile app to combat racial profiling."  The TSA has indicated that grievances sent to the agency by way of the app will be treated as official complaints

News of the app's release has generated significant press coverage.  For example, the New York Times, ABC, Washington Post, and CNN picked up the app's announcement.  (Unfortunately, multiple outlets could not resist the predictable line, 'Profiled at the airport? There’s an app for that.')  Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund, tweeted, "#FlyRights is a vanguard in civil and human rights."

It will be interesting to see whether this app will increase TSA accountability, quell profiling in the airport setting, and, more broadly, trigger other technological advances in the civil rights arena.


Posted by Dawinder "Dave" S. Sidhu on May 11, 2012 at 08:32 AM in Information and Technology, Religion, Travel, Web/Tech | Permalink | Comments (0) | TrackBack

Babble (not intended to be a comment on grading)

Sorry for the radio silence, wrapping up this semester and academic year is taking longer than I planned. 

Anyway, last week I promised a few reflections on running a webinar that involved people studying very different constitutional systems.  Unfortunately, I'm not sure I can say anything more profound than "it's hard."

That's clearly not enough for a blog post (I am not Atrios), so let's see if I can unpack that a bit.

Partly, it's hard for the obvious reason that the system we used for the webinar lacked a video component. I really didn't find that a problem, but I did hear from some that they missed the ability to read faces and other body language.

More insidious was the problem of vocabulary and assumptions. We all more or less shared a language --literally, in the sense we were all speaking English, and figuratively, in the sense that we were all talking about sovereignty and citizenship and rights and constitutional orders and claims.

But we all brought an lot of different assumptions to those shared words, and those assumptions constantly confused the discussion. This was true even for people who just did US constitutional stuff--the more law school oriented among us were often thinking in different ways about particular moments in US history than the history program oriented. (This can be a serious problem on dissertation committees, I find, it is remarkable how very differently we approach the study of constitutional history.) But by and large, we all knew that would be an issue (the core of the group has been interacting in seminars for several years) and so we tended to watch for it and define terms and elaborate assumptions to cross that divide. 

The crossing of other disciplinary boundaries was harder, because here there was not simply an emphasis on slightly different issues, but also distinctions in the literature that people engaged. The historians, whether or not mostly law school or history department oriented, mostly read the same authors (they just took different things away from them). But students of anthropology, or history of religion, or even of non-US history are part of very different conversations. That not only meant we had a second layer of vocabulary to try to understand, but it also meant we sometimes lacked a common language to define the new vocabulary in.

It's one thing to be able to say, for example, "Well, but what I'm talking about is like Kramer's popular constitutionalism, but it's different in these respects" with the expectation that everyone knows what Kramer was talking about and how it was expressed historically. It's another thing to say that when you are talking to someone who hasn't read Kramer and is thinking in terms of Douzinas' critique of human rights or trying to wrestle with something by Iris Young.

Add to that the complication that for all the similarities between the problems we were engaging, particularlities of historical context often made superficially similar things very different. The issues of sovereignty, where it lies, how it is expressed, are very different depending on whether you are looking at them in settled constitutional orders, post-colonial orders, or within colonial orders. They can also be different within the same constitutional order, at different stages in its development. 

Putting it that way makes it seem obvious: Yes, time and place matter! Wow! I'm not sure that's my point though. Everyone in the webinar got that--they are all bright people and they've all wrestled with explaining what they do to people who do different things before. But there's a difference between knowing that you have two minutes to tell a search committee, for example, what your work means, and spending an hour and a half engaged in extended discussion of your work with people outside your field trying to find common ground.

We just don't do that, we don't have the vocabulary or the -- I'm not sure what -- mindset? inclination? sense of necessity? awareness? to do it.

And that's not a point about the folks in the webinar, they, after all, are trying to engage one another. And most of the time they pull it off, just not as easily as they probably wish. But it's a general thing. For a variety of reasons, I spend a lot of time on the margins of other fields of study. And I spent most of this past two academic years giving papers at conferences full of people trained in different fields and sometimes different countries. I always found them welcoming and interested in what I do, and interested in sharing what they do. But it seems to me that we address one another as engaging aliens from another planet, certain that we are going to ultimately go back to our different (and more comfortable) universe. 

That strikes me as sort of lacking. Though I'm not sure what I want instead.


Posted by Elizabeth Dale on May 11, 2012 at 07:22 AM | Permalink | Comments (3) | TrackBack

Thursday, May 10, 2012

Research Assistant Opportunity

I've just finished grading (more or less), and I plan on turning to my summer project, Luck or Law? The Constitutional Case Against Indeterminate Sentencing. I have had the abstract up on SSRN for a long time and in fact, I began this project seven years ago, just as I was transitioning into the academy. I had written about 100 pages of ms, even presented it a few times, but I decided to put it on the backburner. Now it's coming to the front of my work queue, and it may turn into a book or a series of articles, or just one piece.

I mention all this because I am curious if there are any law students (or former law students) who are readers of this blog who may be interested in working with me on this project. My current crackerjack RA is going to be largely unavailable this summer. I'm especially interested in people with good editing and research skills, and if possible, a pronounced interest in the intersection of constitutional and criminal/sentencing law.  If you are interested or know someone who is, please send me an email with your cv and potential availability (ie, evenings and weekends? or just Monday and Wed mornings? etc).  Thanks! 

And while I've got this topic on the brain, I'm curious to hear from readers any suggestions about their favorite "internal perspective" con law articles. That is, which pieces of scholarship do you most admire for trying to advocate in a scholarly (non-tendentious) way for a particular constitutional result, particularly one that required over-ruling a SCOTUS precedent? This is all a genre I'm somewhat familiar with and yet somewhat leery about, and so I would like to find inspiration by climbing on the shoulders of giants, or at least very tall people!

Posted by Administrators on May 10, 2012 at 05:19 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (2) | TrackBack

Jury Questions

I just got off of a short jury duty stint yesterday. I've been on juries before, and have always found it an interesting experience.  This time was no different.  The case itself wasn't especially interesting -- though as a civil suit involving sophisticated parties suing over a lot of money involving interpretation of an incredibly poorly-written, one-page contract, it was an interesting lesson in how even sophisticated people make elementary mistakes. 

But I learned something even more interesting.  Before the opening statements, the judge explained the basics of the trial process.  As part of that explanation, she told us that she allowed jury questions.  Not major ones -- from what I could understand from her instructions, she didn't mean the type of questions that suggested a particular substantive theory of the case.  The questions she meant were more explanatory -- for example, if the witnesses used a term that the jury didn't understand.  She also explained that she would vet the question with the lawyers before okaying its entry (and the witness's answer) into the record.

Even with those limitations and caveats, is this normal?  I can see the logic, but it doesn't jibe with (very rudimentary) knowledge of trial procedure.  Are these types of deviations from the norm, well, normal?


Posted by Bill Araiza on May 10, 2012 at 03:48 PM in Civil Procedure | Permalink | Comments (6) | TrackBack

Not the end of football

Back in February, I wrote about an essay on Grantland by Tyler Cowen and Kevin Grier describing how footbal could end as a major sport as a result of head-injury lawsuits. Today in Slate, Will Oremus challenges that conclusion, arguing that the difficulty of proving liability in these cases given an assumption-of-risk defense and state-law sovereign immunity, makes it unlikely that we will see the numbers of big-money judgments that would cause high schools and colleges to want to get out of the football business.

