PrawfsBlawg

The Strange Bedfellows of Harris v. Quinn

A few more thoughts on Harris v. Quinn (in addition to these) based on the National Right-to-Work LDF press release.

First, this quote from the president of the National Right to Work Foundation is just incorrect:

"We applaud these homecare providers' effort to convince the Supreme Court to strike down this constitutionally-dubious scheme, thus freeing thousands of homecare providers from unwanted union control."

The home health care workers are still subject to the "control" of the agreement between the union and Illinois.  They just are exempted from the need to pay dues.

Second, I found this quote to raise some interesting issues:

"We celebrate knowing that Illinois moms linked arms and refused to be bullied," stated lead plaintiff Pam Harris. "Families in Illinois can relax knowing their homes are safe from being a union workplace and there will be no third party intruding into the care we provide our disabled sons and daughters."

Again, the homes will remain a "union workplace" -- she just won't be paying for it.  Perhaps more importantly, shouldn't there be a third party intruding into the care she's providing to make sure she's doing a good job?  The state is paying Harris to do the job of caring for her son -- it remains free to intrude as much as it likes.  If anything, the union "intruded" by being an advocate for the workers against the state.  The "union as intruder" meme is a very strange one in this context.

One last point: Harris is being paid by the federal Medicaid program to care for her disabled son.  Are some of the people cheering Harris's victory the same ones fighting tooth and nail against Medicaid expansion?

UPDATE: And one more point, from Paul Secunda: The three named plaintiffs who were in the bargaining unit were Theresa Riffey, Susan Watts, and Stephanie Yencer-Price.  (Slip Op. at 7) Watts, like Harris, cares for her own child.  Harris was a member of a different unit -- one that had not voted in favor of unionization.  The Court agreed with the Seventh Circuit that their claims were not ripe.  (Id. at 39 n.30)  So Harris never even felt the "union intrusion" in the first place.

Two Options for Illinois After Harris v. Quinn

Although the pundits were right that Justice Alito penned the majority decision for Harris v. Quinn, the assumption (that I shared) about a broad opinion was incorrect.  Yes, the opinion attacks Abood, but in a passive-aggressive way: it criticizes the decision for a whole section while ultimately only failing to extend it to "partial" public employees.  My guess is that Abood is largely safe but may be chiseled away at over time.  Of course, Abood is not safe as to the home health care workers, since the Court ruled that the First Amendment prevented the state from agreeing to any form of mandatory dues as to those workers.

The home health care workers will presumably remain unionized; the only change is that workers like the petitioners in this case will choose not to pay any dues.  How many more will join them is an open question.  But the free-rider problem may make it difficult for the union to maintain its level of services to all the employees in the unit.  If Illinois wants to provide an economic model for unionization that is something akin to the now-unconstitutonal system, here are two possibilities:

1. Make all home health care workers into full Illinois state employees.  Despite all the hostility towards Abood, the Court's decision rests solely on the home health care workers status as partial state employees.  And from the outside, it is a strange distinction: the state looked like it was trying to have its cake and eat it too.  Now that the Court is forcing the state to choose, it could choose to make all home health care workers into state employees.  What would change?  The state would have to take away some of the control that the customer currently has and place that with the state.  This move has independent benefits: since the government is paying for the services, the government shoud arguably exercise more control and oversight over those services.  People like the petitioners in this case--people who are paid to care for their own loved ones--will likely not like this move.  But they are in a strange position to begin with: Pamela Harris, for example, is employed by her son, for whom I would imagine she is at least one of his guardians.  If the putative employer--the care-requiring customer--is often not in a position to exercise oversight of the employee, the state should arguably step in and provide more oversight. 
2. Allow for members-only bargaining.  Caregivers like Pamela Harris only receive the benefits of the union-negotiated terms and conditions of employment because the state requires the union to represent all the employees in the bargaining unit.  Illinois could lift this requirement and only apply the collective bargaining agreement to the actual members of the union.  Such an approach to unionization would be a real anomaly in the U.S., which is premised in the public and private sector on exclusive representation.  But if certain workers do not want to bear the costs of organizing, then they should be free from its fruits as well.  Since members-only bargaining fits better with a consumerist, free-to-choose philosophy that runs pretty strongly in this country, you may see more experimentation with that model.  This group of workers would be a logical place to start.

There may be state or federal issues with either of these choices; I do not know, for example, whether the state could legally reimburse the home care workers differently depending on whether they joined the union or not.  But there is a fair amount of flexibility in public-sector labor law, and it will be interesting to see what new approaches states develop in the face of Harris.

Holy Hobby: Two Grim Hobby Lobby Thoughts

Today's odious decision will probably yield lots of interesting commentary from constitutional law experts. I only have two thoughts about this, and they both come from a fairly personal place.

In December I will become eligible for a U.S. citizenship, and this year has been a time of self-inquiry and internal deliberation whether to pursue it. While I think it's better to choose something for its merits, and not for the shortcomings of the alternative, I constantly find myself drawing comparisons between the Old Country and the New Country. What complicates this is that my experiences of the old Country are muddled by nostalgic harkening to a welfare-state past that never was, even in Israel. And this morning is particularly grim, because it reminds me of two things that horrify me in present-day Israel (beyond the obvious): the increasingly messianic kowtowing to Ultra-Orthodox reactionaries and the complete and total collapse of the welfare state. I would not leave any of those things behind by choosing to make the United States my permanent home.

The latter, in Israel, is a direct consequence of copying the United States. Netanyahu has pushed and advocated for fiscal policy that disenfranchises the poor, impoverishes the middle class, and sells the country wholesale to tycoons, mafiosos, or both. The free-market ideology that drives these policies, which also drove thousands of my friends to the streets in 2011, is a direct import from the United States. The deception involved in the idea of an entirely unregulated free market is infuriating, and today's decision is a case in point. In a strong economy with less inequality and stratification, in which employees have more bargaining power, even without a reasonable, progressive single-payer health policy, this horrific decision could push people to vote with their feet and not work for employers who impose their cryptofascism through denial of health benefits. But in this economy, what choice do employees have? 

