PrawfsBlawg

Expresso Makes Life Easier for Law Review Editors. How about for Writers?

I wonder if many of you got the same email I did earlier from Jean-Gabriel Bankier over at bepress. I've reprinted most of it below and after the jump. Please feel free to weigh in with comments on whether these are positive developments for everybody or just some of the players in the submission game.

Working with the editors, bepress came up with a host of improvements to ExpressO which will radically improve the submission management experience for editors and give editors confidence that the information about the status of articles in their submission queue is up-to-date.

Here are a just a few of the highlights that are coming for the next submission season:

Integrated Auto-withdraw—when an author accepts an offer to be published through ExpressO, editors of other law reviews will be notified immediately and the submission will be automatically withdrawn from each law review's priority submission queue. Outside of being published, when an author simply withdraws their paper, it will also trigger the automatic withdraw from the pending submissions queue as well as notify the assigned editor.  

Expedite Preferences— editors will be able to set expedite preferences and share those preferences with submitting authors. For example, editors can inform authors that they will give priority to expedite requests from peer law reviews (editor creates list of peers but the list is not shared with the authors). They can also avoid wasting time on articles that have asked for a hundred or more expedite review requests: they do so by choosing a ceiling and then give priority to expedite requests that are distributed to no more than a ceiling number of law reviews simultaneously. Editors will be able to update their preferences at any time depending upon whether they are looking to slate lots of pieces or are pretty much full for the season.

Priority Submission Queue—ExpressO will be introducing many new features to help keep submission queues accurate and up-to-date. Editors will be notified (by email) only of expedite requests that meet their preferences based upon the criteria they have set and shared with authors. A priority submission queue will filter out articles that fail to meet the law review’s set expedite criteria. Also, authors and editors with expiring expedites will be reminded to take action. Authors will be reminded to expedite a new offer/offer extension or withdraw the article. Editors will be reminded to review the submission.   

Certified Expedite Requests—editors will be able to easily confirm the legitimacy of an expedite request. If an author has an open offer from another law review using ExpressO, that offer will be reflected in the editors’ priority submission queue. This kind of transparency will save editors time since they will no longer have to follow up with authors on incomplete expedite requests  or with other law reviews to confirm the offer.

Closed Communication After Rejections—when a law review rejects a submission the author will no longer be able to communicate with that review through ExpressO. 

Fast—our submission management software for law reviews will be substantially faster.

Bepress is proud of the impact ExpressO has had on the legal publishing over the past 10 years, and is dedicated to providing new tools to increase efficiency in law review submission management. Please contact me if you have any questions. I would love to hear any suggestions for what we might do in the future to help law reviews.

Finally, these tools you will need to manage your submissions will be free in 2013.

 

Green Bag's Got a New Issue...

The latest issue of Green Bag is available with links below the fold. Bear in mind the symposium to which you might wish to contribute on Orin's latest opus.

Volume 16, Number 1 (Autumn 2012)

Flip Book

Streak Along with an Ambulance

Ex Ante

Our Mistakes • Supreme Court Argument Form • Thoughts for a Year • Denial and Consolation • The Flip Book

To the Bag

Edward L. Carter and Edward E. Adams, Misjoinder and the Mysterious Opinion

John L. Peschel, Enjoyed but not Enjoined

Articles

Julian Aiken, Femi Cadmus & Fred Shapiro, Not Your Parents’ Law Library: A Tale of Two Academic Law Libraries

Ira Brad Matetsky, The Harlan Fund

John V. Orth, Charles Dickens and the Sovereign Debt Crisis

Allen Rostron          , Factoids

J. Harvie Wilkinson III, The Lost Arts of Judicial Restraint

From the Bag

Ross E. Davies, The Popular Prosecutor: Mr. District Attorney and the Television Stars of American Law

Unknown, The Case of the Racket Witness

Ex Post

Orin S. Kerr, A Theory of Law

 

The Varieties of Co-Religionist Commerce IV

So I thought I'd finish up my ramblings discussion of "co-religionist commerce" by raising some of the challaneges posed by co-religionist commerce in the non-institutional context.  As I mentioned in some of my previous posts, institutional co-religionist commerce is complex because it is often hard to answer questions like what is a religious institution, who is a  minister and what is religious conduct when you have institutions that are simultaneously trying to achieve religious and commercial objectives.  I actually had a student in my Law & Religion seminar present her paper this past week arguing that these problems were likely to proliferate in coming years given the rise in the number of megachurches in the United States, which frequently aim to provide both religious and commercial services to their members.  

On the other end of the co-religionist commerce spectrum you find non-institutional instances of this problem.  For non-institutional co-religionist commerce, think of two private parties that have a dispute over the meaning of a legal instrument with religious terminology.  As examples, consider an agreement that incorporates the "regulations of Speyer, Worms and Mainz," or a will that asks for property to be divided up in accordance with "Sharia law" or a child custody agreement that prohibits a parent from taking the child to services "contrary to the Jewish faith."   Courts have resisted interpreting such legal instruments for fear that doing so would entail impermissibly resolving a religious question in violation of the Establishment Clause.  

While I've criticized this doctrinal conclusion here, I thought I'd also mention that I'm currently working on a new project with Barak Richman (working draft title: "On Religion and Money") where we suggest that the problems faced by courts in this context is actually the result of two different doctrinal trends. 

The first is something I've taken to calling Establishment Clause creep.  The term captures what I take to be a growing trend where courts are increasingly expanding the scope of claims that the religious question doctrine prohibits them from adjudicating (my favorite example can be found in this New Jersey's Court dismissal of a defamation claim).  The general concern expressed by courts in tis context is that the Establishment Clause prohibits courts from making anything resembling an objective determination regarding religious law, doctrine, practice and even social trends within a religious community.   

One natural move that courts might make in order to avoid the religious question doctrine, but still resolve the case, is to avoid objective determinations by instead investigating the subjective intent of the parties (think here of trying to use subjective intent to interpret a disputed religious term in a contract).  In fact, there are a variety of contract doctrines that might help in these circumstances to resolve the dispute - such as course of dealing and course of performance - without requiring the court to render some sort of objective determination regarding religious law or doctrine.  

Courts, however, rarely make this move, which is consistent with the second doctrinal trend implicated here: the New Formalism.  As expressed by a number of scholars (e.g. here), this New Formalism rejects the notion that courts should look to customary norms, notions of equity, and relational principles when interpreting and enforcing contractual arrangements.  In so doing, it expresses strong skepticism of looking to the subjective intent of the parties - or interpretive tools like course of dealing and course of performance - to interpret contracts.  

Together, thes two trends - Establishment Clause creep and the New Formalism - have made it difficult for courts to address non-institutional co-religionist commerce.  On the one hand, Establishment Clause creep has led to judicial avoidance of any inquiries that approach rendering an objective determination regarding religious custom, doctrine or practice.  And on the other hand, embracing the New Formalism prevents courts from using subjective measures to interpret and enforce non-institutional co-religionist commerce.  

So what to do?  Well, we're still working on providing some thoughts on how we would want courts to better address claims implicating non-institutional co-religionist commerce.  But part of the solution surely will be pushing back against both of these trends to find a bit more space for courts to better resolve cases that implicate both religious and commercial insterests.

The Deference Question, Part II: Toward A Theory of Deference

My first post on what I call “the deference question” attempted to make the case for the question’s importance, but also noted the inadequacy of the Court’s analysis of the question.  This post sets forth a very truncated version of my analysis of the question.  (A more detailed version of this analysis can be found in a paper that will be published next year.)  My next post will use these theoretical insights to derive several principles of deference.  I’ll then conclude with a final thought about the role substantive legal doctrine plays in this question.

Since I teach administrative law, a natural place for me to go when I started thinking about this question was the jurisprudence governing agency interpretations of statutes – in particular, the standards set forth in the Skidmore and Chevron cases.  Of course the context is quite different: agencies versus legislatures, and law interpretations versus fact findings.  But the Court’s ongoing discussion of the two conceptually different deference standards represented by Skidmore and Chevron nevertheless provide helpful grist for considering the deference question in the context of congressional fact-finding.  In particular, Chevron’s grounding in authority (Congress’s presumed delegation to the agency to decide the interpretive question) contrasts with Skidmore’s grounding in agency expertise – a grounding that, while not expressly stated in Skidmore, seems clear from the context of the case and the Court’s analysis.

The distinction implied by these two different justifications matters when one adds to the analysis the different types of fact-findings for which Congress may demand deference.  There are, of course, a million different ways to taxonomize facts and fact-findings. In the paper I propose three very rough categories: empirical facts, evaluative facts, and value-based facts.  While none of these categories is crystal-clear, empirical facts are at least conceptually pretty straightforward.  Value-based facts are those that are based primarily on normative or ideological judgments.  Evaluative facts combine elements of empirical and value-based facts.  For example, a finding that a deregulatory policy will benefit the economy counts as such a fact, because, while it is based in part on empirical facts, the finding is derived by filtering empirical facts through the prism of the finder’s ideological precommitments, here, about how markets work.  (An evaluative fact doesn’t necessarily have to be predictive, though.)

The type of fact at issue combines with the authority and expertise justifications for deference to suggest some preliminary thoughts about the deference question.  As a general matter, empirical findings should command deference, if at all, based on congressional expertise.  (There are ways to test the expertise claim, as I’ll explain in the next post.)  At the other extreme, deference demands for value-based, and at least some evaluative, findings should rest on authority grounds.  In this case, Congress’s authority to make such normative judgments stems from its electoral legitimacy and national representation, qualities which give it unique authority to speak for the nation’s moral values when finding facts.  As with its expertise-based deference claims, there are also limits to Congress’s authority justification for deference.

Does this analysis suggest broad congressional power?  Yes.  Are there limits?  As I’ll explain in the next post, which sets forth some concrete deference principles, there are.

Schrag and Tamanaha on Legal Education

Two very valuable contributions to the discussion of legal education and its financing were made this week, and neither of them appeared in the New York Times (or Salon). The first is this review by Philip Schrag of Brian Tamanaha's Failing Law Schools book. It argues, in brief, that while Tamanaha usefully collects many stinging criticisms of American legal education and its cost, he "understates the benefits offered by the federal income-based repayment plan." The second is this reply by Tamanaha, along with interesting comments by, inter alia, Schrag and Tamanaha.

Having written my own (positive) review of Failing Law Schools, I should note one area of overlap and agreement between my review and Schrag's. It is my closing point, and Schrag's as well: in thinking about reforming legal education, our focus should include clients as well as students, and specifically the mismatch between the number of lawyers and law school graduates and the number of middle- or low-income clients who need but do not receive or cannot afford legal services. Neither of us charge Tamanaha with being indifferent to this state of affairs; we simply argue that it was worth more discussion. I should add that, even with IBR factored in (and not everyone will avail themselves of IBR), I think Schrag undersells the extent to which high tuition and debt are responsible for the mismatch, asserting that "the cost of law school may be a relatively minor factor in the high cost of service."

As Tamanaha agrees in his post, Schrag offers a good deal of valuable detail about current loan repayment programs, and his discussion is a valuable supplement to Tamanaha's book. There are, however, a couple of areas where I think Schrag is wrong and Tamanaha is right, and Schrag's paper doesn't persuade me to change my mind.

The first is his argument that Tamanaha's proposal to loosen accreditation requirements and permit greater flexibility in law school programs would "accelerate and perpetuate" the division of law schools into "elite and non-elite wings." Schrag seems to think that Tamanaha's intention is to create, or permit, a "two-tier" system of legal education. That's not how I read him; I think he's pretty clear that his interest is in allowing a variety of models of legal education to emerge.

In any event, like Tamanaha, I agree that we already have a two-tiered system of legal education. The question is whether we can do anything to make sure that the second tier need not take on all the expenses of the first tier, with fewer of the benefits. As far as I can tell, Schrag doesn't ultimately make any actual arguments against a stratification of legal education, beyond the unsupported assertion that "I doubt that many members of the profession desire further acceleration of the trend toward two hemispheres" in the legal profession. Instead, he just assumes some kind of egalitarianism that makes such a prospect (which, again, is already the current reality) unacceptable. I don't think he's right; but even if he is, his paper doesn't offer any substantial arguments for his position.

Second, although Schrag's expansion of the IBR discussion is helpful, I agree with Tamanaha that it does not adequately justify the large number of schools with large tuitions and so-so outcomes. As Tamanaha writes in his post: "The intended purpose of IBR is to rescue grads who find themselves drowning under large educational debt--but it was not set up to be utilized by schools (fighting for their own survival) as an inducement to persuade prospective students to leap into risky financial waters that will likely leave them foundering." In my own review, I suggested that the dependence of law schools on things like IBR is something like a canary in a coalmine. As Tamanaha notes, that dependence has, for some law schools, become a marketing point to prospective law students. That seems perverse to me. 