Interestingly, Oremus rejects the idea that change can happen through lawsuits against individuals or even educational institutions. In his view, any change should

come not from the courts but from high-school athletic conferences, scholastic sports associations, and the NCAA. As the research rolls in, they need to take a hard look at the aspects of the game that inflict the most damage and implement rule changes accordingly. If football ends someday, it should only be because the powers that oversee the sport have tried everything to make it safe and determined that it can’t be done—not because lawsuits have spooked schools into giving up.

This is a sharp reflection of the modern understanding of tort law, the courts, and the administrative state. The regulating institutions should take care of the problems--even if those institutions have vested interests in protecting what they are supposed to be regulating. And courts do not achieve justice or truth at the systemic level--they only play on people's fear to surrender and pay out windfalls to a few individuals.

Posted by Howard Wasserman on May 10, 2012 at 02:13 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Productivity: A Mother's Day Blog Post

In honor of Mother's Day, I thought I'd write about work-life balance, which is a bit like the Marquis de Sade writing about abstinence. This year my scales have had the elephant of work on one side and the feathers of my life on the other, and still I constantly feel as if I should do more better faster.

My husband has been on my case about this problem, and for good reason. But he finally said something last week that hit home, so to speak. I was complaining that I hadn't been "productive" during the week, and he replied, "That's because you've defined productivity to exclude anything to do with home."  His words weren't angry nor were they an attempt to be consoling.  He was just stating a fact, which is what made his words so resonant for me. It would be an overstatement to say that I define productivity by my word count, but not by much.

As a wife and mother of three sons, my family is my top priority. But I'm not sure I consistently send them that message, and it can be hard to know what making family your top priority means on a moment-t0-moment or day-to-day basis.  I definitely put a high value on time spent in direct interaction with them: I try never to work late nights or weekends, and I've gotten rid of cable television and wi-fi at home to prevent distractions from swamping family life.  That said, I don't much value the time I spend making home "a home." I almost completely discount the value of performing the mundane chores that make up this thing called a life.  I tend to begrudge every second spent folding the Sisyphean piles of laundry on my dining room table, taking the emotionally withholding cat to the vet, or doing the dishes, treating these chores as obstacles to productivity. I don't even enjoy cooking much anymore because it takes "too much time."  I do all these things, but they give me little sense of accomplishment, and I tend to view them as getting in the way of what I "should" be doing.

As I write this, it sounds pretty misguided.  The worst part is that I suspect I'm not the only academic who has defined productivity so narrowly that she has trouble setting a satisfying work-life balance as a result. The problem, ultimately, is one of accounting.  On the life side of the balance, motherhood has fleeting and fortuitous moments of joy, but one finds few signposts, while guiding children to adulthood, that one is headed in the right direction. Even when one knows certain tasks are necessary, there are few direct measures that tell one whether one is doing them well or poorly. [Is yelling ever warranted to make sure the kids' homework gets done? I sure hope so.] For many of the tasks, indeed, such concepts seem entirely beside the point.

Work, on the other hand, has a strict system of productivity accounting. (Academia's productivity accounting is much too strict, but that's a topic for a different productivity blog post.) One can measure one's productivity by words written, articles published, lectures delivered, students taught, and there are often encouraging signs along the way that one is doing one's tasks well.  It is easy, therefore, to let work, with its tangible rewards, overbalance life, with its intangible ones.

My hope for Mother's Day is that I can recalibrate.


Posted by Lyrissa Lidsky on May 10, 2012 at 01:44 PM in Gender, Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (7) | TrackBack

Recording, the First Amendment, and Judge Posner

On Tuesday, a divided Seventh Circuit panel invalidated an Illinois eavesdropping statute that prohibited all recording of conversations without two-party consent, including conversations involving police officers performing public duties in public spaces. I wrote about the case here and here and have had an interest in the front-end protections for recording for a few years.

The decision is going to spark discussion for two things. One is the very sweeping First Amendment approach from the majority. The other is the equally sweeping dissent by Judge Posner.

First the majority. The tricky part in the debate over First Amendment protection for recording is finding a place withint the text of the amendment to ground the protection, since the act of recording is not, in itself, speech. In my article, I suggested both the Press Clause (riffing off an argument by Barry McDonald) or the Petition Clause, at least where the video is or may be used in civil liitgation. The Seventh Circuit went broader:

The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.

The court compared this to a prohibition or regulation of printers' ink or, more interestingly, to regulation of campaign finance--all recognize protection for acts and things that, while not speech, enable speech. I appreciate the breadth of the argument. Note that it assumes that the recording is going to be published and used for speech, which is not always or necessarily the case--as where the recording is going to be used as evidence in an official complaint against an officer or in litigation (hence my Petition Clause argument). And the court did not require any inquiry into the ultimate use. Still, to the extent all of thse are First Amendment protected, the argument makes snese.

From there, the court held that the law was content neutral, but failed intermediate scrutiny (which is not always easy to do) for a couple of reasons. First, it banned an entire medium of communication/information gathering. Second, the state's privacy interests were undermined by the fact that other ways of documenting public conversations--including listening and taking notes, video recording, and still photography--were not prohibited, even though they potentially implicate those interests. The accuracy and immediacy of audio recording (as compared with human memory) did not alter the privacy calculations. And, although the court did not reach the issue of alternative means of communication, it noted that

audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.

It is contestable whether recordings are inevitably or unquestionably accurate or clear. But adequate alternative means typically should not allow the prohibition of one entire medium simply because other, different, not-always-as-effective media remain available.

Now to Judge Posner. No surprise that he dissented, given some questions he asked during oral argument. The surprise is the opinions assault on modern First Amendment doctrine, his endorsement of (or at least reference to) a more limited originalist understanding of the First Amendment, and his criticism of rigorous First Amendment judicial review and courts' regular willingness to invalidate a broad range of laws on First Amendment grounds.

A sampling of comments:

The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or clear constitutional language or—in the absence of those traditional sources of guidance—compelling evidence,
or an overwhelming gut feeling, that the statute has intolerable consequences.

* * *

Judges asked to affirm novel “interpretations” of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from
censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create. . . .

The limitation of the amendment to Congress, and thus to federal restrictions on free speech (the First Amendment does not apply to state action), and to censorship is the original understanding. Judges have strayed so far from it that further departures should be undertaken with caution.

This is surprising stuff. For one thing, Posner himself has joined or written a number of decisions striking down laws on First Amendment grounds and adopting a broader view of free speech than he suggests in these quoted portions. For another, it seems beside the point in this case. The bulk of the dissent is devoted to emphasizing the privacy interests involved here and arguing, in essence, that the majority did not accord them sufficient weight in the balance. While perhaps right, it is much different than arguing that applying the First Amendment to something like audio or video recording is a vast or novel expansion of the right. Perhaps the point is that the majority did not sufficiently acknowledge the novelty of the First Amendment claims or interpretations here.

