PrawfsBlawg

Tragic cases and Fed Courts

Dahlia Lithwick wrote last week about two cases--one in Montana, one in Massachusetts--demonstrating how unseriously many judges take rape and the tendency to blame even teen-age victims or to place victim and perpetrator on similar moral footing.

The Massachusetts case has lead to a § 1983 action in federal court. According to the complaint, a 14-year-old girl, identified as "H.T.", became pregnant as a result of her rape by a 20-year-old. The man pled guilty in 2011 and was sentenced to 16 years probation. He also was ordered to initiate proceedings in family court, declare paternity, and comply with the family court's orders regarding child support, visitation, etc. The victim opposed this, not wanting to have any sort of relationship or contact with her attacker; she attempted to challenge that order, but the SJC of Massachusetts held that she lacked standing. The family court ordered him to pay child support, whereupon he sought visitation, then offered to withdraw that request in exchange for not having to pay child support. The complaint seeks to enjoin the criminal-court order as violating a host of constitutionl rights, including substantive due process, procedural due process, First Amendment, and Equal Protection.

The case demonstrates that, for better or worse, within every horrific and gut-wrenching tale of wrong lies a course of legal doctrines to be navigated. No matter the tragedy, process remains part of the system for seeking justice. And for anyone looking for a Federal Courts/Civil Rights question or discussion topic, this case has a semester's worth of stuff.

• The named defendant is the Commonwealth of Pennsylvania Massachusetts (sorry--got my commonwealths mixed up), which is not permissible, since a state is not a person for § 1983 purposes (and state sovereign immunity lurks in any event, much as I wish it didn't). This is an overlooked aspect of the Court's 11th Amendment doctrine--it is not that states cannot be sued for damages, states cannot be sued by name for any relief. The case must run against the responsible state official, under Ex Parte Young. It is not clear who the plaintiff should sue her. One possibility is the state criminal-court judge who entered the order being challenged. But then the extra clause of § 1983 (added in 1996) kicks in; this requires a plaintiff suing a judge to first seek a declaratory judgment, only able to get an injunction if declaratory relief is either unavailable or ignored. Another possibility is the executive office responsible for enforcing court orders, such as the county sheriff. But a blanket suit of the state qua state (unfortunately, in my view) will not work. Although query whether the state will bother raising this issue, as the plaintiff would simply find the  proper defendant and amend, so the issue only delays things.

• The obvious problem for the plaintiff is Rooker-Feldman, since the federal lawsuit is alleging a consitutional violation caused by the state-court judgment. The complaint anticipates this, insisting that RF does not apply because this is not a case in which a "losing-party [sic] seeks review of a judgment entered in state court." It is true that H.T. is not a state-court loser (the term used in these cases), since she was not a party to that litigation. But she is adversely affected by a state-court judgment, so this strikes me as quibbling semantics. The idea behind Rooker-Feldman is that the appellate process, not federal civil litigation, should be used for correcting erroneous or unconstitutional state-court judgments, regardless of whether we call the person challenging it a state-court loser or an adversely affected party. The obvious and proper move in light of Rooker-Feldman should have been to seek cert to SCOTUS from the SJC decision.

• But the SJC resolved the case on purely state-law grounds--that H.T. lacked state-law standing to challenge the order. So perhaps SCOTUS would not have jurisdiction here because the state-court decision rests on an independent-and-adequate state grounds (state-law standing is not the same as Article III standing). On the other hand, the complaint explicitly challenges the standing component as part of the basic order, alleging that the refusal to let her challenge the criminal-court order violates due process and the First Amendment. That argument would be available in a cert petition. Independent-and-adequate should not preclude review where the supposed I-and-A ground itself (lack of standing) is unconstitutional in this case. The cert. path seems to remain open.

• There is a potential argument that this case is not ripe. The injury to H.T. is the forced relationship with her attacker. But that forced relationship comes from the family court proceedings, and presumes that the family court orders or permits some relationship. But we do not know how that litigation will play out. Perhaps the family court would reject the man's efforts to establish a relationship with the child or with H.T., in which case the constitutional harm will not arise. H.T. also is worried about the rapist playing games in family court (such as threatening to seek visitation), although the family court might be equipped to handle any such abusive efforts. The point is that the harm results from what the family court does, not the criminal-court order. So we may just have to wait to see what the family court does.  In addtion, publicity over the case also triggered introduction of legislation in Massachusetts that would prohibit rapists from having any contact with children resulting from the rape. The possibility of future legislation does not alone render a case unripe. But it does demonstrate that there are a lot of uncertainties about what will happen in family court.

• Of course, once the family court does make a ruling (such as the one ordering child support), Rooker-Feldman kicks back in and the family court order is challengeable only through the appellate process. And we are back where we started.

• H.T. also alleges a constitutional injury from the threat of potential family-court litigation, which requires time, money (to hire an attorney), and stress for the next 16 years. She is concerned that she will be running in and out of family court for the next 16 years to deal with his games. And this injury is caused by the criminal-court order. But is avoiding potential future litigation a cognizable constitutional right?

None of this is to minimize the harm H.T. has suffered and may continue to suffer. Nor do I doubt the sheer lunacy of a court ordering (much less allowing) a convicted rapist to potentially be involved with his victim and the child produced by the rape. But the case shows that the seemingly esoteric and theoretical issues floating around a standard Fed Courts or Civil Rights course actually have some teeth. And law students (as future lawyers) must know how to navigate them. And in a set of facts this disturbing, it helps us to remind students that they cannot get caught up in emotion, but often must keep their eyes on the procedural ball.

Judging Nudging

Imagine that, in order to discourage obesity, New York had hired a band of professional wrestlers to throw on their masks and rove the City body-slamming anyone caught drinking a large sugary beverage.  What are the main economic problems with that approach?  Obviously the administrative costs would be pretty high, though chiropractors would be happier. 

Most commentators would identify two other big problems.  One, the body slam imposes a pure welfare loss on slammees; in comparison, if we had used a soda tax or a fine, we would putatively have had resources we could have transferred for the betterment of society.  And two, we don’t have a good sense of whether the slams are the right level of deterrence.  Since we can’t easily observe the subjective cost of being slammed or the costs of cutting back on cola, we don’t whether we are over-deterring some soda sippers (or under-deterring Coke addicts).  In contrast, a deterrent that was denominated in dollars would give a clearer measure of subjective valuation.

These two features are the core of environmental economists’ case against command-and-control environmental regulation, of Bentham’s case against prison, and of Ed Glaeser’s case against nudges, but in a new working paper I suggest that there is more to the argument. 

On the informational point, I argue that we can use small-scale government experiments to match cashless incentives with their price equivalent.  A group of Harvard and MIT economists just did that recently, measuring the dollar-equivalent effect of a series of “sticky default” contract terms.  Once we know that, the informational advantages of cash incentives is greatly lessened.

 The first, transfer, point is more complicated.  One key aspect I’ll highlight here is that transfers are not free; when you impose a soda tax, you potentially distort people’s behavior in inefficient ways.  For example, if I’m motivated to go to work in order to be able to buy the things I like, and the City’s tax leaves me with fewer of those things, maybe I work less.  Though we don’t have any good evidence yet, it’s possible nudges don’t carry similar costs.   Maybe I’m only drinking all that soda because it’s fizzing so temptingly in its 32-oz cup.  Give me a 16-oz. cup, and I’m just as happy.  So while the nudge may bring in fewer revenues, it also may have lower social cost.  It’s theoretically ambiguous which effect is more important.    

Another aspect of transfers it that by their nature they move wealth from one group to another.  There is a complex literature on how to structure transfers---for example, should you use rewards (carrots) or penalties (sticks)?  Most choices come with some difficult tradeoffs.  In many settings, a policy with no transfers splits the difference, giving a third set of tradeoffs that might be preferable in some cases. 

So, long story short, we currently have no great reason to think that 16 ounces is the right default size for a cup of soda.  But the general idea of using nudges in place of other traditional policy instruments at least isn’t crazy.

Preparing to Teach Open Source Civ Pro Part III: Compiling the Materials (or, Why I Have the Best RAs in the World)

In my previous posts I have explored why I am moving towards an open source casebook for civil procedure and the materials I am using.  In this post, I'll outline the process for editing and compiling nearly 500 pages of cases and statutes in just one summer!  I'll also include my table of contents at the end, for anyone who is interested in seeing what made the final cut.  Next week I'll look at a different model, and spotlight the fabulous playlist that Glenn Cohen has made for his open source civ pro class at Harvard.

How to Put Your Own Materials Together ... And Still Get Your Summer Writing Done!

1.  Have Fabulous Research Assistants

The most important thing to note is that I had four part-time research assistants working with me this summer.  Each of them had full-time summer jobs elsewhere, so I want to give a public shout out to the students who worked incredibly hard with me to make this possible.  I could not have undertaken this project without them.

2.  Compile a List of Cases 

I began with the syllabus I had been using for the past few years. I canvassed other casebooks and syllabi to prune some cases and add others.  I also added a few cases that are not traditionally in casebooks.  For example, I decided to begin my course this year with a fabulous default judgment case in which a trial court entered a $1.26 billion default judgment against Pepsi.  (Joyce v. Pepsico, Inc., 340 Wis.2d 740 (2012)).  

Although the judgment is ultimately vacated, there are some fun personal jurisdiction and statute of limitations issues along the way, and it was a fun intro case for the class.  Well, fun by my standards...

3.  Assign Cases to RAs

Each RA received a portion of the syllabus and a copy of the student treatise.  I had them read the relevant sections and comment on the cases I had added and deleted from previous years.

4.  RAs Preliminary Edit 

Each RA downloaded the text of their assigned cases.  I instructed them to excise superfluous text (syllabus, extended caption, parallel citations, issues not relevant to our course), and then give a shot at their own edit.  I made several casebooks available to the RAs so that they could see how different casebook authors have edited cases.  I indicated which books had longer and shorter edits, and asked them to aim for a middle ground.  Not only did this save me a good deal of time, but I learned a lot from what they chose to include or exclude from the edits.  It was a good window into the minds of my students.  The RAs also found and edited the relevant rules and statutes.

5.  My Edits

The RAs returned the cases to me with all of their edits in "track changes."  I accepted many of their changes and added some of my own, often including short summaries of sections or opinions that I omitted from my edits.

6.  Compiling

I then compiled the final product!   It was printed and available for students to purchase for $20.35 in the bookstore.  Alternatively, they could download the materials from the class web course and print it on their own.

7.  Moving to Other Online Formats

I am slowly moving towards utilizing online formats that will make sharing, editing, and mixing my syllabus easier.  This is Glenn Cohen's approach on the H2O system, and I'll discuss the pros and cons of that method next week.  I hope that by next year I will also have my materials available in this format.

Download 2013 Course Packet Cover Page and Table of Contents

The Monitor-"Client" Relationship

I cannot believe it is already the end of August, and my time here is concluding.  I’ve thoroughly enjoyed writing a little bit about the questions I’ve been wrestling with.  In parting, I leave you with the abstract for my most recent article discussing monitorships (on SSRN here).  I hope we all “chat” again soon.

The Monitor-“Client” Relationship

Abstract

After the government discovers wrongdoing by a corporation, the corporation and the government often enter into an agreement stating that the corporation will retain a “monitor.” A corporate compliance monitor, unlike the gatekeeper, is not charged with “monitoring” the corporation in an attempt to detect and prevent wrongdoing. A monitor, unlike the probation officer, is not solely charged with ensuring that the corporation complies with a previously determined set of requirements. Instead, a corporate compliance monitor is responsible for (i) investigating the extent of the wrongdoing already detected and reported to the government, (ii) discovering the cause of the corporation’s compliance failure, and (iii) analyzing the corporation’s business needs against the appropriate legal and regulatory requirements. A monitor then provides recommendations to the corporation and the government meant to assist the corporation in its efforts to improve its legal and regulatory compliance - the monitor engages in legal counseling. The ad hoc structure of monitorships has, however, failed to facilitate the monitor’s function as a legal counselor. This failure is largely the result of structuring monitorships in an environment lacking bright-line rules and conceiving of monitorships as if a monitor’s only function is that of a governmental agent.

Yet the current monitorship structure is not necessary to achieve the monitorship’s goal, which is to establish a corporate compliance structure that deters and prevents future misconduct. This Article argues that providing a set of clear, enforceable, predictable rules regarding the scope of monitorships that facilitate a monitor’s function as a legal counselor will improve the long-term effectiveness of monitorships. This Article suggests one mechanism for achieving this goal - a statutory privilege - aimed at encouraging a formalized relationship amongst a monitor, the government, and the corporation, which re-conceptualizes the relationship as one of a “Monitor-‘Client’ Relationship.”