Schrag's response to this, both in his paper and on Balkinization, is, again, a general appeal to egalitarian values. Many countries subsidize higher education, he writes, and the US offers public subsidies for many things, so why pick a fight with IBR? That's a bigger discussion than anyone can have here. But it's really an argument about values, not facts. He writes in his paper that he "would not want to try to construct a principled basis on which to assert that partial subsidies were less warranted for lawyers than for philosophers, dentists, architects, business executives, journalists, political scientists, poets or many others who have graduate educations." I can see perfectly sensible reasons to subsidize some professional educations less than other fields. Or more: I can also see excellent reasons to offer fewer public subsidies to would-be poets! Having lived through three years as a student at McGill of annual student marches favoring tuition freezes, I was delighted by Quebec's efforts to raise university tuitions, and I was also pleased when Ontario allowed universities to substantially increase tuition for various professional schools. We may just have a philosophical disagreement here.

What I don't get, however, is why, if he favors the continuation of direct or indirect subsidies to law schools, Schrag isn't more eager to insist that those subsidies carry substantial expectations or conditions with them. "While we are at it," he writes on Balkinization, "would [Tamanaha] also eliminate the subsidies that Congress has provided for farm products, the oil industry, airlines, housing, etc.?" It's always tough to gauge tone on the Internet, but I sense that Schrag would not complain too hard if Congress did eliminate subsidies for, e.g., the oil industry. At the very least, I doubt he would complain if those subsidies were strongly linked to monitoring, transparency requirements, some required showing of efficiency, and some demonstration of a link between the subsidies and actual outcomes. If we are to heavily subsidize law schools, shouldn't we require the same thing there? England, among other countries that heavily subsidize higher education, also imposes heavy accountability burdens on schools and educators. Shouldn't he at least be willing--indeed, eager--to link IBR to a showing that law schools are keeping costs and tuitions as low as possible and providing decent outcomes for their students?

Finally, if I may pick a smaller bone, Schrag writes in criticism of Tamanaha's advocacy of loosening accreditation requirements to make lower-cost legal educations possible that such an approach ultimately might lead to the "jettison[ing] of many of the goals of the current system of legal education, such as teaching students to think critically about social problems that are caused or remediated by legal doctrines and institutions." Even if this is a sound goal, I'm not sure why it has to be the goal of every law school, or why accreditation requirements need to be uniform along the dimensions in which they're currently uniform in order to achieve it. In any event, to put it mildly, I doubt we are doing all that great a job of achieving this goal currently, or that current tuitions would be justified even if we were.

Again, both Schrag's paper and Tamanaha's response, as well as the comments on his post, are well worth reading--instead of, with all due respect, wasting one's time on this week's New York Times op-ed or responses to it.

 

Tuition, Debt, and U.S. News

In the midst of the "Law School Finances" series of posts, I received an email from a "highly-placed source" in legal academia.  This person was concerned that law schools weren't doing enough about our students' levels of debt:

I’m struck by how dismissive folks are of the notion that tuition is too high.  The continued belief in a pool of “tuition-insensitive” applicants is striking.  We’re not talking about tuition insensitivity as a function of financial ability to pay the sticker price, as only a few of the top schools make meaningful efforts at need-based discounting, in my understanding.  99% of the discounting going on has nothing to do with financial need.  By “tuition-insensitive,” we’re talking about applicants who fail to appreciate the long-term ramifications of agreeing to pay sticker price.  Shrinking class size may help on USNWR factors (a lot) and grads’ employment prospects (a bit), but it doesn’t do anything – and likely exacerbates – the financial struggles of those students who are asked to pay sticker.  The fewer students available to shoulder the burden, the larger the burden grows.  Shrinking the class size, which virtually everyone is doing by necessity, does next to nothing to alleviate the long-term problem of student debt.  The current approach is simply not sustainable in the long term, but everyone is afraid to make a move given the potential USNWR implications.

These sentiments have been echoed by Brian Tamanaha, among others, who just posted yesterday about how the changes to IBR provide even greater disincentives for law schools to reduce tuition.

I think there's a fairly straightforward way to get schools looking at their tuition: make it part of the U.S. News calculus.  Right now, the U.S. News rankings provide a strong incentive for schools to maintain or raise tuition.  About nine percent of a law school's score is based solely on the amount of money spent per student -- a direct incentive to spend more.  Significant weight is placed on entering student g.p.a. and LSAT scores, which a school can improve by offering merit scholarships.  So if a school is going to cut tuition, it makes much more U.S. News sense to "cut" by boosting merit scholarships, rather than cutting the sticker.  (See more here.)  Similarly, it makes more sense to cut the number of students than it does to cut tuition, for a host of U.S. News reasons.  And improving a school's U.S. News ranking is not simply a vanity contest; it improves the applicant pool, makes it easier for current students and alums to find jobs (particularly outside of the school's reputational heartland), and provides tangible evidence of achievement in a world that often lacks such markers.

Schools could decide just to bail out of U.S. News en masse, but it would be extremely difficult to be the first school to do this, and U.S. News could still rank even if schools did not cooperate.  An easier and better solution would be for U.S. News to take cost of attendance into account.  Malcolm Gladwell made this point in his 2011 New Yorker article on college rankings:

There’s something missing from that list of variables, of course: it doesn’t include price. That is one of the most distinctive features of the U.S. News methodology. Both its college rankings and its law-school rankings reward schools for devoting lots of financial resources to educating their students, but not for being affordable. Why? Morse admitted that there was no formal reason for that position. It was just a feeling. “We’re not saying that we’re measuring educational outcomes,” he explained. “We’re not saying we’re social scientists, or we’re subjecting our rankings to some peer-review process. We’re just saying we’ve made this judgment. We’re saying we’ve interviewed a lot of experts, we’ve developed these academic indicators, and we think these measures measure quality schools.”

As answers go, that’s up there with the parental “Because I said so.” But Morse is simply being honest. If we don’t understand what the right proxies for college quality are, let alone how to represent those proxies in a comprehensive, heterogeneous grading system, then our rankings are inherently arbitrary. All Morse was saying was that, on the question of price, he comes down on the Car and Driver side of things, not on the Consumer Reports side. U.S. News thinks that schools that spend a lot of money on their students are nicer than those that don’t, and that this niceness ought to be factored into the equation of desirability.

Given the real concerns on rising tuition in higher education, I would not be surprised if U.S. News started taking costs of attendance into account.  But I haven't heard any buzz about this possibility.  I'm surprised that reformers have not focused more on this potential change as a tool for encouraging tuition reform.

Jurisprudential trivia

Take a break from grading/writing exams for the following (posted by Aaron Caplan (Loyola-LA) to the ConLawProf listserv and reposted here with permission):

What do the three cases below have in common, then suggest additions:

1. M’Culloch v. Maryland
2. Scott v. Sandford
3. Minersville School District v. Gobitis

A Tax Bubble? Really?

As a general rule I try to stay away from using my blogging perch to fulminate about current events or policy issues beyond my legal expertise (but see, e.g., here).  But, to channel Emily Litella, what's all this I keep reading about a tax bubble?  Is the idea really to do away with some of the marginal nature of tax rates, and make some steps in the tax rates applicable to all the income the person crossing that step earns?  

I'm not certainly not an expert on this -- I didn't get past baby tax in law school (and even that was at Yale).  But even I could figure out that this seems to mean that, as soon as an income earner crosses an income threshold, that extra dollar of income actually means more than a dollar rise in her taxes.  

Are people seriously talking about this? If so, why?  Is it just a sad attempt by some Norquist dead-enders to be able to claim that they refused to raise actual tax rates?  Or am I missing something?  I'm really truly confused by this.  I have heard that there have been bubbles in the past, although I've also heard that at least some of them grew out of phased withdrawals of deductions (a concept whose effect in the bubble context already stretches my knowledge of tax law).  Is there any sane policy reason for this approach?  If not, what's the reason?

The Varieties of Co-Religionist Commerce III

As I mentioned in my last post, I've been writing a bit about "church autonomy" - that is, the autonomy granted religious institutions over internal decision-making and disputes resolution.  My thought is that concerns over church autonomy have become particularly salient because of the increasing reach of "co-religonist commerce," where entities - including religious institutions - find themselves engaging in conduct that simultaneously implicates both religious and commercial interests.  This has made it difficult to determine the scope of church autonomy because it is sometimes hard to know whether the conduct in question is religious or commercial. 

Reaction to these church autonomy questions have run the gamut.  As I also mentioned in my last post, some have advocated for strong forms of church autonomy (the "institutionalists") while others have pushed back against these strong claims (the "anti-institutionalists").  I've recently attempted to present another alternative, which argues that the authority of religious institutions is derived from, to use the terminology of the Supreme Court in Watson v. Jones, the "implied consent" of the institution's membership.  The thought here is that while religious institutional autonomy is derived from individual members, the mechanism of implied consent provides a form of quasi-sovereignty to the religious institutions through the default presumption of implied consent.  And, it also provides a method for establishing important limitations to church autonomy based on facts and circumstances that undermine the presumption of implied consent.  

Here's how I put it in the abstract to my paper, Religion's Footnote Four: Church Autonomy as Arbitration (the paper, of course, elaborates on the idea):

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties. In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system. 

Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm. However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct. While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor. 

Inside the Mind of Mankiw: A Dialogue

Over the weekend Greg Mankiw was moved once again to speak out against increases in the top marginal income tax rate.  Rather than threatening a massive withdrawal of human capital, Mankiw took a different approach.  Instead he created an imaginary internal dialogue between a "moderate" Obama and a "liberal" Obama.  I've always enjoyed this type of dramatic device, so I thought it'd be fun to imagine the dialogue between "libertarian advocate" Greg Mankiw and "rational actor" Greg Mankiw.  Here we go!

 

 LIBERTARIAN MANKIW: Oh boy -- it looks like the top tax brackets are about to get jacked up!  This is terrible!

RATIONAL ACTOR MANKIW: Just like in 2008 and 2010, when we predicted that the John Galts of the world would deprive the world of their talents?  Wake me in another two years.

LIB: But this time it might actually happen!  Obama is talking tough, Boehner is showing signs of weakness, and most people actually think it's not a bad idea!

RAT:  Sorry, but I can't get too worked up over this.  Maybe we can just run that 2010 column again.

LIB: For a third time?  I'm not sure it was so persuasive the first two times.  I think we need a new strategy.

RAT: The Times doesn't pay us nearly enough for these columns.  I don't get out of bed for less than $10,000.

LIB: But this is our chance to shape the minds of America!

RAT: You mean the minds of Times readers. These are folks who advocate for higher taxes while reading about "reasonably priced" Massimo Dutti fashions.

LIB: Yes, precisely! They're torn between an ideological desire for higher tax rates and a personal desire to have more money.

RAT: Everyone wants more money.

LIB: Exactly!  So we have to come up with some excuse to get them off this line in the sand about raising the marginal rates for incomes over $250,000.  Obama doesn't really want to raise taxes, either -- he wants some sort of Grand Bargain that shows compromise and bipartisanship.  How do we do this?

RAT: This sounds too hard.  Are you sure we can't three-peat?

LIB: Hmmm.  We just need some literary device . . . .

RAT: How about a column set in the future, designed as a warning about the present?  Those always have the subtlety of a sledgehammer.

LIB: We did that already.

RAT: I know -- but when has that stopped us?

LIB: Hmmm. . . . If I could only get inside Obama's mind, and know what would be most convincing . . . .  That's it!

RAT: What?

LIB: I'll write a column as if I'm inside Obama's mind!

RAT: But what do you know about Obama?  You were an advisor to Romney.

LIB: It's a dramatic device!  I can put words in his mouth, and they'll sound like he's saying them.

RAT: So we're going to have the President parrot our economic policies?  Sounds convincing.

LIB: Don't be sarcastic.  We'll have a "moderate" Obama who parrots our positions.  But then we'll have a "liberal" Obama who represents the left.

RAT: You mean a caricature to which we can attribute extreme positions? Like a desire to raise taxes to 73%?  To create a European-style safety net?  To push the country into recession?  To make the country more like California and . . . France?!?

LIB: You betcha!  The "moderate" positions will look positively benign in comparison.

RAT: But the moderate policies will just be a warmed-over version on Romnomics, no?

LIB: Sure.  What's your point?

RAT: I'm sure that'll be convincing.  I better go make some real money before the tax rates go up.  I'm extremely sensitive to those, you know.  Oh, one last thing -- are you sure this won't sound like a stilted version of a sixth-grade play?