The dissent does reflect Posner's pragmatism. For example, he suggests that a judicial "gut feeling that the statute has intolerable consequences" is enough for invalidating a law. He also seems to acknowledge that the case would be different if the recordings were being used to record unlawful activity, such as police misconduct. So maybe his comments are not as far reaching as they seem. And he is, of course, correct that modern free speech does not look anything like Blackstone or what many may have expected in 1791. But I, and most others, would say we are better off for that.

An interesting rhetorical flourish from a judge known for them.

Posted by Howard Wasserman on May 10, 2012 at 11:16 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4) | TrackBack

Why standing is nonsense: Exhibit # 128

I have been waiting for two weeks to write about this case, which I used for part of my Civ Pro exam that my students are taking as you read this (hence the delay). Five Orcas currently housed at Sea World sued (through Next Friends) Sea World, claiming that they were being subjected to slavery and involuntary servitude in violation of the Thirteenth Amendment. I spun two Civ Pro questions out of this--one on 12(b)(6) dismissals with prejudice and one on Rule 11.

But the actual decision reveals, once again, jurisdiction/merits confusion, as well as the utter nonsense that is Article III standing. The magistrate reviewing the complaint held  that the Thirteenth Amendment only protects persons/humans, not non-human animals, which seems correct to me. And that should have lead to a 12(b)(6) dismissal (which is how I tested it); because the plaintiffs' rights were not violated on the conduct at issue in light of substantive law, their claim fails on the merits.

Yet the court dismissed under 12(b)(1) for lack of subject matter jurisdiction, treating this as a matter of Article III standing; because the plaintiffs have no rights under the substantive law, they lack standing. This makes absolutely no sense, even beyond the too-easy joke that a whale cannot have standing since a whale does not have any legs on which to stand.

One of the great breakthroughs in SCOTUS's recent turn away from drive-by jurisdiction rulings, particularly on the merits/jurisdiction axis, was establishing a sharp definition of merits. Merits aks whether a particular legal rule "reaches" some conduct, which asks whether it "prohibits" that conduct; the same idea can be expressed in terms of a legal rule binding, constraining, or controlling some conduct. This is a defense-oriented definition. But we easily can flip the orientation; asking what conduct is reached or prohibited logically considers not only who is engaging in the conduct but also who the conduct is directed at or who the conduct injures. Flipping the perspective should not alter the inquiry from one of merits into one of subject matter jurisdiction. If it is merits to ask whether the defendant is subject to suit under some legal rule or whether a defendant can be said to regulated by a legal rule (which is the fundamental point of Arbaugh and Footnote 4 in Hosanna), then it should be merits to ask whether the plaintiff is able to sue under that same legal rule or whether that legal rule protects him.

Better still, the fullest expression of merits asks "who can sue whom for what conduct and what remedy." This definition takes every element into account--the plaintiff, the defendant, the real-world behavior, and the appropriate legal rule--but recognizes they all go to the fundamental issue of whether a claim for relief has been stated in the particular case. The issue here is the first element, whether whales can sue under the Thirteenth Amendment, but that element is one part of a full question about the merits.

Think of it this way: Suppose in moving to dismiss, Sea World had tried to argue that it was not subject to liability under the Thirteenth Amendment because it is not a state actor (a legally incorrect argument, but still). Had the court agreed, it would have dismissed under 12(b)(6) (again, see Arbaugh, Morrison, and Hosanna). It makes no sense not to do the same when the motion to dismiss focuses on the plaintiff-based side of the question. Either goes to the same point of whether the defendant can be liable to the plaintiff in court over his conduct.

This should have been an easy case, not only to resolve (obviously), but to analyze and categorize procedurally. But courts keep missing the point and the opportunity.

Posted by Howard Wasserman on May 10, 2012 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (6) | TrackBack

Should Faculty Decisions Include Mandatory Cooling Off Periods?

The other day I heard about a very interesting practice. A faculty will have a discussion about a candidate for a job, and then not open voting up on that candidate until two weeks have passed. The same thing goes for promotion and tenure decisions. 

The benefits: concerns raised at the meeting about scholarship can then be checked out by people who want to follow up. It also makes sure people don't vote in a hot emotive state, which sometimes occurs in controversial cases.

The cons: marginally slows down a school's ability to make offers, or waves of offers, and creates more opportunities for back-room lobbying or coalition-building, although it's not obvious why that's a bad thing. In the context of the p/t decisions, it might also create 2 weeks of total awkwardness for some people too. 

What do y'all think? Better suggestions to facilitate deliberation or other goals re: hiring and p/t?

Posted by Administrators on May 10, 2012 at 10:24 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Who Should Enjoy Credit for SSM Progress? My vote: Andrew Sullivan.

Success has many fathers, the old saying goes. With Obama finally coming out of the closet and embracing SSM openly, we might take a moment to pause and wonder: who warrants credit for this development?

Joe Biden the other day extended kudos to the TV show, Will and Grace. That might be right as a matter of mass culture. And no doubt Mitt Romney himself will eventually take credit for it, notwithstanding his current squeamishness. (Make sure to watch the Jon Stewart clip.)

But among the chattering classes of columnists, lawyers, and academics, many of whom were advocating SSM prior to Will and Grace, which only appeared 1998-2006, I think substantial (though certainly not exclusive) credit should go to Andrew Sullivan, and derivatively, through his support for Sullivan's editorship of TNR, Marty Peretz.  (For long-time readers, you may recall this is a point I made in a comment years ago with respect to an interesting exchange spurred by Ethan on whether TNR is "liberal.") 

Sullivan had edited TNR from 1991-1996. Whatever the merits of his editorship generally, and there were some wacky things that occured under his watch, he did an awful lot to persuade and then mobilize elite opinion and thought-leaders into support for same-sex marriage. He has remained a provocative and thoughtful writer on a range of political and cultural issues, but my sense is that his early years as a writer and editor for TNR will mark his most lasting contribution. Of course, this is just my speculation and no doubt it is related to when I became "aware" of the injustices to the LGBT community -- I was in college during Sullivan's editorship. So perhaps I should ask SSM supporters reading this blog who are roughly  five to 15 years older than I am (I'm turning 40 this year): when did you become an SSM supporter and who or what intellectual influences do you attribute it to?

Posted by Administrators on May 10, 2012 at 10:13 AM in Culture, Current Affairs | Permalink | Comments (0) | TrackBack

Wednesday, May 09, 2012

RIP, Nicholas Katzenbach

Surely lost among some other matters hitting the web today is the news that former Attorney General Nicholas deB. Katzenbach died yesterday at age 90.  Katzenbach served in high government positions throughout the Kennedy and Johnson Administrations, first as Assistant Attorney General for the Office of Legal Counsel, then as Deputy Attorney General (replacing Byron White when he was appointed to the Supreme Court), then as Attorney General (replacing Robert F. Kennedy when he resigned to run for Senate), then as Undersecretary of State.  These jobs put him in the middle of the most important events in American politics in the 1960s, including the Cuban Missile Crisis, the civil rights movement, and the Vietnam War.  

Let me just mention Katzenbach's contributions to civil rights.  To law students, Katzenbach is most famous as the defendant in the key cases upholding the Civil Rights Act of 1964 (Katzenbach v. McClung) and the Voting Rights Act (South Carolina v. Katzenbach; Katzenbach v. Morgan).  And as Deputy AG and then AG, he played a crucial role in drafting and securing passage of those laws.  But he is probably most widely remembered by the general public for confronting Governor George Wallace at the "schoolhouse door" of the University of Alabama when, as Deputy AG, Katzenbach personally escorted Vivian Malone and James Hood to register as the first black students at the University of Alabama.

