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Sunday, September 08, 2013

(Repost): CFP: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom

Call for Papers: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom (Reposted)

FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.

Micro-symposium commentaries can be a maximum of 600 words. Commentaries must be received by Tuesday, October 1, 2013 at [email protected]

In the book, Fish argues

The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which  current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)

It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained. 

Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish's new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish's book, on request.

Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at [email protected] or to Prof. Ediberto Roman at [email protected]

Posted by Howard Wasserman on September 8, 2013 at 03:50 PM in Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Visualizing SCOTUS Doctrine II - Dissents and Competing Traditions

In my last post, I introduced the SCOTUS Mapping Project and explained the basics of its conceptual scheme for visualizing Court doctrine. Today, I want to pick up where I left off and talk about how dissents fit into the picture. My argument is that charting out lines of dissent helps reveal the genealogies of competing doctrinal traditions. Although these competing traditions have evolved over the generations, doctrinal maps illustrate how debates of old continue to inform current conflicts on the Court.

Let's dive right in then and consider some concrete examples.  

To start, recall from last time Maryland v. King, the arrestee DNA case. In my last post, I presented a map that puported to represent the search-incident-to-arrest doctrinal tradition standing behind the Justice Kennedy's analysis that arrestee DNA collection does not violate the 4th Amendment. (For ease of reference, click here to open that map in a separate browser window). Now let's bring Justice Scalia's dissent from King into view. Map 4 below does just that. Analysis comes after the jump.

Map 4 (open in separate window)

Scalia's dissent in King appears in red all the way on the right side of the map. Note that its position on the Y axis shows that his opinion received four votes on the Court. As support for his argument that the 4th Amendment grants only limited powers to search incident to arrest, Scalia cited 2009's Arizona v. Gant. As the map indicates, Gant was another 5-4 split where Justice Stevens wrote the majority opinion and Justice Alito authored the dissent. 

Looking at the big picture, one can immediately see that the Court has long divided over search-incident-to-arrest doctrine. We notice that criminal defendants have usually lost, as represented by blue opinions appearing above the dashed line -- Rabinowitz, Robinson, Belton, Florence, and King. Yet defendants have also secured key victories as shown by the red majority opinions in Chimel and Gant.  Significantly, Chimel and Gant also represent moments where the Court's search-and-seizure doctrine dramatically changed course. Chimel overruled Rabinowitz and Justice Stewart's majority opinion relied heavily upon Justice Frankfurter's Rabinowtiz dissent to support its doctrinal analysis. Gant likewise overruled Belton and Justice Stevens' majority opinion invoked Justice Brennan's prior dissent for support.

Now, the aim of this blog entry is not to analyze the twists and turns of any particular doctrine. The aim is instead to suggest the significance of the fact that the Court's search-incident-to-arrest doctrine, like so many other key areas, is hotly contested. Debates have raged for years. And though the facts of cases change, the analytical and tensions in the doctrine remain the same. For generations, Justices have differed on the best reading of the relevant texts and they have inevitably looked to prior opinions -- majorities, dissents, and concurrences too -- to justify their chosen approaches.   

Doctrinal maps provide a handy way to visualize the genealogies of these epic debates. They can chart the paths of dialectics between competing traditions of doctrinal interpretation. Dissents can often shed an especially revealing light on such constitutional dialectics. For powerful dissents have often served as inspiration for exiled schools of constitutional thought.  Over time, these exiled schools sometimes return to the majority just as prior majorities sometimes find their tradition's analysis relegated to dissent.

Let's consider two furthet examples to flesh this idea out.

Cps05-SDP Eco Liberty-dialectic
Map 5 (open in separate window)

Map 5 above portrays an oft-discussed slice of constitutional history -- the rise and fall of "Lochnerism" a.k.a. the Court's due process economic liberty jurisprudence. This time, the duelling lines of opinions are represented in purple and green. Scholars continue to tussle over this history  and I don't mean to revisit that controversy now (thouh I have done so here). Rather, I point to two dissents on the map -- Justice Bradley's in Slaughterhouse and Justice Holmes' in Lochner -- and suggest that they represent critical articulations of the competing schools' doctrinal philosophies. And both dissents eventually captured majority support.

For our final example, let us turn to history once more. This year is the 50th anniversary of the Court's handing down its landmark decision Brady v. Maryland -- which recognized that criminal defendants have a due process right to obtain exculpatory evidence in the hands of the prosecution.   Thought the right to"Brady material" is now deeply woven into our constitutional fabric, it was not always so. How did due process jurisprudence come to recognize the right.? Map 6 below tells the story.