LIB: Well, these imagined dialogues are tough to pull off.  I'll do my best.  Let's see --"It’s fun to make the plutocrats squirm."  That's great -- liberal Obama would totally say something like that.

RAT: Hey, if this thing actually does take off, make sure we own the rights to these characters.  I can see "liberal and moderate Obama" T-shirts, mugs, salt and pepper shakers . . . .  Can we start a couple Twitter feeds?

LIB: "Are you nuts? I don’t want to become France."  You get 'em, moderate Obama!

The Deference Question, Part I: Why Care?

Aside from my possibly oddball interest in the class of one doctrine (reflected this month here, here and here), another lost cause academic interest I have concerns the role of Congress in the project of constitutional construction.  I've written about this issue the most in the context of congressional power to enforce the Fourteenth Amendment (and the Equal Protection clause in particular), but in a recent paper I take on the deference question -- that is, the question of the amount and type of deference Congress is owed when, in the course of legislating on matters affecting individual rights, it finds facts.

Despite some really fine recent work on deference questions more generally (in particular by Eric Berger at Nebraska, here and here), the question remains, as John McGinnis and Charles Mulaney write, "radically undertheorized."  Why?  I suspect a lot of the reticence stems from the sense that deference determinations, maybe even more than other areas of constitutional doctrine, are politically driven.  There are platitudes available to support either a deference or no deference position, and Supreme Court justices appear at times to be doing nothing more than simply picking the platitude that yields the desired outcome.  This may not be terribly surprising to public law scholars: if it's not universally accepted it's at least widely suspected that the amount of deference administrative agencies enjoy when their policies are subject to judicial review turns on how the challenged policy jibes with the reviewing judge's political predilections.  Why should it be any different with judicial review of congressional fact-findings?

But the deference question deserves more than a shrug of the shoulders and a cynical conclusion that "it's all politics."  Fact-findings provide the main opportunity for Congress to help apply the constitutional rules announced by the Court.  Even though that role raises the serious risk that Congress could use its fact-finding power to wrest from the Court the power to interpret law, a rule denying Congress any deference to its fact-findings would deprive it of any meaningful role in filling in constitutional meaning left unfilled by the Court's often-vague legal tests.  For what it's worth, the Court itself at least ostensibly recognizes a role for congressional fact-finding.  And finally, as a practical matter, such findings matter.  For example, the amount of deference the Court gives to Congress's findings supporting the Voting Rights Act's extension will likely heavily influence the result in the challenge to the VRA that's currently pending.  

So I think the deference question matters.  I understand the objection that, even if it does matter, no workable standards guide the inquiry.  In my next post I'll explain the theoretical bases for analyzing deference issues. In the subsequent post I'll discuss several deference principles I offer in the article.

Two Worlds of Software Patents

I recently participated in Santa Clara Law School's great conference on "Solutions to the Software Patent Problem." The presentations were interesting and thoughtful, and...short! A total of 34 presentations in one day, including some Q&A from the audience. Op-Eds from the conference are continuing to appear at Wired Magazine's blog, and Groklaw has a fairly thorough article summarizing the presentations.

I want to focus this post on an epiphany I had at the conference, one that is alluded to at the end of the Groklaw article. In short, there appear to be at least two world views of software patenting (there is probably a third view, relating to natural rights and property, but I'm going to put that one to the side). More after the jump.

On the one hand, you have the utilitarians, who believe that the costs of patenting might be worth the benefits of patenting. Or maybe they aren't, but that's the important question to them: to what extent does allowing software patent drive innovation? The Groklaw article implies that this group is primarily large corporate interests, but I think that's too restrictive. For example, I'm unabashadly a member of this world view, and my affinity is toward start-ups.

On the other hand, you have what I'll call the friends of free software (more fully called FOSS - Free and Open-source Software). These individuals believe that software is thought, and math, and that no one can own it. I've found that some take this view to the extreme - they have no problem with a circuit that performs the same thing as software, so long as it is performed in hardware. Members of this group believe that software patents should be unpatentable as a matter of principle, and that by allowing any kind of software patenting bad things will happen to individual programmers, to free software, and in the world generally. As further evidence that the divide is not just about large corporate interests, there are plenty of people who subscribe to this world view that started large successful companies.

Now, here is the epiphany - I belive that bridging these two worlds is possible if one believes that any software patent should issue. (If you agree that software patents can never satisfy utilitarian ends, then you can bridge the worlds. Benson Revisited  by Pamela Samuelson is a great example of such a bridge.)

Believe me, I tried to make the leap. I wrote a lengthy post at Groklaw that garnered more than 1300 comments where I tried to better understand the free software view and they tried to understand mine.

Surely, I thought, they might see that there are some lines that can be drawn that would allow for inventive software innovations. Surely, I thought, we can discuss some tweaks that would help alleviate the deleterious effects of low quality patents but save the system for one good software patent.

Surely, they thought, I would see how software patents are a bane to society, and must just go. Surely, they thought, I would see that there is no such thing as a good software patent.

The problem is that the goals of each world view are just too different. The following exchange from the Santa Clara conference between John Duffy and Richard Stallman drives the point home. I'm paraphrasing the statements, of course:

[Stallman's keynote]: Companies don't need software patents to innovate - just look at the rise of Google. [later] My proposal is that we can enforce software patents in standalone devices but not in general purpose computers.

[Duffy's talk]: I'm glad Stallman points out that software companies don't need patents - I think we agree on a solution. My proposal is that if an inventor is not induced to invent because of the prospect of a patent, then the invention is obvious and no patent should issue.[later]Stallman's proposal, though, is a kludge - a patch on the system rather than an elegant solution like redefining obviousness.

[Stallman in response to Duffy]:It doesn't matter if the patent induced the invention, it is still a bad patent. It may actually be worse, because now it can't be invalidated. My solution is not a kludge, because it handles the very real problem of software patents and eliminates it.

[Duffy]: But you have to look at the ex ante incentive to invent. If we don't allow patent enforcement, inventions might not happen that would have happened with the patent system.

[Stallman]: It's OK if we don't get those inventions. Maybe they will be developed, maybe they won't, maybe they will take longer, but the harm to any future software programmer/company is never justified by encouraging that investment with a patent.

And there you have the core of the problem. Utilitarians like Duffy (and me) believe that it is worth driving the ex ante incentive to innovate, but trying to hone the system to minimize collateral damage. Free software folks like Stallman (and probably 99% of Groklaw readers) believe that the collateral damage never justifies the ex ante incentive in a practical way.

You can see the core of these arguments in the debate about whose invention is elegant and whose is a kludge. Duffy believes that tweaking inducement to invent is elegant because that's what utilitarianism is all about. Just barring patents on general purpose computers is a patch, because there might be valuable innovations in the use of general purpose computers that are worth encouraging. Investment in standalone software might decline if there is not general purpose application at the end of the rainbow, especially in the age of smartphones.

On the other hand, Stallman believes that barring enforcement on general purpose computers is elegant, because it eliminates the most harmful effects to programmers. He believes that changing obviousness is a kludge, because it refuses to acknowledge that even the patents that come from the new rules will be bad for society. As Stallman commented to me after the conference: "There may be weak patents, and there may be strong patents, but they are all bad patents."

So, where does that leave us? I don't know, but I have to think it is helpful to understand why we can't seem to understand each other. I'm not sure where it leaves the utilitarians. They seem to be winning in policy circles, as this recent speech by PTO director David Kappos shows, but utilitarians can't even seem to agree among themselves the best course of action with software patents. Perhaps this recognition will aid those with the free software view to hone their arguments in a way that will get more policy traction - by making their same important points, but somehow framing them in a langauge utilitarians will hear. Samuelson's Benson Revisited article is a good example.

UPDATE: Thank you all for the thoughtful comments. It's really the only way to know anyone is reading at all. Because there are some common themes in the comments, I thought I would respond here rather than a long comment. 

Theme 1: Software is just ideas and math, the debate isn't utilitarian because you never get to patenting in the first place. I would submit that a) this is evidence of a separate world view (and one widely shared - by calling it separate, I don't mean to disparage it). However, it also reveals an important definitional divide -one I thought about putting into the main post, but then decided against as it ran too far afield of my point. Maybe I was wrong about that. The question is what is software. One comment below essentially says, "Well, of course circuits are patentable and software isn't. Software is just abstract math." The problem is that most patents don't claim just the abstract math part. They claim "The steps of making A happen by doing X, Y, and Z." Once you view a patent that way, a circuit and software are equivalently infringing if they do X, Y, and Z - they are the same - a means to some other patented end. This is another bridging difficulty.  FOSS folks may think utilitarians are not hearing their points about math, but reading some of these comments (asking me to "wake up," for example) sure makes me feel like my points about how process patents work are not being understood.

Theme 2: Software patents harm innovation. This might be true, but you have to look at the benefits on the front end. It's an ex post v. ex ante thing. Utilitarians will agree that software patents harm innovation on the backend if they can get the benefits on the front end.  This leads to...

Theme 3: Software patents don't help innovation on the front end. This is facially a utilitarian argument, I will admit. Commentors ask, "show me the evidence of such benefits." And that is what utilitarians debate about - whether the evidence is there. 

But here's the thing - and the reason why I put in the Duffy/Stallman exchange that was so eye-opening for me. Duffy was quite clear: If there is no software patent that would have been induced by the patent system, then fine, there should be no software patents. He thought there was agreement. But Stallman was quite clear that no, even if there was such a patent that withstood that test, that survived the evidence, it would still be bad and should still be unenforceable. That was the point of my post. For all those people who say there is no evidence, I ask you: what if that evidence came? What then? Would you change your mind? I suspect most would say no.

NOW AVAILABLE: First Amendment Institutions

I'm proud to announce that according to Amazon my new book, First Amendment Institutions, is now in stock and available for purchase. (It has a listed publication date of January 2013 but the books are already starting to ship.) Here is the link to the catalogue page from the publisher, Harvard University Press. 

Although the book offers a fairly full and detailed argument for and description of First Amendment institutionalism, and applies it in a wide range of cases, it is still very much an attempt to begin a conversation about its ideas, not to present itself as the last word on the subject. Moreover, the book draws connections between First Amendment institutionalism and other developments in legal and constitutional theory, and thus may be of interest to folks other than students of the First Amendment.

Still, the First Amendment is its focus, and I hope that it will be worth reading by those interested in at least the following current issues: 1) the contraception mandate; 2) the pending university admissions case, Fisher; 3) cases like the recent University of Iowa law school discrimination suit; 4) recent decisions like CLS and Hosanna-Tabor; 5) government speech doctrine; 6) the public-private distinction; 7) unconstitutional conditions doctrine; 8) New Governance, constitutional experimentalism, and/or New Legal Realism; and, of course, 9) Niklas Luhmann. There is also a basic chapter on First Amendment theory and doctrine that law students taking a basic con law or First Amendment course might find useful as a short practical introduction to the field.

If I may, here are the blurbs for the book:

“As the world becomes more socially, industrially, governmentally, and technologically complex, it is increasingly implausible to imagine the protections of freedom of speech and press applying in exactly the same way in all contexts. An important dimension of the First Amendment is institutional competence. Which institutions should be trusted to make which kinds of content-based determinations of what is or is not said, or published? Paul Horwitz sets out the case for an institutional perspective on the First Amendment with careful argument, admirable balance, and meticulous scholarship.”—Frederick Schauer, University of Virginia

“In this comprehensive and original analysis of the First Amendment’s multifaceted applications,Paul Horwitz deftly argues that constitutional law should take institutions and their variety into account—libraries, newspapers, churches, and beyond. This book opens new lines of discussion and criticism for a new generation of scholars.”—Mark Tushnet, Harvard University

I'm glad it's out and hope it will provoke some useful and interesting discussions. Doubtless I'll keep promoting it from time to time, while trying not to go overboard. In the meantime, enjoy. P.S.: It makes a fine Christmas or Hannukah present!