I had the opportunity to meet Katzenbach only once, when my wife served on a blue-ribbon commission he chaired.  Even then, in his advanced years, he towered over everyone -- in size and in any other way you could think of.  We met a week before I argued a case in the Supreme Court on the scope of Congress's power to enforce the Reconstruction Amendments -- the key issue in South Carolina v. Katzenbach, which he had argued pro se in the Supreme Court.  He warmly shared his reminiscences of his argument in that case and wished me luck, and he made me feel like I was, in a very small way, carrying on his work.

Nicholas Katzenbach was a great American.  I highly recommend his memoir of his time in the Kennedy and Johnson Administrations, Some of It Was Fun, which gives great behind-the-scenes accounts of his civil rights work, the relationship between the Kennedys and Johnson (and J. Edgar Hoover), and the efforts by some members of the Johnson Administration to raise questions about the Vietnam War.  His life set an example of public service and public spiritedness to which we should all aspire.

Posted by Sam Bagenstos on May 9, 2012 at 08:18 PM | Permalink | Comments (2) | TrackBack

Polarization Means Two Different Things (and is not a purely American phenomenon)

            Howard links to the Norman Ornstein and Thomas Mann book on polarization that is getting a lot of attention.  I haven't read it yet (it's en route) but am pretty excited to.  That said, I wanted to toss off a few quick thoughts about the discussion it has touched off.  Like many previous debates about polarization, reviews have seemed conflate two very different ideas within the term polarization.   The first is the degree to which the parties divide the population -- call it the distinctiveness of the parties.  When people talk about how many (or rather how few) Republicans are more liberal than the most conservative Democrat, it is this concept they are after.  And the second is the difference between the party's idea policy points in policy space -- how left are the Democrats and how right are the Republicans.  As I noted earlier this week, both are at an all time high in Congress, but the normative implications are very different. 

             Distinctiveness is almost surely a good thing for uninformed voters.  Voters with little information need clear party labels in order to allocate responsibility or to translate policy preferences into accurate votes.    Lau and Redlawsk have shown that voters frequently vote for the wrong candidate based on their own preferences, but that incorrect voting has been falling as distinctiveness has risen.  More distinctive parties also are likely to be more able to push changes through their caucus when they have power. 

             Difference is another story.  It is an unexpected result, given the median voter theorem and almost surely a bad thing in a two party system as it likely leads to some policies preferred by a majority failing to be enacted.   And that's ignoring the point raised by Ornstein and Mann and explored by Rick Pildes in this excellent article, that our constitutional system is a rough fit with a Responsible Party Governance (RPG scholars like E.E. Schattschneider and Austin Ranney worried about this issue quite a lot, but came to contrary conclusions, arguing that only coherent parties could get things done in our constitutonal system, but that's a discussion for another day.) 

            But distinctiveness does not necessarily mean difference (although it can).  For instance, James Snyder and Michael Ting have argued that distinctiveness may mean less difference, as candidates in a system of distinct parties have less need to prove themselves as true ideologues.   But perhaps more importantly is that reforms aimed at reducing difference may result in reducing distinctiveness instead of having their intended effect.  Take "jungle" primaries, which allow candidates to self-identify with a party on the ballot, taking away from parties their ability to control who gets on the ballot and who can identify as a member.  This is aimed at reducing difference, but probably only serves to reduce distinctiveness, as candidates eschew unpopular party names (as Dino Rossi did in 2008, preferring G.O.P. to Republican as he tried to avoid George Bush's coattails).  And it can lead to fringe candidates like David Duke getting through to the second round, leading to less pressure on the major party candidate who makes it.  As it turns out, and contrary to popular belief, the type of primary -- closed, semi-open, open or other -- doesn't seem to matter at all in determining the ideology of the candidates.  This is likely because voters in primaries lack on-ballot party heuristics (what is a primary but a non-partisan election inside a party?) and just don't know very much about the candidates.  Voters in legislative primaries (particularly as you go down the ballot) largely follow the lead of organzed groups that can provide information, as Seth Masket showed in his remarkable book No Middle Ground.  But we should be careful what we mean when we say polarization, as difference or distinctiveness are distinguishable concepts that have separate normative implications.  

            Finally, when talking about polarization, we have a tendency to treat it as a purely American phenomenon.   But opinions about politics have gotten weird the world over.  Westminster systems like Britain, Canada, New Zealand and the like are supposed to have only two parties, per Duverger's Law (roughly, that voters don't like wasting their votes and that organizers and candidates don't like wasting their efforts.)   But all Westminster systems in the world are now multi-party.    And things are weirder yet in most Parliamentary systems, with fringe parties of left, right, nationalist, and just plain odd taking increasing shares of the popular vote.  Here and here I discussed why this might be the case -- why our weirdness expresses itself as polarization, while it takes different forms in other countries -- but we should not pretend that our politics is so different from the politics of other countries.  


Posted by David Schleicher on May 9, 2012 at 06:22 PM | Permalink | Comments (3) | TrackBack

So now what?

Rich Hasen has a Slate piece discussing Thomas Mann and Norm Ornstein's new book on just how broken the federal government is. Hasen agrees with Mann and Ornstein that the problem is a "mismatch between our form of government and our new, fiercely ideological political parties." Hasen suggests that the only answer is a move to a more parliamentary system, but that requires major constitutional amendments that Hasen agrees will not happen in our lifetime. After explaining (correctly, I think) why the Mann/Ornstein proposals won't solve the problem, Hasen says "we need to go back to the drawing board on how to fix Washington."

But what exactly are we doing on that drawing board? A drawing board suggests we are rewriting or redesigning things, but any new designs require constitutional amendments that will not happen. So large-scale change is politically impossible. The small-to-medium-scale changes that Mann/Ornstein propose either cannot happen politically or will not solve the problems or (most likely) both.

So now what?

Posted by Howard Wasserman on May 9, 2012 at 04:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10) | TrackBack

In Case You Missed It: Michelle Alexander on the Colbert Report

Michelle Alexander (Ohio State) discussed her compelling new book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness" (New Press), on last night's edition of the Colbert Report.

The Colbert ReportMon - Thurs 11:30pm / 10:30c
Michelle Alexander
Colbert Report Full EpisodesPolitical Humor & Satire BlogVideo Archive
One of my favorite parts of the interview: Colbert asking, if people of color do not use drugs at higher rates than whites, "why didn't David Simon set The Wire in Greenwich, Connecticut?" Congratulations to Michelle on her wonderful appearance and on her groundbreaking work.

Posted by Dawinder "Dave" S. Sidhu on May 9, 2012 at 01:51 PM in Books, Television | Permalink | Comments (0) | TrackBack

"Doctor": Description vs. Claim for Respect

If I may add my two cents to Jeff's enjoyable post about who ought to be called "doctor": Jeff's comment to that post, noting that this is a culturally specific question, seems right to me. In our culture, it seems to me that there are two standard reasons why one asserts the right to be called "doctor." The first is more or less descriptive: we understand "doctor" generally to refer to medical practitioners. As in Jeff's example, when someone calls out for a doctor, we all know medical treatment is being sought, not a disquisition on Satan's role in Paradise Lost. Of course there is also a claim to respect involved, but there is still a substantially descriptive element.