Settlement in NFL concussion lawsuit

The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.

Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).

Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.

Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?

NYC’s Soda Ban: What’s All the Fizz About?

Reaction to New York’s 16-oz. soda limit has mostly come in two flavors.  In the right-hand tap we mostly have complaints about paternalism and the nanny state.  On the left, some grousing that (legal obstacles notwithstanding) a soda or sugar tax would have been a better policy.  (Then lurking under the counter are the local government nerds, but let’s leave them be for now.)   I’ll confess that the paternalism argument is too much for me to swallow.  As lots of folks have now shown, there is a perfectly ordinary externality case for obesity control, regardless of whether the policies help us to better control ourselves.

One could say something similar about lots of modern nudges.  Many of them -- smart meters, smart buildings -- are aimed at a classic externality problem, such as climate change.   There isn’t really a paternalism story there.  Maybe we could debate whether the nudge-y approaches are less “coercive” than your usual command and control regulation, but since no one has an especially good definition of coercive, I don’t think we’ll get anywhere.  And indeed, I think that is what you’d see if you read the various back-and-forths on coercion between Sunstein et al. and their critics. 

Maybe the best argument Sunstein and others (in particular, Sam Issacharoff and some smart economists) offer is that nudges are less “coercive” in the sense that they are more efficient (though they don’t typically put it that way).  Usually, the nudge disproportionately affects people who need it the most---sticky pension defaults are most effective for procrastinators, and they’re the people who aren’t saving enough.  So the “deadweight loss” of the nudge is small: it doesn’t bother people who don’t need it.  But it’s not so clear how we tell this story about externalities.  Are procrastinators more likely to emit greenhouse gasses? 

This is a pretty narrow way of thinking about the efficiency of nudges.  There is no secret formula for policy evaluation; we know how to mix up a good batch of regulation.  Environmental economists compare taxes to “command and control” alternatives; crim. law scholars compare fines to prison and shaming.  We can infuse this same analysis into the NYC debate, or analysis of any old nudge.  Or, maybe not quite the same old classic analysis--maybe more of a New Coke flavor.  I’ll say more about that tomorrow.     

When former students return as hiring-committee members

Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students.  I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing.  Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving!  If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).

"Theory and Praxis," God Help Me

I have been a little busy with local politics and university activities lately, for my sins. I won't give a rundown on events, but a quick Googling of "Tuscaloosa," "election," and such quaint terms as "wristbands," "beer," "limos," and "Machine" will give you an idea. I've offered my direct thoughts on these matters elsewhere, but, hell, I am an academic, and I wanted to take a moment out for an academic reflection.

I remain pretty attached to the classic view of academics as people who do academic things in academic ways for academic reasons. Although I think there is more room for different approaches within the broader universe of higher educational institutions than he does, I generally sympathize with Stanley Fish's injunction to save the world on your own time. In both good and bad ways, I'm more a "theory" guy than a "praxis" guy.

But in the past day or so, I've been moved to reflect that there is actually a through-line between what I write about as an academic and what I've been involved with lately on a local level. It's not one I thought about as I acted, but it's there. I write a lot about institutions and institutionalism and their relationship to the First Amendment. I argue that a number of institutions, including universities, play a vital infrastructural role in our social structure and in public discourse. I believe their autonomy is important and that, in a sense, they should be viewed as partners in the First Amendment and not just subjects, and given substantial deference by courts. But I have always argued that there is a tradeoff or obligation here. Those who champion institutional autonomy must also take personal responsibility for the proper stewardship of those institutions: participating in governance if they are inside them and monitoring these institutions if they are not, encouraging those institutions to do the right thing as institutions, and criticizing them when they do not. "Faculty governance," "academic freedom," "church autonomy," and other such phrases are not just slogans to wave against outside interference; they are first and foremost burdens and responsibilities for the members of those institutions, and for the public at large. My piece "Act III of the Ministerial Exception" talks a great deal about this; so does a forthcoming piece I've written on the Fisher affirmative action case. And so, especially, does my book "First Amendment Institutions."

Again, I didn't really think about this as a precursor to my public involvement in the past couple of days; I just got involved because I felt I had to. But I *am* an academic, and so it was interesting to me (if no one else) to reflect on the relationship between what I write as an academic and what I have been doing "on my own time" in recent days, and to share those reflections. If a couple of books get sold too, I'm okay with that. Best wishes to all.

Sport and speech: The Bobblehead

Monday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.

Monday discussed it in a 2006 interview:

“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”

While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.

Chris Edley stepping down: refuah shlemah!

Haven't heard much news about this, so thought I'd share it. My former ad law professor, Chris ("Hugs and Kisses, the Agency") Edley is stepping down from the deanship of Berkeley Law after 9 years. Chris has some medical issues related to cancer that I hope resolve themselves quickly and completely (he seems as cheerful and optimistic as ever from the press release here). Gillian Lester will be the interim dean and Berkeley will be added to the list of schools undergoing a dean search this year. If they're smart, they'll surely consider/hire the object of my abiding bromance :-)

In the meantime, join me in warm wishes for a speedy and complete recovery to Chris and his family.

Fixed matches and cultural capital

A new article in ESPN The Magazine (which includes an embedded video) tells the story of rumors that Bobby Riggs tanked the famous "Battle of the Sexes" tennis match against Billie Jean King, which was played 40 years ago next month. The touchstone of the piece is an interview with a man who claims to have overheard two mob bosses and a mob lawyer discussing Riggs' tanking several months before the match, although rumors that Riggs threw it have abounded for 40 years.

Two notable things in the article. First, Riggs' son and his best friend both suggested that Riggs' famous pre-match chauvinism was all for show, that he believed in gender equality and had worked with a female coach at the start of his career. Second, the story ends with Riggs and King speaking several days before Riggs died in 1995; King says she told Riggs how important their match was to women and the women's movement. "'"Well, we did it," Bobby Riggs finally told her. "We really made a difference, didn't we?""

What if Riggs did tank? The match is a cultural milestone because it purported to show that women could successfully compete with men. That idea is absolutely true, of course (although not in high-level professional sports, and I wish the sports conversation would move away from women competing with men so we could enjoy women's sports on their own merits). But the match no longer represents the idea if King did not actually beat Riggs. On the other hand, suppose Riggs tanked because he saw that he could advance the cause of women's rights and women's equality (ideas to which he perhaps was sympathetic) by losing. Regardless of whether the win was real, it laid the groundwork for what we now, 40 years on, understand as true. And his dying words to King suggest he may have understood that.

"Icarus, too, was scornful of pedestrianism"

Here's a delightful essay from about 30 years ago by Daniel Farber bearing the subtitle, "The Case Against Brilliance," which may be worth revisiting at a time of year in the legal academic calendar when the glut of brilliant writing is enough to choke Charybdis.

The essay was written before most of Professor Farber's (brilliant) work on legal pragmatism, but one can certainly see some of the critical roots of it here. Farber's primary target is economics but he saves a little something for constitutional theory:

In most fields of intellectual endeavor, the highest praise is reserved for brilliant insights that overturn conventional thinking and common sense. Albert Einstein's theory of relativity, for example, changed completely the way we think about the interrelationship of time and space. Economists and legal scholars, always looking over their shoulders at the "hard sciences," traditionally have applied the same standards in their own fields. But actually, "brilliance"—new ideas that turn conventional thinking on its head—should count heavily against an economic or legal theory . . . .

Not everyone agrees that the intent of the framers is what counts in constitutional interpretation. But virtually everyone agrees that a bedrock principle of law is consent of the governed. A brilliant theory is by definition one that would not occur to most people. The general problem with brilliant legal theories is: How can most people have agreed to something that they could not conceive of?

Supreme Court decisions often fall victim to similar brilliant interpretations. Perhaps the most famous recent example is Justice Rehnquist's 1976 opinion inNational League of Cities v. Usery, which struck down the federal minimum wage for state employees. Two brilliant Harvard professors have argued that Rehnquist's opinion actually established a constitutional right to welfare. In his treatise, American Constitutional Law, Professor Lawrence Tribe explains that Justice Rehnquist "seemed sometimes to lay the foundations for precisely such a theory"; that some of the language "may be read to suggest" this theory; that the theory makes sense of "an otherwise problematic distinction"; and that a tension in the cases "may well reflect an unarticulated perception" that the theory is correct. A footnote adds that the author doubts whether any other explanation makes sense. Only through this brilliant re-interpretation, then, can the Court's decision be salvaged.

Of course, this interpretation was so dazzlingly brilliant just because it was painfully obvious that Justice Rehnquist had no such thing in mind. Indeed, the only members of the Court who were remotely likely to be receptive to a constitutional right to welfare were the liberals, all of whom dissented from Justice Rehnquist's opinion. There is something inherently suspect about an interpretation so clever that it never would have occurred to the speaker or the audience. 

If my arguments are correct, then the standards for judging academic work in economics and constitutional law should be reconsidered. There is a tendency for high-flying theorists to scoff at those whose work stays closer to the ground. Icarus, too, was scornful of pedestrianism.

H/T Sam Bray.

One More Thing on Ginsburg and Retirement

I'm grateful for the discussion on my post about Justice Ginsburg's interview with the Times--especially the criticisms. I had one more, related observation I wanted to make, which is less about the interview and more about the "retirement" issue. I should acknowledge up front that it involves some generalizations and premises with which people might disagree. Obviously I think I have a valid point to make, but it is at least a little speculative and not perfectly worked out. If I'm out on a limb here, I don't think I'm alone on that limb: Sandy Levinson has made some similar observations. But that doesn't mean either of us are right, of course.

As I have read the discussions about Ginsburg and retirement, I have seen two conflicting themes. 1) Ginsburg's retirement--or anyone's retirement, including Justice Breyer, although she is older and has been through various health scares, and it seems unlikely that such an invitation would be productive if addressed to the Court's conservatives--ought to retire now, while the Democrats might successfully secure her replacement, because if she retires later her place might be filled by a conservative, risking further damage to what liberals view as the proper direction for the Court. 2) This suggestion is impertinent at best, sexist or outrageous or both at best. Of course Justice Ginsburg shoudl retire when she thinks she should retire and not be pressured to step down early. This view is usually accompanied by various encomia to Justice Ginsburg, her role on the Court, her important work on behalf of equality rights for women, etc.

There are also, in my view, two sub-themes running through this discussion. The first is a liberal concern with (liberal conceptions of) justice, rights, the importance of the Supreme Court to these and other fundamental issues, the direction of the Court and the country, and so on. Of course this is the motivation for theme 1) above, but certainly these values are shared by most of the people voicing theme 2), and are often voiced in passionate terms.

The second is the tendency toward hero worship in prominent sectors of the American legal world, most definitely including both the "political"--here in the sense of legal liberals vs. legal conservatives--and the legal academic worlds. (Of course there's a lot of overlap here, but there are plenty of non-academic legal partisans.) This isn't surprising in an environment that is both sentimentally attached to history and largely run on connections, credentialism, and a love of prestige. But it's still striking in a profession that also makes noises about the importance of critical, dispassionate analysis. I don't know whether it's more true here than elsewhere, but elite (or at least well-credentialed) American lawyers are a hero-worshipping bunch if I've ever seen one. Perhaps it starts before law school, but it is certainly encouraged by the arrested adolescence that characterizes the law school experience. It is further maintained and encouraged by the arrested adolescence that similarly characterizes the clerkship experience. It extends to Janet Reno dance parties, black-tie FedSoc dinners with Justice Scalia, and so on. It never seems to die.   

Whether on the surface or just beneath it, a lot of the angry defenses of Justice Ginsburg's entitlement to sit as long as she chooses seem to involve a heavy dose of hero worship. I'm sure she's earned it! (More because of what she did as a practicing lawyer than what she has done on the Court, in my view, but opinions may differ.) But it should be recognized for what it is. 

I just don't think that motivation sits well with the other sub-theme, the theme that emphasizes the crucial importance of liberal legal views and their protection or advancement by the Court. If you don't think that the Court is that important, or don't care that much about rights or legal liberalism, or just think of the Court and its work as an "intellectual feast," or just really value hero worship, then the view that Ginsburg should feel free to retire when she feels like it makes sense. On the other hand, if you're really serious in thinking that the cause of legal liberalism matters a lot, and that the fate of the Court matters a lot, then you should care a lot more about that than you care about the entitlements of your heroes. You should care about the cause, not the privileges of its leaders. And if justice, rights, and that kind of stuff is your motivation, then it seems to me that you should be on board with the view that these things would be advanced by the immediate retirement of Justice Ginsburg (and/or Breyer).