Cps06-Brady Origins

Map 6 (open in separate window)

While Brady's relationship to Mooney, Pyle, and Napue is well known among criminal procedure aficionados, its connection to Justice Holmes' dissent in Frank is not as widely celebrated. I have elsewhere justified putting Holmes' dissent into Brady's ancestral family tree (here and here). As before, the point now is not engage in substantive doctrinal discussion but rather to show  (a) how doctrinal maps can provide a convenient way to structure such a discussion; and (b) how attention to dissents potentially helps reveal the competing traditions that often animate doctrinal dialectics.

With these three examples on the table, Readers should have a fair idea of a typical doctrinal map. At least, the maps above represent my own typical uses of the Mapper software. I have no doubt that others could create different and better visualizations using the same tool. Indeed, I hope to recruit interested Readers into making maps and I have secured limited grant funding to incentivize this. (As I'll explain in a later post, grants will be in the range of approximately $250-$500 per map).

Over the course of the month,  I will generally discuss the map-making process and how the software works. I'll also continue to explore the theoretical dimensions of the project and try to respond to Readers' questions, concerns, and challenges.  So thanks and please stay tuned!  

Posted by Colin Starger on September 8, 2013 at 10:47 AM | Permalink | Comments (1) | TrackBack

Saturday, September 07, 2013

Data Mining New York Times Wedding Announcements

As I surfed the net during the last ND-Michigan game commercial, I came across a website that may be of interest to family law profs: Wedding Crunchers.  The site, which works similarly to Google's Ngram Viewer, has about 60,000 New York Times wedding and engagement announcements from 1981 through today, which are searchable by terms.  The results are graphed by year and by term frequency.  Although the data is limited to couples selected by the elite NY newspaper, The Atlantic has a write up of demographic implications from the data here, such as how the age of marriage has shifted over time, when society started to emphasize educational credentials over birth ones, and the rise of Teach for America as a credential.  Interesting, but is there anything that is not online and searchable these days?

Posted by Margaret Ryznar on September 7, 2013 at 08:49 PM | Permalink | Comments (2) | TrackBack

Friday, September 06, 2013

What is the civil justice system for?

The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.

Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.

Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally).  At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.

Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.

Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.

Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.

Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.

Posted by Howard Wasserman on September 6, 2013 at 09:55 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3) | TrackBack

JOTWELL: Walker on Kapeliuk and Klement on contractualized procedure

The new essay in JOTWELL's Courtslaw comes from Janet Walker, reviewing Changing the Litigation Game: An Ex Ante Perspective on Contractualized Procedures by Daphna Kapeliuk and Alon Klement, which argues that the timing of private rulemaking (before or after a dispute develops) makes an analytical difference.

Posted by Howard Wasserman on September 6, 2013 at 08:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Gladwell on PEDs

Malcolm Gladwell has a piece in The New Yorker (which he defends on this podcast) that basically lays out in detail an argument I've made previously--there is no good reason that performance-enhancing drugs are outlawed when performance-enhancing medical procedures (e.g., Tommy John surgery or eye surgery to improve vision) are permitted and that people with random genetic benefits (for example, an Olympic cross-country skier with a genetic mutation that over-produces red blood cells, which provides a tremendous advantage in endurance sports) are allowed to benefit from them. It is definitely worth a read, as is the new book The Sports Gene by journalist David Epstein, which Gladwell is reviewing in this piece.

People (particularly present and former players, who should know better) often criticize PEDs as short-cuts and PED users as lazy; the player used instead of putting in the hard work of making himself a great player. In fact, many PEDs actually are all about hard work; the reason cyclists blood dope is so their bodies can work harder for longer and the benefit of steroids is to allow players to work-out longer and become stronger. When Lance Armstrong insisted "I am on my bike busting my ass six hours a day", he was telling the truth; the doping was what made it humanly possible for him to do that much work.  On the other hand, we don't think of genetic advantages (say, especially good eyesight for a Major League hitter) as a short-cut, but as a natural tool that the player then must maximize through hard work. The point of PEDs is to level that genetic advantage, which he then must maximize through hard work. What's wrong with that?

Posted by Howard Wasserman on September 6, 2013 at 07:46 AM in Current Affairs, Sports | Permalink | Comments (11) | TrackBack

Thursday, September 05, 2013

Netflix is the New Primetime Television

I saved Emmy-nominated House of Cards and Orange is the New Black for sick days, but once I started watching, it became clear it would be hard to stop: they were filled with great writing and acting.  However, they were also filled with adult content, which seemed a dramatic change from non-cable primetime television.