On the other hand, wanting to be called "doctor" is often a claim for respect--an assertion that here is a learned person in a profession that deserves public recognition. In these instances, it's also often the case that the profession in question is fighting for respect, often against a particular competitor in the same market. Two recent examples: First, there is this recent story about the increasing number of nurses earning doctorates in nurses, and its relationship to both nurses' struggle for respect in the medical field and their competition with MD's for the authority to give primary care and the market share that comes with it. Second, my wife serves as an elected member of the local school board. I have found that the social norm appears to be that those school officials with doctorates in education are routinely referred to as "Doctor So-and-So." I don't think it's a coincidence that the title often carries with it entitlements to higher pay and authority, and competition for respect within the educational hierarchy.

I also don't think it's a coincidence that, if I may paint with a broad brush, schools of education and nursing (at least in their more academic manifestation, as opposed to their professional training function) are in a tight race with law schools for the title of least respected department in the academy. Although I think there's a good deal to be said for obtaining JSDs or Ph.D's in law, we might think about whether that trend represents a similar claim to authority and respect for law as an academic discipline; and if those folks start demanding to be called "Doctor," we'll know something's up.   


Posted by Paul Horwitz on May 9, 2012 at 10:52 AM in Paul Horwitz | Permalink | Comments (12) | TrackBack

Oracle v. Google: Digging Deeper

This follows my recent post about Oracle v. Google. At the behest of commenters, both online and offline, I decided to dig a bit deeper to see exactly what level of abstraction is at issue in this case. The reason is simple: I made some assumptions in the last post about what the jury must have found, and it turns out that the assumption was wrong. Before anyone accuses me of changing my mind, I want to note that in my last post I made a guess, and that guess was wrong once I read the actual evidence. My view of the law hasn't changed. More after the jump.

For the masochistic, Groklaw has compiled the expert reports in an accessible fashion here and here. Why do I look at the reports, and not the briefs? It turns out that lawyers will make all sorts of arguments about what the evidence will say, but what is really relevant is the evidence actually presented. The expert reports, submitted before trial, are the broadest form of evidence that can be admitted - the court can whittle down what the jury hears, but typically experts are not allowed to go much beyond their reports.

These reports represent the best evidentiary presentation the parties have on the technical merits. It turns out that as a factual matter, both reports overlap quite a bit, and neither seems "wrong" as a matter of technical fact. I would sure hope so - these are pretty well respected professors and, quite frankly, the issues in this case are just not that complicated from a coding standpoint. (Note: for those wonder what gives me the authority to say that, I could say a lot, but I'll just note that in a prior life I wrote a book about software programming for an electronic mail API).

What level of abstraction was presented and argued to the jury? As far as I can tell from the reports, other than a couple or three routines that were directly copied, the Oracle's expert found little or no similar structures or sequences in the main body source code - the part that actually does the work. The only similarity - and it was nearly identical - was in the structure, sequence and organization of the grouping of function names, and the "packages" or files that they were located in.

For computer nerds, also identical were function names, parameter orders, and variable structures passed in as parameters. In other words, the header files were essentially identical. And they would have to be, if the goal is to have a compatible system. The inputs (the function names and parameters) and the outputs need to be the same. The only way you can disallow this usage of the API is to say that you cannot create an independent software program (even one of this size) that mimics the inputs and outputs of the original program.

To say that would be bad policy, and as I discuss below, probably not in accordance with precedent. This is why the experts are both right. Oracle's expert says they are identical, and Google copied because that was the best way to lure application developers - by providing compatibility (and the jury agreed, as to the copying part). Google's expert says, so what? The only thing copied was functional, and that's legal. It's this last part that a) led to the hung jury, and b) the court will have to rule on.

In my last post, I assumed that the level of abstraction must have been at a deeper level than just the names of the methods. Why did I do that?

First, the court's jury instructions make clear that function names are not at issue. But I guess the court left it to the jury whether the collection could be infringed.

Second, the idea that an API could be infringed is usually something courts decide well in advance of trial, and it's a question that doesn't usually make it to trial.

Third, based on media accounts, it appeared that there was more testimony about deeper similarities in the code. The copied functions, I argued in my prior post, supported that view. Except that there were no other similarities. I think it is a testament to Oracle's lawyers (and experts) that this misperception of a dirty clean room shone through in media reports, because the actual evidence belies the media accounts.

This is why I decided to dig deeper, and why one should not rely on second hand reports of important evidence. Based on my reading of the reports (and I admit that I could be missing something - I wasn't in the courtroom), I think that the court will have no choice but to hold that the collection of API names is uncopyrightable - at least at this level of abstraction and claimed infringement.

To the extent that there are bits of non-functional code, I would say that's probably fair use as a matter of law to implement a compatible system. I made a very similar argument in an article I wrote 12 years ago - long before I went into academia.

Prof. Boyden asked in a comment to my prior post whether there was any law that supported the copying of APIs structure and header files. I think there is: Lotus v. Borland. That case is famous for allowing Borland to mimic the Lotus structure, but there was also an API of sorts. Lotus macros were based on the menu structure, and to provide program compatiblity with Lotus, Borland implemented the same structure. So, for example, in Lotus, a user would hit "/" to bring up the menus, "F" to bring up the file menu, and "O" to bring up the open menu. As a result, the macro "/FO" would mimic this, to bring up the open menu.

Borland's product would "read" macro programs written for Lotus, and perform the same operation. No underlying similarity of the computer code, but an identical API that took the same inputs to create the same output the user expected.

Like the lower court here, the lower court there found infringement of the structure, sequence, and organization of the menu structure. Like the lower court here, the court there found it irrelevant that Borland got the menu structure from third-party books rather than Lotus's own product. (Here, Google asserts that it got the API's from Apache Harmony, a compatible Java system, rather than the Java documents themselves). There is some dispute about whether Sun sanctioned the Apache project, and what effect that should have on the case. I think that the Harmony is a red herring.The reality is that it does not matter either way - a copy is a copy is a copy - if the copy is illicit that is.

In Lotus, the lower court found the API creative and copyrightable, the very question facing the court here. On appeal, however, the First Circuit ruled that the API was a method of operation, likening it to the buttons on a VCR. I think that's a bit simplistic, but it was definitely the right ruling. The case went up to the Supreme Court, and it was a blockbuster case, expected to -- once and for all -- put this question to rest.

Alas, the Supreme Court affirmed without opinion by an evenly divided court. And the circuit court ruling stood. And it still stands - the court never took another case, and the gist of Lotus v. Borland has been applied over and over, but rarely as directly as it might apply here.

Wholesale, direct compatibility copying of APIs just doesn't happen very often, and certainly not on the scale and with the stakes of that at issue here. Perhaps that is why there is no definitive case holding that an entire API structure is uncopyrightable. You would think we would have by 2012, but nope. Lotus comes close, but it is not identical. In Lotus, the menu structure was much smaller, and the names and structure were far less creative. Further, the concern was macro programming written by users for internal use that would not allow them to switch to a new spreadsheet program. Java programs, on the other hand, are designed to be distributed to the public in most cases.