 

  

More Canadian Political Drama

Awhile back I posted about the emerging political drama in Canada, with the son and the former lover of the great Canadian Prime Minister Pierre Trudeau vying for the Liberal leadership. So far these two, Justin Trudeau and Deborah Coyne, are the only official candidates, according to the Party website. Last week Canadians got a reminder of who they were dealing with in the case of Justin Trudeau. A video emerged of a TV interview where Trudeau lashed out at the Western Canadian province of Alberta, stating "Canada isn’t doing well right now because it’s Albertans who control our community." (The current Conservative Prime Minister is from Alberta). The interview came to attention while Trudeau's rival Coyne was campaigning in Alberta; but the timing of the revelation seems more to do with a by-election in the province which, until the video was released, the Liberals seemed to have a chance of winning. In the same interview, Justin Trudeau mused: "“certainly when we look at the great prime ministers of the 20th century, those that really stood the test of time, they were MPs from Quebec. … This country — Canada — it belongs to us.” He thus insinuated that non-Quebeckers ought not to bother applying for the position of Canadian Prime Minister. This is the kind of arrogance and divisiveness that Justin's father fought against throughout his political career: the elder Trudeau liked to describe himself as French-Canadian. He believed in a pan-Canadian understanding of political identity not a provincialist one. Justin Trudeau's handlers immediately responded that the interview was old and the remarks were taken out of context. In fact it was done in 2010-when Trudeau was a parliamentarian in his late 30s, not an errant adolescent. As for context, this wasn't a drunken dinner on St. Jean-Baptiste Day-it was an official performance for television. Eventually and inevitably, Trudeau apologized. The shockingly chauvinistic and parochial statements from 2010 did, however, draw attention away from Justin Trudeau's more recent gaffe-an oped where he suggested that Canada ought to rubber-stamp proposals for Chinese investment in Canada, because the Chinese play by their own rules and there is nothing that little countries like Canada can do about it. In fact the oped is chock full of contradictions that say a great deal about the quality of Justin's mind: on the one hand he warns that the Chinese play by their own rules while on the other hand reassuring everyone that once inside Canada they will scrupulously bow down before existing laws on labor, environment etc. Deborah Coyne shot back with her own oped, which while eschewing Sinophobia was far more shrewd about China, pointing out the current federal Government's lack of clear standards to steer Canadian investment policy. It now appears that Justin Trudeau and Deborah Coyne will soon be joined in the race by a former astronaut. After last week, we might well ask if one space cadet isn't enough in this contest.

Happy (early) Thanksgiving!

Early?  Well the date of Thanksgiving has been somewhat of a moving target and has been hotly contested not only within the branches of the federal government, but also between the federal and state governments.  For a recap, check out this nice summary from the Center for Legislative Archives.  Thankfully, in 1941, the House, Senate and President all got on the same page, and declared the fourth Thursday in November to be Thanksgiving - as opposed to the original House resolution that declared the last Thursday in November to be Thanksgiving.  So we can all be thankful for some of the 1941 political consensus, which ensured that in years like 2012 we get to celebrate Thanksgiving a week early.

Happy Thanksgiving to all!

Whither Elmo?

My daughter is well past Sesame Street age, although she spent a year (from 20 months to 32 months) carrying a stuffed Elmo everywhere. But given the news that the man who created Elmo, Kevin Clash, has resigned from the show in the wake of two separate allegations of child sexual abuse, a question:

Can Elmo survive as a character? Sesame Street producers insist he can, that other puppeteers are trained to do the character and that "Elmo is bigger than any one person." But can parents separate Elmo the character from the person who played him, given how much attention Clash himself has received? And there are two aspects to this question. First, will parents allow their kids to like, watch, and play with Elmo? Second, what do the show and parents do with the fact that most of the 2013-14 season (the show's 44th) has been taped, meaning Clash will be playing Elmo well into 2014?

Article Spotlight: The Merger Agreement Myth

So I wouldn't describe myself as a corporate law enthusiast, but I wanted to highlight a recent and provocative article authored by my Pepperdine colleague Robert Anderson and his co-author Jeffrey Manns, titled The Merger Agreement Myth, 98 Cornell L. Rev. (forthcoming 2013).  The article has gotten quite a lot attention and has been written up by Reuters, the ABA Journal, and Dealbreaker (full disclosure: some of the write-ups push the envelope on the somewhat more modest - and thoughtful - claims in the article).  In any event, here's the abstract for the piece.  Enjoy!

Practitioners and academics have long assumed that financial markets value the deal-specific legal terms of public company acquisition agreements, yet legal scholarship has failed to subject this premise to empirical scrutiny. The conventional wisdom is that markets must value the tremendous amount of time and money invested in negotiating and tailoring the legal provisions of acquisition agreements to address the distinctive risks facing each merger. But the empirical question remains of whether markets actually price the legal terms of acquisition agreements or whether they solely value the financial terms of mergers. To investigate this question, we designed a modified event study to test whether markets respond to the details of the legal terms of acquisition agreements. Our approach leverages the fact that merger announcements (which lay out the financial terms) are generally disclosed one to four trading days before the disclosure of acquisition agreements (which delineate the legal terms). We focused on a data set of cash-only public company mergers spanning the decade from 2002 to 2011 to ensure that the primary influence on target company stock prices is the expected value of whether a legal condition will prevent the deal from closing. Our analysis shows that there is no economically consequential market reaction to the disclosure of the details of the acquisition agreement. Markets appear to recognize that parties publicly committed to a merger have strong incentives to complete the deal regardless of what legal contingencies are triggered. We argue that the results suggest that dealmakers and lawyers focus too much on negotiating “contingent closings” that allow clients to call off a deal, rather than on “contingent consideration” that compensates clients for closing deals that are less advantageous than expected. Our analysis suggests drafting recommendations that could enable counsel to protect clients against the effects of the clients’ own managerial hubris in pursuing mergers that may (and often do) fall short of expectations.

The Class of One at the Supreme Court III: The Court and the Public Purpose Requirement

In my two prior posts on the class of one (here and here) I explained that in Engquist v. Oregon Dept of Agriculture the Supreme Court adopted a blunt approach to cabining the class of one theory, which it had interpreted expansively eight years earlier in Village of Willowbrook v. Olech.  In Engquist the Court held that government employment claims could not be brought on a class of one theory, explaining that such claims were a poor fit with the class of one idea.  In my last post, I explained why I thought the Court’s analysis was flawed.

I want to finish my analysis of Engquist (on the day the Court is considering a cert. petition in the Del Marcelle case I mentioned in my first post) by explaining briefly my thoughts about the larger implications of Engquist’s approach.  The class of one is a “small” doctrine.  As a practical matter it rarely yields wins for the plaintiff (although it might provide the grist for favorable settlements by allowing a larger variety of claims to pass the pleading stage).  And as a conceptual matter it seems at first blush far removed from the concerns about race, sex and other class-based discrimination that occupy most people who think about equal protection.  But Engquist’s analysis does create a problem for larger equal protection principles.

Recall that under one reading of Engquist, employment claims simply do not violate the class of one principle.  This is the case (under this reading) even though a plaintiff alleges that she was the victim of discrimination based on animus – that is, discrimination explicitly based on some improper motive (as opposed to “innocent” discrimination that lacks a rational basis).  Indeed, the plaintiff in Engquist itself pled (and apparently proved) such animus.  Yet the Court rejected her claim.

In rejecting her claim, the Court vindicated a government action that was expressly infected with an improper government purpose.  This seems to me to be pretty significant.  One can agree that it’s impossible for courts to police all government discrimination that lacks a good justification; one can even agree that in many situations it’s impossible or inappropriate for courts to police discrimination that lacks any clear justification at all.  Such results flow from appropriate judicial deference, and recognition of either the burdened group’s political access and/or the court’s own inability to test discrimination with a sufficiently finely-tuned scale.  It’s the rational basis standard. But shielding government from liability for action that a jury has concluded was explicitly motivated by improper motives, as Engquist did, goes a step beyond all this.  In particular, it allows government officials to act for purely private reasons, or what is sometimes short-handed as “animus.”

Of course, “animus” (I put the word in quotes because it may not be the most accurate descriptor of all private-regarding purposes) is often the implied conclusion of courts doing equal protection analysis.  In Richmond v. J.A. Croson Justice O’Connor talked about strict scrutiny’s role in “smoking out” illegitimate government uses of race.  In Romer v. Evans the Court concluded that Amendment 2 reflected animus against gays and lesbians, in part because there was no legitimate justification to which Amendment 2 had a reasonable connection.  But it may be difficult, or inappropriate, for courts to perform such analysis in class of one cases, given how frequently such cases could arise – essentially, anytime government treated a person differently from another person.  But that just makes Ms. Engquist’s lawsuit all the more unusual, in that she alleged and proved actual bad motive.  So why not allow the case to go forward?

Indeed, if courts don’t allow such a lawsuit to go forward, then perhaps we have witnessed a bigger change in constitutional law than first meets the eye.  A basic requirement of American constitutionalism is that government act in pursuit of a public purpose.  Engquist seems to allow private regarding action.  Of course the rational basis standard presumably allows much such action to survive judicial review.  What’s interesting is that, in Heller v. Doe Justice Scalia wrote (in footnote 27) that the rational basis standard, rather than being simply a judicially-crafted rule that enforced as much of the equal protection guarantee as courts could manage, instead constituted the true constitutional rule.  And the case he cited for that proposition?  Engquist.

Jeff Powell at Duke has argued that this footnote in Heller is significant for widening the scope of government discretion, and lessening the scope for legal limits on that discretion.  I think he’s right.  He also suggests – as I do in this working paper – that the footnote’s expansion of constitutional room for private-regarding government action marks a significant change in American constitutionalism.  All this makes Engquist a very unfortunate decision.  But given Justice Scalia’s more explicit statement on precisely this point in Heller, maybe Engquist, and its distortion of the class of one, is just an illustration of a broader troubing development in American constitutional law.

Exposing racist speech, shaming racist speakers

Following on my discussion last week about the piece at Jezebel outing racist tweets by random high-schoolers after President Obama's reelection: Hello There, Racists is a Tumblr that collects racist tweets, Facebook posts, blogs, etc., along with identifying information such as name, school (a cursory look at the site suggests that most of those caught are minors), and photograph. (H/T: My colleague Tracy Pearl). The identifying information is put out by the posters themselves on their own social media sites, which makes this slightly different than the Jezebel post, which went digging to find the kids' schools. The goal of both is to prompt social consequences--professional, athletic, academic--for posting obnoxious ideas. Emily Bazelon at Slate criticizes this sort of crowd-sourced "outing," arguing 1) public shaming is unlikely to cause them to rethink their ideas or statements and more likely to just make them indignant and 2) teenagers don't fully understand how exposed they are on social media. Much depends on whether we believe teenagers understand (or should understand) what ideas are morally wrong and socially unacceptable and thus should bear the consequences, however long-term, of espousing (seemingly proudly, to read some of the posts) such ideas.

Two things to watch going forward:

    1) Are some public schools going to find their students on this site and punish them for their posts? And if so, how will those cases play out in court? As I wrote previously, assuming these posts were not written on school time, no coherent conception of student speech would authorize school punishment for this expression.

    2) Can the creator of the Tumblr keep the readership on a leash? As this post describes, one of the blogs captured on the Tumblr had to be taken down because threats were made to the subject of the blog. The creator of the Tumblr admonished his readers: "[I]f I get credible reports of threats, I will have to take down this blog. So if you want racists to be exposed, do not be threatening or intimidating.They deserve to lose their jobs and scholarships, but not threats of any kind." Is this the editor preemptively protecting himself on the off-chance that one of his readers does something stupid (no way he would be legally liable, but what ethically responsible is another story)? Is it possible to engage in this sort of crowd-sourced public shaming without things getting out of hand? Are the shamers likely to be as irresponsible as those they are trying to shame?

Final sports/election link

One final sports "predictor" of the presidential election: The winner of The Game--a Harvard win means a Democratic president, a Yale win means a Republican president. This held form this year, as Harvard won 34-24.

More broadly, since they have been playing since 1875, we actually have some data to work with.

    • Since the origins of the rivalry, there have been 35 presidential elections and 32 games (no games in 1888, 1894, or 1940), this has held 20 times (62 %--not that impressive). That includes the Harvard Beats Yale 29-29 tie in 1968. Maybe that election should have gone to the House of Representatives.

   • Over the last 18 elections and 17 games going back to 1940 (again, no game in 1944 because of World War II), it has held 14 times (82 %--much better).

    • In my lifetime, going back 12 elections and 12 games to 1968, it has held 9 times (75 %).

    • Over the last 9 elections going back to 1980 (call it my political lifetime), it has held 8 times (89 %); the only miss was W's reelection in 2004.

Of course, since The Game usually is played in mid-to-late November, this is less a predictor than an ex post correlation. Except in 2000, that is, when they played while the Florida debacle was playing out. Maybe we should not have been so surprised when Bush v. Gore came out as it did.

The Varieties of Co-Religionist Commerce II

As I promised (or threatened?) in my last post, I want to think about "co-religionist commerce" by dividing it up into institutionalist and non-institutionalist domains.  In the past, I''ve written and blogged a bit about non-institutional co-religionist commerce - and I'll probably say a bit more about it sometime later this month - but I've recently been working on the institutional side of things in a recent article, Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. (forthcoming 2013).