This led me to thinking about ratings.  Not rotten tomatoes ratings, but MPAA and similar ratings based on content.  In the second half of the 20th Century, television, movies, music and video games all made the move to regulate themselves through voluntary parental guidelines to avoid harsher, mandatory regulation by outsiders.   

One of the reasons that television, movies, music, and video games faced pressure to regulate themselves was the ease of access by minors.  It is true that Netflix, on the other hand, is password protected and requires a credit card to subscribe.  Nonetheless, once kids gain access to Netflix, they gain access to everything on Netflix, including adult content, unless the parents set parental controls.

In any event, Netflix original programming is rated based on content just like television—both House of Cards and Orange is the New Black are rated TV-MA.  This offers the same type of voluntary signaling that television, movies, music, and video game ratings do.  While there are certainly ways for minors to circumvent the system—and they do every day—there is some minimum signaling and child-protection efforts after all.

Posted by Margaret Ryznar on September 5, 2013 at 10:40 PM | Permalink | Comments (4) | TrackBack

Wednesday, September 04, 2013

The Legal Case for Intervening in Syria (Anthony Colangelo Guesting)

An International Legal Case for Military Intervention in Syria  

By Anthony J. Colangelo

Does international law allow U.S. military intervention in Syria? The Obama Administration has advanced a number of possible justifications including self-defense, halting civilian deaths, and debilitating the Assad regime’s chemical weapons capabilities. None of these justify intervention on the current state of international law.

Yet that doesn’t mean international law would view a U.S. intervention as illegal in the long run. International law is a tricky sort of law, and the United States could make a strong legal argument that intervention would help change the law to allow interventions to halt mass human rights abuses. Going forward, this argument could retrospectively ratify U.S. intervention in Syria and give the United States a central role in formulating international legal criteria for future interventions.  

Legal arguments against intervention are straightforward and rely principally on treaty law. Most prominently, the U.N. Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are only two ways intervention is permissible under the Charter: the Security Council authorizes it, which has not and will not happen, or the United States acts in self-defense. Even the very best international lawyers can’t stretch the doctrine of self-defense to cover a U.S. strike in these circumstances. Even if they could, that’s both an awful and an awfully expansive precedent.

The Administration has also seized upon the Assad regime’s evident use of chemical weapons as a violation of international law that justifies intervention. Yet here too, treaty law cuts the other way. Syria is not a party to recent treaties banning the use of such weapons. Because treaties bind only states that have agreed to be bound by them, Syria’s use of chemical weapons cannot violate the treaties. The only treaty banning the use of chemical weapons Syria is a party to addresses international, not internal, conflicts. And in any event, it doesn’t authorize states to attack other states that violate it. In sum, treaty law does not allow intervention in Syria.

There is, however, another type of international law that might allow intervention, called customary international law. Unlike treaty law, customary international law doesn’t derive from formal agreements among states. Instead, it arises from the practice of states accompanied by what international lawyers call opinio juris, or states’ intent that their practice carries legal significance.

States can usually treaty around custom much the same way private individuals can contract around the norms that govern our everyday behavior. But there are some rules of customary international law that cannot be contracted around and that override treaties inconsistent with their rules. These are called jus cogens, or peremptory norms of international law. Jus cogens contain prohibitions on serious international law violations like genocide, torture, slavery, and crimes against humanity. To illustrate, Hitler and Mussolini can agree by treaty to afford each other’s nations certain preferential trade treatment. But they cannot enter into a treaty legalizing genocide. Jus cogens would swoop in to invalidate that treaty as contrary to a peremptory norm of international law.               

Where does this leave the international legal justification for intervention in Syria? Many favoring intervention have cited jus cogens prohibitions on mass human rights abuses as justification. But that argument is flawed because the jus cogens norm does not directly conflict with the U.N. Charter’s prohibition on the use of force. That is, the Charter doesn’t authorize human rights abuses—in fact, just the opposite: it seeks to “promot[e] and encourage[e] respect for human rights.” Thus even if one can safely classify the Assad regime’s abuses as violations of jus cogens, that only gets the argument halfway to intervention. To justify intervention, the jus cogens norm would need to encompass not only a prohibition on human rights abuses but also the capacity of other states to enforce that prohibition. This latter enforcement component is presently lacking under the law. Finally, the Charter’s prohibition on the use of force isn’t some run-of-the-mill international rule. It is a cornerstone of the postwar international legal system that outlaws aggressive war. For this reason, the prohibition on the use of force is itself considered a jus cogens norm.        