Then again, the core issue is the same: the ability to switch the underlying program while maintaining compatibility of programs that have already been written. Based on this similarity, my prediction is that Judge Alsup will say that the collection of names is not copyrightable, or at the very least usage of the API in this manner is fair use as a matter of law. We'll see if I'm right, and whether an appeals court affirms it.

Posted by Michael Risch on May 9, 2012 at 10:40 AM in Information and Technology, Intellectual Property | Permalink | Comments (0) | TrackBack

Profiles in Courage

On a somewhat lighter note: A recent trend in print journalism has been an apparent reluctance to overuse anonymous sources, at least without explanation. This hasn't so much resulted in less anonymous sourcing as it has in more--and more amusing--explanations for the use of anonymous sources in given instances. One of my favorite recent examples appears in yesterday's New York Times. The story concerned the arrest of some parents for allowing excessive drinking by teenagers at their home. And here's the quote:

Within New York’s wider private school community, parents anonymously expressed guarded delight that adults thought to be allowing under-age drinking had been arrested.

“Maybe parents will stop doing it,” said one mother who asked not to be named because her children’s Upper East Side school discourages talking to the news media. She was already fretting, she said, about after-prom parties in the Hamptons — supervised, and not — which she called “out of control.”

Note that the parent wasn't even talking about her school. Since her quote adds little if anything to the story, this seems like a case in which the editors should have killed it rather than grant anonymity. But it's a lovely illustration of who actually runs New York City: namely, private school principals.  

Posted by Paul Horwitz on May 9, 2012 at 10:32 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Important New Church-State Books

The first one is a novel, actually. But it's worth noting that Bring Up the Bodies, Hilary Mantel's new book and the second in her trilogy on the life of Thomas Cromwell, was published in the United States yesterday. In preparation, I've just reread the first book in the series, Wolf Hall, and the rereading confirms my view that for those interested in church-state issues, it's a must-read, and far more instructive and provocative than a good deal of non-fiction scholarship (or semi-non-fiction, as in many Supreme Court discussions of church-state history) on the subject.

For another take on church-state issues, may I recommend another book I came across only recently, although it was published in 2010. Marketplace of the Gods: How Economics Explains Religion, by Larry Witham, is a general introduction to recent scholarship in the economics of religion. Although there's now a substantial body of scholarship in this area, I'm struck by how little, on the whole, it has been drawn on in mainstream church-state scholarship by legal academics. Witham is a journalist, and his book is a layman's look at the subject, but it draws heavily on interviews with and scholarship by the leaders in the field. It's a good start for anyone interested in these issues. Here are the back-of-the-book blurbs:

"Witham makes accessible the fundamentals of the economics of religion, demonstrating the growing importance and popularity of the field. I recommend this book to anyone looking for a layman's introduction to the economics of religion." --Rachel M. McCleary, Senior Research Fellow, Harvard Kennedy School

"Marketplace of the Gods is both a pleasant read and a comprehensive overview of the economics of religion, appealing to general audiences, scholars, and theologians alike. Readers of this precise scholarly work will gain insight into the peculiar way economists view religion in particular and human behavior in general." --Brooks B. Hull, Professor of Economics, University of Michigan, Dearborn

"In this cogent book, Larry Witham describes the development and the insights of a broad academic literature that uses economics to explain the organization, evolution, and impact of religions. His mastery of the debates and grasp of the proposed theories are impressive. Readers ranging from the uninitiated to professional economists who specialize in religion will find Marketplace of the Gods informative and provocative, but also entertaining." --Timur Kuran, Professor of Economics and Political Science and Gorter Family Professor of Islamic Studies, Duke University 


Posted by Paul Horwitz on May 9, 2012 at 10:24 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Is there a doctor on board?

This spring I was on a flight and a fellow passenger passed out in the aisle next to me after exiting the restroom. The passengers waiting in line for the restroom immediately caught him and began offering care. The flight attendant quickly issued the call "is there a doctor on board?" The passenger was in luck as there was apparently three MDs and five EMTs on board (apparently they were returning from an EMT conference). It all appeared to work out fine. However, there was a small moment when I suffered a self-absorbed crises reminescent of the "Seinfeld" character George Costanza. When the call went out I immediately thought to myself "please don't ask if I'm a doctor, please don't ask if I'm a doctor... ." Such a question would invariable lead to the awkward conversation whereby I say, "well, yes, I am, but not a real doctor" -- followed by disapproving stares of other passengers -- at least that's how it worked out in my jet-lagged mind at the time.

This brings us to what has become one of the most visited posts on my blog (Voir Dire): Who gets to call themself doctor? Given the apparent popularity of this concern, I revisit it here - is it appropriate to refer to yourself as "doctor" if you have a Juris Doctorate? A Ph.D.? This seems to bring up a number of concerns  - Who "earned" it? Is it misleading? Why do people need such titles anyway? Here is a sample from my prior post (which was actually really short):

I generally don’t refer to myself (or ask others to refer to me) as “Dr. ” unless there is a clear professional reason to make the distinction. This isn’t out of modesty – I’ve just had situations in which the “Dr.” tag has been put out there and then people start talking to me about medical stuff – and then there’s an awkward pause and I tell them that “I’m not an M.D.” – and then there’s another awkward silence – and then you hear “so, you’re not really a doctor then…”

Hopefully, this will be a polite discussion :-)

Only partially related - famous doctors who don't practice medicine

Jeff Yates

Posted by Dingo_Pug on May 9, 2012 at 09:45 AM | Permalink | Comments (14) | TrackBack

Tuesday, May 08, 2012

The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his "first allegiance was to the will of God" and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently "attached to the principles of the Constitution."  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you're liable to walk right by this unimposing gem of a watercolor. 

Allegiance to state was the majority's theme, and while the case turned largely on the statute, the majority had this to say about the claim that the Constitution protected the right of conscientious objection:

[T]here is no such principle of the Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him. The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native-born but he acquires no more. The privilege of the native-born conscientious objector to avoid bearing arms comes, not from the Constitution, but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and, if it be withheld, the native-born conscientious objector cannot successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general.  

The power to compel a person to make war against his will in the name of the state!  That is about as perfect an expression of allegiance to state power as can be found (and, of course, it is consistent with Sutherland's views in Curtiss-Wright).  Allegiance to God must conform or yield to allegiance to country:

We are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God. But, also, we are a nation with the duty to survive; a nation whose Constitution contemplates war as well as peace; whose government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.     

The dissent depicts with equal intensity the rival view, using to great effect the language of separate spheres of power and duty:

Much has been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of scruples. When one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation. As was stated by Mr. Justice Field, in Davis v. Beason: 'The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.' One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God.

And the dissent concludes by appealing to the "tradition" of accommodation, called here part and parcel of the constitutional commitment to religious liberty.

The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field. What that field is, under our system of government, presents in part a question of constitutional law, and also, in part, one of legislative policy in avoiding unnecessary clashes with the dictates of conscience. There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power. The attempt to exact such a promise, and thus to bind one's conscience by the taking of oaths or the submission to tests, has been the cause of many deplorable conflicts. The Congress has sought to avoid such conflicts in this country by respecting our happy tradition.