Of course people may have multiple interests and motivations, although that doesn't seem like a full response, since you're still going to have to balance them at some point or conclude that one concern is more important than the other. For myself, absent a change in the nature of federal judicial tenure, I'm fine with Justice Ginsburg serving as long as she wants and is able, and thought the "pressure" for her to retire was a little silly as well as futile. But I am not as passionately motivated by legal liberalism and its causes, or as inclined to think of the Supreme Court as a palladium of liberty, as some of Justice Ginsburg's most vocal defenders are.

Perhaps it's worth their considering whether they are not, in fact, more motivated by hero worship, and a concern for the prerogatives of the hero, than by a strong concern for legal liberalism.  

 

Law School Hiring, 2013-2014, Thread One

We invite those on the market to leave comments on this thread regarding whether they have received:

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Four miscellaneous things:

1. If you don't want your contact information displayed, enter [email protected] or something like that as an email address.

2. There is a  separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)

3. There's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

4. Finally, in each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.

We now have an aggregator, and we will thus continue our spreadsheet approach: All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information.  Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.

Here is the spreadsheet, which is downloadable.

Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.

Good luck!

A Clearinghouse for Questions, 2013-2014

In this post, you can ask questions about the law teaching market, and prawfs or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, slawsky*at*law*dot*uci*dot*edu.

We have a different thread in which candidates or prawfs can report on callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.

(Before you ask your questions, you may want to take a look at the many questions and answers in the threads from 2011-2012 and 2012-2013.) 

Update: here is a link to the last page of comments.

Southeastern Law Scholars Conference: Call for Papers

               The Charleston School of Law is pleased to host the fourth annual Southeastern Law Scholars Conference on October 4-5, 2013.  This regional conference will bring together junior law school faculty to present published papers or works-in-progress across all disciplines within the law.  The conference is open to all junior law faculty (one to seven years teaching experience) at law schools in the United States.  To ensure an atmosphere conducive to feedback, space is limited to twenty participants. 

               The conference will begin with a reception for all participants on Friday, October 4, 2013.  On Saturday, October 5, 2013, conference participants will present either a completed paper or work-in-progress, and comment on the papers and ideas presented by others.  As the host school, the Charleston School of Law will provide breakfast and lunch on Saturday, October 5th.  There is no registration fee.  Participants, however, are responsible for their own travel expenses. 

               To participate in the conference, please send an email to conference organizer, Professor Sheila B. Scheuerman at [email protected] by Monday, September 9, 2013.  Please note whether you will be attending the reception on Friday, October 4th in your email.  In addition, please include the title of your presentation topic and a short abstract.  Please direct any questions, comments or suggestions to Sheila B. Scheuerman at the email address above.  

Vaccine Refusers: A Shot at Liability?

       The pastor at Eagle Mountain Church, a mega-church located in Tarrant County, Texas, has apparently been preaching an anti-vaccine message based on worries that vaccines cause autism in young children, a theory that has been discredited by the scientific community. It appears that a large contingency of the church members chose not to vaccinate their children, and now Eagle Mountain Church is the epicenter of the latest measles outbreak in the United States. A man contracted  measles in Indonesia while on a mission trip and visited the  Eagle Mountain Church shortly thereafter before he knew he was exposed to the disease. As of today, there are fifteen cases of measles in the county: nine children and six adults ranging in age from 4 months old to 44 years old. All of these cases can be traced to the church visitor, according to the local public health department. At least twelve of those who contracted measles were not fully immunized against the disease, while the other patients have no record of being vaccinated. Eagle Mountain Church has now quickly set up a measles vaccination campaign in the hopes of stopping the spread of the disease in its congregation, albeit reluctantly (the pastor still expresses concerns about vaccination in press interviews about the outbreak.)  Despite the pastor’s misgivings, measles vaccines are around 95 percent effective when given to children. Although this means that the disease still poses a public health risk, public health officials rely on others to get vaccinated to reduce the likelihood of outbreaks. That is how herd immunity works.

            To encourage this, Texas requires all children to be vaccinated against measles when they enter kindergarten in private or public schools.  According to the state health department, 98 percent of Texas students comply. But Texas is one of many states that allows conscience exemptions for vaccinations. Chapter §97.62 of the Texas Administrative Code requires a signed affidavit by the child's parent or legal guardian, stating that the child's parent or legal guardian declines vaccinations for reasons of conscience, in order to take advantage of the exemption. The regulation notes that a child, who has not received the required immunizations for reasons of conscience, “may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.” If this outbreak spreads, the 1% of Texas students whose parents signed the affidavit may be required to stay home from school.

         So how many of the children infected with measles in the Eagle Mountain Church outbreak had filed a personal exemption in accordance to state law? None of them. They did not need to, as they are all home-schooled. I live in an area in Central Florida where many of my neighbors home school their children. Although they are “home schooled,” they travel outside the home for organized physical education, sports, and another extracurricular activities with other home schooled and non-home schooled children several days a week. It strikes me that the vaccination rules should apply to home schooled children for many reasons.  First, the rationale for including private and public school students would apply to home schooled children, as they are often around other children. More importantly, I believe this would serve as a deterrent to conscience objections (some people may dislike vaccines, but they may dislike having to go through the steps to get the affadavit form and fill it out --even more.) Another purpose would be for epidemiological reasons. Depending upon the state or area of the state, a large population of children may be home schooled and if they are not immunized, local public health officials should know this for record keeping and tracking purposes.                           

           As a person with a public health background, these outbreaks are maddening. Vaccines are safer than ever, and they work. The link between vaccines and autism has been discredited, and Dr. Andrew Wakefield, the researcher who first claimed a link between autism and the Measles Mumps and Rubella (“MMR” vaccine), has had his medical license revoked and his article retracted, but the public skepticism about vaccines remains. This is despite the mountain of peer reviewed scientific evidence that does not find any link between autism and vaccines. All over the United States, we are seeing outbreaks of measles similar to the Eagle Mountain Church outbreak due to vaccine refusers. For the most part, parents who refuse to vaccinate their children for non-religious reasons are usually doing so in the belief (however mistaken) that they are protecting their children. However, by doing so, they put others at risk.

             Recently, this anger at vaccine refusers seems to have reached a boiling point, with some recommending that conscience objectors of vaccines face tort or criminal liability if their lack of vaccination causes others in the community to become infected. Art Caplan and his co-authors published a thought experiment in the Journal of Law, Medicine & Ethics, where they worked through a hypothetical case quite similar to the Eagle Mountain Church example. The article outlines a potential tort theory and criminal theory for vaccine refusers to be held liable to those who may contract the disease from their non-vaccinated child(ren). Under the torts analysis, the liability would be based on negligence. In the Eagle Mountain Church example, could there be any tort liability against the non-vaccinated individuals if they spread the disease to infants who are too young to be vaccinated or to vaccinated individuals? Here, the individuals infected did not rely on any statutory religious or conscience exemption.  That makes the case a bit easier to argue that those who refuse vaccinations are acting unreasonably and thus should be held liable for any harm they cause. Some have analyzed these cases as examples of nonfeasance, rather than misfeasance. I do not see this as a case of people refusing to act, but rather as acting to create an unreasonable risk to others. One of the difficult parts of the negligence analysis here would be causation—both whether that particular individual’s failure to vaccinate actually caused the disease that the plainfiff was suffering from and whether this was foreseeable. But these are not insurmountable. The CDC has a database to identify which strain of measles an individual has contracted.  Such data would help create epidemiological evidence linking the plaintiff's illness to the non-vaccinated defendant's illness.   But I am not sure such cases would satisfy actual causation. That is, but for the defendant not being vaccinated, would the plaintiff have contracted the disease? In the case of a massive outbreak, the answer is difficult. The plaintiff may have been exposed to several people who were capable of spreading measles. Also, since it is possible for vaccinated individuals to contract the disease and spread it (although very very rarely), it is possible that the plaintiff could have been infected even if the individual had been vaccinated. This would make the causation question potentially difficult to prove.

      There are also other legal theories to try to discourage vaccine refusal. In a 1992 New York case, In re Christine M., a father refused to vaccinate his three-year-old daughter against measles despite a New York law requiring measles vaccination. In re Christine M., 595 N.Y.S.2d 606, 618 (N.Y. Fam. Ct. 1992). There was a serious outbreak of measles at the time of the case, which placed unvaccinated children at high risk for contracting the disease. The New York Family Court found that this behavior rose to the level of neglect under New York’s Family Court Act. Of course, this was before Wakefield’s discredited study and the powerful anti-vaccine movement so it is unclear whether such a ruling would occur today, but the case is a promising example of the power of family law to perhaps help in public health efforts.

       That said, even more than legal interventions, we need to regain the trust of the public in vaccines and in public health in general. Legal efforts to punish vaccine refusers may actually result in a backlash and even more of a conspiratorial, nanny state narrative. Not all vaccines are created equal. The MMR vaccine is very different than Hepatitis B or HPV vaccines, and parents should be leveled with about that. If parents wish to apply for a conscience objection, they should be educated by medical or public health professionals at the time of the request about the risks of not getting their children vaccinated. Parents may not know how their decisions could put their own child or other people at risk.  Also, sometimes with good intentions, public health tends to oversell and overhype.  Vaccines are good, and much safer than the alternative for most individuals, but they are not perfect.  Honestly and clearly acknowledging and disclosing risks of vaccines also helps public health regain credibility. These steps may go a long way in helping earn that trust back.

Two Cheers for the President's "Two-Year" Proposal

I seem to be more favorably inclined toward President Obama's proposal to make law schools two years than Matt, who posts below. I think he raises some sensible concerns and that there is nothing wrong with doing so. I agree with his urging us to consider questions of pedagogy, although 1) law schools, which still insist in the main on hundred-percent end-of-semester finals, are a little spotty on serious consideration of pedagogy, and 2) when Matt writes that "choices about the required program of legal education should be based on pedagogy," I'm less certain that this should be the only consideration. I can appreciate the logic of his speculative statement that "with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared," although 1) it's not self-evident to me that this education necessarily needs to take place within the law school, and 2) as Matt acknowledges, we must still ask whether the costs of this additional education outweigh its benefits. In short, I think he raises some valuable cautions, but they are just cautions; and I tend to have a more positive view toward two-year legal education than Matt appears to have.

Why only two cheers, then? I withhold one cheer because of the seemingly uniform nature of the President's proposal. ("Typical command-and-control Democrat!") I tend to think that there are a variety of different models that law schools could pursue if they went to a two-year program. And I tend to think that there is equal room for a variety of other approaches, including traditional or modified three-year programs, programs that perhaps involve very little classroom time at all, and even doctoral or doctoral-type programs that involve longer stays. Assuming that proper information is publicly provided about these programs, their price, their purposes, their employment outcomes, their different costs and benefits--and that is a huge and probably currently unwarranted assumption--then I think there is room for diversity, differentiation, specialization, and competition here. (I agree, of course, that questions of cost and the sources of financing are also highly relevant.) I think the arguments for a uniform three-year program are weak and am more sympathetic to a two-year program than Matt currently seems to be. But I think the best answer to the problems the President raised is unlikely to be a single answer or another uniform proposal.    

Unnecessary and Inappropriate

That, in brief, is my take on this interview Justice Ruth Bader Ginsburg gave to the New York Times for today's paper. In it, she made clear that she was unmoved by pressure from some liberals for her to step down while a Democratic president can appoint her successor; said, according to the Times's paraphrase, that "her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy," although she suggested that she did not think this was likely to happen; and criticized the activism of the current majority and several specific decisions.

The interview was unnecessary. To whom was she speaking? Her colleagues on the Court already know what she thinks, and she has ample alternative means of sharing her views with them. I doubt that conservatives off the Court will be moved much by her interview one way or the other. That leaves two liberal constituencies aside from the general public: the administration, which already knows she won't shove off; and establishment legal liberals of the ACS type, whom she can easily address more directly in person. That leaves, in my view, little serious point to this interview. If she had had something novel to say, I would be more charitable about her doing the interview, but she doesn't. Given my view that the interview was unnecessary, given the obviously political overtones of her charges, and given my general view that judges should not absent extraordinary circumstances or special needs make public political statements, I conclude that the interview was inappropriate.