As per the title, what I have in mind in the institutional context are some of the debates over "church autonomy" - that is, debates over the autonomy granted religious institutions over internal decision-making and disputes resolution.  Popular advocates of what we might term "religious institutionalism" (i.e. strong protection of religious institutional autonomy) include Prawfs own Rick Garnett (e.g. here) and Paul Hortwitz (e.g. here) and also Steven Smith (e.g. here).  Recent debates on this front include those over the contraception mandate and those over the ministerial exception, which (at a minimum) exempts the relationship between churches and their ministers from liability under various anti-discrimination statutes.  Among other issues, both of these examples represent some of the inherent complexities of co-religionist commerce; it is frequently difficult to establish the appropriate boundaries for the interpretation, enforcement and regulation of conduct that is motivated by both religious and commercial interests mix.

As has been discussed here on Prawfs previously, there has been some recent push back against this type of religious institutionalism, most notably the recent article by Richard Schragger and Micah Schwartzman, "Against Religious Institutionalism."  Much of this criticism has focused on whether religious institutions should have an rights that are not simply derivative of the individual rights of their members.  Schragger and Schwartzman simply don't see the existence of a religious institution as adding any reason for increased constitutional protections.

In my next post, I'll give my own take, which tries to strike a balance in between religious institutionalists and their critics.

Underneath the Law Review Submission Process Part XIV: Colons vs. Noncolons in Titles

In the latest from my series of posts on the law review submission process, I thought I would follow up with what started as a joke-post last time around on law review submission titles and whether they had colons or not.  I became curious as to what the numbers looked like this time around (in the fall cycle).

Below there are two charts on how many of the submission titles in a 3-4 week period the BYU Law Review received that had colons, didn't have colons, and titles with a question (no colon). In case you, like me are still tinkering with any titles for articles you are currently working on, this may be interesting to you. (And for my friends from CELS, I hope you don't judge me by these pathetic pie charts.  I do hope I will be invited to present there again.).

So, it appears that we are still a group who like most of our titles with colons.  But barely.

Let us praise the BCS

Or not.  Whatever.  I'm sure the playoff will be better.  But today, the BCS computers have Notre Dame at No. 1 (and Paul Horwitz's Tide at No. 2).  Go Irish!  Beat condoms!  And, if you have a few minutes, check out this short piece (video) about ND's star linebacker, Manti Te'o, who is by all accounts a wonderful guy.

JOTWELL: Pfander on Burbank, Plager, and Ablavsky on judicial departure

The latest essay in the Courts Law section of JOTWELL is by Jim Pfander (Northwestern), reviewing Leaving the Bench (forthcoming in U. Pa. L. Rev.), by Stephen Burbank, S. Jay Plager, and Greg Ablavsky. Burbank, et al. with an empirical and qualitiative analysis of why federal judges retire or take senior status, countering the prevailing political science narrative of political motivations and, Pfander argues, reminding us that judicial behavior "resists simplistic modeling and one-dimensional explanation."

Have a look at Jim's review, as well as the original article which is a great read and potentially timely, especially if SCOTUS decides to hear the judicial pay challenge this term.

The Class of One at the Supreme Court II: The Trouble with Engquist

In my last post I talked about how the Court’s analysis of the class of one issue in Village of Willowbrook v. Olech prompted lower courts to start seeking ways to limit what otherwise would be the doctrine’s extremely broad scope. I explained, base on some past scholarship I’ve done, that lower courts responded to Olech by circling back to the animus requirement, despite Olech’s insistence that animus was not a necessary part of a successful class of one claim. I also noted that the Court in Engquist v. Oregon Department of Agriculture cut back on the class of one theory by making that theory inapplicable to government employee-defendants, and using an analysis that potentially stretched beyond those cases.

In my own view the Court’s analysis was somewhat flawed. The Court explained that employment decisions were what Chief Justice Roberts called “discretionary” judgments featuring “subjective” and individualized” considerations. He analogized those decisions to decisions of a police officer stationed on a freeway where many people speed and the officer can’t, as a practical matter, stop all of them. In both situations, he concluded, the subjective and individualized nature of the decision rendered them unsuitable for a class of one claim when the official chooses an unlucky target.

Two thoughts about this analysis. First, it seems to me that the employer-officer analogy is flawed. Perhaps the officer’s ticketing decision cannot be challenged on a class of one theory, but (assuming he makes a random decision who to ticket) that’s because there are literally no factors governing his decision. Thus, in a very real way, he hasn’t singled anyone out with an intent to burden them because of their identity. As I argue in this working paper, to me this appears roughly analogous to a failure to prove discriminatory intent in a standard equal protection case.

By contrast, employment decisions are at the opposite end of the spectrum. While I’m no employment law expert, it seems to me that if employment decisions are difficult candidates for class of one challenges, it’s not because the employer chose the unlucky person for no reason (as the officer did), but because he had an entire collage of reasons (work quality, absenteeism, etc.). In turn that collage makes every worker quite likely unique for purposes of her fitness for continued employment. So understood, many employment class of one claims should fail, but not because they’re analogous to the police officer example. Indeed, the examples stand at polar opposites in terms of the reasons for the official’s conduct. Instead, employment claims, if they should fail, should fail because the plaintiff will find it very hard to establish a truly similar comparator. 

So even if the Court’s analysis is a little off, doesn’t it get to the right place, by cutting off liability when lawsuits are highly unlikely to present valid equal protection claims? I don’t think so, for reasons I’ll explain in the next post.

Infield flies and taking a knee

I have written recently about baseball's Infield Fly Rule, including a general defense of, and rationale for, the rule itself. I plan to come back to it more fully in the spring, after I get through some current and future projects. I want to write a fuller piece on the cost/benefit analysis underlying the IFR and why that cost/benefit balancing both justifies IFR and why, given that balance of costs and benefits, the infield fly situation is unique not only in baseball but in all sports. There simply is no other situation like it.

This will expand on The Atlantic piece. In that essay, I identified four features of the infield fly situation that justify a special rule: 1) The fielding team has a strong incentive to intentionally not do what they are ordinarily expected to do in the game (catch the ball); 2) the fielding team gains a substantial benefit or advantage by intentionally not doing what is ordinarily expected (this is the prong I want to flesh out in economic terms of optimal outcomes, costs incurred, and benefits gained for each team); 3) the play is slow-developing and not fast-moving, so the player has time to think and control what he does; and 4) even doing what is ordinarily expected of them, the opposing players are powerless to stop the play from developing or to prevent the team from gaining this overwhelming advantage.

As I said, I believe the infield fly is the only situation in all of sport that possesses all four features. But in conversations with friends and readers, one situation keeps getting brought up: The kneel down (or "Victory Formation") at the end of football games.

For those of you who don't know football (but who are still reading this post anyway; if so, thanks for sticking around): At the end of a game, with the offensive team leading and some permutation of score, time on the clock, and timeouts held by the defense indicating that the game is functionally over, the offensive team will snap the ball and the quarterback will kneel down behind the line of scrimmage, ending the play, with the clock continuing to wind down. A team may do this 2-3 times to the end of the game. The players on both teams know the game is over and that the kneeldown is coming and the defense won't do anything to challenge the play (although the play is alive and the defense could contest it, even if the practice is frowned upon). The defense's only hope in this situation is to somehow get a turnover; taking a knee is designed to avoid that risk by only snapping the ball to the quarterback and not having a handoff or other exchange that may go wrong.

Taking a knee shares all four features of the infield fly: 1) the offensive team is not trying do what we ordinarily expect--move the football forward--and is intentionally losing a couple of yards in exchange for running out the clock and avoiding the risk of a turnover; 2) the offensive team gains a substantial benefit (time runs off the clock, no turnover), imposes a substantial cost on the defensive team (time running out, no opportunity to make a play), and offers no benefit at all to the defensive team; 3) the offensive team entirely controls the situation; and 4) the defensive team can do nothing to stop the kneeldown and the running of the clock (it could try to be aggressive on the snap and force a turnover, but, again, that is frowned upon).

If the kneeldown does contain all four features, it means that I am wrong about the uniqueness of the infield fly. The question is what to do; here are some options:

1)  Eliminate the Infield Fly Rule. If the situation is not unique and if there are similar situations that do not enjoy a special rule, maybe (as a number of readers have argued to me) that special rule is unwarranted here. I like the IFR, so this is the least acceptable option for me.

2) Outlaw taking a knee. My colleague Alex Pearl suggests a requirement that a team at least make an effort to move the ball forward, even if just by a quarterback sneak; by keeping the play truly live, it gives the defense a chance to force a turnover or otherwise make a play. The problem is that this adds more plays in which players are going to be hitting one another; given the genuine need to do something concussions and other injuries, the sport should not be looking for more hitting. Plus, such a rule requires a tricky determination of intent--how hard does the team have to try to move forward, since lots of plays go nowhere.

3) Recognize the effect of the clock in a timed sport such as football, as opposed to baseball. Football is not all or always about gaining the maximum yardage; in many situations a team runs plays that are likely to gain less yardage, but with the benefit of winding down the clock and bringing them closer to the end of the game and the win. In taking a knee, the offensive teams loses yards but gains in time. In other words, we're tweaking how we understand what a team ordinarily is expected to do on a play; it is not only about gaining yardage, but also about managing the clock. The response is that running a play still is different than taking a knee because of prong 4--the ability of the defense to oppose the kneeldown. So running out the clock by simply handing the ball off and running into the line is OK because teams are still running true plays, trying to gain yardage, and the defense has a real chance to force a mistake. But simply taking a knee is different.

4) Adjust my four features to add a fifth--the game must still be genuinely contested. A team takes a knee only when the outcome is, at least as a practical matter, no longer in dispute.

Thoughts?

The Class of One at the Supreme Court

I've blogged here before about the equal protection class of one theory (in 2008, here, here and here, and earlier this year, here).  That last post discussed Del Marcelle v. Brown County Corp., where the Seventh Circuit en banc failed badly in its self-described attempt to bring some order to its approach to class of one cases in the aftermath of the Supreme Court's decision 2008 decision in Engquist v. Oregon Dept of Agriculture. This is the first of a couple of postings I'll offer on the current state of the class of one, in anticipation of the Court's scheduled consideration of the Del Marcelle cert. petition this coming Tuesday, November 20.

In one of the three opinions in Del Marcelle, Judge Posner continued his near-defiance of the Supreme Court by again insisting that class of one claims reflect some type of animus or (in a concession to the Court's express statement that animus is not required) some inappropriate personal motive.  Another of the Del Marcelle opinions, by Judge Wood, suggested that animus would be useful as evidence of the lack of legitimate government purpose that would mark a successful class of one claim (just as such a lack would mark any successful equal protection claim).  Between the two opinions, nine of the ten judges on the court thought there was a role for animus in a class-of-one analysis.

So one question presented in Del Marcelle is whether animus plays any proper role in class-of-one claims.  As my earlier posting this year indicated, the Supreme Court's first foray into the class of one, its 2000 opinion in Village of Willowbrook v. Olech held, rather breezily, that animus was not a necessary requirement of a class of one claim.  This conclusion ran counter to Judge Posner's concern (he wrote the lower court opinion in Olech) that failure to require animus would open the floodgates to constitutional claims brought by people "singled out" by government for adverse treatment.  (Justice Breyer shared this concern, which was why he only concurred in the judgment in Olech.)  As I've noted elsewhere, after Olech lower courts struggled to find ways to cabin class of one claims consistent with the Supreme Court's disallowance of animus as a culling element.  As explained in that article, some of those methods came close to reintroducing animus as a limiting factor.

I've always thought the Court made a mistake in Olech when it dismissed the animus requirement without any real analysis.  As I've argued (here and here), animus is in some ways in some ways the ultimate question equal protection review seeks to answer in any given case.  Sometimes it's a conclusion drawn from the lack of any other plausible explanation for a government action (think of Romer v. Evans); in unusual situations, such as class of one claims, the difficulty of doing standard equal protection review suggests that direct evidence of animus (or absence of such evidence) can be a good indicator of the claim's merit (or, respectively, lack of merit).  The Court's refusal to adopt this approach in Olech opened the door to lots of class of one claims (just as Judge Posner and Justice Breyer feared), leading lower courts to figure out other ways to cabin the doctrine's scope.  As Del Marcelle illustrated, eventually many judges circled back to animus, in one form or another.

In the meantime, the Court came up with another way of limiting the reach of the class of one, the 2008 Engquist case noted above.  Engquist's analysis is intricate; in my next posting I'll discuss it a bit more.  For now, suffice it to say that in that case the Court cut off class of one liability for claims growing out of government employment, but using analysis that could be (and in fact has been) used to cut off class of one liability more broadly.