But as to the former--the insidious creep of religious interests into daily civic life--while both Israel and the United States mix church and state in unsavory ways, they do so in very different ways. Most of Israel's population is secular; the government is comprised of primarily secular people. But the multi-party system means that religious parties hold an immense amount of bargaining power. This is why, for 65 years, Ultra-Orthodox men have not served in the army (we'll see how the change is effected); this is why, as we were reminded only yesterday, Israel does not offer public transit on Saturdays; and this is why outrageous acts of marginalization against women occur in an alarming frequency. Religion intrudes on a secular Israeli's life on a daily basis. 

But there are ways in which the religious creep into daily life in America is more insidious. Because here, when we can imagine variations in the gender or color of the president, one cannot even imagine a president who will calmly say he is not religious and does not attend a church. Even with a reported decline in religious identification, an astounding four-fifths of Americans still identify as religious. The atheists I meet here are angrier and more militant than anywhere else in the Western world - for good reason: they are the minority. While in Israel religious people are visibly "otherized" via their apparel or appearance, in the United States those distinctions are more difficult to draw, making public conversation about religion difficult and confusing. And yes, that means that the idea that an employer (human, corporate, you name it) would bring his or her religious beliefs into the business becomes less unthinkable and, after this morning's decision, entirely sayable.

People will be writing today about single-payer insurance, and about corporate personhood, and about overturning Citizens United, and about contraception and health, and those will all be important conversations. For me, personally, this morning is a grim reminder that rampant, soulless capitalism run amok and blind respect for freedom of religion at all costs are as unpalatable and dangerous here as they are in the Old Country.

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This is a rather grim farewell post from Prawfs, I concede, but my month is up. Thank you, Dan, for hosting, and to all of you, for reading and commenting. 

Catalyzing Miami Heat fans

Catalyzing Fans--the article by Dan, Mike McCann, and me--is forthcoming in Harvard Journal of Sports and Entertainment Law. But its basic idea may be taking root.

LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.

This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.

Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.

Principles and political preferences in the First Amendment

Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.

Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.

In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.

Looking Ahead to Harris v. Quinn

Only two Supreme Court cases remain to be decided this term: Hobby Lobby and Harris v. Quinn.  Based on a breakdown of the authors of opinions thus far this term, Amy Howe at SCOTUSblog believes that "Justice Alito, who has not yet written a decision from January, will be writing in Harris."  As kind of a pre-cap to the ruling, here are some quick thoughts on what an Alito opinion in Harris might mean:

• First, check out Charlotte Garden's discussion of Justice Alito's questions in oral argument and his majority opinion in Knox v. SEIU Local 1000 to get a sense of why unions are worried about an Alito opinion.
• Not to be too cynical about the ordering of opinions, but the coverage of Hobby Lobby is likely to hide Harris under its shadow.  If Harris is as revolutionary as some folks fear/hope, it would make sense to give it some political cover.
• The most sweeping version of the opinion would likely prohibit states from signing on to any agreements that require their public employees to pay any level of funds to a union.  Knox clearly hinted at such, saying that mandatory dues were "an anomaly" that the Court had "tolerated" but perhaps for not much longer.  This change would be a big financial blow to unions, as it would allow any employee to opt out of any payments to the union.  But I have not seen many folks talk about the next step if public jurisdictions were required to be "right to work."  Namely: would some states then relax the duty of fair representation requirements on unions, and/or allow for members-only bargaining?  Under our current system, everyone in a "fair share" jurisdiction has to pay at least bargaining costs because they are all represented by the union.  But states could change their own public labor laws and provide that a union need only represent those employees that are members.  The NLRA requires unions to represent everyone in the bargaining unit, but there is no federal "public NLRA" governing state and local employees.  So states could say, "We will only bargain with the union as to those employees who are in the union.  Whatever benefits the union secures will only go to union-member employees."  Will states actually want to do this?  I'm not sure -- it would be messy.  But if states want to provide their employees with the opportunity to unionize, a members-only system would certainly be more economically sustainable than a system allowing employees to free-ride off union negotiations.
• A decision prohibiting agency-fee agreements would be a blow to federalism.  The individual states pursue a variety of different labor-relations regimes based on their own statutory and agency HR approaches.  States should be free to arrange these relationships within historically acceptable models of employee-management relations.  Jutsice Powell's dissent in Garcia v. San Antonio Metropolitan Transit Authority argued that state and local services such as “fire prevention, police protection, sanitation,and public health” are “activities that epitomize the concerns of local, democratic self-government."  Public employees provide these services.  States should be able to provide for a majoritarian system of employee representation that requires some minimal level of payment for the negotiation services that the union provides.  But if they are denied this opportunity, do not be surprised to see a variety of new and different models being proposed and enacted at statehouses across the country -- models that may require employees to actually join the union if they want the benefits that the union provides.  So perhaps the ultimate result of a "right to work" opinion would be that employees will feel more of an economic compulsion to join the union (and pay full dues) than they did when they could refrain from joining the union but still enjoy the fruits of representation.

The Supreme Court Reads Law Reviews

Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it's worth noting how frequently recent Supreme Court opinions have been drawing on law reviews -- and I'm not just talking about yesterday's cite to a certain Professor Elena Kagan.

Here are a few salient examples of law review cites, from both majority opinions and separate writings:

• McCullen v. Coakley cites Kagan, McConnell, and Tribe.
• NLRB v. Noel Canning extensively cites Hartnett, Rappaport, Natelson, O'Connell, and Bradley & Morrison.
• Riley v. California cites Amar, Kerr, and Stuntz.
• Halliburton v. Erica P. John Fund cites Langevoort in considering whether "academic debates" had "refuted" a seminal precedent (answer: no), and Justice Thomas's concurrence in the judgment surveyed the relevant literature, with cites to about a dozen law reviews.
• Bond v. United States extensively cites Rosenkranz, Golove, Bradley, Bradley & Goldsmith, Calabresi & Prakash, Baude, and MacKinnon.