One friend whose views I respect praised the speech as an instance of "speaking truth to power." I confess I almost always resist the use of this phrase, which I think is mostly both overused and misused. Much of the time, what people hold out as examples of "speaking truth to power" involve people who are themselves powerful; don't involve instances of the speaker actually directly addressing a powerful person with whom they disagree, but rather involve addressing an audience (often a powerful one) that already agrees with them, and to whom they are careful to say nothing disagreeable; and in any event don't involve speaking novel and disturbing truths, but well-worn and banal statements. All those things are true here. Whatever else one could call the interview, I don't think "speaking truth to power," especially with its (unduly, mostly false) romantic overtones, captures it.

For the most part I leave aside the question whether she should retire, and why she rather than someone else should be the target of efforts to get her to retire. I tend to think justices shouldn't serve forever but are free as a matter of present fact to serve as long as they wish, regardless of what it does to the long-term health of their jurisprudence. At the same time, however, I don't think "I really admire X" or "X has done so much for us" is a sufficient basis for the conclusion that "as far as I'm concerned, X can serve as long as he or she wants." If you think law and the Supreme Court matter, and you share Ginsburg's political views concerning the Court, you should probably conclude that the cause of justice would be best served by her retiring soon. On this view, Ginsburg's adamance is more selfish than justice-seeking. And, indeed, there is no doubt that a certain (no doubt well-earned) sense of high self-regard infuses the interview. But one needn't take this view of the Court or its importance, or the importance of a liberal version of politics or justice.

The bottom line, for me, is that the interview was unnecessary, and when you combine the fact that it was unnecessary with the political nature of her advocacy in the interview, it was perforce inappropriate. I don't doubt that some will applaud the interview because they like her, or like what she said, or both. Neither those reasons, nor the general goal of pleasing or rallying the base, are sufficient reasons to justify it. Justice Ginsburg insists in the interview that she is still fully capable of making decisions. I have no reason to doubt it. But her decision to do this interview was itself unwise and more than a little self-indulgent.     

 

Technical advisers

I have complained before about what a poor job TV and movies do in depicting law, lawyers, and legal issues. Along those lines, this post from Ken Levine (a TV writer/producer-turned-blogger) discusses his experiences with the military technical adviser from M*A*S*H*; there also are some reader comments. None of the stories is about legal advisers, but one can imagine many of the same issues and stories coming up. My favorite is about the adviser for Big Bang Theory, a physics professor at UCLA who writes equations on whiteboards for scenes; apparently he put the answers to his final exam on the whiteboards.

Living Precedent

On November 5, the Supreme Court will hear arguments in Bond v. United States.  The case involves whether, as seemingly suggested in Missouri v. Holland, a treaty may expand the domestic regulatory powers of Congress beyond those enumerated in the Constitution.  A key issue in Bond is whether the criminal law portions of the statute implementing the Convention on Chemical Weapons are “necessary and proper” to executing an exercise of the Treaty Power.

The idea that the Treaty Power can extend the domestic regulatory powers of Congress beyond those enumerated in the Constitution is an interesting question and will, I am sure, be the focus of much of the debate moving forward.  I am thinking about a different aspect of the issue, however, one that relates to the meaning of “necessary and proper” and the role of McCulloch in construing that clause.

More after the break  

Under Article II, Section 2, cl. 2, the President “shall have power, by and with the advice and consent of the Senate, to make Treaties.”  Under Article I, Section 8, cl. 18, Congress has power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  Finally, under Article VI, cl. 2, “[t]his Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”  Together, these clauses establish that Congress may displace state law by way of laws that are “necessary and proper” to execute an exercise of the Treaty Power. 

But how do we interpret “necessary and proper”?  Scholars such as Gary Lawson have developed theories of the original meaning of the Necessary and Proper Clause.  Proponents of broad theories of national power, however, look to the interpretation of the clause provided by Chief Justice John Marshall in McCulloch v. Maryland.  But why choose Marshall over original meaning?  To begin with, whether Marshall got it right as a matter of original meaning is a matter of considerable dispute (and was at the time he issued the opinion).  One may, of course, reject the idea that we should follow original meaning in the area of federal power because there is no good reason to follow the ideas of generations long past who had no idea what we would face in the twenty-first century.  But this is a criticism that applies equally to the original meaning and Marshall’s original opinion.

Another approach counsels the need to view the Constitution as a living document, the interpretation of which properly changes from generation to generation as new needs, ideas, and beliefs inform the public (and the members of the Court).  We can take the document as a simple framework and “build-out” (to use Balkin’s phrase) over time.  These “build-outs” can also be taken down as needs arise (see the Court’s rejection of Lochner). 

But the same reasoning would apply to McCulloch.  There is no reason to view the decision as anything other than a “frame work” that can be built upon by one generation (under Marshall) then partially torn down in another (Taney, the Lochner Court), then built up again (Warren), then partially torn down again (Rehnquist, Roberts).

The question becomes whether a commitment to “follow the text of McCulloch” tells us anything more about whether to construe the Treaty Power broadly or narrowly than does a commitment to “follow the text of the Constitution”  What is our theory of living precedent?

The Problems with the President's Two-Year Plan

At a town hall event in Binghamton, N.Y. earlier today, President Obama was asked the following question:

I'm a faculty member of the computer science department.  I'm very excited and encouraged by your plan on the affordability reform.  My question is related about the quality of future higher education.  As you know, many universities are trying their best to provide the best value by doing better with less.  But the challenges are real, and they're getting tougher and tougher as the budget cuts are getting tougher and tougher.  So my question is what your administration will do to ensure the best American universities remain to be the best in the world in the 21st century?

After acknowledging that state educational funding had dropped off significantly (". . . what you've seen is a drop from about 46 percent of the revenues of a public college coming from states down to about 25 percent"), the President then turned to ways in which universities could also cut costs:

So states have to do their jobs.  But what is true also, though, is that universities and faculty need to come up with ways to also cut costs while maintaining quality -- because that’s what we’re having to do throughout our economy.  And sometimes when I talk to college professors -- and, keep in mind, I taught in a law school for 10 years, so I’m very sympathetic to the spirit of inquiry and the importance of not just looking at X’s and O’s and numbers when it comes to measuring colleges.  But what I also know is, is that there are ways we can save money that would not diminish quality. 

This is probably controversial to say, but what the heck, I’m in my second term so I can say it.  (Laughter.)  I believe, for example, that law schools would probably be wise to think about being two years instead of three years -- because by the third year -- in the first two years young people are learning in the classroom.  The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much.  But that step alone would reduce the cost for the student.

Now, the question is can law schools maintain quality and keep good professors and sustain themselves without that third year.  My suspicion is, is that if they thought creatively about it, they probably could.  Now, if that’s true at a graduate level, there are probably some things that we could do at the undergraduate level as well.

The full transcript is here.

I'm sure a lot will be said about this in the upcoming days, but since it's a Friday night in August, I thought I'd weigh in with a few initial thoughts.  So here they are:

(1) The President's proposal does not lower tuition.  It may seem obdurate to suggest that lopping off a third of the legal education provided to students would not reduce the tuition they pay.  But it won't -- at least, not on its own.  Yes, it will cut the costs of providing that education, at least in theory.  But it won't lower tuition.

Frankly, I'm somewhat baffled that proponents of the two-year plan -- and, in fact any proposal to cut the costs of providing legal education -- fail to grasp this point.  We just went through a period where a lot of law schools raised their baseline tuition at rates significantly higher than inflation despite the fact that the J.D. remained the same number of credits.  In other words, over the last decade law schools charged significantly more per credit hour.  What's to prevent them from doing this in the future?  

But, how, you may ask, could law schools really charge the same price for 1/3 less education?  Well, play it out.  Let's suppose some states allow students to sit for the bar after two years, rather than three.  Some schools would change their J.D. programs to two years, but many would not.  In fact, it's more likely that the higher-ranked schools would keep their programs as is.  But putting that variable to the side -- yes, there would be competition at lower-ranked schools, and many would create two-year programs.  But they would charge what the market could bear.  And up until very recently, that market could bear about $100,000 to $150,000 for a J.D. with many students lining up for it. Why wouldn't that market dynamic remain the same?  

If you need further proof, just look at Matt Leichter's school-by-school analysis.  As he said, "law schools do not care about controlling their costs and will shift them onto students who don’t realize that their predecessors had a significantly better deal than they did."  Since I'm a law professor, I would frame this differently (schools will keep spending to improve the education they provide and their reputation), but the point is the same: law school tuition is not constrained by credit hours.

If someone magically changed the J.D. program at my law school to two years, I wouldn't shrug my shoulders and go, "Oh well -- guess we're only two years now!"  I would work with my colleagues to figure out how we could make those two years meet the needs of our students -- and pack as much in as possible.  If the same U.S. News rankings remained in place, don't you think schools would continue to compete on class size, expenses per student, and educational reputation?  And wouldn't that drive up costs?  What if, in the new two-year law school, we added a clinical component, an externship component, and a ten-person small section component to the basic Contracts class, and then assigned it to a doctrinal professor, two clinical professors, and four adjuncts?  That would be a better class, no?  But it'd also be a lot more expensive.  A school could easily justify spending $60,000 or more a year per student -- again, if the market rewarded schools for offering such classes.  (As an aside: is it better to have two years of intensive classes or three years of broader offerings?  That's an interesting pedagogical question -- but it's a pedagogical, not a financial, one.)

So I do think, initially, a two-year program would lead to reduced tuition.  But would it hold that way?  I don't think so.  The pressures towards education excellence would increase costs to meet whatever students and their lenders were willing to pay.  That's not necessarily a bad thing, if consumers have the proper price sensitivity.  But if you want tuition to go down, work on that.  Otherwise, the assumption that law school tuition will go down if costs go down is like the argument that 11 is louder.  It assumes that law schools just can't make 10 louder themselves.

(2) The President's plan would worsen the jobs aspect of the current crisis.  No one doubts that a significant part of the current crisis is based on the drop in employment opportunities for law school graduates.  If we change the requirements so that lawyers from here on out would only need two years of school, there would be more of them, and they would come to the market more quickly.  And that would be a bad thing for those lawyers who are currently in the market.

Again, this seems to be a point that many reformers are either missing or are conveniently ducking.  If you think there are too many law grads chasing too few jobs, then you really want fewer law grads.  And if you are making legal education cheaper to provide, either by lopping off a third of the education required, or getting rid of tenure, or loosening other accreditation requirements, then you are putting down incentives for *more* law grads to be out there.  And here's the Scylla-and-Charibdis: either tuition will not go down, and law schools will just make more money off their students as their costs drop, or tuition will go down, and more students will have the economic incentives and ability to go to law school.  Pick your poison.

(3) Choices about the required program of legal education should be based on pedagogy.  The President proposed lopping a third off of legal education because "by the third year -- in the first two years young people are learning in the classroom.  The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much."  That's not much of a pedagogical theory -- I guess he doesn't like clinics -- but then again, there's not much pedagogy to a lot of these theories.  I believe that with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared.  Of course, it is always the job of law schools to provide the necessary education at a sustainable price.  But schools can provide a three-year legal education at a sustainable price.  In fact, we've done it in the past.  

If we find that a two-year J.D. provides an adequate education, then we should adopt it.  But if we reduce the quality of our legal education -- and reduce it in ways that leave lawyers less able to handle their vocations -- simply because we can find no other way to reduce the price, then shame on us.

Why Are Law Journals' Operating Dates Secret?, or, How Bepress & Scholastica are Making Me Crazy

Yes, this will be a rant.   We have a whole thread here on prawfs--sometimes running to hundreds of comments--whose existence derives mainly from the fact that no one knows when the heck law journals are actually considering submissions.  Can someone explain to me why this information is not readily available, and well in advance, whether on the journals' web site, or (more conveniently) displayed on the submission aggregators' pages? 

Let me take a moment to explain for editors why this is so aggravating.  First, submissions are not free and often are not effortless (while the marginal effort entailed in adding another journal is small, it is not zero, especially in terms of good record-keeping).  I spend a lot of time preaching to authors that they shouldn't waste journals' resources needlessly; I suspect that project would go a lot better if journals took a similar attitude towards authors.    Also, authors frequently need to know which journals are reviewing in order to make meaningful decisions, such as when to submit, or when to agree to give up expedite oppportunities in exchange for a deadline extension. 

That's the practical; there's also the emotional.  It is hard to express how frustrating it is to have no idea whether a journal is even open for business when you are waiting to hear on an expedite.  A great source of my admiration for Columbia for many years was that they always, always, responded to expedite requests.  That professionalism has slipped a bit of late, which I take as a sign of the times.