So both approaches promise to cut the class of one doctrine down to a manageable size.  Which one is better?  In the next posting I'll talk about the problems -- both practical and conceptual -- with the Court's choice.

Reforming Legal Education's Finances: How to Decide

The last question for our series on reforming legal education's finances is: should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?  This question assumes that some cost-cutting needs to happen, and that may not be obvious.  Many believe that law schools should have slowed the growth of tuition rates even when the applicant pool was significantly larger.  So who should be making decisions about tuition, class size, and salaries?  Should it be the faculty, the law school administration, the university, or some combination of these institutional players?

I don't think there's an obvious answer.  Faculty may rely on the law school administration to oversee budgets, enrollment figures, and salaries while profs attend to teaching, research, and service.  But part of service is faculty governance, and there is a tradition and norm of robust faculty governance at most institutions.  Thus, faculty may feel it is their preogative and responsibility to set overall financial and pedagogical goals for the school.  The nuts and bolts may be delegated to faculty-staff committees, such as admissions and budget committees.  Assuming such committees exist, how much oversight for their work should the faculty as a whole provide?  And what authority should a budget committee have?  Can it look at salaries?  Can it set tuition?  Tuition and enrollment may be dictated by the university, either formally or informally.  If the university sets the ultimate numbers and provides the law school's budget, how much should faculty and deans push for reforms that the university hasn't asked for?

I make the proviso here that schools have a variety of different governance structures.  But with this caveat noted, I'd ask for your thoughts on the ways in which schools should address these issues.  Should faculty take a proactive role in shaping tuition, enrollment, and budget issues?  Or are these tough decisions best left to law school and/or university leaders?

Teaching Through Trauma

Things are more or less back to normal for the New Yorkers who were spared the brunt of Hurricane Sandy (obviously, people who took more direct hits remain homeless and traumatized).  Having never taught in an area that had suffered through that sort of event, I have to say it was an interesting experience.  

The first class back -- after several days of cancelled classes -- was particularly odd.  I use a lot of humor in class, and in general it's a pretty light environment.  That tone clearly struck me as inappropriate, and was not my plan as I walked into the room.  But as I got started, it also seemed out of place to do a standard, "serious" class, where the students and I would critique the Court's analysis together.  I'm not sure why.  Because it involved pushing the students a little,which might be inappropriate?  Because that sort of academic-style critique seems trivial at a time like that?  After a few minutes of getting a sense of the room I settled on a "just the facts, ma'am" approach, walking the students through the rules and the doctrine mainly through lecture.

Looking back on it, that seems to me the right approach, at least in the immediate aftermath.  Others might disagree; in particular, I can see the value in returning to a normal class (without inappropriate levity) as soon as possible, if for no other reason than to provide a space unaffected by what was going on outside.  I'm curious what other people think of this -- in particular, teachers or students who have gone through a trauma like this during the academic year.  How does teaching resume?  How does learning?

2013 CrimProf Shadow Conference at LSA in Boston

This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.

--

Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here: http://www.lawandsociety.org/boston2013.html

For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.

The paper panels will cover a range of subjects.  Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.

We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area. 

In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.

We would also like to identify people who are interested in serving as moderators or discussants for our various panels.  So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.

In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.

If you would like to participate in the Shadow Conference in Boston:

By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.”  That email should include:

(a) an expression of interest

(b) an indication of whether you would like to participate in a book or paper panel

(c) a description of your topic (an abstract would be preferable)

(d) whether you are also available to serve as a moderator or discussant

(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel

(f) if necessary, a heads up if you are contemplating participation on another LSA panel

Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.

Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference.  (The LSA folks get kind of annoyed with us if our participants drop out.  And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)

Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv. 

Thank you, and we look forward to seeing many of you in Boston.

Carissa (& Danny)

Sowing Self-Replicating Seeds of Change

The Supreme Court will soon be hearing oral arguments for another case pitting agricultural giant Monsanto against a farmer, Vernon Bowman, whom Monsanto accuses of infringing its genetic seed patents. First some background, then some patent law, then a handful of questions...

At the beginning of any given soybean season, Bowman plants a first soybean crop using expensive patented seeds containing a genetic modification that makes the resulting plants resistant to Roundup® (a common herbicide not coincidentally also manufactured by Monsanto). Bowman harvests the soybeans and sells them to a local grain elevator. Later in the growing season, Bowman plants a riskier (because it’s so late) second soybean crop, but instead of using expensive patented seeds purchased from Monsanto’s licensees, Bowman buys cheap commodity seeds from a grain elevator (maybe the same ones he sold the year before, the commodity seeds are saved from the previous year’s growing season). Because so many farmers use Roundup Ready® brand seeds from Monsanto, about 94% of the undifferentiated seeds available for purchase from the grain elevator display Roundup Ready® traits.

Bowman (and anyone who purchases patented seeds from Monsanto’s licensees) must enter into a technology agreement with Monsanto that forbids him from replanting saved seeds but does not forbid him from selling his harvested crop to a grain elevator (for obvious reasons). Bowman is not violating his license agreement. The problem? The harvested crop consists of seeds ready for replanting (soybeans, by their nature, self-replicate). Bowman and his fellow farmers avoid buying expensive seeds for that risky second season: if everyone sells their seeds back to the grain elevator in season 1, then when the seeds are bought in season 2, they will be predominantly Roundup Ready® at a fraction of the price. Monsanto sued, claiming that Bowman infringes regardless of being square with his agreement because he is growing Roundup Ready® plants without permission.

Patent law can be tricky in this area. The gist is that once the patent owner makes an authorized sale of a patented good, the good can move in commerce (it can be used, sold or offered for sale) without liability to the patent owner for infringement. This is a pretty unremarkable doctrine. If I buy a ballpoint pen covered by a patent, I can resell it on eBay or write a letter with it without paying more to the patentee. Where it gets tricky: determining what “authorized sale” means in a world of licenses and post-sale restrictions. For a long time, courts have refused to enforce post-sale restrictions as to price and territory—we hate those because either they alienate chattel or they give us antitrust heebie-jeebies or both (for example, if my pen had a label that said I could only use it in Louisiana or that I could only resell it for $2). But we’ve held onto field of use licenses (i.e., a licensed radio manufacture may be licensed only to manufacture radios for home use) such that when the license is violated (the licensee sells to a home user in violation of the license), we find infringement. Post-sale restrictions not involving price or territory must be reasonable and not outside the scope of the patent in order to prevent an authorized sale (and thus exhaustion of patent rights) from occurring. For example, when I stamp my patented pre-filled syringe with “no refills, single use only” and sell it to you, provided I’m not violating antitrust laws and provided my patent claims are reasonably related to this condition, when you refill it and sell it to someone else, you are infringing—it’s not an authorized sale because, according to the Federal Circuit in Mallinckrodt, it’s a sale conditioned by the post-sale restriction. These questions were supposed to be resolved by the Court’s 2008 case, LG v. Quanta, but the Court was able to punt them by resolving that case narrowly on the terms of the license to the manufacturer (which was broad enough to give the licensee all of the rights necessary to exhaust the patent with respect to sales to downstream purchasers).

How should the Court decide Bowman then? Monsanto conditionally licenses to the seed companies and the seed companies conditionally sell to the farmers. The Court could hold that the sales are conditioned, so there can be no exhaustion as to farmers who purchase the seed; Monsanto wins. (The Federal Circuit might like this view, as it comports with Mallinckrodt and its other seed cases, Scruggs and McFarland.) Or they could hold that because none of these conditions are violated, it would seem that the patent rights to use and sell the patented technology (the seeds) are exhausted—I’m not infringing when I buy the seeds from the grain elevator, sell them on eBay, or use them as jewelry. But this leaves the patentee’s right to exclude others from making the patented technology. When Bowman buys the undifferentiated commodity seeds from the grain elevator, plants them during his later season and grows plants that produce second-generation seed, is he making the second generation seeds in violation of the patent right to make? And when he sells these second generation seeds, is he running afoul of Monsanto’s right to exclude others from using or selling the technology, creating a perpetual loop of growing and making unauthorized sales back to the grain elevator pool?

The Supreme Court has to figure out whether to clarify (or shutter) Mallinckrodt’s conditional sale doctrine and reconcile Quanta and early twentieth century case law born during a time of great suspicions regarding patent monopolies, or create a rule of law specifically addressing how this all works for self-replicating technology. The term “make” in this context makes very little sense—the licensee seed companies insert the modification into the genome of their seed lines and then produce seeds, the only true manufacturing done in the case. Those seeds carry genetic material that dictates traits, and sexually reproduce to create copies of the genetically modified seeds. Notably, the Plant Variety Protection Act of 1970, a special (and limited) patent right directed toward sexually propagating plant varietals, never mentions the word “make”, just the using and selling of the patented invention. Will the Court recognize, as in the PVPA, that authorizing what you do with the seed (sell to neighbors, keep for yourself, sell to a grain elevator as a commodity, etc.) generates the value for the patentee rather than authorizing creation?

More importantly, as a matter of patent policy, is it better to scrap Mallinckrodt and state more clearly that no post-sale restrictions are enforceable as a matter of both patent and contract law, or would it be better to acknowledge the ill fit of self-replicating technology (seeds in this case, but also nanotechnology and other things on the horizon) in our exhaustion law and create a carve out that leaves post-sale restrictions, whatever may be left after Quanta, intact? Or some third way?

Software Patents and the Smartphone

I will be speaking at Santa Clara Law School's outstanding conference about Solutions to the Software Problem tomorrow.  It promises to be a great event, with academics, public interest advocates, and government officials all weighing in. 

As a lead-in to the conference, I want to discuss an oft repeated statistic: that there are 250,000 patents that might be infringed by any given smartphone. I'm going to assume that number is accurate, and I have no reason to doubt its veracity. This number, many argue, is a key reason why we must have wholesale reform - no piecemeal action will solve the problem.

Here are my thoughts on the subject:

1. Not all of these patents are in force. Surely, many of them expired due to lack of maintenance fee payments.

2. Not all of the remaining patents are asserted. After all, we don't see every smartphone manufacturer being sued 250,000 times.

3. Many of these patents are related to each other or are otherwise aggregated together. Thus, there are opportunities for global settlements.

4. Even if you think that 250,000 is huge number of patents (and it is, really - there's not disputing that), it is unclear to me why anyone is surprised by the number when you consider what's in a smartphone. More specifically:

• A general purpose computer and all that comes with it (CPU, RAM, I/O interface, operating system, etc.).
• Active matrix display
• Touch screen display
• Cellular voice technology
• 1x data networking
• 3G data networking
• 4G data networking
• Wi-Fi data networking
• Bluetooth data networking
• GPS technology (and associated navigation)
• Accelerometer technology
• Digital camera (including lens and image processing)
• Audio recording and playback
• Battery technology
• Force feedback technology (phone vibration and haptic feedback)
• Design patents

The areas above are by and large "traditional" patent areas - they aren't software for the most part. And there are thousands of patents in each category, before we even get to the potential applications of the smartphone that might be patented (and these are of greater debate, of course).

So, yes, there are many, many patents associated with the smartphone, but what else would you expect when you cram all of these features into a single device? Perhaps smartphones are the focus of the software patent problem because, well, they do everything, and so they might infringe everything. I'm not convinced that this should drive a wholesale reform of the system. Maybe it just means that smartphones are underpriced given what they include. Not that I'm complaining.

Reforming Legal Education's Finances: How to Cut Salaries

Yesterday our series focused on different ways of cutting labor costs.  Today, I wanted to focus on cutting salaries. Of course, as Orin commented yesterday, not all schools will need to consider such measures.   But if a school has decided that it needs to reduce salaries for existing faculty, what are the pros and cons of various methods? 

One way would be an across-the-board percentage cut.  A wage freeze is one version of this.  The advantages of an across-the-board cut is that is is fairly straightforward to understand and implement, and it seems fair in that it takes the same proportion of everyone's earnings.  However, some may advocate for a larger chunk to be taken from those earning the most, on the same theory of diminishing marginal utility that justifies different income tax brackets.  Others may argue for a merit-based set of reductions, based on performance.  And different types of performance could be rewarded: a school could reward scholarship, teaching, service to the school and community, or some combination of these.  Finally, one could combine a merit and market approach and base the reductions on the person's overall marketability.  Staff or faculty members that are likely to get offers from other schools would take less of a cut than others less likely to leave.