Nonetheless, it may be time for a change. Because customary international law arises from state practice, as practices change so too does the law, including the law of jus cogens. One way customary international law changes is states break it to form new norms; breaches effectively plant the seeds from which new norms grow. Although a breach may violate international law when it occurs, the law may develop to ratify that breach as the early stage of a new norm’s development.  

If the United States intervenes in Syria, it has an initial international legal choice to make: it can ignore international law or seek to justify intervention within it. The second option’s benefit is that if state practice develops to allow intervention the illegality of U.S. action will wilt as the new norm blossoms. Yet some may view this option as undesirable precisely because it may prompt other states to accept the legality of intervention. Reciprocity is also a cardinal rule of international law: if it’s legal for us, it’s legal for you.

The question then becomes whether it’s better to operate within the law or outside it. For other states also will face that same initial choice above, to which this first-order reciprocity norm also extends; that is, the initial choice to ignore law or to justify their actions within it. In this respect, the United States may actually derive two distinct benefits from choosing to justify its actions under international law: a retrospective ratification of U.S. intervention and the ability to formulate criteria for a budding international law of humanitarian intervention.   


Posted by Administrators on September 4, 2013 at 01:44 PM in Article Spotlight, Current Affairs, International Law | Permalink | Comments (11) | TrackBack

Mapping Public Fiduciary Relationships

I have just uploaded my contribution to Andrew Gold & Paul Miller's THE PHILOSOPHICAL FOUNDATIONS OF FIDUCIARY LAW, forthcoming from Oxford University Press next year.  The essay (co-authored with David Ponet and Michael Serota) is entitled "Mapping Public Fiduciary Relationships."  Here is the abstract:

Fiduciary political theorists have neglected to explore sufficiently the difficulty of mapping fiduciary-beneficiary relationships in the public sphere. This oversight is quite surprising given that the proper mapping of fiduciary-beneficiary relationships in the private sphere is one of the most longstanding and strongly contested debates within corporate law. After decades of case law and scholarship directed towards the question of to whom do a corporation’s directors or managers serve as fiduciaries, private law theorists remain deeply divided. This debate within private law should be of perennial interest to public fiduciary theorists because the cartography of public fiduciary relationships is essential to operationalizing the project. After all, it is only through identifying the relevant fiduciary and beneficiary that one is able to determine the precise contours of the fiduciary framework’s ethical architecture. As such, loose mapping of fiduciary-beneficiary relationships in the public sphere precludes a clear understanding of whose interests are pertinent to the public fiduciary’s representation, and what the public fiduciary is to do when beneficiaries’ interests collide. The purpose of this chapter, then, is to explore the central debate in corporate law about fiduciary-beneficiary relationships to help translate fiduciary principles into public law configurations.


Posted by Ethan Leib on September 4, 2013 at 10:22 AM | Permalink | Comments (1) | TrackBack

The Feds Know What [I] Did Last Summer

I am excited to join the Prawfs this month. I’ll kick off with a “what you did last summer post,” which is slightly atypical of most law-oriented academics.  This past summer, I applied for a grant through the National Science Foundation’s Law and Social Sciences Program.  Though I will not know whether the grant proposal was a success until December, there are a number of insights to be gained from the experience. 

For someone that is accustomed to spending a good percentage of his time writing, grant writing still presented several significant challenges: time management, logistical organization, administrative, and even actual writing. This process was the most challenging of my career (possibly even more so than the FRC!).  Over the next several weeks I will post some of the insights we gained into the process and other resources that are available.

Perhaps the first question to ask is “why I decided to try grant writing?”  I have been fortunate in my career.   My former institution supported me lavishly, even in the face of down economic times. I was a young faculty member at a struggling law school that was anxious to put its young talent into the world.  In fact, I can think of only one instance in which I was denied anything from that institution, and that involved a trip to Beijing, for three weeks, before finals, while the ABA was on campus.  (I’m still bitter about being told "no,"  Allen!). Even now, my new institution Savannah Law School remains supportive of the work I am doing, sending me to conferences and other schools to talk about my research.

The fact is that law schools support research differently than other academic departments.  In most institutions summer research funding is a given, presentation travel is a near given (unless you're going to Beijing) and other travel is often available on a near regular basis.  Talking with colleagues in other departments, it is safe to say this has not been their experience. The soft money/ hard money funding dichotomy that so infiltrates so many disciplines has been avoided in law schools due to the overall pressures of the law school academic market and the lack of soft-money funding for the types of research which law school academics engage.  In its stead, law schools have taken a variety of approaches: guaranteed summer funding; quasi guaranteed funding conditioned on producing an article (i.e., no more funding until the funded article leaves the barn); guaranteed summer funding with incentives for greater production); pay for play; etc...  What is most important is that law schools continue to fund this part of the academic work.  And this does not even touch the conference budget allocations most of us are accustomed to having.   