This list is under-inclusive in several respects -- including because, in all likelihood, I missed some journal cites even in the handful of cases I looked at. In any event, the list makes the point: the Court regularly finds law reviews to be not just useful, but useful in a way that shows up in the final published opinion.

I don't want to exaggerate the point. Some of these cites may be merely ornamental, for instance. And I doubt that the justices page through every journal that they cite. Still, the Court's regular recourse to law reviews shows that the genre remains a valued part of the intellectual environment in which the justices render their decisions.

Attracting the judiciary's attention isn't the sole or even paramount mission of law reviews. But it's still an important one -- and, to a considerable extent, it's getting done.

The above is cross-posted from Re's Judicata.

Posner-Watching

From Posner's recent long and fascinating interview:

"I've changed my views a lot over the years. I'm much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason, published in 1992, which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. I've become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn. That shook some of my faith in economic analysis. And developments in psychology have required qualification of the "rational choice" model of economic behavior. So my views have changed a lot. You don't want a judge who takes a position and feels committed to it because he thinks it's terrible to change one's mind."

--

I remember Posner's Holmes' lectures at HLS a bazillion years ago, when he suggested that it's not likely that philosophers will be able to change the moral positions of many people who read their work. I'm wondering if in light of the identified changes above, he would change his mind about *that* and attribute any of the changes to having been persuaded by normative legal/political theory--maybe having Martha Nussbaum as his friend and colleague has had some effect too. Anyway, it's an interesting array of things to have changed one's mind about, and I guess the fact that Posner changes his mind publicly is a reason I quite like him. One of my intellectual heroes, Jeffrie Murphy, made a noble career out of changing his mind, seemingly every six months, about matters of punishment theory.  Posner's public volte-face (or other admissions) strikes me as the self-laceration we academics should all be willing to inflict when the situation warrants. 

P.S. In related Posner-watching, I couldn't help but notice his reaction in Slate to Orin and by extension to Riley v. California, which amounts basically to: "Pfft. What's the BFD? I wrote that opinion two years ago."

Update: I just came across this sharp response to the Posner piece in Slate by Will Baude. 

Harmon on the fragility of knowledge in the Riley (cellphone and 4A) case

Prof. Rachel Harmon from UVA had an interesting post to the crimprof listserv that I thought warranted broader exposure, so with her permission I'm sharing it. (Rachel asked to also thank UVA law librarian Kent Olson for his help with the underlying research).

--

In light of the likely significance of the Court's opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support. 

Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up.  LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.”  But that sentence has appeared unchanged since the first edition of the treatise in 1978.  And LaFave’s support for the proposition is itself pathetic.  It comes in a footnote which reads:  “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).” 

Because I’m crazy, I pulled Taylor and the Model Code too.

 

Both sources suggest that they can’t really prove the original point.   Taylor says, “[M]ost law enforcement agencies have been exceedingly lax with their record-keeping in this field.  But there a few offices where the records are full enough to be meaningful, and from these it is abundantly apparent that searches of persons and premises incident to an arrest outnumber manifold searches covered by warrants.”   He provides no further support for the claim.

The Model Code Commentary provides the numbers from 1966, but also makes it clear they are not to be taken too seriously.  The New York data was apparently furnished directly to the Code’s Reporters from the NYPD, and the San Francisco numbers came from a New York Times’ reporter.  (It was Fred Graham, the Supreme Court correspondent at the time and a lawyer.)   According to a footnote to the Commentary, “Research efforts elsewhere foundered on the rocks of record-keeping failures.  Law enforcement agencies do not commonly maintain statistical records pertaining to search warrants or searches and seizures generally.”

So the Supreme Court cited a source, unchanged since 1978, which cites two sources from the late 1960s, both of which suggest that there is very little evidence for the proposition because police record keeping is weak.  I’m hardly one to criticize imperfect footnotes (since I’ve surely written many myself), but this one interests me.   The Court is all too willing to make unsupported claims about policing, a problem I’ve noted before.  See The Problem of Policing, 110 Mich. L. Rev. 761, 772-773 (2012).  Moreover, for the Court, as well as scholars and policymakers there is a serious problem in finding credible information about what police do.   See Why Do We (Still) Lack Data on Policing?, 96 Marq. L. Rev. 1119 (2013).  The Riley/Wurie citation nicely illustrates both problems, and it won’t be the last to do so.  

 

Cultural Thoughts about McCullen

I've now finished reading McCullen. I should preface this by saying I'm not a free speech expert (and am actually not all that interested in the doctrinal minutiae). My perspective on this comes from having lived in other cultures for most of my life and being somewhat of an outside observer of American culture, even after more than a decade here.

Coming from a culture that regulates speech more strictly, I'm often aghast at the concessions American constitutional law makes for people with hateful, non-world-improving speech, as well as with its broad definition of "speech". But I think the legal culture here is just different.

I say "legal" culture because, ironically, where I came from there may be less doctrinal legal protection in the books, but there's a lot more street confrontation in action. It's not always fun, but it's not necessarily a bad thing. I confess that, having lived here for a while, my instinct upon hearing the decision, like that of many of my friends, was to say, "well, yes, there's a right to free speech, but there's no right to have a captive audience for my speech." But I've realized another thing about American culture that pertains specifically to the audience of such speech: compared to other places in the world where I've lived, the US is very nonconfrontational. With the obvious exception of the Internet, people here tend to abide by "if you don't have anything nice to say, don't say it at all" and "be nonjudgmental" more than in other countries. There's something ironic about this avoidance and non-confrontational practices in a country whose speech doctrine is so expansive. You can talk, but because of the way things really are, you'll likely talk to the void. Because of this culture of avoidance, I often notice that my students find it really difficult to listen, in class, to opinions they dislike, and they later show up at my office traumatized by what they heard. Obviously, personal taste and confirmation bias make it an unpleasant experience for us to hear things that we disagree with, but in the long run, avoiding these conflicting messages isn't good for us, either. It makes us less engaged in the public sphere and it really limits the fruitful interactions we could have if we deigned to speak more with people with whom we disagree. Granted, there's a big difference between hearing this message when I'm going about my daily life and hearing it when I'm about to undergo a physically painful, emotionally difficult medical procedure that will irrevocably alter the course of my life after a making decision I've likely agonized about. But I suspect that, in the grand scheme of things, less trigger alerts, less protections, and less buffers will make us stronger people. There's a way in which free speech works for the audience as well as for the speaker--it expands our horizons beyond our comfort zone and makes us into better social citizens.