The several positions are forcefully expressed -- exemplary in their way as specimens of opinion writing.  They are well worth thinking about.  And yet it seems to me that by far the least interesting and edifying question that one can ask about Macintosh is: which opinion gets it right? 

Posted by Marc DeGirolami on May 8, 2012 at 11:02 PM | Permalink | Comments (7) | TrackBack

Ahdieh on Judge Browning's Passing

It's with regret that I share the news that Judge James Browning from the Ninth Circuit recently passed away. One of his former clerks, Bobby Ahdieh (vice-dean at Emory), has shared some reflections on the man and judge. These reflections were written up a few weeks ago, just before his passing. At the time of his death, he was the last of Kennedy’s circuit appointees, and (probably?) the longest serving federal judge. Thanks, Bobby, for sharing these memories and inspirations.

A Montana Man:

Lessons in Judging and the Law

As I wandered through the cherished memories that I carry of the year I was honored to serve as law clerk to Judge James R. Browning, I felt like a kid in a toy shop:  with so many great choices, what was I to pick?

I thought of the humanity and warmth that are Judge Browning’s hallmarks, and remembered my first encounter with him, in the temporary chambers at the Rincon Center – a conversation that ended with my mention that I was en route to have dinner with Judge Dorothy Nelson.  As we both stood up, he walked around the desk, and took both my hands:  “Wonderful!  Please, tell her I love her!”  How many judges, I wondered as I left, have ever had occasion to send such warm greetings to a colleague?

From that same discussion, I also remembered the Judge’s insistence that I take as long as I needed to decide whether to accept his offer, and my promise to respond by the next day – as it would be unfair for me to delay his hiring further.  And I remembered our discussion two years later, when I pressed him on the need to give exploding offers to clerkship candidates, and he sent me packing, insisting applicants be given the time they needed, to make the right decision for them.

I thought of Judge Browning’s place astride history – which reads like a review session for 1L’s in constitutional law.  Who else could claim to have sat at the side of the Solicitor General as he argued Youngstown Sheet & Tube Co. v. Sawyer,[1] to have helped ensure submission of the United States’ amicus brief in Brown v. Board of Education,[2] and to stand at the literal center of perhaps the most iconic presidential inauguration photograph in U.S. history, in which Chief Justice Earl Warren administered the Oath of Office to John F. Kennedy, with the Judge holding the Bible on which Kennedy’s hand lay?  Or to have provoked disagreement among the Justices of the Supreme Court years earlier, when he was appointed to represent the defendant in the first Mann Act case to reach the Court,[3] and Justice Frankfurter insisted – incorrectly, of course – that the capable (and successful) advocate for the defense surely must be “A Harvard Man”?

But I also thought of the humility the Judge brings to all he does – forcing us to discover each of the above by chance or through our own efforts, without a word of encouragement (or even suggestion) from him.  On one occasion, the Judge asked me to prepare draft testimony for him to deliver to Congress, regarding the then-latest attempt to divide his beloved Ninth Circuit.  By way of a forceful opening, I included a statement of his place as the longest serving active federal judge in the country.  He deleted the reference, and I reinserted it.  Twice.  Finally, he called me to his office and – with all the force of the longest serving active federal judge in the country – told me that he simply did not have it in his constitution to make such a statement, even in the service of preserving the Circuit.

For those among us who were honored to serve as his clerks, the latter must also recall the care that Judge Browning invested in his written work – be it a brief thank you note, or a published opinion on an issue of first impression.  Consider his opinion in Guerrero v. Clinton.[4]  All of his clerks recall the forceful work he did with his red pen – which often left nary of word of the drafter’s prose to be found.  At least as striking was the work he undertook with his scissors – whether to strike whole paragraphs or sections, or to relocate them to more suitable ground.

It was against this backdrop that I – in an act of youthful indiscretion – offered the Judge a fifteen-page draft dissent from the majority opinion in Guerrero, addressing a concern he had raised with the latter.  Then began the real work, of achieving the precise framing and prose that he sought.  Draft after draft, the Judge whittled the analysis down to its core.  And what, in the final analysis, became of my fifteen-page dissent?  It would almost be better to leave you to look it up in F.3d yourself, but let me save you the suspense:  Go to 157 F.3d at 1997, and what will you find there?  A three-sentence concurrence.

For all my memories of Judge Browning, though, what I most carry away from my time with him is not any of the foregoing, but something deeper.  For so many of us in the legal profession – and perhaps especially in legal academia – the assumptions of legal realism, of rational choice, of motivated reasoning by judges represent the foundation of our approach to the law.  In this view, interests, preferences, and biases are at the center of legal analysis.  What the law is, ultimately, depends on who the judge is.

I embrace these assumptions as much as the next guy.  Never less so, in fact, than when I engage my students in Socratic dialogue about a case and what we should take away from it.  Should we really understand a given shard of Supreme Court jurisprudence to arise from what went before – or as simply a reflection of Justice Brennan’s famous adage on justices’ ability to “count to five”?

I count myself lucky, however, to always carry with me an antidote to such cynicism and doubt.  As effectively as I wish to convey to my students the critical perspective they must bring to their engagements with the law, few semesters pass without at least a mention or two of Judge Browning.  For all the insights of legal realism and rational choice, I tell them, I know at least one judge who is different.  Who proves that judges can be true umpires – even if the latter are less common on our highest court than has sometimes been advertised.

My judge, I tell them, might not prove the rule – but he is surely exceptional.  I tell them of the time I ran into his office, to insist that we simply had to vote for en banc review in what I was surely the most important case ever to come before the Ninth Circuit.  Perhaps, the Judge told me, smiling.  But in his time on the bench – at that point, as I did the math in my head, a mere thirty-six years – he had found such cases to often come and go, without nearly the impact they promised.  In another case early in my tenure, I tell them, I shared my notes as to how I thought the other judges might vote, and what that might mean for us.  I looked up and found the Judge staring at me intently, if quizzically:  “But what is the law?”

It is not that Judge Browning is oblivious to politics or political context.  But for his astute insight into the latter, and capacity to engage in the former, he would not have had the incredibly successful tenure as Chief Judge that he did – and the Ninth Circuit would have been divided long ago.  Nor is it that he is a blank slate – with no strongly felt views he might bring to the table.  I recall no lack of morning meetings, thus, at which the Judge would casually offer his own views of the wisdom or justice of the matter presented.  For him, however, those views are that, and no more.

For me, thus, Judge Browning exemplifies the capacity of law to be greater – and to do more – than its constituent parts.  Few of us may consistently live up to the standard, whether on the bench or at the bar.  But it is that vision – and its potential application in the day-to-day life of the lawyer – that I took away from my time with Judge Browning.  And it is that lesson that I hope I will always convey to my students, on his behalf.

[1] 343 U.S. 579 (1952).  We were ecstatic to stumble upon the connection to Youngstown, by way of a newspaper photo showing Solicitor General Philip B. Perlman speaking to reporters out of his car window, en route to oral arguments – with his special assistant, James R. Browning, immediately beside him.

[2] 347 U.S. 483 (1954).

[3] Bell v. United States, 349 U.S. 81 (1955).

[4] 157 F.3d 1190 (9th Cir. 1998).