Bepress and Scholastica are not helping.  I suppose bepress eliminated the "confirm receipt" button because journals didn't like it (and competition from the confirmationless scholastica forced the change).  Authors loved it.  Add a "confirm expedite receipt" button and we'd be swimming in milk.    At a minimum, pushing journals to regularly and accurately update the "Open for Business" sign would be super helpful to us author shlubs.  (And come on, journals, it can't take more than 2 minutes to do that.  It means a lot to us, and might even cut down on the overwhelming pile in your inbox.)  Better yet, how about a "there are n seats left on this plane" display, like the airlines use? 

Reform, Not Rankings?

Should Princeton Review be alarmed?  The federal government is getting into the college ratings business.  The President yesterday announced a proposed system for rating colleges’ cost-effectiveness, and tying federal loan subsidies to the resulting rankings.  If you think the problem is that colleges have no incentive to cut costs, it makes some sense.  But the implementation has serious question marks, not the least of which is that someone in the government will have to decide how much more expensive it ought to be to train, say, engineers vs. poets.

What about nonprofit governance reform instead, or maybe also?  In my last few posts, I’ve sketched our findings that university dependence on donations tends to restrain executive compensation.  We also find a strong correlation between pay and tuition.  By itself, that correlation doesn’t really tell us anything about causation.  But in combination with our detailed findings about donor influence, it begins to seem more likely that presidents may prefer to emphasize tuition in order to reduce their dependence on donors.      

That isn’t exactly iron-clad proof.  But it’s at least suggestive.  Reforming executive compensation might not give colleges incentives to hold down student costs, but it at least could diminish their executives’ interest in letting costs rise.     

Could we tell the same story about law schools?  It’s possible---we don’t have much data about private law school deans---but keep in mind the environment is different.  Only a handful of law schools get any significant fraction of their operating budget from donations.  So I don’t think the story we tell quite translates.  That’s not to say there aren’t agency problems in law schools, just that they probably take a different form.   

CFP: "New Voices in Public Remedies"

The AALS Section on Remedies will host a section program on “New Voices in Public Remedies” at the AALS Annual Meeting in New York. The program will be held on Saturday, January 4, 2014 from 2:00-3:45 pm.

The program will provide an opportunity to hear from junior scholars who are writing in the field of public remedies. Confirmed panelists include Kent Barnett (Georgia), Samuel Bray (UCLA), and Jennifer Laurin (Texas). Two additional speakers will be selected through this call for papers, which is open to nontenured
and recently tenured academics who teach and write in Remedies, Federal Courts, Civil Rights Litigation, and other associated topics.

In addition to the program itself, which will be moderated by Margo Schlanger (Michigan), the section will pair each presenter with a senior scholar in the field who will, separately, provide substantive feedback on the article. Those wishing to be considered for the section program must submit a draft article by October 15, 2013. Selected presenters will be notified by November 1, and must then plan to register for and attend the AALS Annual Meeting in New York.

Please submit drafts to Sam Jordan, Remedies Section Chair, at [email protected]

The Corporate Compliance Monitor v. the Internal Investigation

In my last post I explained why corporate compliance monitors appear to provide a different function than that of probation officers.  Today, I am going to briefly compare the function of the corporate compliance monitor to that of the attorney retained to conduct an internal investigation.

It is relatively common for a corporation to run its own internal investigation when it finds that wrongdoing may have occurred.  Such investigations are often led by a team of in-house and outside counsel and increasingly involve compliance personnel.  A primary purpose is to advise the corporation on how to handle the legal or regulatory failure, which places the investigation within the bounds of the attorney-client privilege.    

In contrast, a corporate compliance monitor most often arrives after an internal investigation has occurred; after the scope of improper conduct has been investigated and confirmed as part of the process necessary to obtain an agreement between the government and the corporation.  A monitor is not charged with providing legal advice regarding the prior violation and how best to deal with it.  Instead, a monitor counsels the corporation and the government on how to ensure that the corporation’s future business conduct complies with legal and regulatory requirements.  Unlike lawyers conducting an internal investigation, a monitor provides advice that is both outside the bounds of the traditional attorney-client relationship and under the auspices of government mandate and control.

Seriously? quote of the day

From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:

"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."

Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior  financial resources to overwhelm governments in § 1983 litigation.

I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.

Washington's letter and the American-Jewish experience

This is a few days old, but I still wanted to write about it. On Sunday, Justice Kagan gave the keynote at Touro Synagogue in Newport, R.I. for the reading of George Washington's 1790 letter to the Hebrew Congregation of Newport. In the letter, written just after an official visit to Newport, Washington presented a vision of religious freedom in which "the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens." Whether the nation does or has lived up to those principles, they are stirring words, especially giving the (rather negative) Jewish experience as a separate community within a host country.

Kagan spoke about her family history and her experiences growing up as a Jew in the United States, which I appreciated because, as I wrote at the time of her nomination, we are on the same basic point in the curve of American Jewry. My family comes from the same area of Eastern Europe, which was sometimes in Russia and sometimes in Poland. Like hers, my grandparents primarily spoke Yiddish, worked laboring jobs (they owned a fruit stand in Brooklyn), and made sure their children got an education (usually at one of the schools in New York City, such as Hunter or City College), and broke into professions. By the time their grandchildren came around and moved into adulthood, there were no avenues that were closed off to Jews because they were Jews and little or no formal or institutional anti-Semitism. As Kagan said, all that is possible because of the commitment to religious and political liberty (even if purely rhetorical) reflected in Washington's letter.

How often do classes meet? How often should they meet?

A very informal survey/information request:

How often do you your classes meet in a week? In other words, for a four-hour class, do you meet four times (50 minutes each), three times (70 minutes each), or twice (105 minutes each)? For a three-hour class, do you meet three times (50 minutes each) or twice (75 minutes)? And is this a matter of school-wide policy or is it left to individual faculty to state their preferences for the associate dean to accommodate? What are your preferences? And what are the prevailing trends?

In my small corner of the teaching world, I see an increasing move towards twice weekly meetings, even for four-hour courses. I believe all of our four-hour 1L classes are being done that way this semester. Are other schools seeing a similar trend? This move, by the way, is driven equally by students and faculty: Students want to limit how many days they have to come to school and especially want to avoid coming to school on Fridays, so they would rather do fewer meetings of greater length. Faculty would rather teach twice per week, which gives them an extra day to write. I will teach Civ Pro in three sessions next spring (my strong pedagogical preference) and I know someone will ask me (probably on the first or second day of class) to switch.

Update: Two additional points. In the case of my school, some (although not all) of the movement comes from the evening program, where classes have to be taught in two-day blocks to avoid having classes on Friday nights or weekends. The full-time program then moves to become more like the part time (because the other direction is not possible), especially when professors are prepping classes for both sections (sometimes simultaneously). I'm also curious if schools/faculties have had conversations (especially recently) on the subject.

Teaching Open Source Civ Pro Part II: The Materials I'm Using

This week I will begin teaching civil procedure without a traditional casebook.  In my last installment, I wrote about why I've decided to "go rogue."  In this post I'll recap the process I used to choose and produce my materials.  My materials for this semester are: (1) A course pack "case book " that I edited; (2) A statutory and rules supplement course pack that I edited; (3) a student treatise; (4) a book of experiential learning exercises.

After the jump, I'll discuss the various methods I considered and why I chose the materials that I did.

Possible Methods for Teaching Open Source

1.  The Bare Bones Method: No Materials But a Syllabus

One possibility is not to give students any materials at all, but simply distribute a syllabus and tell the students to download the relevant cases and statutes from Westlaw or Lexis.  (Derek Tokaz made this suggestion as a comment to an earlier post).  While there is some appeal to this idea, I felt it was not right for this class:  

(a) because I am teaching first semester 1Ls, I do not expect them to enter the class with Westlaw and Lexis skills, even ones that seem easy to us like finding and printing cases.  I also do not want to add extra stress to their lives.

(b) many cases are far too long, or contain extended discussions of irrelevant issues.   I figured that by the time I explain "read this, but don't read that" for each of the cases, much of the simplicity of the "find and print" approach would be gone.  I also didn't want students to "compete" with each other by reading more of each case. 

(c) students would still have to print out the cases, and printing costs money.  So this method is not quite as "free" yet as we would like.  Which brings me to the next point...

2. Edit the Cases and Statutes/Rules and Post Them Online

The advantage of this approach is that it's still completely free, and it solves the problem of unedited cases.  I decided that this would be part of my approach, but was not completely sufficient.  

(a)  First, as I edited the cases, I began to realize that I needed interstitial material.  While I'm moving away from from the extensive "notes and questions" approach of some casebooks, there are situations where it is useful to summarize or introduce material, or expose students to synopses of related cases.  And sometimes I'd just like students to read about an area of law without reading a principal case, such as when I teach about the mechanics of service of process.

(b)  The students would still need to print out the materials themselves.  This point was a difficult decision for me.  When I first thought about using open source materials, I imagined that students could use their tablets or e-readers.  But there are some barriers.  First, I do not permit students to use laptops in the classroom (that's a different debate), and I worried that the tablets could be used for distracting non-case reading purposes.  More importantly, I realized that if I wanted to give an open book exam, I would need to make all of the materials available in print format because the students cannot bring tablets or e-readers to the final exam.  Now, one solution to these problems is to just permit laptops and give a closed-book exam.  These are changes I might consider for future years.  For now, I'm sticking with my no laptop and open-book exam policies because I have had such positive experiences in the past.

(c)  Not all materials are actually open source.  This was not a big issue for civil procedure.  If, however, I used this approach for other classes there could be problems.  For example, when I teach International Business Transactions, some of the materials found in the statutory supplement are not in the public domain (think Incoterms or the UCP, both published by the International Chamber of Commerce).

3.  Create a Course Packet and Post Materials Online

To solve these problems, I compiled the cases into one course packet and the statutes and rules into another.  The students now have a choice: they can buy the packets at the bookstore, or print them at home if that is easier and cheaper for them.  They could even use a tablet for reading and then print the sections with their own annotations.  I have posted the coursepacket as a large pdf file, as well as several smaller files to enable easier printing and downloading.

4.  Use a Student Treatise as a Secondary Text

Here's where I begin to depart from full-fledged adherence to open source.  For reasons described above, I am not yet ready to teach exclusively from principal cases.  So I decided to supplement with a student treatise.  Here are the advantages:

(a) Cost.  Although the students must purchase the book, it is much cheaper than a case book ($79 new, $30-ish used or rented).

(b)  Context.  The student treatise provides the context and summaries of areas that I do not expect students to learn from reading principal cases.

(c) No More Hide the Ball.  I almost always recommend a good treatise or horn book to my students.  I think we have moved past the days in which there is a classroom fiction that the students don't know the law until it is magically revealed to them exclusively through socratic dialogue about principal cases.  I would much rather have them read a comprehensive and comprehensible account of an area of law in a treatise so that classroom discussion can focus on the nuances and difficulties in the caselaw itself.  In this way, I hope that classroom time will be less about the "punchline" of every case because the students have access to thorough discussions of the black letter law in their reading.  I have assigned my students Richard Freer's Introduction to Civil Procedure (Aspen Student Treatise Series), a text with which many former students have had a positive experience.

Perhaps in the future I will begin to write my own summaries and introductions so that I can move away completely from requiring purchased texts.  For now, I am comfortable asking students to purchase a text that is cheaper than a casebook, and one that many students might buy anyway as a study aid.

5.  Use an Exercise for Experiential Learning

This semester I am teaching a small section of procedure.  We have extra time, and I am using that time to teach discovery through a simulation exercise.  While I would love to create my own simulation, I have opted for one that has been "road tested" and will use Michael Vitiello's Bridge to Practice book.  Although it's not completely relevant to the open source problem (as I would only use this for a smaller group), I wanted to fully disclose all of the purchases that my students must make.

So, there you have it -- a complete account of my desire to totally ditch the casebook and the reality that I was not able to get all the way to "free" on the first try.

RJE

Green Bag’s new Summer 2013 issue

Volume 16, Number 4 (Summer 2013)

(Most of the issue is available here now.)

Ex Ante

Judge Dave and the Bobblehead

TO THE BAG

David Roe • Curtis Gannon

Articles

The Court Affects Each of Us: The Supreme Court Term in Review, by Erwin Chemerinsky

A Normalized Scoring Model for Law School Competitions, by Edward K. Cheng & Scott J. Farmer

From Scriveners to Typewriters: Document Production in the 19th-Century Law Office, by M.H. Hoeflich

Then and Now in the Law of Property, by John V. Orth

A Note on the Use of Dictionaries, by Antonin Scalia & Bryan A. Garner

From the Bag

The Wick Tapes, by Leonard Garment

Micro-symposium

Suzanna Sherry’s Why We Need More Judicial Activism, by Richard A. Epstein, Aaron-Andrew P. Bruhl, Frank J. Colucci, Scott Dodson, Scott D. Gerber, Diane H. Mazur, Howard M. Wasserman, Evan C. Zoldan & Suzanna Sherry

Announcing the Joint Colloquium in Law and Religion

The Center for Law and Religion at St. John’s Law School and Villanova Law School are pleased to announce an exciting new seminar for spring 2014, Joint Colloquium in Law and Religion.

This course invites leading law and religion scholars to make presentations to a small audience of students and faculty. The schools will be connected through video link so that students and faculty at both schools will be able to participate synchronously in a virtual classroom seminar experience. My colleague, Mark Movsesian, and I are absolutely delighted to be working on this project with Villanova Law School Vice Dean and Professor Michael Moreland.

The following speakers have confirmed:

January 27: Michael Walzer (Institute for Advanced Study) (at St. John's)

February 10: Sarah Barringer Gordon (University of Pennsylvania Law School) (at Villanova)

February 24: Kent Greenawalt (Columbia Law School) (at St. John's)

March 17: Donald L. Drakeman (Cambridge University) (at St. John's)

March 31: Kristine Kalanges (Notre Dame Law School) (at St. John's)

April 14: Steven D. Smith (University of San Diego Law School) (at Villanova)

Topics will be announced at a future date.

For more information, or if you would like to attend the sessions, please contact the Colloquium’s co-organizers, Marc DeGirolami ([email protected]), Mark Movsesian ([email protected]), and Michael Moreland ([email protected]).

Three More Takes on Novelty Claims in Legal Scholarship

I've written here before about the tendency of law review articles, and especially their abstracts, to make what I tend to think are highly exaggerated claims of novelty. Of course, novel issues or problems are bound to arise from time to time in the law in response to events, and they're worthy of attention. The first time someone is assassinated by drone, or the first time an important new piece of legislation comes along, it makes complete sense that it ought to be written about. That is one sort of novelty. It must be said that the first articles to take on these issues generally apply existing legal tools and modes of thought; the topic may be new, but the thinking isn't. (It also often turns out that even the new topic often turns out not to be as new as everyone thought, so that it's the job of a second generation of articles to come along and argue that the first generation of articles ignored earlier events. And so on.) Occasionally, to be sure, articles will come along that contain genuinely new ideas. These are very few and far between.

None of this seems to stop a wave of articles from coming out every year whose abstracts trumpet, almost always inaccurately, "This is the first article to...." As you can probably tell, it kind of irks me--mostly because any such exaggeration in scholarly work irks me, but also because some of these articles seem to trade on their alleged novelty for what counts in the business as high placement.

(Incidentally, I am unreliably informed that some authors, having achieved a decent placement through an overclaiming abstract, will then prune back the novelty claims before publication. Or I am told that this would be a sound strategy on the part of authors, whether the informant does it or not. For the most part, as far as I can tell, the overclaims of originality in SSRN abstracts seem to make it into the published articles, so it doesn't look like many people actually do this. If they do, I would consider it a violation of what I quaintly think of as scholarly integrity.)

In my ongoing effort to make sense of this in something other than a purely strategic and cynical sense, here are three quick observations about the phenomenon. (Assuming, of course, that you agree it exists.)

1) It struck me in thinking about it today that there is a kind of unspoken agreement at work in this little game concerning Critical Legal Theory. One theme of Critical Legal Theory is that legal argument commonly consists of a set of conventional polar positions or mutually opposed moves. Those moves are present, if sometimes submerged, in just about every set of arguments on just about every kind of issue. Some romantics may hold out hope that this process will result in genuine dialectical advances from time to time; others may think the response should be to reject the standard moves altogether. Many just think that these moves will continue recurring indefinitely. This is a for-blog-purposes-only caricature of this theme, of course. But that seems somewhat appropriate, because it's more or less at exactly this banal level that the theme is generally accepted, to the extent that some ideas in CLS have become normalized in the legal academy.

What struck me is that, while I think something like this idea of the existence of continually recurring standard legal moves is fairly widely accepted by self-aware legal academics, there seems to me to be a corollary rule: Though Shalt Ignore Critical Legal Theory For Purposes of Law Review Abstracts. In the abstract, it is never the done thing to say something like, "I will be making standard move X in this article," or "In an important recent article, so-and-so used theory to examine new issue Y. As expected, I will now use policy." To say something like that is self-destructive at worst and gauche at best. Instead, thou shalt pretend that no one else has ever done before whatever it is that you're doing--while quietly acknowledging your predecessors, and thus demonstrating your scholarly credentials while reassuring the reader that the idea is not so original that it lacks credibility and a pedigree, somewhere around footnote 10.

I find this striking for two reasons. First, as I wrote, I think the basic cycling-of-standard-legal-moves idea is pretty widely accepted--everywhere, that is, but in law review abstracts. Second, many of the articles that I see making extreme and erroneous claims of novelty, and sometimes placing very well as a result, are all too happy to make extensive use of CLS and other forms of critical theory in the body of their papers.

2) In doing a little reading around this, I again came across two articles that I think are required reading. I suspect the first has gotten too little attention, partly because its interesting conclusions are put quite gently, and partly because of the publishing cycle of the journal in which it appears. The first is Mark Tushnet's recent article in the fiftieth anniversary volume of the Supreme Court Review, in which he re-reads two articles from the first volume. He observes that "[t]he articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago." The only thing that's missing from the same discussions of the same issues today, he laments, is a "scholarly temperament of engaged detachment."

The second is Richard Posner's recent reply piece in the Georgetown Law Journal on the state of legal scholarship today. (The discussion is around pages 848-50.) Posner is agreeing here with a point made by Pierre Schlag about this arguably being an age of "normal science" in legal scholarship, an age between revolutionary moments. He writes that in such an age, in which teachers are always needed but scholars perforce must also do scholarship in order to get ahead, the "academic enterprise" becomes "afflicted with perversities." There is "pressure on faculty to publish even when the scholarship that is published has no value; hence the straining after novelty, the drive for specialization, the quest for rigor, the adoption of a technical vocabulary—all methods of signaling quality that may, however, have no effect except to turn off students and other readers." That seems half-right to me. The other half, though, is that it's just these kinds of qualities in legal scholarship, including the "straining after novelty," which will attract some "students and other readers." Those readers include some articles editors at highly ranked law reviews, who understandably would like to think that they are important and live in interesting times.

I wonder if we couldn't just print out and distribute to all current law review editors a simple sign to be placed above the slush pile. It would read: "WARNING: We are currently in an age of normal science. Unless it is actually examining a new set of facts, the article you are about to read is almost certainly not novel. Note: The facts probably aren't all that new either."

3) Tushnet's article, in particular, makes me reflect once again on the fairly stunning lack of a sense of disciplinary institutional memory in the legal academy. In part, I blame Westlaw and Lexis, whose archives barely extend back to the Reagan presidency. In large measure, I think it has to do with the lack of a deep canon in legal scholarship, or of much of an education in that canon by most law professors. Whatever the reason, I wish more law professors--and articles editors--would spend less time polishing absracts and more time reading Ecclesiastes.  

 

 

Ask Redyip

I do not know Redyip.  I did not work with Redyip.  Redyip is not a friend of mine.  But let's just say that I've entreated him (it?) often enough that I know how to get urgent communications to his aerie.  (And no, it's not by tweeting.)

Many of you have questions about the law review process.  Who knows?  Maybe I can get you answers.  Post them here, and let's see what happens.  (I also have some small acquaintance with Bla'a K'hole, the mechanical guardian of planet Peer Review.  Place your questions for him on a punchcard and I will feed them into the appropriate slot.  Warning: answers may be provided in binary.) 

Also feel free to pipe in with your own views. 

The Establishment Clause and Reverse Incorporation (with some implications for Town of Greece v. Galloway)

Incorporating the Establishment Clause presents a host of difficult historical, theoretical and interpretative problems.  Of course, Fourteenth Amendment incorporation of any provision in the Bill of Rights presents difficult issues.  The Establishment Clause, however, presents a unique set of conundrums, and solving them can lead to some counter-intuitive results.  For example, the original Establishment Clause communicated nothing about the proper relationship between church and state: It simply left the matter to the control of political majorities in the states (see the work of Steven D. Smith and Akhil Amar).  If this clause can be incorporated against the states, it is only because the words of the amendment are somehow translated into declaring a normative principle of non-establishment.  This principle, in turn, should affect how we read the original clause.

More after the break.

If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment.  Thus, to find the original meaning of the incorporated Establishment Clause, we must look to the 1860s, not the 1790s.  Instead of digging through the letters of Thomas Jefferson, we would be better served looking at antebellum religious liberty in the states, and the degree to which southern regulation of religion became a salient issue during the framing of the Fourteenth Amendment. 

One thing that quickly becomes apparent when looking at religious liberty during Reconstruction (both North and South) is the fact that people at the time were far more comfortable with government involvement with religion than they are today. The emerging public schools included biblical instruction and prayer exercises, and political rhetoric was infused with religious precepts (Lincoln’s inaugural, the many public events held at cemeteries, etc).  This was not a time of Jeffersonian separationism.  Even though waves of Catholic immigration prompted calls for “separation of church and state,” this meant ridding the public square of sectarian (meaning Catholic) influence, not ridding the public square (and government support for) religion in general.  In short, Marsh v. Chambers is almost certainly correct as a matter of proper Fourteenth Amendment interpretation, despite the majority’s erroneous focus on the actions of the first Congress.

But what then of the federal Establishment Clause?  The words originally communicated a denial of power over the subject of religion.  This, plausibly, leads to a form of strict separation at the federal level, even as it originally allowed religious establishments at the state level.  But this is not how those same words were likely understood in 1866-68.  Let’s suppose that the Fourteenth Amendment principle of non-establishment was broadly understood as allowing non-coercive (as they defined non-coercive) government support for non-sectarian religion (a plausible reading of the history, I think).  If so, then this is how the people circa 1868 understood the language of the federal Establishment Clause.  This creates a conundrum for courts seeking to apply the Establishment Clause against the actions of the federal government.  In such a case, if courts apply the Clause according to its original 1791 understanding, the result would be a two-track Establishment Clause jurisprudence; one principle informing the Clause as applied to the federal government and another principle informing the Clause as applied to the states.

The Supreme Court has rejected the two-track approach, and rightly so, I think.  The Fourteenth Amendment declares that the states are bound to enforce “the privileges or immunities of citizens of the United States.”  One of these privileges was the privilege of non-establishment declared by the federal Establishment Clause.  To the people who adopted the Fourteenth Amendment, there were not two principles of non-establishment, only one; the principle already existed in regard to the federal government and it was now to be applied against the states.  It is almost as if, in adopting the Privileges or Immunities Clause, the people readopted the original Establishment Clause and declared its principles—as they understood those principles- now operative against both state and federal governments.

If correct, then this means that Marsh v. Chambers got it exactly backwards.  We should not look to the original Founding to determine the content of Reconstruction liberty; we should look to the meaning of Reconstruction liberty to determine the content of the readopted Bill of Rights.

For men only

A few weeks ago, I passed a highway billboard for a divorce law firm that was "men only," meaning they only represented the man in divorce and other family law proceedings. Quick googling shows that this is quite common. Some genuine questions from someone who knows nothing about family law:

1) Is this legal (or could there be an argument that it might violate a public accommodations law and, if so, is there a First Amendment response)? 2) Is this ethical? 3) Does this make sense? On this last point: Are men still treated so uniformly and identically in divorce/custody/family proceedings that one can develop a genuine expertise representing "the man," just as one develops expertise representing plaintiffs in slip-and-fall or employment discrimination cases? Is "the man" side genuinely the same in every family proceeding? Is representing "the man" in these proceedings a political position, in the way that representing the pro-speech position is for the ACLU or the pro-religion position is for the ACLJ?

And what happens when marriage equality comes to Florida? Does the firm's potential client base double?

Bill Fischel on Koontz: Why Federalism should limit enforcement of Takings Doctrine

Bill Fischel, the dean of takings scholars, posted a thoughtful comment on Koontz in response to my own post. I've reproduced an excerpt from Bill's comment below, just to highlight Bill's central point: Even important individual rights like the right to compensation for takings of private property, should be qualified by norms of federalism. After the jump, I'll provide some backup defense of this position. But, first, here's an excerpt from Bill's comment on Koontz:

"I agree with Rick that this should mostly be a state law issue and that the Court's remedy-less decision will prevent much additional damage to the development process. After all, Loretto has not stopped the telecom industry from locating its bread-box-size facilities where it needs them. The sociological question is why the Court would want to stir this particular pot. My guess is they have conceded that they cannot develop a substantive rule about regulatory takings other than "no [reasonable?] economic use" of Lucas and the potpourri of Penn Central. But they still look down at the states and see stuff they don't like, and we shouldn't like it, either. It is possible that the Coy Koontzes were being jerked around by the water district guys. But its also possible that the jerks were the Koontzes, sitting on their wet, low-value property for years and hoping to get a windfall out of the process. The fact is you just cannot tell from the distance to the controversy at which judges and scholars usually sit. It was actually kind of weird to have US Supreme Court Justices recite the kind of facts I used to write on the Hanover zoning board. At least we had some chance of figuring out which party (if any) was trying to game us. Hayekian “local knowledge” is not perfect, but it usually beats the view from Olympus.

In other words, the right to private property is important, but the first line of defense for such rights is appropriately subnational government, with federal courts playing a distinctly minor role, intervening only in the extreme cases of obvious majoritarian exploitation. Why do Bill and I believe that such deference to subnational governments is important even when fundamental national rights are at stake? Letting Bill speak for himself, here are my thoughts below.

The problem is that many national rights involve a stew of messy inquiries that can loosely be lumped under the heading of "policy-making": Although disguised as absolute and simple maxims of justice ("...nor shall private property be taken for public use, without just compensation"), such simple exhortations can be implemented only through complex factual findings and sensitive balancing of controversial policies. Federal judges lack the training, staff, and institutional legitimacy for settling such questions in a manner that will leave parties and onlookers feeling that justice has been done. At best, they implement these vague norms with bright-line doctrines that under- and over-enforce the relevant norms. At worst, they take the opportunity presented by mushy balancing rhetoric and run with it, filling the casebooks with their ad hoc views of what is "reasonable," heavily slanted in favor of their sociological caste (middle-aged, relatively wealthy, mostly white, highly educated, with a blandly "establishmentarian" view of politics typical of someone acceptable to the median U.S. Senator on the Judiciary Committee). The "view from Olympus" (as Bill felicitously puts it) is not a reliable picture of the world.

This does not mean that federal courts should never monitor and limit subnational governments. But those interventions should be constrained by meta-norms of judicial review that recognize the institutional limits of the federal judiciary. Put simply, bring out the big guns of the federal courts only when the collateral damage of such clumsy artillery is outweighed by the exploitative tendencies of subnational governments. As Bill notes, the hallmark of the sort of "extortion" that Nollan-Dolan tries to prevent is majoritarian ganging up against isolated landowners who are trying to develop their land in precisely the same way as their neighbors. Absent fairly obvious singling out of such landowners, there is no reason to believe that the ham-handed efforts of the federal judges to define "extortion" and "property" will do more good than harm.

Given that the Florida legislature has enacted the Bert A. Harris Act -- one of the more potent protections for private landowners, used frequently in Florida to cow local governments that engage in "extortionate" behavior -- I am inclined to doubt that federal judicial intervention was called for. More generally, Koontz's broadening of the definition of the conditions sufficient to trigger the Nollan-Dolan inquiry invites federal judges to involved in the nitty-gritty of land-use decision-making far beyond their capacity to do so persuasively and intelligently.

I am sure that the federal judges will decline this invitation, and Koontz gives them plenty of remedial opportunities to do so. The important point is that we should not let the glittering, abstract, and absolutist rhetoric of federal rights fool us into thinking that the underlying doctrines being enforced are the sorts of rules that normally should or will be implemented by federal judges. As a normative and predictive matter, federal takings doctrine always will be a minor sideshow in subnational landuse law -- and a good thing, too. Of course, private property is protected by a fundamental federal right. But subnational official normally outperform federal judges in implementing the right, because the costs of exploitation inflicted by the former is outweighed by the costs of blundering doctrinal calcification inflicted by the latter.

Chris Lund on Legislative Prayer

My friend Christopher Lund has a fine piece on Slate (how rare it is that I get to string those words together!) on legislative prayer, and specifically on the upcoming Supreme Court case of Town of Greece v. Galloway. I suppose it contributes to my enjoyment that I am in substantial agreement with Chris that Marsh v. Chambers was always a problematic case, that it is easy to do legislative prayer "wrong,"* and that the questions and difficulties involved in doing it "right" may themselves raise insuperable problems. As I write in The Agnostic Age, although I think Marsh is wrong as a matter of sound constitutional law, I would be willing to let sleeping dogs lie. My concern with Galloway--and the Second Circuit opinion in the case was not a perfect decision, to be sure--is that a poor vehicle has been chosen that will end up with a majority doing more mischief than Marsh alone accomplished. Views differ on this. Regardless, however, Chris has done more and better work on this subject than anyone I know, and the Slate piece is very good.

* For an example of its being done "wrong," see this story, which involves my own state of Alabama and Twinkle Cavanaugh, the head of the state's Public Service Commission and a living reminder that all that twinkles is not gold. 

Fascinating Canadian Story on "Academic Freedom"

The Chronicle of Higher Education has a fascinating story (subscription required) on Dennis Rancourt, a quondam physics professor at the University of Ottawa who has, for some time, been disputing his dismissal from the university before an arbitrator. Rancourt argues that he was dismissed for his political views. The university suggests that he was dismissed for numerous departures from his proper academic duties--among them, hollowing out an offered course from the inside, transforming it from a course in physics to a course on how science relates to "power structures," a move he called "academic squatting"; inviting ten-year-old twins to sign up for a course, and then assisting them in grieving the university's refusal to register them before a human rights commission as age discrimination; promising all his students in one class an A before the class started, more or less as a protest against the usual pedagogical norms of grading; and so on. While he was at it, he called a black law professor who wrote a report for the university its "House Negro." As it often does around Rancourt, protracted litigation ensued. His Wikipedia page is here; although it is one of the more self-serving entries I have seen there, it does contain useful links. Stanley Fish wrote about Rancourt here, and has an amusing discussion of him in a forthcoming book on academic freedom.

I was inclined to think Fish made too much of the Rancourt case, since Rancourt is so clearly an extreme case. On the other hand, I never would have dreamed that it would take as long as it has to resolve his dispute with the university, or that as many silly rulings would result along the way. Rancourt's case seems to me to do two things. It shows just how badly academic freedom can be distorted and misdefined, especially when its meaning is extended and politicized beyond all recognition. And it shows how damaging the involvement of both labor law and human rights commissions has been in Canada for a proper understanding and treatment of academic freedom. A couple of the figures quoted in the Chronicle story suggest that labor and human rights law have strengthened "academic freedom" in Canada. They have done nothing of the kind, unless you have an absurd definition of the term. 

Seeking suggestions for "must-reads" for my Marijuana Law, Policy & Reform seminar

As I have mentioned in this space before, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this Fall semester titled "Marijuana Law, Policy & Reform."   The seminar starts next week, and I am trying to finalize my (necessarily tentative) reading list for the first part of the semester.  As the title of this post indicates, I am eager now to get some concrete suggestions about what others would consider to be "must-reads" for the students in this seminar.

I am very pleased to be able to utilize Controlled Substances: Crime, Regulation, and Policy, a brand-new casebook by Professor Alex Kreit, as the primary text for the seminar.  Students will be exposed via big parts of this book to lots of great general readings on drug regulation and prohibtion debates, as well as specific materials on medical and recreational marijuana laws and policies.  In addition, I have just created this new blog, titled simply "Marijuana Law, Policy & Reform," where I plan to provide new resources and materials for student consideration (e.g., I have already linked/discussed AG Holder's recent ABA speech via this post over there).

But, especially based on terrific feedback I have received via my prior posts about my new seminar, I suspect some folks may have some especially informed and/or innovative thoughts about some (student-friendly) readings that I must make sure to have my seminar students read.  If so, please share those thoughts in the comments.

Cross-posted at SL&P

A few related prior posts (via SL&P):

• Starting a summer series on the upper-level law school canon and my marijuana seminar
• How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?
• Guest blogging on "Controlled Substances: Crime, Regulation, and Policy" by Professor Alex Kreit

New laptop study

From two doctoral students in Canada: The studies found that students who multi-task on computers perform worse, as do those sitting near the multi-tasking students (even when those students are not using computers at all). It makes sense that students who are paying less attention in class will not perform as well, although the researchers claimed to be surprised by the size of the effect (11 % difference, possibly the difference between a B+ and B-). Of course, that result is not really about computers per se, but about distractions. And while computers and the internet dramatically increase the number and type of potential distractions, one would expect the same effect if the multi-taskers were preparing shopping lists, doing crossword puzzles, reading the newspaper, or doodling by hand). I would still like to see a study of the effect, if any, of using computers as opposed to pen-and-paper for taking notes in class.

University Presidents: Pay for Performance or Agency Problem?

Our story so far: nonprofit managers have reason & opportunity to manage their firm in a way that increases their personal rewards.  Even if the dollar amounts are small, the managerial consequences could be significant.  For instance, we saw last time evidence that university CEO pay, tuition, and expenditures rose sharply for most of the last decade while returns for faculty and for-profit CEOs were relatively flat on average.  One can at least tell stories about why a president who wanted to be paid more would increase tuition or overall spending.  How can we test those stories?  It’s tricky.  Universities are complicated places, and lots of factors could be at work.  Maybe presidents were just doing a great job, and invested their extra resources wisely, making college a better deal and earning higher pay for themselves. 

Our paper therefore tries to look at the extent to which CEO pay is correlated with measures of “agency costs.”  That is, is pay lower at schools where presidents are monitored by other stakeholders more closely?  If so, that would be evidence at least that presidents’ opportunism contributes to pay levels, though of course it wouldn’t rule out the “pay for performance” alternative I just mentioned--both could be contributing factors.

Long story short, we used a school’s dependence on donations to measure how closely its president was watched.  Few donors really take much role in details of school governance; they are rationally ignorant and hope to free ride on watchdog efforts by others.  But it turns out that if you make someone angry (or give them a really good feeling from participating) they don’t free ride as much -- their emotions motivate them to be more actively involved.  We hypothesize that donors don’t like excessive pay, and that the threat of donor “outrage” would constrain pay levels.

And that’s what we find.

First, we find that donors don’t like learning about high president pay.  In one set of regressions, we find that each dollar of reported pay reduces giving in subsequent years (controlling for all the other important observable facts about the university we could measure) by about $30.  For instance, if Harvard could have been Harvard while paying its president zero dollars, our results imply it could have pulled in another $30-$40 million in donations.

In another (not on ssrn yet), we look at the effect of being singled out by the Chronicle of Higher Education’s list of the “Top 10 Most Highly Compensated” presidents.  Presidents who make the list see about $6 million less in donations, even relative to presidents who just missed making it.

We then find that being more dependent on donations (i.e., getting a bigger fraction of revenue from gifts) does reduce presidents’ pay.  Presidents who are more than one standard deviation above average (the top 1/6 or so) in dependence on donations get paid an average of about $110,000 less, all else equal.  We also find that showing up in the Top 10 list one year tends to slow the rate of growth of a president’s pay, though obviously there are people like Gordon Gee who just show up every year.             

It’s admittedly not immediately obvious how this relates back to the tuition story, and you are already bored, so I’ll fill in what we think the implications of our findings are next time.

Preparing to Teach Open Source Civ Pro Part I: Why I’m Doing It

This semester I will be teaching civil procedure without a casebook and blogging about the trials and tribulations of this approach.  As the semester approaches, I’ll be writing about my preparations.  This post will be about why I’ve decided to take the plunge.  Part II will be about the materials that I’m using, and Part III will be about how I put the materials together.  My reasons for embarking on this project appear after the jump.

1.  Cost

It shouldn’t surprise anyone that this tops the list of reasons to go casebook-less.  As other bloggers have noted, many casebooks have broken the $200 barrier.  Statutory supplements often cost between $35-$40.  Add this to the hornbook and commercial outline or two, and students can easily spend $300-$350 per course on books.  I am mindful of these costs, and to the extent that I can minimize them for my students, I would like to do so.  As I will explain in future posts, I was not able to get all the way down to completely free materials, but the list price for the books (including a course packet) that I have ordered come in at under half the price of the materials I have used in the past.