Two book recommendations McCullen readers might appreciate, both of which are very sensitive to the broader political and cultural context:

Josh Wilson, The Street Politics of Abortion

Laura Beth Nielsen, License to Harass

Acknowledgement Fun - Klum Mit Gornisht

Here in Tel-Aviv, brunching with my life scientists girlfriends at my beloved port, I hear lots of fun stories from their part of the campus. This morning they shared with me a piercing acknowledgement in a paper published in the prestigious journal Gene:

Dan Graur wishes to thank the ‘‘Klum mit Gurnisht’’ Section of the Israel Science Foundation for their consistent support in the last 17 years.

The original Yiddish expression is of course Gurnisht mit Gurnisht (nothing with nothing) but here the Hebrew word for nothing makes up the first part of the phrase. Another story going viral in their academic circles these days: a huge blow-up between two PIs has led one of them to remove the other's name as a co-author from their joint article and replace it with the name of one of the Chimps in her lab for submission to the peer-reviewed journal.

 

"Experiential" Scholarship?

Is there such a thing as "experiential" scholarship?  I asked this question to some of my colleagues during a recent lunch.  I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like.  I was curious if others thought there was any correlation.

After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends."  The discussion boiled down to three observations:

1.  The Target Audience - For legal scholarship to have an impact, legal scholars should keep in mind why they are writing a piece and who should read it (obviously this goes beyond, "I need to publish so I will come up with a sexy title to capture the attention of law review students").  The target audience could be practitioners, judges, policymakers, and/or academics.  If scholarship is, or even can be, correlated to making students practice-ready, then it seems like the first three audiences would be the primary targets since they are actively in practice.

2.  The Platform Problem - While academic audiences might be inclined to browse through law review articles, the others - judges, practitioners, and policymakers - are less and less likely to do so.  If my target audience extends beyond academics, a lot of issues arise.  What platform do I use to reach them?  For example, if I want my scholarship to be read by practitioners, where do I publish?  The ABA sections all have different periodicals that are published throughout the year.  But what about the other audiences - what platform does one use to reach judges?  And, of course, articles for non-law reviews would be much shorter than traditional articles.  Does that mean forego the traditional law review and go straight to these other platforms (if one can be found)?  I don't think so.  Instead, that question leads to the third observation.

3.  Expertise and Marketing - To become an expert in a certain area undoubtedly requires a lot of research and thought.  Such in-depth work is reflected in traditional law review articles.  Once a legal scholar becomes an expert, then the key is to market it to the target audience.  Write a law review article with the target audience in mind.  Once you've mastered the area, actively seek out publication opportunities that will actually reach the audience you want - write a short piece in the area for an ABA publication, turn it into an op ed, try to present at conferences where your target audience attends, become involved in drafting legislation, blog on relevant sites ... bottom line, take your expertise and, for lack of a better word, market it so that it has the practical impact desired.  Perhaps this is what a lot of legal scholars already do, but I must admit I haven't done it well.  Upon reflection, I think my failure to proactively market my scholarship to non-academics (most of my pieces target judges and policymakers) stems from the fact that, until recently, I was on the tenure track and it was unclear to me whether the effort and time it takes to reach out to such audiences would count as scholarship.  Should it?  And, more on point, would marketing scholarship to non-academic audiences help us think of ways to teach experientially or help make our students more practice-ready?

On soccer

Brishen Rogers has a great, long post at CoOp considering why soccer (or futbol, if you like) never caught on in the United States. He somewhat piggybacks on David Post's VC post from last week.I was always actively antipathetic towards soccer, partly because I did not understand how the overall game worked (beyond "kick the ball in the goal" and "stop using your hands"). I started watching more in recent years, when my daughter took up the game for a few years, and I have to admit to feeling pretty down on Sunday night. I also knew we were not going to beat Germany (although that may be the pessimism that comes with being a Cubs and Northwestern fan).

I like a lot about what Rogers and Post propose; I'll add a few additional points in the gaps.

First, I want to defend the "too little scoring" explanation for soccer's relative unpopularity. The counter to that (which Rogers offers) has always been "look at baseball," which can be just as low-scoring as soccer (especially now that fewer players are juicing). But we need to tweak the comparison by recognizing the differences between soccer and baseball. Even the lowest-scoring baseball game involves a series of one-on-one encounters between pitcher and batter, each of which has a "winner" (batter gets on base or batter is out) and each of which marks a step towards the ultimate result and the ultimate victor in the game; the winner of the game is based on the sum total of those individual encounters. More importantly, baseball is untimed--the point of the game is to score the greatest number of runs within the 27 outs each side is given. So each team has two simultaneous goals--to both score some runs and to get the needed 27 outs in order to win. So we should not say "well, baseball and soccer both have a lot of 2-1 games," because that 2-1 baseball game also had the 27 outs the team needed to win the game resulting from those individual encounters. Relatedly, do not ignore the effect of ties. In baseball, the aggregate of those individual encounters--and getting both runs and outs--is guaranteed to get us to a victor.

If we want to test the "not enough scoring" explanation, the proper comparison is other timed sports, sports in which the only goal is score more points than the other team within a given period of time. And the two major timed U.S. sports--football and basketball-- both involve a lot of scoring.

Second, Post argues that there is "wa-a-a-y too much failure" in soccer and Americans do not like failure. (He adds that the hardest skill in sport is not hitting a baseball, but kicking a soccer ball into the net in a game). Comparisons aside, there still is an awful lot of failure in baseball--the offense fails in more than 75 % of those individual encounters and the greatest individual hitter fails 65 % of the time. Of course, if we focus on the individual encounters in baseball and getting outs as a team's contemporaneous goal, that sense of failure goes away, because we can say the pitcher/defense succeeds in 75 % of those individual encounters.

Third, Americans and American sports media gravitate to individual star players and those stars are more obvious in the big American sports than in soccer because it is easier to see the "star" plays they make. We see LeBron James making shots, we see Peyton Manning throwing touchdown passes, we see Mike Trout hitting home runs or Stephen Strasburg striking people out. And, particularly in basketball, one player makes the difference--in the NBA, the team with the best player in a series generally wins the series. Because we see Lionel Messi score less frequently, we have less of a sense of him as a star making "star plays" (at least plays that produce success). And one star player is less able to dictate soccer outcomes--after all, Portugal's Cristiano Ronaldo is regarded as the best player in the world and his team did not get out of the "Group of Death."

Fourth, I agree with Post about the randomness and caprice involved in soccer. Football, and to a lesser extent basekball, involves precise plays and much less of the free-wheeling running that soccer seems to entail. While all sports involve a bit of luck at the margins, soccer seems to rely on more of it.

Finally, Rogers makes some good cultural and sociological arguments for why America went in the direction of football and basketball rather than soccer. I would add one pont. MLS and professional soccer in this country is said to not be successful because it is not as big as the NBA, NFL, and MLB. But part of the problem has been the insistence on measuring MLS success (monetary and attendance) compared with the sucess of today's other leagues, as opposed to how those leagues looked when they were ten years old.  The NFL was founded in the 1920s (and no one one really cared about it until the 1950s), the NBA in the 1940s; it is ridiculous to measure a nascent soccer league against those mature leagues. In 1925, the early days of modern Major League Baseball, no team had more than 1 million in attendance; in 1955, the midpoint of baseball's so-called Golden Age, only eight teams had more than 1 million in attendance and only one had more than 2 million; in 2013, every team had more than 1 million and eight teams had more than 3 million. So the question should not be if soccer is earning the same attendance or money as the other three leagues; it should be how it is doing for a new sports league. And by most measures, the answer to that question seems to be "quite well."

McCullen and intermediate scrutiny

The Court in McCullen v. Coakley invalidated Massachusetts' 35-foot buffer zone around abortion clinics. The Court was unanimous in the judgment, but not in the reasoning--the Chief (surprisingly, sans pithy quips) wrote for the Court; Justice Scalia concurred (angily) in the judgment, joined by Justices Kennedy and Thomas; and Justice Alito separately concurred in the judgment.

The point of departure was whether the buffer zone was a content-based restriction subject to strict scrutiny or whether it was content-neutral subject only to intermediate scrutiny. The majority held the latter, because on its face the legislature was concerned with public safety, patient access to clinics, and the unob­structed use of public sidewalks and roadways, none of which have anything to do with the content of the (anti-abortion) speech regulated; the majority did not rely on the rationale from Hill v. Colorado of a state interest in protecting clinic patients from having to deal with unwanted speech. Justice Scalia insisted the law was content-based, largely for the reasons he insisted the buffer zone upheld in Hill was content-based (Scalia is still fighting that case rhetorically). The law did not survive intermediate scrutiny, because there were alternative ways to ensure safety and access that would have been less speech-restrictive.

The Court stated at several points that the plaintiffs here were not abortion protesters, which it defined as people with signs and bullhorns, chanting and shouting about the evils of abortion. The plaintiffs were "counselors," who want to have a calm, quiet, compassionate, consensual conversation and to hand-out literature "informing" women of their options. Thus, the adequate alternative means of communication they needed were different. It was not enough that they could stand across the street beyond the buffer zone in order to speak as they wanted; they needed the time and space to have a calm, intimate, within-arms-reach conversation, which the buffer zone did not allow.

This marks just the fourth time since the creation of the modern content distinction that the Court has invalidated applied intermediate scrutiny to invalidate a content-neutral law (the others were Bartnicki, Gilleo, and Watchtower). Intermediate scrutiny requires that the regulation be narrowly tailored and leave open ample alternative channels of communication, as opposed to being the least restrictive means to serve the interest. But the majority seemsed to demand more than it typically does on the narrow-tailoring prong. It pointed to all the other legislative strategies that Massacusetts could have tried (and that the United States and other states have tried); it pointed to the state's failure to prosecute anyone for violating the old buffer-zone laws before moving on to this more-restrictive approach; it pointed to the fact that the law regulates all clincs, although there was a record only of problems at one Boston clinic on Saturday morning; and it pointedly rejected the justification that a blanket buffer zone is easier for the state to administer than a law requiring a showing of harassment or intent to obstruct. Such close review strikes me as an analyitcally correct approach to the First Amendment; it just does not sound like typical intermediate scrutiny.

The dispute between the majority and the Scalia concurrence arguably was less about this case and more about where we go from here. Scalia is still enraged by what he sees as an "abortion-speech-only jurisprudence," which has manifested in the failure to recognize as content-based restrictions that, whether facially or practically, only regulate anti-abortion speech. He made a similar point in his Hill dissent about the deck being stacked against those who oppose abortion rights. (Of course, it is similarly odd to see Scalia suggesting that the Court would and should vigorously scrutinize a law barring protesters from the streets and sidewalks outside the Republican National Convention). On the other hand, there are good arguments that courts place too much weight on the content-distinction, where identifying something as content-neutral seals the case for the government because intermediate scrutiny is so easily satisfied. Perhaps the majority opinion, while too easily concluding that the law was content-neutral, reflects a renewed vigor in reviewing content-neutral laws, rather than giving the government a free-ish pass once it is found that a regulation is not content-based. (Mike Dorf wonders how this might affect so-called "ag-gag" regulations prohibiting recording of conditions and treatment of animals on farms, which are similarly directed at a type of speech but also can be justified in terms of privacy, safety, and property).

The majority suggestsed that an alternative to this sort of blunderbuss legislation is to regulate clinic access through "targeted injunctions" once clinic blockage has become a problem; courts can better demand a record of a problem based on people's actual conduct and tailor the remedy to the specific clinic and its geography and needs. But such a stated preference for injunctions over legislation seems to fly in the face of established First Amendment doctrine, which generally abhors prior restraints on speech, even prior restraints based on a showing of past misconduct.

Finally, lower courts are left with the task of reconciling McCullen with Hill; although the parties briefed whether to overrule Hill, the majority did not address that issue (or even discuss that case). Justice Scalia suggested (and urged future parties to argue) that Hill has been sub silentio overruled. He emphasized that the majority here refused to rely on the avoiding-unwelcome-speech government interest (going for public safety, access, and avoiding obstruction instead) and that the majority acknowledged that a law is not content-neutral if the undesirable effects result from reactions to speech. Since that is the essence of the analysis and holding of Hill, it must not be good law.

Update: One last question to add: Under a principled application of today's decision, can the anti-Westboro funeral buffer zones be constitutionally valid? Most of those are much larger than 35 feet.

Standing and defendants

In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action.  (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).

Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.

In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).

But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.

So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.

SCOTUS: No Cellphone Search Without Warrant

This morning, the Supreme Court ruled in Riley v. CA and U.S. v. Wurie, 9:0, that searching a cellular phone requires a warrant. 

Chief Justice Robert's Op. Ct. analyzed phone searches in the context of the Search Incident to Arrest exception to the warrant requirement, comparing a phone search to a search inside a pack of cigarettes in Robinson. Robinson, you'll recall, extended the Chimel doctrine to all containers within the "grabbing area" of the suspect. But given the newness of the technology, which the framers (duh) could not anticipate, the court thankfully is unable to find "guidance from the founding era" and turns to reason and pragmatics. 

The state presented essentially two rationales for warrantless searches of cellphones: harm to the officer and destruction of evidence. The opinion summarily dismisses the former: contrary to the cigarette pack in Robinson, there could be no argument of a physical weapon hidden in the phone (the police knew what they were looking for: data), and if there were any concerns of alerting someone to the presence of officers using the phone, those could be addressed via other exceptions to the warrant requirement, such as exigent circumstances, in specific cases. As to the second rationale, with the phone itself physically in the hands of the police, the main concerns regarding destruction would involve encrypting and remote wiping, none of which seems to the Court to be an empirically-supported practical concern (maybe it will be, from now on?). Also, the practicalities of securing the scene, bringing the suspect into custody, etc., mean that the police won't turn its attention to the phone right away anyway, and therefore the warrant requirement is not onerous or time-consuming for the investigation as a whole.

The decision then explains its particular sensitivity to the issue of phones because of the heightened privacy interests involved. Cellphones differ from physical objects in their immense storage capacity, which means that one carries on one's person intimate, sensitive data from various sources: locations, conversations, history of internet searches, purchases, dating and romantic life. These merit particular scrutiny on the part of the Court and limitations on police power.

The court also rejects other analogies made by the state: to cars, to pen registers, to pre-digital phones. The rationales for the rejection are all about preferring a bright-line rule and concerns abou spillover of information that was not available before the era of smartphones.

(Justice Alito, concurring in judgment, disagrees that danger to the officer and risk of evidence destructions were the rationales behind Chimel, points to some anomalies created by the decision, but does not see a workable alternative.) 

Three notable things:

(1) The decision is refreshing in its willingness to engage with technology and fully comprehend its implications. It is not driven by technophobia (like, say, Kyllo), but by the experience of people who use phones daily.

(2) Not unrelated: Like Jones, this is one more decision that protects the lifestyles and technologies of the middle class. As opposed to, say, searches of homes with no curtilage, or stops and frisks in the street, both of which fall under the "poverty exception", the privacy intrusions in Jones and Riley are both such that the Justices might be able to imagine themselves subjected to them.

(3) Note that in the era of smartphones, police officers have phones, too. And they can use them to call a courthouse and get a warrant. So, this decision might not stave off privacy intrusions for very long. The extent to which the cellphone warrant requirement is not merely a formality depends on the extent to which judges will exercise discretion in issuing warrants, which we know, empirically, to be fairly limited.

What do you think about the decision?

 

Supreme Announcements

At this time of year, oral arguments are long over at the Supreme Court, but the justices nonetheless convene to announce opinions from the bench. This practice is unusual in the US judicial system. Federal courts of appeals, for example, do not orally announce their opinions. Moreover, the parties whose interests are being adjudicated have no way of knowing when their cases will be announced and so are rarely in attendance. Yet, tomorrow, the justices will ascend the bench anyway in order to read summaries of the Court's published opinions and, perhaps, salient dissents. Why would they do this? One important reason is to influence the public. Through opinion announcements, the normally apolitical Court sometimes acts much like a political institution -- with all the benefits and risks that that role entails.

On the surface, the Court's opinion announcements are simply wholesome celebrations of America's civic religion. There is pomp ("Oyez!"), circumstance (regal curtains), and grandeur (an array of somber marble facades). On each opinion day, a very small slice of the public gets to see a bit of history being made. Visitors also enjoy the unusual experience of having a direct impression of the justices, particularly those who happen to speak that morning. This traditional and generally banal picture is especially apt during early and mid-term announcements, which are typically free of the most controversial cases. To the extent that opinion announcements function this way, they are a cross between a civics lesson and the ceremonial turkey pardoning at Thanksgiving. Consistent with that view, Justice White often announced the judgment of the Court in a matter-of-fact style, without rhetorical embellishment or even significant explanation.

From another standpoint, however, the opinion announcements are canny press conferences. They give the justices a chance to gather members of the Supreme Court press corps and speak directly to them all at one moment. This gives those justices who speak a chance to accentuate certain details and shape media coverage. As if to ensure that the bench announcement garners attention, the Court releases full opinions online only after a short delay. The results can be interesting. Consider the Chief Justice's announcement of the healthcare case, NFIB v. Sebelius. Because of the way the Chief explained the opinion of the Court, the unusually A-list audience of in-court attendees was initially led to believe that the healthcare act had been invalidated. The audience had the experience of thinking the Act was doomed, and then of realizing that the Chief had sustained it.

Earlier this week, Justice Scalia used an opinion announcement to cut to the heart of a technical decision. While explaining the Court's opinion in Utility Air Regulatory Group v. EPA, Scalia made a prominent declaration that appeared nowhere in his opinion: "It bears mention that EPA is getting almost everything it wanted in this case." This statement shaped early media coverage, which painted the decision as largely a victory for the EPA, even though the Court had struck down part of the agency's regulation in a 5-4 ruling. To similar effect, the Chief Justice (for the Court) and Justice Breyer (in dissent) went out of their way in their oral statements in McCutcheon v. FEC to emphasize their respect for one another's opinions -- thereby helping to preserve the Court's public image in the face of yet another 5-4 campaign finance decision.

Using the same technique, dissenting justices sometimes speak from the bench in order to alert and rally public opposition to the majority's opinion. These oral dissents -- which aren't typically shared in advance with other justices -- can diverge from the written dissents in marked ways. For example, in Parents Involved v. Seattle School District, only Justice Breyer's dissent from the bench included the memorable line: “It is not often in the law that so few have so quickly changed so much.” This unpublished remark likely surprised other justices, and some accounts indicate that members of the majority reacted to it with consternation. (For more, see Lani Guinier's magisterial treatment of oral dissents here.) Remarks like these illustrate the special tensions that sometimes result from uncoordinated joint press conferences.

It's hard to shake the sense that opinion announcements, particularly the high-voltage ones near the end of the term, resemble political events. This is not to say that the opinion announcements are partisan. Rather, opinion announcements are political in the sense that they offer a uniquely powerful opportunity for the Court to interface more directly with the polity, through the media. And though the justices increasingly engage the public through speeches and books, those avenues of communication are no substitute for immediate commentary on the decisions that form the heart of what the justices do. Opinion announcements give the justices a special opportunity to be heard outside their marble palace.

The virtue of opinion announcements depends in part on their goal. To the extent that the justices aim to educate the public and help it to understand and evaluate the business of the Court, opinion announcements are all for the good. And success at that educational mission will inevitably entail persuasion, as well as (one hopes) lively writing. But it's possible to take a good thing too far. To the extent that the justices use their bully pulpit not just to advance legal arguments but to take an active role in public debate, they risk casting the judicial branch as just another part of the political scene in DC -- to the detriment of the Court's long-term image. So when the justices read from the bench this week, they won't just be addressing discrete cases of great importance. They'll also be helping to define the Court's distinctive institutional role.

The above is cross-posted from Re's Judicata.

The end of umpires?

That is the proposal from John McEnroe to make tennis more interesting--have the players call their own lines, as a way to introduce greater intensity into the game. Players would be given challenges and McEnroe argues that the threat of fan anger would keep players in line. It has been said that back in the day, if the umpire clearly missed a call, the player who benefitted from the blown call would tank the next point as an equalizer (I am not sure if that is true). On surfaces where the ball leaves a mark (notably clay), a player will often point to the spot of the ball to show the opponent before an argument begins.

Continuing my previous suggestion that sports rule as enforced by umpires are analogous to rules of procedure--the framework rules regulating the process in which the players control the outcome through performance of skills: This is the sports equivalent of arbitration; the parties have privatized the dispute-resolution process into something they create and control themselves, perhaps less formally, rather than using formalized "outside" processes and arbiters that they work with but exert less control over. Maybe that means McEnroe's proposal will work about as well as arbitration.

On a different note on McEnroe's suggestion: This video is pretty funny. Latvian Ernests Gulbis is asked about McEnroe's proposal to get rid of umpires; Gulbis misunderstands and thinks the reporter asked about getting rid of vampires and begins to discuss the benefit of getting ride of vampires (in the metaphorical sense of hangers-on).

Purdy on our "anti-democratic court"

Prof. Jed Purdy (Duke) (Go Devils) has a piece at The Daily Beast called "God Save the United States from this Anti-Democratic Court."  (Ann Althouse writes about it, here.)  He asks, among other things, "[s]hould a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation?"  In response to this question, Purdy observes, "[m]ore and more progressive observers are not so sure."  (But see, e.g., Geoffrey Stone, "Do We Need the Supreme Court," here.)   

It's an important question, for sure, and while I'm at best a faint-hearted and selective Thayerian, I'm sympathic to -- or at least think that I should be -- the answer Jeremy Waldron gave, a few years ago in The Core of the Case Against Judicial Review (That is, "pretty much no.")  The problem with Purdy's piece -- or, perhaps, the problem with me -- is that it is really hard for me to avoid the reaction, "Well, it appears to me that progressive observers, like most of the rest of us, like judicial review when they think courts get the right answer and dislike it when they think courts get the wrong answer.  Justice Breyer, for example, thinks it's really important to defer to legislative judgments, except when state legislatures enact school-choice programs."    Purdy quotes Rob Hunter’s recent conclusion that “judicial interference with democracy” should become “unthinkable," but I guess I'm skeptical that progressives, or Purdy, really want to unthink all "judicial interferences with democracy."  Few Court decisions have been as "anti-democratic" as, say, Roe v. Wade or Engel v. Vitale, but I suspect Erwin Chemerinsky's new book, The Case Against the Supreme Court (which Purdy mentions) will not criticize these rulings.