One particular method of carrying out a cut is to "furlough" professors and staff for a certain period of time; it's a de facto across-the-board reduction in salary.  The furlough may seem more palatable to university administrations, since it gives the employee the day "off."  Since faculty are generally not allowed to cancel a class, however, in choosing a furlough date, they would not experience the furlough as a day off and would likely be angry that their reduction in pay is not acknowledged explictly as such.

One question that seems murky to me: to what extent can a tenured faculty member's salary be reduced?  I have heard that even a 1% reduction could trigger a grievance.  If a school has promised a certain salary for a certain period of time, it would have to abide by that promise.  But it's unclear to what extent a prospective salary reduction would be infringe on tenure protections.  Here's an Inside Higher Ed article about a plan at UMaryland that would have allowed pay cuts after three poor reviews.  It was voted down by the faculty in part because it was seen as an infringement on tenure.

As an example of a moderate method of reducing salary costs over time, here's an excerpt from Brian Tamanaha's "Dean's Vision" speech where he lays out his approach:

During my full first term as your dean, I will not award a raise to any faculty member who currently earns in excess of $180,000. Faculty members who earn between $160,000 and $180,000 may receive merit based raises in flat amounts (not percentages), not exceeding $2000 annually. Those who earn between $140,000 and $160,000 will be eligible for merit-based raises of up to $3,000. To supplement these restricted raises, each year I will award several $1,000-$3,000 bonuses to faculty members who have made outstanding contributions to the school. Faculty who earn below $140,000 will be eligible for more generous raises.

So what do you think?  What are the costs and benefits of different approaches to cutting salaries?

UPDATE: TooCloseToHome points out that I neglected to discuss pay and benefits other than salary, particularly summer research stipends.  A big omission on my part.  A school could cut pay by cutting or eliminating summer research grants or other benefits such as pension contributions, forgiveable loans, and housing assistance.  Not all schools provide these benefits.  But for those that do, these benefits might seem like an attractive target, especially if they are not provided to other professors at the university.

I've spoken before (in a comment) about summer research grants.  I said: " eliminating summer stipends would be a regressive move. It would hurt those who are publishing more than those who are not, and it represents a much larger percentage of salary for junior folks than for upper-level senior folks. So if you think faculty salaries should be cut, that's fine, but simply eliminating research stipends is -- in my view -- a pretty poor way of doing it."  Eliminating other benefits might have less of a connection to merit and also less of a regressive effect, depending on how the benefits were given out.

And just to respond to James Maxeiner's point -- I agree that this set of discussions has a detached, remote quality.  We are not talking about specific problems faced by specific institutions.  I was hoping to move the ball just a little bit forward by starting to talk about potential financial decisions in a more concrete way.  But the discussions at individual schools will vary greatly depending on applicant pools, available cash, staffing levels, relationship with a university, etc.  I do think James is right -- Brian's solution is geared toward more elite institutions.  Profs at many schools would be in line for significant raises under Brian's plan.

Bad Exams (and Good Ones)

It's time again for profs to start thinking about exams (and students to start worrying about them).  The last couple of times I've been on Prawfs during this time of year I've invited readers to share their thoughts about good and bad exams -- either particular examples or more general thoughts about what worked or didn't work, what was fair or not fair, etc.  I'm doing that again.  

In the hopes of starting the conversation off I'll throw a topic out to see what people think: hypos based on real (either expressly or transparently) facts.  I think there was a discussion about this, for example, when I asked at one point about testing on hot-button fact patterns such as the health care law.  But this topic is broader: are there good or bad points to using real facts on a law school exam?  And, more generally, what in your view is a good or a bad exam, or the best (as in fairest, etc.) or worst exam you ever took or wrote?

The Name Game, Law Schools, and Rankings

I received an email this week, forwarded to me from our Dean at its sender's request because I am one of our school's US News voters.  The email was from the Dean at a law school that had recently changed its name to reflect a major gift.  The new name, however, was not utilized on this year's US News ballot, which instead featured the law school's old name. 

This isn't the first time that the much maligned but supposedly all-powerful US News rankings have gotten into trouble with how they identified subject schools.  A few years back, the ballots spontaneously changed the name of Loyola Law School (to Loyola Marymout), which led to a drop in "academic reputation" of 0.3 points.

Three thoughts.  First, who decides what a school should be called? 

It seems fairly intuitive that the school itself should have some say (subject, of course, to governing authorities in the case of state schools).  Obviously, existing trade names must be respected, so, for instance, there might be some issues in Columbus if here at Toledo we changed our name to "The University of Toledo: An Ohio State University College of Law."  I have been somewhat amused to see reports that a free-standing law school in Sydney, Australia, named "The College of Law," is suing the ANU College of Law claiming that the term "College of Law" is trademarked. Hopefully the IP experts out there can assure me that Australian trademark law has limited extra-territorial application.

Second, any ranking (like the US News ranking of academic reputation) so easily affected by minor differences in naming ought not to be one to which serious people should give too much credit.

Third, may I respectfully suggest that, since US News feels comfortable changing or ignoring the names law schools choose for themselves, that we collectively change the name by which we refer to those rankings -- in an effort to be more accurate and more informative to potential law applicants.  The rankings are variously referred to as "U.S. News and World Report rankings," "USNWR rankings", and, perhaps most commonly, the "US News rankings."  My suggestion is that, in writing, we start calling them the "Morse/U.S. News.com" rankings.  Verbally, please use "Morse-slash-U.S.-News-dot-com."

After all, these rankings are pretty much just the work of one dude.  Just like the Leiter rankings (and their derivatives) reflect Professor Leiter's particular methodological choices, the Morse rankings reflect the choices of Mr. Morse.  So let's give him credit.

And calling them by the full "US...Report" name misleadingly evokes memories of a time when there was a magazine that went by that name.  There is no such magazine.  A web site remains; hence, we should give the rankings their dot-com due.

To the extent affiliation with the printed page affords these rankings a kind of journalistic imprimatur (such that journalists in editorial positions at the magazine were willing at some point in the past to put their professional credibility on the line in publishing these rankings), the current name does not reflect that the magazine has disappeared. 

UT System Issues Report Faulting Law School for Forgivable "Loans"

The University of Texas system has issued a report on the forgivable "loans" issue that brought down the dean at the University of Texas Law School, as reported on by Tax Prof, Leiter, Faculty Lounge, etc.

According to media coverage, the report found the loans to be inappropriate for a state institution.  See:

Austin-American Statesman

Channel 5

Daily Texan

Underneath the Law Review Submission Process: Part XIII Fall v. Winter Submissions

In this post, I will follow-up on my last post and show you a comparison between fall submission numbers and winter submission numbers.  As mentioned before, these are submission numbers to BYU law review during weeks where they opened submissions from Expresso.  Unfortunately, I do not have all of the numbers for the entire cycle as BYU (like other law reviews) closes to new submissions from Expresso when their volumes are full.

 I'm not sure if we learn very much that is helpful from the above, but I think there are a few things that were interesting to me.  First, I was surprised by the volume of fall submissions.  Obviously, during some weeks in the fall there are more submissions than in the "primary" submission cycle in February.  However, my guess (though not supported by any of the above) is that the fall window is much shorter.  Second, I think these numbers do explain some of the radio silence I have heard about from colleagues during the fall cycle.  Some who have submitted articles after Labor day or in the middle 0f September have heard nothing (not even rejections) from law reviews.  My sense from these numbers (if they are similar for other law reviews besides BYU) is that some law reviews have probably filled up in August and are maybe dealing with expedite requests (if anything) during September.  So, bottom line, it seems to me that your best chances of getting a read on an article may be by submitting in early to mid-August.  That being said, I've heard of plenty of stories of friends getting calls from top 10-law reviews in mid-October or November and getting the last spot in a certain volume, so there is obviously some luck or possibly advantage to submitting in non-peak times. 

 

Reforming Legal Education's Finances: Cutting Labor Costs

After two days of discussions on the revenue side of the ledger, we now turn to costs.  A law school looking to cut costs must make a series of decisions.  This post focuses on one set of those decisions.  If a law school is looking to cut labor costs (particularly with respect to faculty), what are the pros and cons of various ways of doing this?

The easiest way to cut costs would be to not fill empty faculty or staff lines.  Based on the AALS entry-level data, it looks like a fair number of schools have taken this approach.  I say this is "easiest" because no one has to be fired or take a pay cut.  But there are real costs as well.  It unbalances a school's faculty by cutting off the influx of new talent. Moreover, if pursued by a large number of schools, it makes things particularly difficult for a set of young scholars who will find that their opportunities are much more limited than their predecessors'.  One year of reduced hiring may be ameliorated over time.  But if schools continue to cut costs, the decision to freeze hiring for two, three, or more years will have a significant impact on schools as well as a generation of aspiring professors.

So how about the other options?  Tenured faculty presumably cannot be fired.  A school that overtly denigrates its tenure commitments is likely to face a severe reputational hit.  Schools may try to get around tenure protections more quietly by beefing up post-tenure review and then making life more difficult for tenured professors who are deemed to be falling short.  Such policies will anger and alienate the targeted faculty, may demoralize the entire faculty, and may also lead to litigation.  But they might (in some individual cases) improve performance or lead to exit.

The other option is to cut salaries.  We'll talk tomorrow about ways in which salaries could be cut.  Without getting into specifics, the advantage of cutting salaries is that you can maintain a larger faculty with smaller costs.  But wages are sticky.  It's true generally, and it has been true in law firms as well.  The demoralization that comes from a wage cut is frequently seen by employers as not worth the cost-savings.  A wage freeze may be more palatable, but given low inflation, it takes longer to have a substantial impact.

So what do you think?  What are the costs and benefits of cutting positions versus cutting salaries?

Pepperdine Law Review Symposium: Tax Advice for the Second Obama Administration

In a break from my regularly scheduled thoughts on co-religionist commerce, I wanted post about the Pepperdine Law Review's upcoming symposium Tax Advice for the Second Obama Administration.  Pepperdine Law actually has the two most important ingredients for a winter tax symposium: my colleague - the Tax Prof - Paul Caron, and, of course, the malibu sun .  The line up for the conference is fantastic so if you can make it to malibu (and everyone should at some point make it to malibu), I strongly recommend attendance.  Hope to see you there!

Steven Lubet on "John Brown's Spy"

A new book worth checking out: Steven Lubet, a regular reader and commenter here on Prawfs and my former trial advocacy professor and , has published John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook. From the Yale University Press website:

John Brown's Spy tells the nearly unknown story of John E. Cook, the person John Brown trusted most with the details of his plans to capture the Harper's Ferry armory in 1859. Cook was a poet, a marksman, a boaster, a dandy, a fighter, and a womanizer—as well as a spy. In a life of only thirty years, he studied law in Connecticut, fought border ruffians in Kansas, served as an abolitionist mole in Virginia, took white hostages during the Harper's Ferry raid, and almost escaped to freedom. For ten days after the infamous raid, he was the most hunted man in America with a staggering $1,000 bounty on his head.

Tracking down the unexplored circumstances of John Cook's life and disastrous end, Steven Lubet is the first to uncover the full extent of Cook's contributions to Brown's scheme. Without Cook's participation, Brown might never have been able to launch the insurrection that sparked the Civil War. Had Cook remained true to the cause, history would have remembered him as a hero. Instead, when Cook was captured and brought to trial, he betrayed John Brown and named  fellow abolitionists in a full confession that earned him a place in history's tragic pantheon of disgraced turncoats.

Reforming Legal Education's Finances: How to Cut Tuition?

Yesterday I posted about the choice between cutting tuition and cutting class size.  My conclusion was that whatever money schools had to "spend" on reductions in revenue, rational schools would always choose to reduce class size over cutting tuition.  This is an oversimplification -- cuts in tuition can also attract better students, and therefore lead to better incoming credentials and higher bar passage rates.  And in fact many schools have been cutting tuition (in various ways) this year. So what are the pros and cons of the different methods?

There are three basic paths to cutting the costs for students: cut the "sticker" price, offer merit scholarships, and offer a loan repayment assistance program (LRAP).  Cutting the sticker price sends a market signal to all potential applicants and reduces costs for all students.  Since it applies across the board, it may seem (or be) more equitable.  However, merit scholarships allow the law school to apply the advantages of price discrimination; the school can pick and choose the price for each applicant based on the desirability of that applicant.  Merit scholarships thus allow the school to improve its incoming class credentials more directly, which in turn helps the US News ranking.

Students may also be attracted to a school based on a generous loan repayment assistance program.  In addition, an LRAP pays the money out on the back end, as opposed to the upfront losses that price cuts and merit scholarships entail.  But because many applicants will be less certain about how the program will benefit them, the tangible effects on applicants will be diminished.  In addition, there is more uncertainty for the school, as the number of alums who would be eligible for assistance cannot be clearly staked out ahead of time, unless the school limits the program in some way.  Costs are thus more uncertain.   Merit scholarships are also uncertain, however -- at least if the school offers more in scholarship money than it actually has to spend. And LRAPs do have the advantage of targeting those students who more clearly need the money, whereas merit scholarships often reduce costs for those who have the best chances of securing higher-income employment.

So what do you think?  How schould schools cut tuition, and are the various incentives correctly aligned?

About Right...

A couple of years ago, Chief Justice Roberts presided over our College of Law’s moot court competition and our faculty held a reception in his honor. After being introduced to the Chief Justice as our faculty’s one and only patent person, he turned to me and asked, “Are we getting our patent cases about right?” Flustered, I answered, “I think so, sir. They're difficult cases and your opinions are very thoughtful.” I’ve been thinking about this very brief exchange quite a bit these days. The Court has four more intellectual property cases on its docket this term: Kirtsaeng v. John Wiley & Sons (whether copyright exhaustion applies to works purchased legally overseas and imported), Already, LLC v. Nike, Inc. (whether a covenant not to sue for trademark infringement moots a declaratory judgment counterclaim for invalidity), Bowman v. Monsanto Co. (whether the first sale doctrine precludes infringement liability for using seeds produced by GMO plants purchased under a limited license) and Gunn v. Minton (whether federal courts and the Federal Circuit have jurisdiction over a legal malpractice claim involving an underlying patent case). The court has already heard arguments in Kirtsaeng and Already: the transcripts can be found here and here. These cases (copyright and trademark, respectively) likely will have implications for patent law, and Bowman and Gunn address two patent issues that have been percolating in the Federal Circuit and lower courts for some time.

Will the Court get these cases “about right”? We’ll soon find out.

(The Chief Justice was very gracious, by the way. It was a memorable exchange.)

The Varieties of Co-Religionist Commerce

In my last post, I described a bit about co-religionist commerce: that is, instances where people engage in conduct that simultaneously implicates both religious and commercial interests.  My sense is that many of the recent hot-botton questions about the relationship between law and religion stem, to some degree, from the difficulties in determining how to treat co-religionist commerce.

So, for example, some of the key debates regarding the scope of the ministerial exception focus on determining who is a minister, what is a church and how do you identify pretextual religious claims. Resolving such issues is complex particularly because so much hinges on differentiating employment relationships that are best understood as related to the core mission of a religious institution and relationships that are better understood as part of the commercial activities of an institution (i.e. think about the range of employees at a religiously affiliated hospital).    

Similarly, one of the worries about the contraception mandate is that it, as a blanket rule, provides no protection to for-profit entities regardless of the basis for the conscience claims.  Some critics have been particularly disturbed by the assumption that religious conscience seems to be taken less seriously when expressed in the context of commercial conduct (Rob Vischer presented a great paper on this issue at the recent "Freedom of the Church in the Modern Era" conference hosted by the University of San Diego School of Law Institute for Law & Religion).

But not all types of co-religionist commerce are the same.  In fact, part of the problem in figuring out how to disentangle the various interest at stake in co-religionist commerce is precisely because there isn't a one-size-fits-all answer.  In my next post, I hope to differentiate between institutional and non-institutional claims of co-religionist commerce - and explain how that helps in building an answer to the question.

Reforming Legal Education's Finances: Cut Tuition or Class Size?

The first question for our financial reform forum is whether it is better for schools to cut tuition or cut class size.  The rapid rise of law school tuition has been well-documented. Tuition for private law schools has risen roughly 250% since 1988, while tuition for public schools has risen almost 600%.  This rise, in turn, has led to a significantly higher debt burden for students across the board.  The drastic crash in legal employment has made these debts even harder to handle.

However, there are strong incentives for law schools to cut class size.  The applicant pool has shrunk each of the last two years, making it harder to find students of the same credentials.  Law schools that can afford to cut class size can improve their relative US News rankings in a variety of ways: better incoming credentials, higher average resources per student, higher bar passage rates, and better chances of finding employment nine months after graduation.  Moreover, past alums of the school would want a cut in class size, especially recent grads who are still looking for entry-level positions.  Cuts in tuition could increase competition for jobs; cuts in class size could improve US News rankings, which may help recent grads on the job market. 

So as to the question--cut tuition or class-size--it appears that many schools have opted to cut class size.  In fact, the incentives are so strong for schools to cut class size that I think it'd be difficult for a school to cut tuition.  If you have $X to spend on either option, it seems to me that the incentives all push for cutting class size--no matter how many dollars you have.

So what do you think?  Is it better to cut tuition or class size?  And if you think we need to cut tuition, how and when is it going to happen?

Reforming Legal Education's Finances: Questions for the Week

This week PrawfsBlawg will be hosting an open forum on legal education's finances.  Each day we'll have a fresh set of alternatives to debate as we consider ways to reform law school spending.  As I posted last week, the intent of these questions is to pose these issues not in the abstract, but in contrast with other possibilities.  The hope is to get people talking about the costs and benefits of different avenues for actual change as schools face hard choices.

Here's our schedule for the week:

• MONDAY: Is it better to cut tuition or class size?
• TUESDAY: If tuition is to be cut, is it better to cut the sticker price or increase aid to students?  And if increasing aid to students, should it be through merit scholarships or loan repayment assistance?
• WEDNESDAY: If a school is cutting costs, is it better to cut positions or cut salaries?
• THURSDAY: If salaries are to be cut, is it better to have an across-the-board cut or cuts based on different principles?
• FRIDAY: Should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?

 Thanks for your suggestions thus far, and I look forward to hearing your constructive comments.

What about the First Amendment?

Tracie Egan Morrissey was extremely upset (rightfully so, I guess) about a rash of racist and hate-filled tweets that followed Barack Obama's re-election last Tuesday, some of them from high school students. In a follow-up post on Friday, Morrissey displayed a number of the tweets from high-schoolers (identified by name and school), reported on her efforts to urge administrators at their high schools to punish the students for violating the student code of conduct or some such, and reported on the responses (or non-responses) of school officials. Katy Waldman at Slate wrote a take-down of  these efforts, pointing out that teenagers think, say, and do stupid things all the time; while calling attention to the tweets is fair game, trying to have them punished for them seemed "petty and vindictive."

Worse, Morrissey's stunt ignores the First Amendment. Most of the tweeters she identifies attend public school, so I am not sure on what basis a school should be able to punish these students or why she believes urging them to do so is a good idea. The scope of student speech is ever-narrowing, particularly on-line speech, which neither courts nor school administrators seem to understand. But none of the tweets that Morrissey describes should fall within the ambit of school regulation. There is no indication they were sent during school hours or that they were directed to the school; the students were talking to the public at large, engaging (however stupidly) in the broader public dialogue. Schools should be encouraging that engagement. And while we hope schools educate their students about the need for civil discourse, it is not and should not be their role to police students outside the school walls. Similarly, school "codes of conduct" are not intended to control student conduct 24/7. I would be quite troubled if any of the schools tried to do so or if a court allowed them to.

This also makes Morrissey's piece troublingly demogogic. She is attempting to shame school officials to drastically expand their authority in a way that should raise First Amendment alarms, to shame school administrators for not violating the First Amendment rights of their students, and to set the students up to have their rights violated by over-officious school officials.

Finally, a word to the student authors (as well as everyone else saying stupid things on Twitter or anyplace else on the interwebs): Your account was not hacked, so just stop. I will defend to the death your right to air your insipid thoughts in a visible public forum 140 characters at a time. But if you go there, own what you say and let the chips fall where they may.

What about Section 2?

On Friday, the Supreme Court granted cert in Shelby County, giving most voting rights advocates and law professors heart palpitations in the process (even though we totally expected it).  As others in the blogosphere have noted, the manner in which the Court framed the constitutional question is interesting because it goes beyond focusing on Congress's authority under the Fifteenth Amendment: “Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution."  In an earlier piece, Reinventing Sovereignty: Federalism as a Constraint on the Voting Rights Act, recently published in the Vanderbilt Law Review, I argued that Congress did have the authority to reauthorize section 5 of the Voting Rights Act, but I focused on its power pursuant to the Elections Clause as well as the Fourteenth and Fifteenth Amendments.  I contended that these provisions make Congress sovereign over elections while states retain only limited sovereignty, in particular over those state electoral practices that do not implicate a federal interest. 

In the course of writing this article, I wondered what it is that is so objectionable about section 5—is it the very fact of preclearance? Or is it that covered states have to preclear all changes, even those that only affect state and local elections?  Or is it the fact that coverage under the Act is determined based on an outdated formula? For my current piece, I decided to try to tackle each of these questions, but by taking a more holistic view of Congress’s authority over elections relative to the states. 

For this post, I want to focus on the first two questions: whether Congress, under its authority under section 5 of the Fourteenth Amendment, can require states to preclear changes that only affect state elections.  It is certainly easier to make the case that Congress can require preclearance in the context of federal elections, although this argument is by no means a slam dunk, but arguably, the requirement of preclearance in the context of state elections is much tougher to justify.      

Because I am focusing on Congress’s authority over elections, broadly defined, I noticed that there is an important gap in the literature.  I have written about Congress’s enforcement authority under section 5 of the Fourteenth Amendment, section 2 of the Fifteenth Amendment, and the Elections Clause…but what about the other section 2? No, not section 2 of the Voting Rights Act.  Rather, section 2 of the Fourteenth Amendment, which allows Congress to intervene in state elections in a way that is more extreme and intrusive than its requirement that states preclear every change to their election laws.  Section 2 gives Congress the ability to reduce a state’s representation in the House when it abridges the right to vote at “any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof…  for any reason except for participation in rebellion, or other crime.”  Using this provision, my latest article, tentatively titled A Structural Theory of Elections, shows how even the most objectionable part of the preclearance regime is constitutional because section 2, with its extreme penalty for states that abridge the right to vote on almost any grounds in almost any election (state and federal), stands both as an example of what would be a “congruent and proportional” remedy under the Supreme Court’s decision in City of Boerne v. Flores to address abridgment of the right to vote in both state and federal elections, and it also influences the scope of congressional authority under section 5 of the Fourteenth Amendment.

In my current piece, I argue that Congress’s authority to reduce representation for abridging the right to vote in both state and federal elections on grounds not limited to race also includes the lesser ability to regulate conduct that has the same effect under section 5 of the Fourteenth Amendment; in other words, that such regulations would be an “appropriate” way of enforcing the Fourteenth Amendment.  In particular, I point out that requiring states to preclear any changes to their election laws is actually a lesser penalty than reducing a state’s delegation in Congress under section 2, and moreover, that preclearance is consistent with the structure of section 2 and section 5 of the Fourteenth Amendment.  

Sorry for the longish post, but I just want to point out why I feel like an intratextual reading of Congress’s authority under the Fourteenth Amendment is justified in these circumstances.  The Court commonly looks at the substantive protections of section 1 of the Fourteenth Amendment in assessing the scope of Congress’s authority under section 5.  It is not clear to me why the same approach cannot be taken with section 2, which has languished in obscurity with the exception of one case, Richardson v. Ramirez, which I rely on for support of this point.  In Richardson, the Supreme Court held that section 1 of the Fourteenth Amendment was not violated when states disenfranchised felons because of section 2’s language that states were not subject to the penalty of reduced representation when they abridge the right to vote for participating “rebellion, or other crime.”  In other words, the Court used section 2 of the Fourteenth Amendment in order to interpret the substantive reach of section 1; similarly, I argue that section 2 also influences the scope of congressional authority under section 5.

I am still in the process of writing the paper, and fleshing out these arguments.  The arguments I make in this post only get me half way there in defending the constitutionality of section 5 of the Voting Rights Act.  At the very least, however, these are arguments that the Court should consider before they strike down a landmark piece of legislation.   

 Cross-posted at the Election Law Blog. 

Catalyzing Sports Fans (and the Rest of Us)--early draft now available

I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.

In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs). 

 Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties. 

 

Two New Conspirators

If you don't read The Volokh Conspiracy with much regularity (a cast that includes me), you may have missed some cool news on their end: they recently added to their perma-crew both former guest Prawf, Eugene Kontorovich of NW, and the inimitable Nick Rosencranz from Georgetown. Welcome Eugene and Nick to the blovgosphere :-)

That's it, I'm done!?

Sad news: Philip Roth has announced his abandonment of writing and reading. I feel like this is like giving up breathing. I often think I'll have to be pulled out of the prawf job feet first, but I wonder if there's a point at which, like Roth, you just announce: Basta! 

Maybe Bill Miller's book, Losing It, will provide some solace.