A second difference that has to be raised is the amount of money represented.   For law schools, summer funding and conference travel, per professor amounts to little more than a modest salary increase -- amounting to less than $20,000 per professor.   At this amount, it represents a very modest investment for what the University gets in return. That is, Universities and Law Schools get to promote their faculty's academic achievements, tout their appearances at academic conferences, and produce glossy colored "academic porn" for alumni, prospective students, and U.S. News voters, all for a rather paltry investment per faculty member.  That to me seems like a bargain.  On the soft money side, frankly, the numbers are larger.   For example, the grant I have proposed is for a budget amount exceeding $200,000.  In disciplines that require this type of investment to garner research the effort by the University or department actually requires choices that interfere with other aspects of the University's operations.  At the law school level, the choice is largely a symbolic one -- representing whether the law school stands behind the academic work of its faculty or not. 

It seems to me, talking with colleagues in different institutions spanning the U.S. News Ranking tiers that spending decisions are far more labored (even in law schools) now than they have experienced in the past.   From a faculty perspective, I am wondering where the symbolic meaning of law school decisions lie.  I will talk more about my motivations as the month continues -- many of which are tied to the direct project that I am pursuing -- which is to consider how homeless identities are shaped by the spaces homeless persons occupy, which in turn is shaped by municipal decisions to alter the landscape.   I’ll also spend some time talking about my interests in Law and Literature, Property, Commercial and Consumer Protection Law, and other minutia like college football and the academic market (Geaux Tigers!)

Posted by Marc Roark on September 4, 2013 at 09:38 AM | Permalink | Comments (3) | TrackBack

Visualizing SCOTUS Doctrine - An Introduction

Hello Prawfs! It's Colin Starger from the University of Baltimore checking in. I'm  a longtime Prawfs fan but first-time guest blogger. So many thanks to Dan and company for this wonderful opportunity. 

During my time here, I'd like to introduce readers to the SCOTUS Mapping Project and explain how its method of visualizing Supreme Court doctrine works. I'll delve into the details of this software-driven project over my next few posts. By working through a couple of concrete examples of doctrinal maps, I hope to persuade folks of their practical, academic, and pedagogical value. 

So what is a doctrinal map? To get the basic idea, consider Map 1 below. I explain what it means below the jump.



Doctrinal maps chart relationships between Supreme Court opinions. In the map above, the opinions are represented as triangles. The opinion's short name sits above the triangle and its author lies below. All maps are on a grid. The X-axis indicates the year an opinion was decided while the Y-axis shows the number of votes that opinion received. Map 1  thus shows that Justice Kennedy authored the majority opinion in 2013's Maryland v. King (short name = King) and that his opinion garnered five votes. The map also shows that in King, Kennedy directly cited to the 2012 Florence v. Board of Chosen Freeholders of County of Burlington (short name = Florence) majority opinion. As the map indicates, Florence  was another Kennedy opinion that received five votes. 

While Map 1 illustrates the basic schema, it is far too simple to be interesting. The maps become more useful when you create a chain of citations that track the origins of a certain legal proposition, concept, or perspective. Let's return then to Maryland v. King. As readers might recall, the majority in this case upheld against a 4th Amendment challenge a Maryland law that authorized the collection of DNA from defendants arrested for, but not convicted of, certain serious offenses. One of the justifications behind Kennedy's majority opinion was that the Maryland law was consistent with the Court's search-incident-to-arrest doctrine.


Map 2 depicts part of Kennedy's argument in King. Specifically, tt shows that Kennedy's claim that Maryland's arrestee DNA law comported with search-incident-to-arrest doctrine depended on his reading of Florence, which in turn cited to Belton for a key proposition about the doctrine, which in turn cited to Robinson and so on back to 1927's Marron -- and then back to the 4th Amendment itself.  

A couple of quick technical observations. First, note the footnotes. Like all the maps, Map 2 was created using the custom SCOTUS mapper software program ("the Mapper"). The Mapper has a huge number of options -- one of them is to display text that gives the full names and cites of the cases depicted. I thus turned that option on when rendering this map.  Second, note that the 4th Amendment "vote count" shown on the Y axis is essentially meaningless.  The Mapper can plot non-SCOTUS opinion data points, but in this instance the Y value was based only on an aesthetic choice. I just thought it looked nicer.

One other substantive point bears emphasis: Map 2 is contestable. It was not generated by a computer alogorithm. Rather, it represents my interpretation of the doctrine's genealogy based on my study of the cases and their internal citations. Others might disagree with my rendering of the search-incident-to-arrest doctrine relied on by Kennedy in King. The point is that they could represent this disagreement by creating a different map that emphasizes different opions and connections. In this way, the Mapper is a flexible tool rather than a rigid method.

At the same time, there is a method that I believe works well when attempting to visualize SCOTUS doctrine. This method basically involves paying very careful attention to dissents. Dissents, I argue, are key. They can reveal much about the competing traditions on the Court. So before ending this introductory post, I want to improve on Map 2 by introducing dissents into the picture.


In this final map (for now), I posit that Kennedy's majority opinion in King is connected in a meaningful way to Justice Alito's dissent in Gant as well as to Justice White's dissent in Chimel. However, I use dotted arrows to represent these connections because neither Kennedy in King nor Stewart in Belton directly cited to the respective dissents in Gant and Chimel.  The "citations" to the dissents are thus "implied" -- implied, that is, by me. In my view, the 4th Amendment interpretation urged in those dissents form part of a consistent doctrinal tradition that came to rule the day in King.

At this juncture, there is no need to dive into the actual 4th Amendment doctrine represented above. (For those interested in this particular doctrinal debate, I explore King -- using even more complex maps -- here and here). Instead, I wish only to emphasize the critical role that dissents play in the SCOTUS Mapping Project.   

In my next post, I'll pick up on the theme of dissents and explore the idea of competing traditions in constitutional adjudication. Meanwhile, I welcome comments or questions.  Please stay tuned! 


Posted by Colin Starger on September 4, 2013 at 09:27 AM | Permalink | Comments (4) | TrackBack

Tuesday, September 03, 2013

Pass the Popcorn

Almost everything has been written about the three recent family law cases in the U.S. Supreme Court (Perry/Windsor, Baby Girl, and Chafin), except for one thing: how exciting it was for family law professors to take their turn closely watching the Court.  It rarely happens that the Court agrees to hear more than one family law case per term, and it got me wondering: are we seeing an increasing federalization of family law?

My answer, for now, is probably not.  There has always been an element of constitutional law to family law, most notably in the realms of family privacy and equal protection/due process (often for fathers in custody disputes and those in same-sex marriages).  In fact, some family law professors choose to teach with a heavy con law angle.  There are also a few international treaties dealing with child custody and child support, the latter being an area that has seen a lot of federal attention in recent years in order to maximize child support.

Last term's family law Supreme Court cases fell squarely into these well-established federal territories.  The same-sex cases dealt with the question of equal protection/due process principles.  Chafin addressed the Hague Convention on Civil Aspects of International Child Abduction and whether there was appellate jurisdiction when a child was returned to a foreign country.  Finally, Baby Girl was a familiar race-in-adoption issue that has been seen many times on the national stage, including in the 1970's and 1980's movements against transracial adoption.

So, at least for now, there is no need for family law professors to invest in a popcorn maker...

Posted by Margaret Ryznar on September 3, 2013 at 10:07 PM | Permalink | Comments (0) | TrackBack

A closer look at the Milgram Experiments

The other day, I heard this NPR interview with Gina Perry, the author of a new-ish book, "Behind the Shock Machine:  The Untold Story of the Notorious Psychology Experiments," and was intrigued.  My Criminal Law professor, Joe Goldstein, used the experiments in our unusual (but really fun) introductory course, as part of a discussion about consent and human-subjects research. 

I have not read Perry's book (yet), but it sounds like she's established that Milgram was pretty set all along on reaching his "regular people will do really bad things if told to by an authority figure" (or, as this reviewer put it, his "most of us are potential Nazis") conclusions and troublingly uninterested in the possibility that his subjects could have been harmed by their experiences.  Here's a bit, from a review in MacLean's:

To start with, Milgram was—in layman’s terms—nuts. He began the shock tests without any clear theory of what he was aiming to prove, and had to cobble it together afterwards, some of which he gleaned from a pamphlet entitled, “How to Train Your Dog.” He refused to consider that many people took it as a given that the stated aim of any psychological test was never its true purpose: A large proportion of the volunteers simply didn’t believe Yale would allow people to administer potentially fatal shocks. Among those who did accept what Milgram told them, far fewer than the 65 per cent he claimed actually continued to up the voltage. Worst of all, for fear the truth would leak out to other prospective volunteers, Milgram refused to fully debrief his subjects, many of whom were haunted for years by guilt at what they thought they had done.

If any readers have had a chance to read the book, I'd welcome and appreciate reactions.

Posted by Rick Garnett on September 3, 2013 at 03:22 PM in Rick Garnett | Permalink | Comments (9) | TrackBack

Kids, Cancer, and Fertility: What's the Doctor's Duty?

       There is a story in today’s Wall Street Journal about the advances in fertility preservation for pediatric cancer survivors. The article provides an introduction to the problems facing children who must undergo cancer or other therapies that can render them infertile in the future.  It discusses a Pennsylvania teenager who was diagnosed with leukemia two years ago.   Her doctor advised her that the treatment she needed to help cure her disease could make her infertile, and he advised her that she could undergo a procedure to remove and freeze her ovarian tissue, as a part of an experimental research study that could help preserve her fertility.  The article does not mention whether her physician was part of that research protocol, but it is not uncommon for oncologists to recruit patients for similar studies.  As long as her physician disclosed any potential conflicts of interest and went through a proper informed consent (which I discuss more in the article I refer to below), I do not necessarily see a problem with this.  However, I wonder whether oncologists- who are not part of any similar experimental protocol - would be as likely to disclose the potential fertility preservation options available to patients.  Would they only discuss these options with patients who they know can afford such preservation techniques-either through insurance or their own (or their parents') bank accounts?   The field of fertility preservation is changing rapidly, with new advances each week.   When dealing with cancer patients who are children, physicians must realize that those who survive their diagnoses (which thankfully is a much higher percentage than in years past) will live long enough so that fertility preservation techniques will go from experimental to routine.   Just in the last couple of weeks, there have been reports of a pregnancy occuring after ovarian tissue grafting outside the body,  and articles about the importance of post cancer fertility to patients, here and here.    In a recent article I wrote,  Oncofertility and Reproductive Justice,which will be published in the Harvard Journal on Racial and Ethnic Justice later in 2014 (an early draft of which can be found on SSRN), I begin to explore the issue of oncofertility and what duty a physician has to disclose fertility options to all patients--regardless of race, insurance status, or ability to pay.  

    Oncofertility refers to the process of preserving the fertility of women (and men) who need to undergo cancer treatments that may cause reduced fertility or sterility.  This process typically involves counseling a patient (or in the case of a young child, the patient's parents) about the potential fertility consequences of their treatment, and then if a patient (or parent) so chooses (and can afford it) freezing the eggs, sperm, ovaries, or gonadal tissue to potentially use later using in vitro fertilization or using a gestational surrogate. As cancer survival rates improve, the ability to bear children after therapy is increasingly a concern for many patients.  Some patients may choose their cancer therapy based on the risk of fertility loss rather than on its effectiveness to cure the cancer.   Unfortunately, a patient’s race and insurance status often determines if and when they are told about the fertility consequences of their treatment.  Those without insurance are often in dire straits after a cancer diagnosis, so physicians may not inform them about fertility preservation due to the high costs. Only 2 to 4% of women eligible for fertility preservation actually undergo the process. As the Wall Street Journal article mentions, many options within the field of oncofertility are still experimental –especially the options for children not yet of reproductive age.  If a girl is past the stage of puberty, her eggs can be banked and frozen for her future use via in vitro fertilization. The American Society of Reproductive Medicine recently determined that such egg freezing was no longer an experimental procedure. Egg freezing and sperm freezing, rather than embryo freezing, are good options for postpubertal cancer patients or other patients unable or not wishing to cryopreserve embryos. Other types of fertility preservation, such as ovarian tissue freezing, have resulted in very few live births.  There are no long- or even short-term studies on the viability of the technology as of now, so experimental studies are important in developing this field.  The predicted prognosis of the patient will often determine whether fertility preservation is a viable option.  Because African Americans often have their illness detected at a later stage than other populations, their prognosis is often worse.  Other limitations to the use of this technology include age, cost, and how available it is in the patient’s area. One recent study showed that females, Blacks, and the uninsured were all much less likely to be told about fertility preservation during the course of their cancer therapy.  In the study, Black males, uninsured males, and females with government insurance were at the highest risk for not having discussions about fertility preservation.  Not surprisingly, uninsured status was a predictor for not making preservation arrangements prior to starting cancer treatment within all of the groups.  An additional survey-based investigation suggests “that a lack of money is the biggest barrier preventing women with cancer who have received counseling on fertility preservation from following through with it.”   Ninety percent of women surveyed who had received counseled reported at the time for decision-making that cost and lack of insurance coverage were their reasons for not utilizing fertility preservation technologies.  Men are generally counseled in fertility preservation less frequently than women, with only 30% of clinics surveyed even offering counseling to male patients.

       Obviously, an oncologist's primary role is to treat the cancer, but should oncologists also discuss fertility preservation as a routine part of cancer therapy?  Many oncologists are not following fertility preservation guidelines and are unaware of current guidelines regarding fertility preservation for cancer patients, according to the results of a survey presented at the American Society of Clinical Oncology (“ASCO”) Annual Meeting.   In 2006, ASCO issued guidelines regarding fertility preservation, which recommended that oncologists "address the possibility of infertility with patients treated during their reproductive years and be prepared to discuss possible fertility preservation options or refer appropriate and interested patients to reproductive specialists." However, only 38% of the surveyed physicians stated that they were aware of ASCO's guidelines regarding infertility.   No states currently have laws requiring insurance coverage for oncofertility.  Therefore, even if a patient has insurance, fertility preservation may not be covered.  Should a physician have to disclose these options if he or she knows there is no way a family can afford to take advantage of fertility preservation techniques?   It's a difficult question that deserves some more attention in the legal and bioethical literature.

Posted by Seema Mohapatra on September 3, 2013 at 12:00 AM | Permalink | Comments (1) | TrackBack

Monday, September 02, 2013


Thanks to Dan and the rest of the group for the guest blogging opportunity.  Since I'm new to these parts, I'll introduce myself: I teach Trusts & Estates, Federal Income Tax, Juvenile Law, and Family Law at Indiana University Robert H. McKinney School of Law.  My research addresses property transfers between family members, which will be the subject of some of my posts.  Most importantly, I am an avid reader of PrawfsBlawg and look forward to engaging with other readers this month.

Posted by Margaret Ryznar on September 2, 2013 at 10:46 PM | Permalink | Comments (0) | TrackBack


Happy Labor Day all!

I've been off the box the last few days with my boys at St. George's Island so forgive me for not having posted this earlier, but let me welcome three new voices to the conversation this month: Margaret Ryznar (Indy U--Indianopolis), Colin Starger (U-Baltimore), Mark Roark (Savannah). Let me also thank our August guests, some of whom will linger a little while.

Hope the transition into the academic year (and for those observing, the Jewish new year this week) is a sweet and healthy one, filled with love and laughter, passion and peace. 

Posted by Administrators on September 2, 2013 at 08:54 PM in Blogging | Permalink | Comments (0) | TrackBack

Sunday, September 01, 2013

Seeking views on important under-appreciated lessons from US history with alcohol Prohibition

Hoping to generate many more comments in reaction to this recent post at my new Marijuana Law, Policy and Reform, and because I consider the PrawfBlawg readership to be especially insightful and astute, I am reprinting below parts of the above-referenced post:

As I explained via this prior PrawfBlawg post a few month ago, I thought it wise to devote at least a few early weeks in my Fall 2013 seminar on "Marijuana Law, Policy & Reform" to a review of the legal and social history of alcohol Prohibition.   I am doing so because (1) public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco, and (2) there are many legal and social themes and lessons from the US temperance movement and the years during and surrounding the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy.

I have kicked of my class activites by urging all my seminar students to watch with me the full wonderful 2011 Ken Burns' PBS documentary on Prohibition, as well as cruise around this terrific website from the History Department at Ohio State (which includes this especially interesting account with visuals concerning campaigns by the "drys" in Ohio).  I also have urged students to read parts of the terrific 1970 article by Richard Bonnie & Whitebread, Forbidden Fruit and the Tree of Knowledge - An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Virginia L. Rev. 971 (1970) (available here)  (Hat tip to Prof Orin Kerr and others).

There are, of course, lots of important obvious lessons to take away from US history with temperance movements and alcohol Prohibition, and I suspect my students and others are quick to take away from the US history here that we should seek to avoid governmental cures that are worse than the disease and also avoid too much constitutional experimentation.  But, as the title of this post suggests, I am eager to explore  what might be deemed important under-appreciated (or at least under-discussed) lessons from not just Prohibition itself, but also from the broader alcohol temperance movements that stretch back many centuries and arguably still have some enduring echoes and impacts today.

A few related prior posts (here and eslewhere):

Posted by Douglas A. Berman on September 1, 2013 at 12:27 PM in Law and Politics | Permalink | Comments (7) | TrackBack