Posted by Administrators on May 8, 2012 at 12:17 PM in Blogging, Current Affairs | Permalink | Comments (1) | TrackBack

CLEA Award for Alabama's Post-Tornado Assistance Efforts

If I may brag about my own school for a moment, here's a press release we just put out:

* * * 

In recognition of its efforts through the Tornado Relief Assistance Project, The University of Alabama School of Law Clinical Program will receive the 2012 Award for Excellence in a Public Interest Project, sponsored by the Clinical Legal Education Association.

Highlights from the Tornado Relief Assistance Project include:

  • training law students in the intake process, placing clients in shelters and disaster assistance centers, and then pairing students with either clinic lawyers or local volunteer lawyers to handle client legal matters to conclusion;
  • hosting a training workshop calling for students and other law faculty to join the volunteer program (this resulted in 75 volunteers signing up);
  • performing intakes at the law school clinics each morning, then going out to three remote areas in the afternoon, each time staffed with at least two student volunteers, a clinic attorney, and a volunteer lawyer;
  • in less than one month, opening 200 tornado relief files –  approximately the number of files the school’s Civil Law Clinic typically handles in an entire year;
  • teaching a first-time summer clinic session to continue the relief efforts until the fall semester;
  • enlisting a new group of law student volunteers to do door-to-door canvassing for unmet legal needs (this resulted in more than 50 volunteers participating).

To date, the clinical program’s tornado relief effort has directly assisted more than 250 individual clients, reflecting well over 1,000 hours of student lawyer time, as well as hundreds of hours of clinic faculty and staff time. . . . 

Alabama Law shares the award with Quinnipac University School of Law’s Civil Justice Clinic, which won for its work to abolish the death penalty in Connecticut.

* * * 

I'm especially pleased to post this because I attended the graduation ceremony this weekend for the Class of 2012. Both these students and the students in the class of 2011 impressed me greatly with their dedication to this work and, I might add, to each other; a number of students lost their homes in the tornado, and the degree of time and effort that these students devoted to each other and the larger community was a wonderful testament to them. Kudos, too, to my hard-working clinical faculty colleagues and the members of the non-clinical faculty who also got involved. And, as always, Roll Tide. 


Posted by Paul Horwitz on May 8, 2012 at 10:23 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Lawyers (and Clients?) Are Part of the Legal Education Fix Too

A comment on my last post led me to a recent post on Simple Justice, the tartly worded blog of Scott Greenfield, a criminal defense attorney. His post is inspired in part by Brian Tamanaha's forthcoming book and Orin's post on it the other day. Stripped of its inessentials, I think it makes an excellent point:

For a bit, I've been talking to a lawprof who shall remain nameless for now . . . about the broad array of problems we're facing. We agree on much. We disagree on much as well.

One of the fundamental disagreements is that he's of the view that the problems with legal education are internal, and therefore must be cured by the legal academy . . . . He flatters my interest, but assures me that they need to clean up their own act.

The failures of law school (and I use the plural deliberately) do not exist in a vacuum. They are part of the failures that pervade the profession as a whole, from our inability to fulfill our obligation to society to our inability to produce new lawyers who care more about law than themselves. . . .

This goes way beyond law school. This can't be cured by lawprofs alone, or changes in legal education. Tweak one side of the equation and it impacts on the others, with unintended consequences. . . . But this is our profession. We are stakeholders in the future of lawyers, and it is not only outrageous, but unacceptable, that this discussion occur without our knowledge or involvement.  You need to know this is happening. They need to know you care and have something to say about it.  And if you turn your back and leave it to the lawprofs to fix, you deserve whatever they come up with. . . .   

Now is the time to get involved in the discussion, whether the lawprofs want us to or not. I realize this isn't fun and, for many, rather boring and disconnected from the daily grind. But this is our future. Don't leave it to someone else to fix.

I apologize for removing all the stuff about how law professors are (to paraphrase) self-interested bastards.

I deleted it not to preserve anyone's tender sensibilities, but because I think Greenfield makes a good point that is worth emphasizing and that everyone can agree with, regardless of whether they share his other views. Thinking about reforming legal education--whether in terms of disclosures, costs, etc., or in terms of what and how we teach--involves multiple constituencies and should be treated that way. Greenfield is right that this can be boring and un-fun; that, I think, is one reason that even professors, for whom such matters aren't "disconnected from the daily grind," end up tinkering around the edges rather than devoting the time it would take as a faculty to thinking through these issues from start to finish. But it's a necessary enterprise--again, in my view, necessary regardless of the state of the economy at any given moment--and one in which a variety of constituencies, including current students, recent graduates, and more seasoned practicing lawyers, ought to be involved from the outset. And law schools should make that happen, rather than hashing it all out in committee meetings with only themselves present and then announcing what they've done.

Let me link this point to my last post or two. As I said in my last post, I am increasingly struck by how rarely the word "client" comes up in some of even the best recent discussions of law school reform. Clients are a constituency too. We hear a lot of talk in the legal academy about the views of large firms and, especially, their institutional clients on legal education and the legal economy. Much of this is secondhand, though. I'm not sure how many faculties have invited in-house counsels or large firm partners in to talk to them as a group.

And, of course, most schools don't graduate large numbers of students into those environments. Of course law schools hear from their own alumni, and some clients, in a variety of ways, but generally not in a concerted fashion, and certainly not in a concerted fashion that extends beyond the administration to the faculty itself. My point is not to argue, as some blogs sometimes do, that law schools don't hear from or give a damn about their graduates or about clients, but to suggest that we ought to be gathering that information in a more concerted fashion, and that it should be a faculty matter, not just one for the deans. I'm grateful that there are people out there, like Bill Henderson or my own school's Andy Morris, doing good work looking at the legal business as a whole. But, as I wrote earlier, most schools are dealing with a particular region and a particular pattern of practice. It's not enough to rely on general information about what's going on in the profession; we should be making a strong effort to look at the market served by each particular law school.

Let me add a brief, if insufficient, personal note by way of trying to walk the walk. At my own school, I have urged us to put in practice some of the things I've talked about here. In particular, I've suggested that we should institutionalize a practice of setting up focus groups, standing committees or consultation groups, or whatever the hell you want to call them, made up of faculty members and administrators, current students, recent graduates, and other practicing attorneys in our area. They should meet on a semi-regular basis to share views on what is going on in the profession and what the school is doing well or poorly, to communicate what the school is actually doing and to get some feedback prior to instituting reforms rather than announcing them after the fact, and to continue getting feedback so we can continue revisiting those reforms. In doing so, we should seek a representative sample; we shouldn't cherry-pick only the happiest or most successful alumni, or those at the biggest firms, or the happiest and best-performing students or recent graduates. Again, I don't think it's true as a blanket statement that faculty don't hear from or care about any of these individuals. But we certainly could do more to collect this information on a more institutionalized basis, so that this information is actually shared among the whole faculty and made a part of reform efforts rather than being collected by or limited to administrators or just a few faculty members. Of course there's a different between urging such things and making them happen. Like anything else involving multiple actors, it won't happen overnight. Certainly, however, I have encountered no angry opposition or anything of the sort. I certainly welcome comments sharing information about whether and how other schools have done things like this.     

Posted by Paul Horwitz on May 8, 2012 at 10:02 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack