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Friday, March 29, 2013

Disability in the News

Two stories of interest this past week.  In the first, Jose Martinez, who uses a wheelchair for mobility, was awarded $8,000 in damages from Disneyland.  He had been riding “It’s A Small World,” and when the ride broke down, he had to remain in his boat on the ride for over 30 minutes (with music blaring)while park officials repaired the ride.  Mr. Martinez was represented in part by the Disability Rights Legal Center here at Loyola Law School Los Angeles.  Although he lost his claims under the Americans with Disabilities Act for failure to have an adequate emergency preparedness plan, the court found that Disney knew that a rider with a disability might get trapped on the ride. Therefore, they had a duty to warn.

 Following up on the disastrous state of emergency preparedness for people with disabilities in Hurricane Katrina, Michael Stein and I wrote this short piece discussing how lawsuits were an inadequate tool for reform in this area, mostly because they by definition happen too late after harm has already occurred.  This is the rare case where plaintiffs actually recover something, and while I am hopeful that Disney changes its policy and serves as an example for places of public accommodation to think about these issues, I fear that Disney can weather $8000 and a few days of minor bad publicity.  More recently, this has been an area of legal reform, with disability rights organizations pushing state and local governments to consider people with disabilities in their emergency preparedness efforts. 

Second, the Boston Globe had an insightful piece on the failure of the Senate to ratify the UN Convention on the Rights of Persons with Disabilities.  I have previously taken up space in the blogosphere with my views on why the US should ratify.  The Globe article uses the issue as part of the larger story on gridlock and partisanship. If with Republican support and leadership, the Senate could not agree to a treaty that protects the rights of some of the world’s most vulnerable citizens, in an area where the United States has typically put politics aside and been a worldwide leader, there is little chance they will get anything accomplished.  A sobering read indeed.

Next week, I hope to comment on This American Life's report on disability fraud, which has created quite the brouhaha.  In the meantime, have a great weekend! 

Posted by Michael Waterstone on March 29, 2013 at 03:59 PM | Permalink | Comments (4) | TrackBack

You Can Go Home Again - And Start a Business: Agricultural Education in Greece

The impacts of an economic crisis require young people who are out of work to shift their priorities as well as become creative and forward thinking regarding career choices. As jobs become scarce in the cities, young people are increasingly moving back to their family homes and using the family land to establish new business concepts:

Elena Garcia - We heard a lot about young people moving home to be supported by their parents, but some young people are making their own way once they resettle with their families. We met with the Vice President of the American Farm School (AFS) in Thessaloniki, Greece, and learned about some very positive aspects of moving home. The AFS offers secondary and college education in the areas of sustainable agriculture, environmental and other life sciences. Students include young people moving back from Athens to their family homes in towns and villages, primarily in northern Greece. In AFS entrepreneurial programs, students learn how to best utilize the land that has been in their families for generations to start new businesses. Using traditional family farming to begin agricultural start-up businesses, young entrepreneurs are leveraging their prospects in the market in such industries as sheep raising and cheese-making.

Photo: egg deliveries made by motor scooter.

You Can Go Home Again - And Start a Business: Agricultural Education in Greece

Posted by DBorman on March 29, 2013 at 07:35 AM | Permalink | Comments (58) | TrackBack

Thursday, March 28, 2013

A Fun Reading for You on Saturday Night in Chicago

Hello there.  Thank you, Dan, for letting me sneak on for a minute to advertise a reading I am doing at Quimby's Bookstore in Chicago this Saturday night at 7 pm.  I'll be reading from my book of inane stories, The Adventures of Ed Tuttle, Associate Justice, and Other Stories.  Somehow, Time Out Chicago has declared this a Critics' Pick event, so if you live in Chicago and you're a law prawf or a lawyer or a law student or a person, I hope you will consider checking it out.  If you don't live in Chicago, would you please consider telling your Chicago friends about it?  Facebook?  Twitter (#TuttleReading)?  I would be grateful.  Thank you.

Oh, and drinks after!  And during (if you bring them, or if you convince me to share my scotch)!  Here's the poster for the event, designed by my crazily talented friend Dave Croy):

Quimbys Poster

Posted by Jay Wexler on March 28, 2013 at 01:33 PM in Jay Wexler | Permalink | Comments (10) | TrackBack

The Brutal Politics of Economic Decline: Immigration Issues in Greece

Scapegoating ethnic groups during bad economic hard times is hardly new to Europe (See, e.g. The Third Reich). Here in Greece, the economic decline runs hand-in-hand with the rise of the radical Golden Dawn party, a "political" party that espouses the sort of nationalistic thought reminiscent of Nazi and fascist beliefs. Statistics reveal that that the Golden Dawn make up approximately ten percent of Greek voters and that supporters of the Golden Dawn tend to be drawn primarily from a demographic that is under age 30 and uneducated. One of my student groups is studying the impact of the economic condition in Greece on immigrant populations vis-a-vis reactionary politics and reports the following:

Student Y* - As the immigrant populations changes so does the immigrant make-up. Immigrants from Albania, Afghanistan and Pakistan make up the largest groups of immigrants to Greece. Greeks themselves are no strangers to immigration: prior to 2005, many Greeks migrated to countries all over the world, primarily to the U.S. and Canada. Police are members of the Golden Dawn and rather than protecting immigrants the police bully them. Although the Golden Dawn is known to use swastika symbols, the group denies either that it is related to the Nazis or that the party is fascist. The Golden Dawn claims merely to be an "alternative political party." It is ironic that the Greeks seem to be very accepting to immigrating to and resettling in other countries but that Greece is unwilling to accept immigrants in return.

Student L *-The vast quantity of immigrants to Greece are illegal. When Illegal immigrants are caught, they are transferred to "Hospitality Centers," described in interviews with Immigration Law professors in Thessaloniki as "concentration camps without the ovens." 500 square foot apartments with 40 people occupying each flat. Immigrants are required to stay in these "centers" for an 18 month period. Like a "detention center," (or some kind of quarantine) immigrants are not permitted to leave. If immigrants are able to "escape" from the Centers, they are charged with the crime of "illegal entry" and sentenced to a probationary term under EU law. The immigrants are threatened with deportation and fines but most often the police do not follow up. If immigrants do not return to the centers they end up wandering the streets. Neither lawyers nor notaries can take on any cases to help immigrants unless the cases relate to child custody or criminal matters - - no one can help them, they have no rights.

Student J* - Greece accepted a large influx of immigrants in the early part of the millennium in preparation for the Olympics and to do work that Greeks didn't want to do. While immigrants used to be accepted, now they are not. In patriotic parades, school groups often march with the top student out front carrying a flag. One university professor told us that prior to 2011 if the top student was an Albanian, for example, he or she would have carried the flag in the parade. Since 2011, however, an immigrant student would never be permitted to march at the head of the group with the flag. The Greek legislature is working on implementing new hate crime policies.

Next up: families find new methods of support.

The Brutal Politics of Economic Decline: Immigration Issues in Greece

*Students requested anonymity because of the sensitivity of the subject matter.

Posted by DBorman on March 28, 2013 at 12:24 PM | Permalink | Comments (44) | TrackBack

Could DOMA Really Be Struck Down on Pure Federalism Grounds?

I'm happy to see that there seem to be at least five votes for striking down DOMA.  I'm surprised, though, by the possibility that Justice Kennedy's fifth vote might be based on a pure federalism rationale.  The clearest indication in that direction was Justice Kennedy's question to Solicitor General Verrilli: "You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with.  And we are asking is it valid otherwise.  What is the federal interest in enacting this statute and is it a valid federal interest assuming, before we get to the equal protection analysis?"

Even Verrilli--who wants DOMA to be struck down--couldn't argue that there was a pure federalism problem with DOMA.  Nor could Windsor's own attorney, Roberta Kaplan.  After all, as the First Circuit explained in rejecting this identical argument last year, "Congress surely has an interest in who counts as married.  The statutes and programs that section 3 [of DOMA] covers are federal regimes such as social security, the Internal Revenue Code for federal workers; and their benefit structure requires deciding who is married to whom.  That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so."  Massachusetts v. United States HHS, 682 F.3d 1, 12 (2012).  Of course, this decision came a few months before the Supreme Court's healthcare decision (NFIB v. Sebelius), which struck down the Medicaid expansion on Tenth Amendment/Spending Clause grounds.  But I can't see how that decision, which focused on the particularly coercive nature of the Medicaid expansion (withdrawing ALL Medicaid funding from states unless they agreed to expand their coverage), affects this case.

That's not to say that the states' longstanding primacy in regulating marriage is irrelevant here.  It definitely plays into whether there is a rational basis for DOMA, once you move into the Equal Protection analysis.  But I think the Equal Protection clause has to be the laboring oar here, and I will be surprised if Justice Kennedy actually writes an opinion saying otherwise.




Posted by Emily Gold Waldman on March 28, 2013 at 10:23 AM | Permalink | Comments (3) | TrackBack

Island of Santorini

More reports of our interviews with government officials and scholars to come. In the meantime, enjoy this transition photo from Santorini.

Island of Santorini

Posted by DBorman on March 28, 2013 at 02:57 AM | Permalink | Comments (0) | TrackBack

Wednesday, March 27, 2013

FSU Law Review Announces its Exclusive Submission Window

The Florida State University Law Review will be conducting exclusive spring cycle article reviews.  Any article submitted to this exclusive review between now and April 3d will be evaluated by April 11th.  By submitting the article you agree to accept an offer for publication should one be extended.  Any articles accepted through this review will be published in Issue 3 or Issue 4 , both of which are slated for publication in summer of 2014.  

If you have an article which you would like to submit, please e-mail an attached copy of the article and your cv and cover letter to [email protected] with the subject line "Exclusive Spring 2013 Article Review." Feel free to cc' me.

Posted by Administrators on March 27, 2013 at 11:50 PM in Article Spotlight, Funky FSU | Permalink | Comments (2) | TrackBack

Tuesday, March 26, 2013

Line of the Day--Non-Marriage Edition

People have been tweeting and writing about various lines to come out of yesterday's arguments in Hollingsworth, whether played for laughs or as portentous. Here's one that slipped in, both because it's not about same-sex marriage or standing and because it's kind of inside baseball:

Early in his argument opposing Prop 8 and arguing that the proponents lacked standing, Ted Olson suggested that a state could appoint a special officer to defend a ballot initiative where elected officials choose not to do so. When Justice Scalia wondered how the governor who refused to defend the initiative can be expected to appoint someone else to do so, Olson responded: "Well, that happens all the time. As you may recall in the case of--well, let's not spend too much time on independent counsel provisions."

Explanation here.

Posted by Howard Wasserman on March 26, 2013 at 11:56 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Monday, March 25, 2013

Either "Don't Leave Before You Leave" or "REALLY Leave Before You Leave"

I read Sheryl Sandberg's "Lean In" over the weekend, and liked it very much.  Without writing a full book review here, I'll just say that I think several of the major criticisms of the book over-simplify its message.  (As one article noted, the book has "field[ed] criticism from across the ideological spectrum," with some arguing that Sandberg fails to recognize that women might not be as interested in high-powered careers, and others arguing that Sandberg overlooks the structural workplace problems that hold women back.)  In the book, Sandberg explicitly acknowledges that not all women (or men!) want high-powered careers and that external barriers exist for those who do.  That said, she has specific advice to offer one particular group -- women who are interested in pursuing leadership roles at work -- and I think that's an important and laudable focus for a 172-page book.

One aspect of Sandberg's advice -- her "don't leave before you leave" theme -- got me thinking.  Essentially, Sandberg argues that even before they get pregnant, women planning to have children sometimes start to scale back in the workplace, making various accommodations and sacrifices (e.g., not applying for a new, more demanding leadership position) so that they will have the right structure in place when they do have kids and want to combine work with family.  Ironically, Sandberg observes, these choices often result in a job that is less fulfilling and engaging--one to which they are less motivated to return after they do have a child and take maternity leave.  "Women wind up leaving the workforce precisely because of things they did to stay in the workforce," she writes, urging women not to scale back until they actually need to. 

To this advice, I'd add another observation, and I'm interested in whether others agree: I've observed numerous professional women stay in jobs that they're not that thrilled about because they're planning to have kids soon anyway, and figure it makes more sense to stick it out until they get pregnant, go out on maternity leave (especially if their employer offers a generous paid maternity leave), and then assess how they want to re-enter the work force.   The problem, similar to the one that Sandberg observed, is that when their maternity leave is up, they don't have a job that they're excited to go back to, and the thought of embarking on a new job search -- especially with the new family responsibilities that will have to be balanced with a brand-new position -- is daunting.  In the decade since I graduated from law school, it seems to me that the women who've attained the best work/family balance have been the ones who were already in a job that they genuinely liked, and in which they'd begun to establish themselves, before they got pregnant.  So, to Sandberg's "don't leave before you leave," I would say, "yes, if you're in a job that you like" -- but if not, try to "really leave before you leave" by finding something new.

Posted by Emily Gold Waldman on March 25, 2013 at 12:49 PM | Permalink | Comments (2) | TrackBack

Sunday, March 24, 2013

Anderson Cooper has standing

For those of you who missed 6o Minutes tonight:


Posted by Howard Wasserman on March 24, 2013 at 10:11 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Saturday, March 23, 2013

Mar 23, 2013

From Athens to the Island of Santorini, we continue our studies of the Greek economic collapse. My student group studying Greek social welfare systems is finding that dramatic changes in life and living in the family system are often concealed -- and sometimes to tragic consequence:

Alice Lin - The family system is very strong in Greece. Prior to the economic collapse families did not have to rely much on governmental assistance or donations from charities. The Greek government now seeks assistance from foundations to help start community projects and from the EU for specific projects. My examiniation of the interaction of the government with families in need reveals that the state may actually impede non-profit organizations and charities from making donations. Representatives we interviewed explained that there is generally a positive perception of the NPO but negative perception of NGOs, because the Greek government allowed NGOs to become corrupt - application criteria is loose and there is low oversight. Also, unlike in US, donors to NPOs receive no tax deduction for donations - in fact, donors have to pay an extra tax so often extra food or goods are just discarded instead of donated. The economic crisis hit so quickly that the government could not respond fast enough; government programs were not in place for the time when family could not step in to assist.

Dennie Byam - My research includes an examiniation of Greek social welfare system services available to the homeless. Homelessness is a new issue in Greece since the economic collapse, and is found in three distinct categories: people who have homes for generations but do not have the means to pay for essentials such as utlilties and food; people who no longer have a home and are living on the street; and people who are living in "day care," the Greek equivalent of homeless shelters. Suicides are on the rise in men in the ages of 40s-50s who can't cope with inability to provide for families. Domestic violence is also on the upswing. Homeless who don't want to go into shelterWhile in some cases day care may be provided by the state, the services are not funded by the state but rather by a private foundation. Traditionally, the Greeks rely only on the nuclear and extended family for assistance Even now, families are very prideful and mothers try to hide the help they receive from their children, obtaining food from neighbors and putting it on plates so that children don't know food was donated. One positive result of the economic crisis is that the people are becomning more community focused, expanding on the traditional insular family focus.

Tomorrow we go north to the other large city in Greece: Thessaloniki.

Posted by DBorman on March 23, 2013 at 11:19 AM | Permalink | Comments (1) | TrackBack

Thursday, March 21, 2013

Tourney Time!

Today starts the NCAA tournament, where we can all pretend to work while watching/listening to games (kind of like our students do in class...).  I always appreciate the irony of this being so close to the law review submission season.  My brackets always reflect this: if a school's journal has recently given me an offer, I am more inclined to select them to do well.  If I have been rejected, I'll choose (and hope) them to make an early exit.  Of course, maybe because of this, I haven't won my pool in recent memory.  But it does provide for cheap and easy psychological relief from the submission process.  I'm guessing I am not alone in this - anyone else want to confess?

As a side note, for the US News voters among us, I could also ask if people spend more time filling out their NCAA brackets or US News ballot.  Anonymous comments very much accepted.

Finally, I would be remiss if I didn't reference Matt Bodie's classic post on the NCAA tourney here.

Posted by Michael Waterstone on March 21, 2013 at 02:23 PM | Permalink | Comments (3) | TrackBack

Wednesday, March 20, 2013

Greek Higher Ed: Rankings are a motivation abroad, too

We're back in Athens after our adventure out into the countryside to see the history of civilization and the origins of democracy, learn about the collapse of monarchy, and the tenacity of polytheism. Yesterday our team split up to conduct interviews with local officials and industry representatives to obtain first hand information on the impact of the Greek economy on various aspects of Greek culture. One team that is studying education submitted this report:

Caitlin Olwell - My team visited the American Community School (ACS), an international private school for kindergarten through high school. ACS teaches an American education curriculum and draws enrollment from all over the world, providing an alternative to local education and preparing students to attend college abroad. The Director of Enrollment provided his observations about the state of public school education in Greece, telling us that education funding is limited. Because teachers' salaries have been cut by 25-30%, teachers seek to moonlight in other activities for additional income. The Director characterized teachers' activities as "on the fringe of legality," because Greek public sector employees are prohibited from stacking jobs. Concurrently, parents hire these public school teachers as private tutors for additional help in reaching the goal of sending their children abroad for college studies. Parents will also refinance their homes to provide a better education for their children, motivated by the fact that the best Greek university is ranked only 300 in the world.

More to come about the Greek public and private sector.

Posted by DBorman on March 20, 2013 at 05:06 AM | Permalink | Comments (1)

Monday, March 18, 2013

SCOTUS doings

Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):

1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.

The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this

2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.

The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.

Posted by Howard Wasserman on March 18, 2013 at 03:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Prawfs Guest Tim Lytton Has a New Book: Check It Out!

Professor Tim Lytton, who has previously guested in this space, has a new book that I'm happy to share with our readers. It's called KosherPrivate Regulation in the Age of Industrial Food.  

Timothy D. Lytton is the Albert & Angela Farone Distinguished Professor of Law at Albany Law School. To read an interview with the author, click here.

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of private-sector regulation in an era of growing public concern over the government’s ability to regulate the food industry. Kosheruncovers how independent certification agencies rescued American kosher supervision from corruption and turned it into a model of nongovernmental administration.

 “Kosher is one terrific book. It’s a wonderfully entertaining account of the squabbles, finger-pointing, and cutthroat competition that turned kosher certification from scandalous corruption to a respectable—and highly profitable—business. Today, if a food is labeled kosher, it is kosher, which is more than can be said of most claims on food labels. You don’t have to be Jewish to appreciate the fun in Timothy Lytton’s presentation of an unusually successful case study.”

— Marion Nestle, New York University, and author of Food Politics

In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation. The growing popularity of kosher food is a response to a more general cultural anxiety about industrialization of the food supply. Like the organic and locavore movements, a growing number of consumers see rabbinic supervision as a way to personalize today’s complex, globalized system of food production.