2.  Many Materials Are Available for Free

This reason is closely related to the cost issue, but it is worth making the separate point: a large chunk of the materials that we assign to our students are public.  So why should students pay for this?  Casebooks do add value (some more than others) in the form of editing, summaries of law, and giving historical context.  If anything, I have an even greater appreciation for this value-added after a summer of editing my own materials.  Still, I am left with the feeling that if my primary text consists of cases, and those cases are freely available, why should we charge so much to read them?

I hope that my work here, along with the work of other such as Glenn Cohen will be the beginning of a collaborative effort to use open source and creative commons to provide our students with high quality materials at a minimal cost.

3.  Flexibility for Students

I have made the cases, rules, and statutes available to my students as PDFs, and have also printed them as a course packet that they can purchase.  I will also begin to make the materials available on Harvard’s H2O platform.  I hope that this will allow some freedom from schlepping the whole book each day, or perhaps the ability to mark up the text online or on a tablet.  (Ultimately, though, the students will need some sort of a hard copy of the materials because I give an open-book exam.  I’ll delve deeper into this problem in a future post).

4.  Flexibility for Me

Putting together my own materials allows me to choose the cases, order them, and present them to students in a streamlined format.  Moreover, I hope that this format will allow me some flexibility within the curriculum.  For example, I might choose to use shorter edits of some material and longer edits of others depending on my focus from year to year.  Swapping cases in and out of the curriculum will be easier than changing casebooks or providing a large number of handouts.

5.  Collaboration and Feedback

My hope is that I will learn from others who are embarking on similar projects, that I can borrow from their materials and edits, and that they will borrow from mine.  I hope that I will learn from my students about what works well and what does not.  In that spirit, one of the reasons that I am blogging about this experience is to get the comments, feedback, and suggestions from prawfs readers!

6.  Over-caffeination

 Because, really, would I have made this decision in any state other than a caffeine-fueled brainstorm?  Probably not.  But I’m glad I’ve chosen this path, and I look forward to seeing how it all turns out.

Jean Bethke Elshtain (R.I.P.) and the Limits of Politics

Jean Bethke Elshtain, "one of the nation’s most prominent and provocative thinkers on religion, political philosophy, and ethics, died Sunday following a major cardiac incident earlier this summer. She was 72."  (HT:  UChicagoNews).  Emma Green suggests, at The Atlantic, that "her greatest legacy of barrier breaking was her serious intellectual commitment to including God in discussions of politics."

"Her joint appointment in political science and the divinity school at [the University of] Chicago was truly unusual," said Erik Owens, a professor at Boston College who worked with Elshtain when she was his dissertation adviser. "Religion was not taken seriously enough as a proper subject of study by political scientists through most of her career, and political science was equally suspect in most divinity schools. She helped to bring these two disciplinary guilds into conversation with one another. This may be one of her greatest legacies as a professional academic."

I was fortunate to have the chance to work with Dr. Elshtain in connection with the "New Science of Virtues" project at the University of Chicago, and had a welcome opportunity to read a lot of her writing preparing a paper for the "Engaged Mind" conference series, at the University's Divinity School, which honored and explored her work.  She was generous and gracious, as well as challenging and provocative.  I was, and remain, a big fan.

Author and journalist Michael Sean Winters, who blogs at The National Catholic Reporter, included some nice quotes from Elshtain's "Augustine and the Limits of Politics" in this post.  For me, for some reason, this one stood out:

False pride, pride that turns on the presumption that we are
the sole and only ground of our own being; denying our birth from the body of a
woman; denying our utter dependence on her and others to nurture and tend to
us; denying our continuing dependence on friends and family to sustain us;
denying our dependence on our Maker to guide and to shape our destinies, here
and in that life in the City of God for which Augustine so ardently yearned,
is, then, the name Augustine gives to a particular form of corruption and human
deformation. Pridefulness denies our multiple and manifold dependencies and
would have us believe that human beings can be masters of their fates, or
Masters of the Universe as currently popular super-heroes are named….Every
‘proud man heeds himself, and he who pleases himself seems great to himself.
But he who pleases himself pleases a fool, for he himself is a fool when he is
pleasing to himself,’ Augustine writes. . .

R.I.P.

Are Corporate Compliance Monitors Probation Officers?

The idea of a corporate compliance monitor often reminds people of a probation officer.  This makes sense because there are people called “monitors” who act like probation officers.  Courts sometimes order an external monitor as a condition of probation after the corporation has been convicted of a crime. 

In my current project, however, I make a concerted effort to limit my inquiry to corporate compliance monitors who are retained as a result of an agreement between the government and the corporation.  Imposed as part of a corporate probation program, a court-ordered monitor is typically charged with ensuring compliance with the court’s order and functions on behalf of the court.  In contrast, a corporate compliance monitor often has little to no interaction with the court and serves as an agent of the government.  In these instances, the corporate compliance monitor is often charged with much more than “monitoring,” as I mentioned in a previous post. 

Instead, the corporate compliance monitor is engaged in something more akin to root-cause analysis.  Root-cause analysis attempts to systematically determine the cause of the structural failure within the firm so that it can implement the policies and procedures necessary to prevent a similar subsequent failure.  To effectuate this analysis, the government and the corporation agree to enter into a relationship with the corporate compliance monitor who is charged with conducting this analysis. The monitor then provides counsel to both the corporation and the government regarding the steps the corporation should take to ensure future regulatory and legal compliance.  Court-ordered probation watches the corporation to see if it complies with legal and regulatory requirements, but a corporate compliance monitor assists the corporation in these efforts.  Thus, corporate compliance monitors appear distinct from, ableit related to, corporate probation programs.

Zimmerman, Race and Gun Control

A recent poll shows that most whites approve of the Zimmerman verdict, while more than three-quarters  of African Americans believe it was unjust.  Another recent Washington Post poll shows that, several months after the Newtown, Connecticut mass shooting, more whites oppose new gun control measures than support them, while over three-quarters of African Americans want more gun control.   Attitudes toward gun control are relevant because outrage about the verdict seems to rest in part on the fact that Zimmerman shot Trayvon Martin with a gun.  Had Martin been killed by a punch or by hitting his head on a rock after a shove, I suspect that the reaction might have been different.  If this is right, then it will be difficult to bridge the gap because the different experiences with firearms between the African American and white communities predictably generate different perspectives.

According to the Washington Post poll, whites are just over 50% as likely as African Americans to be shot to death--90 per million per year, versus 178 per million for African Americans.  But the circumstances are very different; most white firearm fatalities are suicides--75 out of 90, while a supermajority of African Americans who are killed by firearms die from homicide, 151 out of 178.  African Americans are ten times more likely to die from homicide than are whites.   These differences  suggest a reason behind racially divergent attitudes toward guns.   Prevention of suicide may be a less compelling ratonale for gun regulation than is the prevention of homicide, but more fundamentally, to prevent suicide through gun control would require a prohibition of private ownership even in the home, even of even rifles and shotguns, something never adopted in even in the most pro-gun control jurisdictions.

There are also very different racial experiences of the use of firearms for sport and recreation.  Non-whites hunt and shoot for fun at a far lower rate than their representation in the U.S. population--a 2006 Fish and Wildlife Service study reported that African Americans were 11% of the U.S. population, but less than 1.5% of hunters.  Whites, then, are much more likely to use firearms for recreational purposes and much less likely to be the victim of homicide; it is not surprising that more of them think of guns as basically good or neutral.  The African American community has a more consistent experience of weapons as being principally used to harm human beings; no wonder, then, that more of them think the fewer firearms in private hands the better. 

Big Law-and Big Journalism

What counts as a crisis-or evidence of serious decline-in an industry?

My first scholarly writing in law, co-authored with wonderful mentor Michael Trebilcock, was about industrial policy and adjustment to economic change.  We looked at a number of industries across a variety of countries where consumer preferences, technological change, and foreign competition were dramatically influencing levels of employment and revenue.

That's the intellectual experience I bring to the journalistic obsession with the (supposed) end of Big Law.  The latest episode is a New Republic piece by Noam Scheiber, "The Crisis at Washington's Ultimate Power FIrm Patton, Boggs and the End of Big Law."  

So what is the evidence that Scheiber musters for the hypothesis of "the end of Big Law"?

Well, one law firm that (as Scheiber himself mentions) is challenged reputationally by a huge suit for fraud has a 6.5% decline in revenue in one particular year and is firing or laying off some highly-paid individuals. Then there is the fact that hiring of summer interns by a significant sample of law firms has gone down by a whopping 3.4%.  Then there are innovations in pricing and product packaging (but these  can often be a sign of healthy innovation in firms or industries, not imminent failure). And finally the mumblings and grumblings of various sources about how much clients are billed for junior associates' work. 

Crisis? Decline? Collapse? "Devastating"?  The facts offered simply don't support the inflated, grandiose language. The  Scheiber article justifies, if anything, the end of Big Journalism not the end of Big Law. (On the former, see Andrew Sullivan's take on Peter Maass's wonderful new piece http://dish.andrewsullivan.com/2013/08/13/celebrating-the-blogger/ ) 

I Think Ted Cruz is Eligible to the Presidency

And I say so on CNN.Com here.  I adhere to my view that John McCain was not eligible, because the statute making people born in the Canal Zone U.S. citizens was not passed until after he was born.  The people of the United States clearly agreed with me, because you will notice, Senator McCain to this day has never been President.  Stephen Sachs has a powerful rejoinder to my argument here.

Jurisdiction, merits, and Dodd-Frank

A couple of years ago, tipped off by a partner at Wachtell and Prawfs reader, I wrote about a potential jurisdiction/merits confusion with respect to § 929P(b) of the Dodd-Frank Act. That provision sought to overturn Morrison v. National Australia Bank and expand the extraterritorial reach of the Securities Acts, but did so in jurisdictional terms by identifying two situations in which district courts "shall have jurisdiction over an action or proceeding brought or instituted by the [SEC]."

We now have a decision from the Northern District of Illinois wrestling with these issues, although ultimately declining to resolve them. The defendants filed a 12(b)(6), arguing that the SEC failed to allege sufficient facts to meet the Morrison standard and that § 929P(b), being solely jurisdictional, did not expand the law's substantive reach. Ultimately, the court denied the motion, finding that the complaint stated a claim, regardless of whether the controlling substantive standard came from Morrison or from § 929P(b) understood as a merits statute controlled.

Nevertheless, the court engaged on the jurisdiction/merits question and at least hinted that the better view is that § 929P is jurisdictional. On one hand, the plain language suggests § 929P is jurisdictional; it speaks in expressly jurisdictional terms and appears in the statute's jurisdictional section. On the other hand, the court acknowledged several competing considerations: 1) avoiding interpretations that render a provision superfluous--since the Securities Act already has a jurisdictional provision and since Morrison itself acknowledged that the district court had jurisdiction over that claim, § 929P serves no purpose if it is solely jurisdictional; 2) legislative history, particularly statements by a sponsor indicating a desire to expand extraterritoriality; 3) avoiding absurd results, namely the conclusion that Congress granted district court jurisdiction (jurisdiction they already had) over a class of claims that were going to be dismissed for failure to state a claim. But the court at least seemed inclined to give the benefit of the doubt to the plain language.

Stay tuned. Perhaps a better case, one that actually will have to decide the question, is somewhere in the pipe.

Data on Presidents: A First Look

Last time, I promised to show you some evidence about CEO pay at colleges and universities.  Well, a picture is worth a thousand, yada yada, so let's start things off with a chart.

 

What you're looking at are data from about 370 U.S. colleges and universities, drawn from tax returns and school filings with the department of education, and adjusted for inflation.  The bars represent total increases over the ten-year period, so the leftmost bar is telling you that mean CEO reported pay went up by 50% over that period in real terms (from $300 to $450K in 2007 dollars).

Many of our readers, of course, will enjoy as we do the relative sizes of the two leftmost bars (but we note that the faculty average salary appears to include full-time instructor averages, not just full-time tenure-track faculty).  The other item that is striking, given the theoretical relationship I sketched last time about the relationship between pay and tenure, is the similarity of those two bars.  (We report gross tuition here, but "net" tuition, or tuition minus financial aid, grew similarly over this period.)  By the way, CEO pay at Fortune 500 firms grew at a fairly small fraction of the rate of university presidents in this period. 

At this point, things are looking intriguing enough to want to look at these relationships more rigorously.  Is there anything else that might make us think it is "slack" or loose monitoring that drives the tenure/compensation run-ups?  Yes, yes there is.  Next time:  more pictures.