Posted by Administrators on March 18, 2013 at 12:19 PM in Books | Permalink | Comments (4) | TrackBack

Checking In

Greetings!  Thanks to Team Prawfs for a return invitation.  Sorry I am a little late to the party this month, but hope to spend what time I have left blogging about disability law, general law school topics, and baseball (starting) and college basketball (ending). 

For starters, tomorrow we are having an event at Loyola on employment policies and laws for people with disabilities under American, Japanese, and international law.  Rather than a symposia format, we will be having a group discussion on a series of questions , with the goal of producing a white paper.  We have a great mix of policymakers and academics from Japan and the United States attending.  A similar conference will follow in Tokyo this summer.  This work is being generously funded by the Japan Foundation Center for Global Partnership.

My guess is that most of you will not manage to make it out to LA to attend on one day’s notice. 
Never fear!  We have a webstream option, where you will be able to watch and even submit questions.  So if you need a break for the Monday blues, please check it out!

Posted by Michael Waterstone on March 18, 2013 at 12:57 AM | Permalink | Comments (2) | TrackBack

Sunday, March 17, 2013

Greek Tussles, Economic and Otherwise

Greetings from Greece!

This morning my team traveled around the Saronic Gulf through the Corinth Canal to a Sunday meeting granted by the Mayor of Nafplion. The Mayor agreed to an early Sunday meeting just before the start of the Carnivale events (which he likened to American Halloween). Nafplion is a small town in the Pelopenese with a population of 10,000, similar in charm and topography to Newport, Rhode Island or Sausalito, California. As I mentioned in my prior post, my student group is here Greece to study the impact of the economic decline and adjustment to Austerity measures. Here are some student observations made following our session with the mayor:

Adrienne D'Luna - The Mayor hoped that he could help extract Nafplion from economic decline by promote Nafplion as a major port. To that end, he said that he was working with major cruise lines around the world and attending meetings and expos in Miami and other ports cities in Europe in the hope to build the tourism business. The mayor is passionately involved with saving his city, both on a macro and micro level: just after our meeting we ventured down to Plateia Syntagma (Constitution Square) and witnessed an enraged (and possibly drunk) Carnivale Street vendor become angry at a fellow vendor, throw some of fellow vendor's wares onto the street and start yelling one word in Greek, repeatedly, which, of course we did not know. Although the police arrived at the scene to assist, it was the Mayor who broke up the fight.

Michael Cho - I thought it was interesting that during this economic decline, where the Mayor noted that unemployment was at 35% in the general population but reaching 50% among young people in their twenties and thirties, that he admitted there was not much he could do about the scarcity of jobs. Instead, the Mayor said it was his role to boost morale and make sure that he "put a smile" on the faces his residents and tourists by scheduling many carnivals and festivals. He mentioned three upcoming festivals, including the Carnivale events this weekend.

Stay tuned for more reflections from Athens and beyond.

Posted by DBorman on March 17, 2013 at 09:53 AM | Permalink | Comments (0) | TrackBack

Friday, March 15, 2013

Local Separation of Powers?

Two thoughts on the recent decision about NYC's soda portion cap.  I am -- quite incidentally -- teaching Boreali on M0nday, so am focused on the lower court's application of that case to strike the local Health Department's implementation of the Mayor's policy.

1.  One important problem for the application of Boreali (which doesn't come across quite in Rick's otherwise nice post -- or my colleague Aaron Saiger's) is that Boreali dealt with the separation of powers betweeen a state legislature and a state agency (the Public Health Council).  And it is not obvious at all why city separation of powers principles must track the state's (lower federal district court precedent, notwithstanding).  The City Council, for example, is not bicameral.  And it is not obvious why city agencies ought to be treated with the same non-delegation regime the state chooses for its major instrumentalities of governance.  Accord Moreau v. Flanders, 15 A.3d 565, 579 (R.I. 2011) (“After considering the arguments raised by the parties, we hold that the separation of powers doctrine is a concept foreign to municipal governance.”).  Thanks to Annie Decker for showing me the light here -- and to Nestor Davidson for starting to get people to think about local administrative law. 

2.  In light of my Localist Statutory Interpretation paper (forthcoming any day now), I couldn't help thinking about the fact that the judge issuing the decision is subject to election in 2014.  And it is pretty clear that Bloomberg won't be running then(!).  So although Rick likes to take his policy from meddlesome mayors more than judges, I tend to like taking my policy from people who can be voted out of office when they blow it.  And that is just what Tingling did.  

Posted by Ethan Leib on March 15, 2013 at 10:12 AM | Permalink | Comments (6) | TrackBack

Thursday, March 14, 2013

Do you go to the Barristers' Ball?

Every March at around this time, our Dean sends an e-mail encouraging us to attend our students' annual Barristers' Ball.  And every time, I cringe.

It's not that I don't like our students.  Getting to know them is one of my favorite parts of this job.  I really enjoy talking with them, whether in response to specific academic questions or just in casual conversation.  I've stayed in touch with many of them after they've graduated, and always love hearing what they are up to.

But I don't want to put on a little black dress and, with my husband in tow, spend a Saturday night with them at a formal dance.  Maybe because I'm still in my 30s and am not that much older than many of them (I'm still sometimes mistaken for a student here), I feel the need to maintain a certain separation.  I'm curious, though: do others have the same reaction?  And on the flip side, do students really want us there?   


Posted by Emily Gold Waldman on March 14, 2013 at 03:25 PM | Permalink | Comments (20) | TrackBack

ITP Greece: The Odyssey Begins Tomorrow

Tomorrow I will embark to Greece with a bakers dozen of Northwestern Law Students as part of the International Team Project (ITP). The ITP is a unique class and travel program where students choose a country to visit, create a course of study and curriculum and then conduct field research by way of interviews with legal scholars, government official, private business managers and the people of a foreign country. Following the trip the students write and present research papers on their topics.

Our class is studying the legal system and economy of Greece vis-à-vis the European Union and Austerity measures. Students are conducting research in the following areas: Greek family welfare and dynamics in the face of recent economic changes and hardships; the interaction between economic, social, and political factors with Greece’s evolving immigration policies after joining the European Union; regulation of private industry; and the impact of austerity on public utilities, education, transportation, and healthcare in Greece.

For our pre-trip sessions we secured guest lecturers from local attorneys of Greek descent and professors from other institutions who research Greece and the European economy, including Margarita Tsoutsoura and Del Wright. Yesterday the Consulate General in Chicago hosted our group and provided an in-depth economic background regarding the operation of Greece within the European Union as well as a historical overview of Greek culture.

I will be blogging about our findings regarding the interaction of the law and the economy during the next several weeks as we interview academics and officials in Greece. If you have any academic contacts abroad who may be interested in meeting with my students while we are in Greece feel free to comment here.

Greek Consulate
Meeting with the Consulate in Chicago

Posted by DBorman on March 14, 2013 at 11:10 AM | Permalink | Comments (0) | TrackBack

A Good Day to Read Anthony Gill

Given Rick's post elsewhere, I feel a little nervous about saying I'm delighted, without reading too much into it, that the new Pope has taken the name Francis.

My work on law and religion, including religious institutionalism, has tended to take one or both of two approaches: an internal perspective that tries to appreciate the views and obligations of religious individuals and institutions from within, and a more external, institutional perspective in which things like history and economics provide a useful tool with which to analyze the behavior of religious institutions as institutional actors. (I have a forthcoming paper, still in progress, that applies that approach to the "freedom of the church" debate.) I tend to think both the internal and the external approaches are necessary and valuable, and that it is possible to take an external perspective without being impious or harsh.

Here, I just want to recommend a particular author--Anthony Gill--for those who might be interested in an externalist perspective on the selection of a Pope from Latin America. Gill is the author of two excellent books. The first, Rendering unto Caesar: The Catholic Church and the State in Latin America, uses an economic, historical, and rational-choice approach to analyze the varying relations between the Church and the state in Latin America, offering a theory about why resistance to the state became popular as a Church approach in some Latin American states and not in others. (The answer, in short: the degree and nature of competition from evangelical Protestantism in different Latin American states.) The second, The Political Origins of Religious Liberty, takes the same approach and applies it to a broader canvas; it has a chapter on Latin America.

Both are well worth reading--especially but not exclusively today. I'm sure there will be a lot of talk about this decision as reflecting the importance and growth of Catholicism in Latin America and in the southern hemisphere. What Gill adds to that picture is 1) the importance in those states of competition from other religious sects that have also made major inroads in those areas, and occasioned great concern in those places from once-dominant sects; and 2) how that fuller picture has affected church-state relations in different ways at different times, and the ways in which the dominant church has taken very different approaches to church-state/religious liberty questions in different places, even at the same time, rather than taking a universalist approach.

None of this, of course, is meant to offer any reading of tea leaves, or to deny the value of an internal as well as an external perspective. But I've found Gill's work useful and interesting and it may be of particular interest to others today.    


Posted by Paul Horwitz on March 14, 2013 at 08:48 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Wednesday, March 13, 2013

JOTWELL: Erbsen on Cheng on trial sampling

The latest review essay for JOTWELL's Courts Law has been published: Allen Erbsen (Minnesota) reviews Edward Cheng's When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling (U. Pa. L. Rev. 2012). Cheng argues that non-traditional procedures, such as trial sampling, may produce more accurate results in certain circumstances than individual claim-by-claim procedures.

Posted by Howard Wasserman on March 13, 2013 at 12:11 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Tuesday, March 12, 2013


I apologize for posting on this matter one more time. But one of the problems with these kinds of Internet teapost-tempests is that they get very ugly, everyone decides to put the matter behind them, and then everyone just repeats the same behavior the next time around. Sometimes it's both necessary and right to make a moral judgment about particular affairs before putting them behind you. So let me offer here, rather than on The Faculty Lounge, which tends to eat long comments, a response to Paul Campos, who has offered a kind of response to Dan Filler et al.'s statement from yesterday on his blog, and commendably has offered a link to it at The Faculty Lounge. I encourage those who are exhausted by this issue to skip the post. But some things demand to be judged, on the record.

Campos’s comment strikes me as totally pusillanimous. Consider everything he has been saying in the last week, and how he has said it. And note that it was all based on what he now calls “triangulation”—which is to say, inference and conjecture, which are notoriously subject to error (along with, he claims, other information that he is not revealing in order to maintain confidentiality, although as far as I can tell from today’s post he doesn’t think anyone else is entitled to be believed in such circumstances). In the course of a few days, he went from saying, “It appears the admins at The Faculty Lounge may have some explaining to do”; to saying that “the obvious suspect” for having passed along information was someone at TFL and “the obvious candidate from among the site’s bloggers is Dan Filler”; to a post on March 7 repeatedly singling out Filler as his prime suspect; to a post on March 8 saying that the conduct he was complaining of “was apparently made possible by his co-blogger Dan Filler sharing confidential email information from comments at Filler’s other blog, The Faculty Lounge”; to a statement in the same post, now fully accusatory and without qualification, saying, “let’s not forget the role of his errand boy Dan Filler in all this, who can’t even manage to get to denial, but is apparently too cowardly to confess to his role in this squalid business”; to a conclusion in the same post that Filler’s failure to issue a clear denial of responsibility removed “any” doubt for Campos that Filler was guilty. Note the hot and temperamental rhetoric; the mounting number of accusations against one person; and the increasing move from speculation to what he pronounces is utter certainty.  

Following yesterday's statement here, Campos's post today, to which he links and which you can judge for yourself, is notably lacking in that kind of rhetoric. Instead, it adopts--in what, as far as I can tell from reading Campos's blog for more than a year, is a fairly typical rhetorical move whenever he is called into question--a sober-sided, more-in-sorrow-than-in-anger, let's-put-this-late-unpleasantness-behind-us tone. He describes himself as having, in his earlier posts, "determined that Leiter’s co-blogger Dan Filler was an obvious candidate for having given Leiter access to the critics’ email addresses, and in at least one case an IP address as well." Note the difference between that more circumspect description and his actual language in repeated posts, which ended in a pronouncement that he had no doubt that Filler, who was not his own man but someone's "errand boy," was the guilty party. His post today ends by suggesting that no other explanation is possible other than that someone at TFL blog acted improperly, although he has hardly demonstrated that; but he also now identifies a range of possibilities and culprits other than Professor Filler. Apparently his doubt is back. How nice to see it again. 

 Admittedly, I would never write accusatory posts like that in the first place, and certainly not a series of them, and certainly not a series that ends by announcing my utter confidence that I am right in accusing a particular individual--and all of this on the basis of "triangulation," no less. If I did, however, and the accused then issued a denial, I would consider myself honor-bound toreply in language that was just as loud and clear as my accusations. I suppose if I thought the person was lying, I might say so, and why I thought so. But if I now admitted that there were other possibilities, I would apologize straightfowardly, even if I was not sure I was wrong, both because I might be wrong and because my earlier statements had said I was certain I was right.. I wouldn’t suddenly move from repeated, hotly voiced accusations to cool, lawyerly, passive-verbed tones; that would strike me as just another way of being less than straightforward, if not outright dishonest and dishonorable. And I sure as hell wouldn’t talk soberly about wanting to put “this sad and disturbing matter” behind me until I had first done the right thing, in clear and unmistakeable language. Anything else would strike me as cheap and cowardly.

Lots of Campos’s fans like to accuse law professors of writing about subjects they know nothing about—and not without reason! In that sense, I find it telling that Campos is the author of an article titled “Shame.”   


Posted by Paul Horwitz on March 12, 2013 at 02:46 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Holes in the dueling submission systems

Redyip has again been sighted. But now, her (his? its?) semi-annual call sends us scurrying to a second main submission system (putting aside the direct-submits). And Corey Rayburn Yung (Kansas) emails Dan and me to suggest that this creates some problems; his email is reprinted in full below (with his permission):

I thought either of you might be interested in posting about a hole in the new submission system with Scholastica and Expresso. If an author receives an offer from a Scholastica journal (i.e., Cardozo, Iowa, USC, or California) and wants to use it as the basis for an expedite request to an Expresso journal, there is a problem. Most, if not all, of the Scholastica journals are no longer listed as sources of offers in Expresso. And an author no longer has the option to just type in the name of the journal that made an offer. As a result, the only option an author can choose is to that he or she did not wish to disclose the identity of the offering journal. Then the author can put the name of the journal in your subject line and body of the email.

That would be fine except for how the new Expresso system looks on the journal’s end. When viewing all expedite requests, the text and subject of the email is not visible. Instead, the journal editor will click on “Details” from the list of expedited articles which will then reveal only that the author chose not to disclose the source of the offering journal. And given that most (if not all) journals will not take expedite requests from unknown journals, the editor will simply reject the article. Until this issue is resolved, I would implore law review editors to look further at those expedite requests with no offering journal listed to see if there really is an offer from a Scholastica journal before disposing of the article based upon policy.

Has anyone else experienced this problem and/or figured out how to resolve it?

Posted by Howard Wasserman on March 12, 2013 at 01:51 PM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (11) | TrackBack

State courts and the First Amendment

One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.

But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.

On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.

Posted by Howard Wasserman on March 12, 2013 at 12:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5) | TrackBack

Oddball SCOTUS Cases

OddThe purpose of this post is to crowdsource an issue that Suja Thomas has identified.

I got the idea from seeing Suja’s presentation at AALS this year, in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts.  She has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making  legal changes in these types of cases.  During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.

An example is ATT Mobility v. Concepción, in which the Court enforced a class-action waiver in a consumer arbitration agreement.  The arbitration agreement at issue in Concepción strongly favored the consumer – for example, it included a provision (added by AT&T after the Concepcións had filed suit) requiring AT&T to pay $7500 to a consumer if an arbitrator awarded the consumer an amount greater than AT&T’s largest settlement offer at the time of arbitrator selection.  Anyone even vaguely familiar with consumer arbitration knows that 99.99% of the time they skew very strongly in favor of the company – not the consumer. 

Had the Court enforced a class-action waiver in the far-more-typical consumer-arbitration factual scenario in which the prohibition of a class action makes it impossible for consumers to individually advance their low-dollar claims, the Court would have invited a political (perhaps Congressional) backlash.  But by choosing for certiorari that one-in-a-million case in which the class-action waiver favored the consumer, the Court was able to create a broadly applicable legal rule permitting companies to prohibit class actions in all arbitration agreements.

My new article argues that the Supreme Court recently has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash.  See Oddball Arbitration.  My question for Prawfsblawg readers is: do you see Thomas’s Oddball Doctrine in other areas of the law?

Rick Bales

Posted by Workplace Prof on March 12, 2013 at 11:16 AM in Civil Procedure, Constitutional thoughts, Workplace Law | Permalink | Comments (2) | TrackBack

Monday, March 11, 2013

Why Did Bloomberg's Soda Portion Ban Bite the Dust? Was it mayoral imperialism, judicial activism, or both?

Justice Milton Tingling of the New York supreme court (that's a trial judge for you non-New Yorkers) struck down Mayor Bloomberg's soda portion cap this afternoon, citing the state non-delegation doctrine and the state's administrative law constraint on arbitrary and capricious rule-making. The essence of the opinion is that defining soda portion size is above the Department's pay grade, because it is "legislative" in character, a major policy requiring the imprimatur of City Council.

Consider an oddity about Justice Tingling's non-delegation argument: His opinion holds that the Department exceeded its jurisdiction because its ban on large (+16-oz.) cups was too narrow, not because its ban was too broad. The problem with the ban is that it was not really a ban: By exempting retail food stores like 7-11 and milk-based drinks like frappuccinos and by permitting refills of 16-oz. cups, the Department was too under-inclusive in its elimination of the super-sized portions. Such exceptions and limits, Justice Tingling argued, indicated that the Department was pursuing "economic, political, and social considerations," not public health. The opinion asserted (page 15) that the Department's taking into account "the financial costs related to the chronic [obesity] epidemic" suggested an improper frolic and detour outside the agency's health-oriented mission, because such attention to financial matters "evidences a balancing being struck between safeguarding the public's health and economic considerations." Justice Tingling even mentioned in passing that the rule was under-inclusive because it exempted "private homes where food is prepared" (page 14).

How can it make sense to force the Health Department into such a judicially tailored straitjacket, requiring bureaucrats to pursue an all-or-nothing policy whenever they implement a law? Is Justice Tingling really demanding that agencies jettison consideration of cost, administrative feasibility, personal privacy, or financial feasibility when they pursue their primary mandate? Such reasoning is not unprecedented: Recall FDA v. Brown & Williamson's argument that the FDA would have to ban cigarettes entirely if they were an unsafe "medical device" and not merely regulate cigarettes' advertisements. But the under-inclusiveness argument seems like an open invitation to opportunism: No one expects, or would normally want, an agency to pursue its primary mission by ignoring every other consideration of cost or feasibility. Thus, Bloomberg's calorie-posting rule, requiring certain food retailers to post how many calories are in the food they serve, did not apply to Mom & Pop coffee houses or chic restaurants but only to chains. Why was this limit not just as unauthorized as the ban on big cups?

The only plausible way to distinguish the calorie-count rule from the cup-size rule, so it seems to me, is that the latter is more paternalistic than the former. Indeed, Justice Tingling hints that anti-paternalism plays a role in his evaluation of city charter history: "[O]ne thing not seen in any of the Board of Health's powers is the authority to limit or ban a legal item under the guise of 'controlling chronic disease,'" Justice Tingling's opinion asserts. The calorie count rule is equally a "limit" on the marketing of a "legal item," but it is not a limit on an item's consumption. In infer that limiting or banning a consumer's use of an item just seems too novel to Justice Tingling, because it is too paternalistic. The non-delegation argument is, on this reading of the opinion, largely a convenient vehicle with which to drive a non-textual, judge-made, anti-paternalism gloss into the Department of Health's otherwise unlimited statutory mandate to "regulate all matters affecting health in the city of New York" (City Charter section 556).

In short, by shrinking the Department of health's mandate, Justice Tingling enlarged his own. Should we be upset by such judicial creativity enlisted to constrain agency creativity?

In favor of Justice Tingling's anti-paternalism canon is that the doctrine simply forces Mayor Bloomberg to apply to the City Council to make controversial policy decisions. As I have elsewhere noted with respect to taxis, the Mayor has been excessively prone to bypass Council, either applying to Albany for direct state legislative authority or simply ruling by executive decree (or by the decree of mayoral sock puppets like the Department of Health).

But one might complain that judicial glosses on statutes, derived from nothing more than the judge's libertarian suspicion that an agency's intervention into the market is too novel or meddling, over-extend judicial power even as they constrain agencies' power. The Department of Health is, after all, an executive agency that is supposed to pursue policy goals. The supreme court is, by contrast, supposed to construe law. It is hard for me to see, as a matter of law, why City Charter section 556's capacious grant of power to the Department of Health, as a matter of law, does not include a mandate to limit portion size as an imperfect means for reducing obesity. There can be no serious doubt that Bloomberg's cup size rule is a good-faith effort to address obesity. Yes, lots of stores were exempted -- but can anyone reasonably expect City health inspectors to start visiting every retail outfit with a soda fountain? Yes, the measure is probably too timid to do much good (as its critics who favor more regulation complain) -- but are agencies really bound to do everything about a problem or nothing at all? No, the rule does not cover milk-based drinks -- but, undoubtedly if it had done so, then you can bet that the National Dairy Council would be suing on the ground that milk-based drinks are too nutritious to be lumped with soft drinks made essentially of sugar and water.

To be fair to Justice Tingling, he had to apply precedents from the Court of Appeals that invited an examination of the under-inclusiveness of agency rules to determine whether they pursue purposes outside their mandate. In particular, the Court of Appeals' 1987 decision in Boreali v. Axelrod held that the Department of Health could not ban indoor smoking in public places, in part resting the decision on the measure's under-inclusiveness. But Boreali rested more heavily on a theory of implied preemption of agency power by the legislature: The City Council had repeatedly refused to expand the 1975 law regulating smoking in such places as movie theaters and public libraries, and this refusal was taken as an implied ban on the Department of Health's doing so by rule.

No such lengthy track record of City Council's refusing to regulate portion size exists in this case. Justice Tingling noted that Council had passed a resolution seeking to limit the use of EBT cards to purchase soft drinks or to impose an excise tax on soft drinks (page 30). But these efforts suggest exactly the opposite of the failed legislative efforts in Boreali --namely, that City Council had not adopted an entrenched position against the measure struck down by Justice Tingling.

In short, Justice Tingling's opinion looks like a libertarian canon masquerading in non-delegation trappings. Maybe that sort of canon is good judicial policy. But I'd rather take my policy from Bloomberg, as meddlesome as he can be, than a judge.

Posted by Rick Hills on March 11, 2013 at 08:23 PM | Permalink | Comments (6) | TrackBack

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers. 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better.  The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at Sentencing Law & Policy (where I do most of my blogging).

Posted by Douglas A. Berman on March 11, 2013 at 12:23 PM in Criminal Law, Current Affairs, Judicial Process, Life of Law Schools | Permalink | Comments (4) | TrackBack

Sunday, March 10, 2013

Anonymity, Public Expression, and Driving: Two Thoughts

Reading Howard's and Paul's posts below, I had a couple of quick thoughts, mostly brought on by Paul's comment (as I am not familiar with the law in this area).  Probably the thoughts are not new, and scholars of free expression have expressed them in far better ways.

First, on the issue of greater care when one is anonymous, some of this reminds me of the rich tradition of anonymous or pseudonymous pamphleteering and commentary in the early American republic.  Not only Cato, Junius (see Talley v. California), Publius (as Paul mentions in the piece he links to), Brutus, Pacificus, and Helvidius, but also so many others could be freer with their expression by participating in a particular, recognized style of public expression.  And that freedom also stimulated unique types of writing that were thoughtful in different ways than their authors' official writing.  My constitutional law textbook contains, for example, a wonderful pseudonymous letter written in 1790 to the Federal Gazette by "Historicus" (Ben Franklin) satirizing Southern arguments in the slavery debate.  But I wonder whether, per Paul's post, it is the anonymity or pseudonymity itself that provoked the care in expression.  That is, as a matter of writing psychology, I am unsure about causation.  My suspicion is that care in expression, whether one puts one's name to the expression or not, derives from other sources.

I also thought about the behavior of people who drive cars.  It is sometimes said that the fact of being inside one's car provides a sense of insulation from responsibility.  That sense of insulation promotes a sense of freedom to be less careful, more aggressive, and less controlled.  You can truly  be you behind the wheel of a car--or at least you can get closer to the you that sits underneath all of those pesky social constraints, including, of course, the constraint of your own name (naming something immediately limits that something, or constrains it).  The trouble is that nobody much likes the real you, and probably for good reason: the real you is awfully unpleasant and perhaps even dangerous.  Unlike the rose, you just don't smell quite so sweet without your name.  Using one's name may "incur high costs," as Paul puts it in his response to Professor Redish, but it has benefits as well--and ones that don't have to do exclusively with reliability.  I wonder if anonymity in expression today is perhaps closer to the car analogy than to anything as temporally remote as the early republican tradition of anonymous expression.  Maybe both analogies apply at different moments.

ADDENDUM: Matt Bodie helpfully passed along this very interesting paper by current Prawfs guest Lior Strahilevitz, 'How's My Driving?' For Everyone (and Everything?).  Here are some fascinating lines from the piece on the relationship between anonymity and aggressive driving:

The evidence of a link between anonymity and aggressive driving is reflected in numerous studies, all of which reach essentially the same conclusion: People are most likely to drive aggressively when they can avoid sanctions, but drive courteously when they believe they will be held accountable for misconduct.  The cleverest of these studies found that drivers of convertibles behave more aggressively with their tops up than their tops down, even though hotter weather is associated with both one's top being down and aggressive driving.  This observational evidence is consistent with data showing that road rage is relatively rare in those areas where roadway anonymity is diminished, such as small rural communities, and that people drive more aggressively when they are driving alone than when there are passengers in their cars.

Posted by Marc DeGirolami on March 10, 2013 at 10:36 AM | Permalink | TrackBack

Saturday, March 09, 2013

For K Prawfs

As you may have seen, the Washington Law Review is preparing to host a print symposium in December 2013 on the new contracts book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Prof. Lawrence A. Cunningham of GWU. Before the symposium, participants are interested in learning from contracts professors around the country.  The purpose of this survey is to gather information about the material being taught in contracts classes, and the advantages and/or deficiencies of the approaches taken by current contracts textbooks. If you're a K prawf, please take the WLR online survey by April 15.

Posted by Administrators on March 9, 2013 at 10:43 PM in Blogging | Permalink | Comments (0) | TrackBack

On Anonymity, Professorial and Otherwise

A number of things about this latest online discussion of anonymity and its discontents strike me as somewhere between silly and disturbing. Actually, almost everything about it does, but one thing in particular is bothering me at the moment. It's the failure to actually discuss meaningfully the uses and abuses of anonymity. Without singling out anyone--and how could I, since most of the people talking about it online are doing so anonymously?--a comment on Howard's post below has set me off. The comment begins: "I would highly counsel anonymity in these posts. We are essentially mulling over legal ideas, and our speculations may or may not be correct given that we’re giving a first impression; the equivalent of going into each other’s office and talking it over rather than putting in the research, speaking to a client, and then providing a well-founded (ie. sufficient under FRCP Rule 11) advice." It is signed "anonprof." Of course, I have no idea whether the commenter is a professor at all, let alone a law professor. Assuming he or she is, however, I find it disturbing and worthy of comment, with all appropriate apologies to that individual.

The most common justification given for anonymity online, at least on the law blogs as of late, has been fear of professional repercussions for young lawyers who worry that they will be fired for speaking their mind. I can imagine cases, maybe even many cases, in which that is a valid concern. It does not, of course, say anything about how one speaks one's mind. I would have thought that a decent person who decides to speak anonymously would be more careful about what he or she says, and how he or she says it, because a decent person who refuses to put his or her good name behind a statement ought to think that circumspection is a reasonable price to pay for immunity. It's difficult to judge degrees of behavior, but obviously plenty of people who speak anonymously feel emboldened instead. Equally obviously, some people who speak anonymously behave like vulgar, uncivil asses. I assume some of them are just like that, and talk the same way even when they're using their own names. But surely some of them have decided that being anonymous frees them to be complete asses, and take full advantage of that fact. That is, I think, literally contemptible. If you can't manage to have manners, you should have a name; if you can't manage to have a name, you could at least have some manners. If you don't have either, you ought to get a life.

Leaving those people aside, surely not all of those who are civil (albeit forceful) but anonymous are justified in their anonymity by a genuine concern for disastrous consequences if they attach their name to what they write. Fear of consequences is a valid justification for anonymity, but it isn't always a valid concern. There's a difference between worrying about being fired for a careless statement, especially if one lacks resources, and worrying about slower advancement, fewer promotions, and so on. I don't think the latter concern is unworthy of anonymity, but it does suggest a certain lack of character--and all the more so if that person then uses anonymity in an especially uncivil way. This is strictly hypothetical, but if some fifth-year associate at a big law firm somewhere decided that the wise thing to do would be to remain anomymous so he or she could post "fuck off" somewhere online without worrying about losing a promotion, I wouldn't consider that an especially legitimate reason for anonymity. Could any serious person conclude otherwise? 

With academics, including law professors, the reasons for anonymity, at least in one's own professional realm, are even more limited. They are, in fact, pretty close to non-existent. I could imagine a whistle-blowing scenario in which one writes about one's own colleagues for important reasons and wants to remain anonymous. I say imagine, because I can't think of any examples of anyone having actually done so. Most of the time, though, law professors who comment anonymously aren't doing anything like whistle-blowing. They're professing some view about the law. And that, of course, is their job. For tenured professors, there is no good reason to seek anonymity in order to profess about the law, legal education, or the legal academy. As far as I'm concerned, things are generally no different for untenured professors. For one thing, as I've written here before, if you can't muster up the courage to act like you deserve academic freedom before you get tenure, then it's not clear to me that you deserve it at all. For another, if you're not sure the view you're expressing is meritorious, you don't actually have to say anything at all! And if you are still moved to speak, nothing prevents you from putting your opinion in a careful and cabined way--which, as a conscientious academic, you should be doing anyway.

I hate to sound all "kids today" about it. But I started blogging some eight years ago, pre-tenure, well after many other law professors but still relatively early in the law-blogging period. Plenty of law professors back then thought about blogging and decided they didn't want to do so, either because they might suffer blowback at their own institution or in terms of lateral hiring, or because they didn't think they could spend the amount of time they'd require to feel good about having their own words attached to their own name online day after day, or both. I completely respect those decisions, and who's to say they weren't in fact much wiser? To the extent that some of us did choose to take advantage of the medium, no one was handing out any guarantees that there would be no consequences. But that's true of everything academics choose to write or not write, regardless of the medium. Absent extraordinary circumstances, I just don't think anonymity is a valid choice for law professors who want to say things about their own profession online, in comments or elsewhere. It certainly doesn't suggest even the minimal degree of courage that I think every academic, if not every lawyer--or even every person--in a First World country ought to possess. 




Posted by Paul Horwitz on March 9, 2013 at 10:17 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Commenter anonymity

The comments section at The Faculty Lounge is awash in comments accusing several prominent law bloggers of working together to "out" people who comment anonymously or pseudonymously on TFL and other blogs. (The brouhaha is broader than that, actually, but I'm not going to repeat what appears to be a sordid mess).

I'm interested in a narrower point (one also raised by regular Prawfs reader Bruce Boyden in TFL comments): A few comments over there have suggested that these bloggers have done something unlawful in passing along and/or using email addresses and other information to identify the unknown commenters. Is that right? Is it unlawful for the administrator of a noncommercial blog to disclose the identities of anonymous/pseudoymous commenters, when that disclosure is for noncommercial purposes? And if so, what source(s) make it unlawful? One suggestion was FTC regulations; but can the FTC regulate non-commercial speech?

Please note: I am asking this because I genuinely want to know; I hope anyone who actually has an answer will respond to the question in that spirit, without tangents about how ignorant or evil I am because I teach in a law school.

Update, March 11: The permanent TFL bloggers posted a statement on the blog asserting that none of them has ever disclosed identifying information about a commenter to any third party and that none of them has any basis to believe that any guest blogger has disclosed such information. I would hope that this would be the end of this kerfuffle (as Bruce called it at Madisonian), since it responds directly to the question several commenters had put to Dan. But at least some of the early comments suggest some people are not fully satisfied. Actually, the run of comments in the first several hours shows a small cadre of loud commenters who are unsatisfied. Oh, well. The denial of a conspiracy ought always to be taken for the strongest evidence of a conspiracy.

Posted by Howard Wasserman on March 9, 2013 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (50) | TrackBack

Friday, March 08, 2013

Sarat Symposia--Past, Present, and Future

Today at the University of Alabama, we were pleased to have our friend Austin Sarat serving as host for a symposium titled "Civil Rights in the American Story." The lineup was terrific, and although I couldn't be there for every talk, the ones I saw were excellent.

Austin has hosted a variety of excellent symposia at Alabama and I've been delighted to participate in several of them. Here, by way of weekend reading, is an abstract for a paper I gave in response to Martin Redish at a symposium on speech and silence in American law. The paper is titled "Anonymity, Signaling, and Silence as Speech." In it, I argue, inter alia, that Internet anonymity takes a variety of forms, including genuine anonymity and consistent pseudonymity, and that rather than viewing it as a form of silence, anonymity can be understood "as an attributional decision that sends important signals about the reliability of the speech and the speaker." I would do some things differently if I were writing the paper today, but I still think the signaling point is worthwhile, and in any event I was just grateful to share a stage with Prof. Redish. I'm also very much looking forward to participating in a symposium Austin will be presenting at the Law School this fall on civility. It will be a great spur to think about those issues.  


Posted by Paul Horwitz on March 8, 2013 at 09:31 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Civ Pro now on the Bar

It's official: Civil Procedure will be on the Multistate Bar Exam starting in 2015.   See here.  So, there will now be seven subjects for multiple-choice testing on the Bar: Contracts, Criminal Law/Procedure, Property, Torts, Con Law, Evidence, and Civ Pro.

As a Civ Pro professor, I think the change makes sense.  I've never been sure why Civ Pro was left off the above list when all the other standard 1L classes -- plus Evidence, which isn't even required at many schools -- were included. 

I'm curious, though, what those who teach the now-seven MBE subjects consider their obligation with respect to the Bar.  Do you look at the outlines issued by the National Council of Bar Examiners (here) about which particular topics are covered within your subject, and take that into account when creating your syllabus?  Do you include multiple choice questions on your final to mirror the types of questions students will see on the Bar?  Or do you leave all of this to the various test prep companies like BarBri and Kaplan?

Since I started teaching Con Law two years ago (before that, I hadn't taught any MBE classes), I've been thinking about these questions.  Where I've ultimately come out is that I haven't changed my preferred exam format (all essays), but I do look at the NCBEX outline and take it into consideration in creating my syllabus.  I also occasionally end class with a couple of multiple choice questions that we discuss (though I find it maddening that NCBEX is so stingy about releasing actual past questions).  What do others do?  Does your law school have a certain culture about this?

Posted by Emily Gold Waldman on March 8, 2013 at 01:58 PM | Permalink | Comments (4) | TrackBack

Student Humor-Civ Pro Edition

My in-semester essay for Civ Pro was to be due on the Tuesday after spring break. On Tuesday, several students filed a Complaint and served it (by another faculty member) in class; the students alleged an Eighth Amendment violation and sought an injunction giving them an extra two days to complete the essay. I submitted an Answer later that day. In class yesterday, another colleague came in as judge (complete with gavel and robe) and announced her decision from the bench (includes video).

I admit to not being thrilled to have moved the assignment. But creativity counts for a lot. It was nice to see them being very creative and funny, while also showing they are learning something (their complaint shows an OK basic level of understanding of how to structure and write a pleading) and even having some fun in law school. And as you can hear, they appreciate humor from us in response.

Posted by Howard Wasserman on March 8, 2013 at 09:23 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1) | TrackBack

Wednesday, March 06, 2013

Two current items on the filibuster

Two events have the filibuster, and conversations about filibuster reform, back in the news today. First, Republicans are (silently, of course) filibustering President Obama's nominee to the D.C. Circuit, apparently because she litigated cases that Republicans don't like (specifically against gun manufacturers), which disqualifies her from being a judge. Anyone who did not see this coming after the Democratic capitulation (again!) on filibuster reform is not paying attention. The fact that Carl Levin (as quoted in the linked piece) believed that anything would change shows how much is wrong with the Senate and with the Democratic Party.

Second, Rand Paul (supported by Mike Lee and Ted Cruz) is staging a talking filibuster of the nomination of John Brennan as Director of the CIA. This at least gives some reform advocates some of what they want--the end to silent filibusters and forcing Republicans to take and hold the floor (and the heat) for their delay efforts. Paul has been at it since 11:45 a.m. EST, so just over four hours now. Stay tuned. [Update: Still going as of 11:15 p.m.--coming up on 12 hours. Here is another piece reflecting the "this is the way filibusters ought to be" view]

Further update: It ended around 12:30, after 12 hours and 52--as everyone, incluindg Paul will note, a little more than halfway to Strom Thurmond's record filibuter. This does appear to have been effective at calling attention to the issues Paul wanted to highlight. The press found it entertaining, as did some of the public that pays attention to any of this. But a big part of that might just be the novelty of the talking filibuster. And if the minority had to do this every single time they opposed a court of appeals nominee, the novelty would wear off, particularly for the public and particularly if other business is not getting done. I previously have thought that the mandatory return of the talking filibuster--one of the filibuster-reform proposals that's been made--would be ineffective, actually creating more of a burden on the majority. But perhaps it would be a way to get rid of the routine filibuster (which really is the problem) without having to drastically rewrite Senate rules about what is and isn't a proper filibuster target.

Posted by Howard Wasserman on March 6, 2013 at 03:50 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9) | TrackBack

Voting: A "perpetuation of racial entitlement."

Last week the Supreme Court considered, among other issues, whether there was any "end in sight" for the Voting Rights Act provision that "intrudes on states' rights to conduct elections." Voting rights are only seasonally on the minds of the public, every four years mostly,  and just a little bit during off years and intermediate elections. While I am not a scholar of Voting Rights, I have worked to protect voters rights both in my position as an Illinois Assistant Attorney General and as a volunteer for Election Protection, a non-partisan organization comprised primarily of attorneys across the country who run both a call center and field attorneys to the counties. I work in the field.

In 2008 I volunteered to work Election Protection in Kane County, a "collar county" of Chicago, well-known for voter suppression. In fact, in 2008, Kane County was subject to an order of the DOJ based on violations of Section 203 of the Voting Rights Act for Hispanic voters.  Covering 26 precincts in 2008, I saw all kinds of attempted voter intimidation by poll workers to prevent minorities from voting, primarily in the form of questioning the voter's registered address or sending the voter to a different polling place.  As part of their enforcement, the DOJ sent representatives in black suits to stand around the polls - oddly enough, this effort ended up intimidating voters almost as much as the poll workers.

Last fall, November 2012, I volunteered again to work Kane County. Now released from the DOJ order via a "Memorandum of Compliance," Kane was back to it's usual business of suppresssion. This time, poll workers were instructed to request identification from voters (not required in Illinois) and to delay voting for as long as possible by being required to call into the County Clerk to get "authorization" for a voter to vote. No one from Election Protection was informed of this new County "procedure" in advance of the election and in fact, when anyone from a polling place called the Clerk there was no answer. In one precinct a young voter was detained for well over an an hour waiting for "Clerk approval" to vote. In another instance poll workers pretended to look up names and addresses in the computer system and mysteriously could not find them depending on the race of the voter until we, the field workers, contacted a supervisor, who then found the names immediately. We found one woman outside crying because she was told she couldn't vote. After another hour, we managed to get her "registration" straightened out and she voted. She thanked us. Between 5:30 a.m. and 2:00 p.m. my team saved four votes and lost one, a man who could not wait around because he had to go to work (a famous suppression tactic). But we could not be in 26 precincts simultaneously so no one knows how many other voters were turned away.

A worker at one precinct who was well-aware of historic suppression tactics showed me how precinct workers looked up names and told me about how in certain precincts, where there is Section 8 housing, the workers can pretend that they "can't find" a  name.

Voter suppression is alive and well and living in a County near you during every election. And the Court should gut the Act as unnecessary?


Posted by DBorman on March 6, 2013 at 11:25 AM | Permalink | Comments (13) | TrackBack

Tuesday, March 05, 2013

It's official. Being a Markel(l) is a BFOQ at FSU.

As Brian noted over at his blog, Florida State now has Judge Bruce Markell joining our law faculty come this summer. With myself and Dave Markell already, our new addition ensures (so far as I know) that we have a monopoly on the legal academics named Markel(l). While we all pronounce it the same way, we have no reason to think we're actually related. Still, prior to extending Judge Markell an offer, we considered making the offer conditional on Bruce adding a 3d L to his last name, but we decided to go crazy and let him keep it as is.

Given that we have a small faculty of about 30 folks, it's a bit weird admittedly. But as I understand it, there are 3 Kelly type last names at Notre Dame and 3 Kennedy's at HLS. And of course, there are 3 Weinribs at U of Toronto (but they're all related). Anyone know of other nominal clusters?

And yes, Patchen Markell, we're coming after you and then Howard Markel next. Why shouldn't FSU have an accomplished Hegel scholar and medical historian in its mix?

Posted by Administrators on March 5, 2013 at 03:18 PM in Blogging | Permalink | Comments (7) | TrackBack

The iPhone, not the eye, is the window into the soul


It is great to be back at Prawfsblawg this year.  Thanks to Dan and the gang for having me back.  For my first post this month, I wanted to point everyone to the most important privacy research of 2012.  The same paper qualifies as the most ignored privacy research of 2012, at least within legal circles.  It is a short paper that everyone should read.

The paper in question,Mining Large Scale Smart-Phone Data for Personality Studies, is by Gokul Chittaranjan, Jan Blom, and Daniel Gatica-Perez. Chittaranjan and co-authors brilliantly show that it is straightforward to mine data from smart-phones in an automated way so as to identify particular "Five Factor" personality types in a large population of users.  They did so by administering personality tests to 117 smartphone users, and then following the smartphone activities of those users for seventeen months, identifying the patterns that emerged.  The result was that each of the "Big Five" personality dimensions was associated with particular patterns of phone usage.  For example, extraverts communicated with more people and spent more time on the phone, highly conscientious people sent more email messages from their smartphones, and users of non-standard ring-tones tended to be those who psychologists would categorize as open to new experiences.  

There is a voluminous psychology literature linking scores on particular Big Five factors to observed behavior in the real world, like voting, excelling in workplaces, and charitable giving.  Some of the literature is discussed in much more detail here.  But the Chittaranjan et al. study provides a powerful indication of precisely why data-mining can be so powerful.  Data mining concerning individuals' use of machines is picking up personality traits, and personality predicts future behavior.  

The regularities observed via the analysis of Big Data demonstrate that you can aggregate something seemingly banal like smartphone data to administer surreptitious personality tests to very large numbers of people.  Indeed, it is plausible that studying observed behavior from smartphones is a more reliable way of identifying particular personality traits than existing personality tests themselves.  After all, it is basically costless for an individual to give false answers to a personality questionnaire. It is costly for an extravert to stop calling friends.  

Privacy law has focused its attention on protecting the contents of communications or the identities of the people with whom an individual is communicating.  The new research suggests that -- to the extent that individuals have a privacy interest in the nature of their personalities -- an enormous gap exists in the present privacy framework, and cell phone providers and manufacturers are sitting on (or perhaps already using) an information gold mine.  

It's very unlikely that the phenomenon that Chittaranjan et al. identify is limited to phones.  I expect that similar patterns could be identified from analyzing peoples' use of their computers, their automobiles, and their television sets.  The Chittaranjan et al. study is a fascinating, tantalizing, and perhaps horrifying early peek at life in a Big Data world.

Posted by Lior Strahilevitz on March 5, 2013 at 09:03 AM in Article Spotlight, Information and Technology, Web/Tech | Permalink | Comments (0) | TrackBack

Monday, March 04, 2013

Yahoo, Flex-time, and the Elusive Work-Life Balance

Thanks to Dan and PrawfsBlawg for inviting me to guest-post again.  This past week, I've been thinking about the controversy over Marissa Mayer's decision at Yahoo to end all work-from-home arrangements.  The memo from Yahoo's HR head justified the decision on grounds that "some of the best decisions and insights come from hallway and cafeteria discussions, meeting new people, and impromptu team meetings," concluding that working at Yahoo "is about the interactions and experiences that are only possible in our offices."

I actually think there are some interesting connections between this controversy and law school life, in terms of both students (distance education, in particular) and faculty (e.g., how much time faculty should spend on campus)--more on that in a future post, maybe. 

But my first thought was about the workplace itself.  A few months ago, the NY Times ran an article about flextime (here) in which several people argued that flex-time policies shouldn't be only about accommodating employees' family obligations, but should apply more broadly.  At Ernst & Young, apparently, "the policy is that everyone, no matter their age or life circumstances, has equal claims on flexibility."  This sort of broad approach has important advantages.  But perhaps the Yahoo development highlights some of its drawbacks, at least in the context of significant flex-time arrangements.  Once a large number of employees are working from home,  it seems inevitable that the workplace environment itself is going to be quite different.  I'd think that the change builds on itself, too: if not that many people are coming into the office for work, doing so becomes a less appealing option even for those employees who would have preferred working in a social, interactive office environment.  And if things hit a tipping point--as they apparently did at Yahoo--then the employer may retract the whole policy, including for those employees who needed it the most. 

Posted by Emily Gold Waldman on March 4, 2013 at 02:02 PM | Permalink | Comments (2) | TrackBack

Sunny, Smooth, Clean

Are we buying into the myth that technology can smooth out all the glitches of humanity? This is the challenge that Evgeny Morozov, author of “To Save Everything, Click Here: The Folly of Technological Solutionism”, presents to us. Morozov throws "sunny, smooth, clean" at our face: "with Silicon Valley at the helm," he says, we imagine that "our life will become one long California highway." I frequently find that reliance on technology just renders life messier, perhaps darker. but Morozov's point is well taken -- there is a contemporary sentiment that all can be solved by an appropriate app. Admittedly, I envision the COGNITIVE-CITATION APP™. But may I hold that Greenbag is where you write parody?

Morozov warns: "All these efforts to ease the torments of existence might sound like paradise to Silicon Valley. But for the rest of us, they will be hell." He describes our reliance on and anticipation of a tech solution as a "dangerous ideology..."solutionism": an intellectual pathology that recognizes problems as problems based on just one criterion: whether they are “solvable” with a nice and clean technological solution at our disposal." As law professors, we are trained all too well to move into the solutionism mindset. No solution left behind. End every article with proposals for reform. Morozov quotes Spanish philosopher José Ortega y Gasset “I wish it would dawn upon engineers that, in order to be an engineer, it is not enough to be an engineer”. I wish the same for lawyers.


Posted by Orly Lobel on March 4, 2013 at 01:36 PM | Permalink | Comments (0) | TrackBack

Sunday, March 03, 2013

Marching from Voter Supression to Austerity

Thank you, Dan, for inviting me back to blog this month. Back in November I was chomping at the bit to discuss local voter suppression after the election and never had the time to do so. Fortunately the recent SCOTUS Voting Rights Act case provides a reminder that voting rights are not just seasonal and will be a nice segue into my observations last fall as an Election Protection Volunteer. I will post details shortly.

Also, in two weeks, I am accompanying a group of students to Greece as part of our International Travel Program. We will be studying Greek law vis-a-vis the economy, various issues with the European Union and the changes in Greece leading up to Austerity. I will post our experiences and observations from Greece in the latter half of the month.

Posted by DBorman on March 3, 2013 at 11:39 PM | Permalink | Comments (0) | TrackBack

A symposium on Fleming & McClain's "Ordered Liberty"

Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new bookOrdered Liberty.  My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here.  Among other things, I wrote:

At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so.  But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.

So, a more focused thought on a particular part of the book:  In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.”  Fair enough — these case do indeed illustrate these struggles.  But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.”  That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions.  To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.

- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf

Jim and Linda respond to me, here.  Time to get to work on a reply!

Posted by Rick Garnett on March 3, 2013 at 03:48 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack

Saturday, March 02, 2013

Time for Me to Fly

Thanks for Dan and the gang for hosting me this month.  But as Kevin Cronin famously said, it’s time for me to fly.  Oh, I've got to set myself free.  Time for me to fly.  That's just how it's got to be.  I know it hurts to say goodbye, but it's time for me to fly.

Posted by Michael J.Z. Mannheimer on March 2, 2013 at 11:52 PM | Permalink | Comments (2) | TrackBack

“Harmelin’s Faulty Originalism”

In case you missed it, John Stinneford and I have been having a lively debate in the comments section of my most recent post on my (admittedly novel) claim that the Cruel and Unusual Punishments Clause can be read in a state-specific way.  One thing I know John and I agree on is that the Clause as originally understood likely encompassed some kind of proportionality requirement.  This is in contrast to the persistent contrary view of Justices Scalia and Thomas, which can be summed up best by Justice Scalia’s comment in dissent in Atkins v. Virginia that “[t]he Eighth Amendment is addressed to always-and-everywhere `cruel’ punishments, such as the rack and the thumbscrew.”  In their view, in other words, the Clause was understood in 1791 only as forbidding certain types of punishment.  This view stems from Justice Scalia’s plurality opinion in 1991 in Harmelin v. Michigan.

In my latest piece, “Harmelin’s Faulty Originalism,” I refute each of Justice Scalia’s points in that opinion.  I won’t go through all the arguments here but I’ll provide a snippet of just one.  Justice Scalia relies in part on nineteenth-century state court cases interpreting either the Cruel and Unusual Punishments Clause or the state analogue.  However, all but one of the cases he cites is from 1855 or later.  This is a tactic of originalists (or faux originalists) that too often goes unanswered.  If we are trying to figure out what a phrase meant in 1791, why on earth would we look at what people in 1855 thought it meant?  After all, it is difficult to understand why their ability to glean the meaning of a phrase from its deep, dark past would be any better than our own.  Indeed, to the extent that technological advances help with the endeavor, arguably it is we, not they, who are better situated to grasp original understanding.  Yet few have called them out on this (Tom Davies is someone who has, and perhaps there are others).

In short, as I’ve shown in my work and John in his, the certitude that Justices Scalia and Thomas display in their reading of the Clause flies in the face of virtually all the available evidence we have on its original understanding.  The real question is not whether the Clause was meant to encompass a proportionality requirement but (1) what kind and (2) whether and to what extent the Fourteenth Amendment incorporates such a requirement.

Posted by Michael J.Z. Mannheimer on March 2, 2013 at 11:40 PM | Permalink | Comments (1) | TrackBack

Friday, March 01, 2013

Weekend Reading: Defending (Religious) Institutionalism

I've posted a short piece on SSRN, titled "Defending (Religious) Institutionalism." You can find it here. It builds on issues I've discussed in First Amendment Institutions (which, may I say, makes a splendid World Kidney Day gift). The issues raised here turn out to be especially timely in light of recent litigation over the ministerial exception, the contraceptive mandate, and similar issues. I should note that this piece is a reply to Richard Schragger and Micah Schwartzman's important article, Against Religious Institutionalism, which is coming out later this year in the Virginia Law Review; my reply will also appear there. 

The abstract follows. Emailed comments are most welcome. 

This piece is a reply to Richard Schragger and Micah Schwartzman's forthcoming article, Against Religious Institutionalism. The issue of the institutional status and rights of religious entities is an important and hot topic, given recent cases like Hosanna-Tabor, pending controversies over the application of the contraceptive mandate, and a spate of recent scholarship arguing for church autonomy and/or the revival of the ancient concept of "freedom of the church." Schragger and Schwartzman raise a number of tough questions about institutionalism, both in general and as it applies to churches. This reply offers a partial but forceful defense of institutionalism, in the church context and elsewhere.

Schragger and Schwartzman make some excellent points in their important article. In particular, they ask difficult questions about whether group rights stand on their own or are purely derived from individual rights, and sound an appropriate, if overly stringent, note of caution about "sovereignty talk" with respect to religious institutions. Nevertheless, they have not made out a conclusive case against (religious) institutionalism. In this reply, I offer a description of the institutionalist approach I have advocated for churches and other entities in my recent book, First Amendment Institutions, and argue that many of Schragger and Schwartzman's critiques of religious institutionalism don't apply to it. Schragger and Schwartzman argue that religious institutionalism is unnecessary because general principles of conscience and associational rights will be sufficient to protect conscience-based associations, including churches. Because they remain noncommittal about the actual scope of conscience and associational rights, however, they have not yet shown that this is true. Finally, I argue that Schragger and Schwartzman do not give an adequate sense of why religious institutionalists, and group-oriented pluralists in general, find the institutional turn attractive: why these thinkers are convinced of the importance of non-state institutions and concerned about the "pulverizing, macadamizing tendency" of the state toward those institutions. Those concerns remain very much alive, and as long as they do pluralism and institutionalism ought to have a place in our thinking.



Posted by Paul Horwitz on March 1, 2013 at 04:03 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack


Happy March 1!

With the new month, it's time for us to say au revoir to our excellent February guests and welcome our new voices for March. Joining us will be a great group of returning friends of the blog: Doug Berman (OSU, sentencing guru); Lior Strahilevitz (Chicago); Debbie Borman (Northwestern); Michael Waterstone (Loyola LS-LA) and Emily Gold Waldman from Pace.  Welcome to you all!


Posted by Administrators on March 1, 2013 at 02:52 PM in Blogging | Permalink | Comments (0) | TrackBack

Entry Level Hiring: The 2013 Report - Clinical and LRW Hires

Following a suggestion from a commenter, the entry level hiring report will now include non-tenure track entry-level clinical and legal research and writing hires. For this to work, submitted information should clearly indicate whether the position is tenure-track or non-tenure track. If clinical or legal research and writing is your area, just list that as the first item on your "Areas."

So, to review, please submit:

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four)  (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track  (if you are clinical or LRW and also tenure-track, please indicate this)

And this is still only for full-time, entry-level positions.

For those people who have already submitted information, I will assume that these are tenure-track hires unless the person has clearly stated that they are a clinical hire, in which case I will assume that it is not a tenure-track hire. I am aware that this may be incorrect--at my school, for example, both clinicians and LRW folks are tenure-track--so please reach out to me if I have you characterized incorrectly.

I have updated the original post to reflect these changes.

Posted by Sarah Lawsky on March 1, 2013 at 02:32 PM in Entry Level Hiring Report | Permalink | Comments (1) | TrackBack

It's Been Real

Here is my obligatory "thank you" post to Dan and everyone at Prawfs for making this guest posting thing a blast.  I think I've run out of interesting things to say, so I'll just point you to my SSRN page if you want to read more about election law, the right to vote, and procedural aspects of election law decisions.  I suppose you can follow me on Twitter @JoshuaADouglas, but I don't really say much interesting there either.  

I'll leave you with one last thought, from the great Theodor Geisel, "Don't cry because it's over.  Smile because it happened."  

OK, one more, as this one can relate to the law:  "Sometimes the questions are complicated and the answers are simple."  Indeed.

Posted by Josh Douglas on March 1, 2013 at 12:17 PM | Permalink | Comments (0) | TrackBack


I've reached the end of my stint on PrawfsBlawg.  I just want to thank Dan Markel and the PrawfsBlawg team for allowing me to participate thier blog.  I've greatly enjoyed the experience.  And especially thanks to those—including my co-blogger Michael Mannheimer—who have been kind enough to comment on my posts and in particular to generate such a stimulating discussion on the future of law schools and low level law.  

Posted by Eric Miller on March 1, 2013 at 09:37 AM | Permalink | Comments (1) | TrackBack