Don't get me wrong, my hands are not clean here:   I've suggested that the Court should be very deferential and hands off when it comes to the Establishment Clause but also that Hosanna-Tabor was about as right as a Court decision can be.  And, it could be that my snark is unfairly directed at Purdy's piece, since he does say:

For this reason, it’s the rare radical democrat who will denounce the Supreme Court right down the line. Whatever they think of the Court’s other decisions, progressives will generally celebrate without reservation on the all-but-certain day when the Court established marriage equality nationwide. Most Americans think of the Constitution as being ultimately on their side, and identify the Constitution with the Supreme Court. When they agree with the Court’s decision, they tend to think the country has been called back to its best self. When they disagree, they tend to think there has been a regrettable, maybe terrible, mistake.

So . . . what?  Maybe this latest uptick of expressed frustration with the strangeness of a state of things in which the Answers to Big Questions are provided by Justice Kennedy is just a reprise of the popular-constitutionalism conversation, or the inquiry into whether there really is such a thing as "judicial activism" (See, e.g., Kermit Roosevelt's book), or the call for "neutral principles", or the celebration of the "passive virtues", or . . . .  I'm not sure.  I feel confident, though, that few if any of us -- despite what we might wish we could honestly say we want -- really want the Court to be entirely inert or unflinchingly "democratic."

A victory for the rule of law - apparently not

I had to edit this blog because literally as I posted it, the news changed.  Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order.  As I previously wrote, her imprisonment violated Sudanese law.  Her release was a victory for the rule of law.  International pressure influenced this outcome.   But the victory was very short (less than 24 hours).  The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.

Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way.  There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention.  Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim.  Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.

What Happened to Chevron Step One?

Today's decision in Utility Air Regulatory Group v. EPA partially sustained and partially invalidated a major greenhouse gas regulation. In doing so, the Court passed up an opportunity to clarify the famous and deceptively familiar deference inquiry established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council. The question is whether Chevron (i) requires, (ii) forbids, or (iii) permits judicial decisions that uphold agency interpretations as not just reasonable, but mandatory. This issue was once thought to have been answered by Chevron Step 1, which seemed to require judicial review for mandatoriness. In UARG, however, the familiar Chevron Step 1 is mostly absent from the scene -- even though the Court expressly considered the possibility that the agency's reading was "compelled," or mandatory.

The best explanation for UARG  is that the Court views the traditional Chevron Step 1 inquiry into mandatoriness as optional. In many cases, the only relevant Chevron question is whether the agency has acted reasonably. That is particularly true when the agency reading is invalidated as unreasonable. When upholding agency interpretations, however, it sometimes makes sense for a court to go further and opine that the agency's reading is not just reasonable, but mandatory. The upshot is that what used to be called "Chevron Step 1" has effectively become an optional additional step. In this respect, Chevron resembles modern qualified immunity doctrine, which always asks whether the challenged governmental action was reasonable, but also gives courts discretion to reach the merits.

In the decision below, the D.C. Circuit ruled based on "the familiar Chevron two-step." Quoting Chevron itself, the D.C. Circuit divided the inquiry into two parts. "First . . . if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." While the D.C. Circuit doesn't always frame the Chevron inquiry in this way, the foregoing statement probably deserves to be called the traditional view of Chevron: two steps, both concerned with statutory interpretation. Applying that approach, the D.C. Circuit appeared to rest on Step 1 by holding that the statute was "unambiguous" and that it "compelled" the agency's reading." Yet that traditional view of the "familiar Chevron two-step" has been much debated.

One increasingly popular alternative approach, set out in an important paper by Professors Stephenson and Vermeule, is that both steps are really asking the same thing and so should be reduced to a single step. Step 1 asks if the statute "clear[ly]" forecloses the agency's view, and Step 2 asks if the agency has adopted a "permissible" construction. Under either phrasing, the test is whether the agency has occupied a statutory ambiguity. Put yet another way, the sole question is whether the agency's reading is reasonable. Whether the agency's explanation was arbitrary would be a separate inquiry undertaken under the APA. Both before and after Stephenson and Vermeule's paper, Justice Scalia (UARG's author) wrote opinions that substantially supported their point of view (more on that below). And, when granting cert in UARG, the Court adopted a question presented that seemed to frame the issue as having only one step: "Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources."

Another salient view of Chevron differs from both the traditional picture and the one-step version of Stephenson/Vermeule. On this third approach, Step 1 goes to statutory interpretation, whereas Step 2 asks whether the agency's reasoning was arbitrary and capricious. Professors Bamberger and Strauss defended two-step Chevron largely on this ground. But while some cases adopt that understanding of Chevron, many other decisions, including UARG, don't mention arbitrariness review. Further, arbitrariness review is separately provided for under the APA, so (as Stephenson/Vermeule argued)  its additional inclusion within the Chevron rubric would be superfluous. Bamberger/Strauss also differed from Stephenson/Vermeule in placing greater emphasis on the fact that Step 1 allows courts to find statutory meaning to be not just reasonable but unambiguous. This point has important implications, since a lot can turn on whether an agency view is reasonable (and therefore revisable) or mandatory.

Against this background, consider UARG's first Chevron ruling -- the one against the agency. As noted, the Court framed the question presented in terms of whether the agency view was permissible, full stop. What's more, the Court's recitations of the Chevron framework, like Justice Scalia's past writings, often sounded like the one-step view. For instance, the Court said that "[t]he question for a reviewing court is whether ... the agency has acted reasonably and thus has 'stayed within the bounds of its statutory authority.'” Yet just after the Court wrote these words, it proceeded to ask whether one of the EPA's readings flowed from "the Act's unambiguous language" and whether the Act "compelled" the agency's reading. Only after answering those questions in the negative did EPA go on to ask the question it had set for itself at the outset -- namely, whether the EPA had adopted a "reasonable construction of the statute.” This two-step analysis is more succinctly put in the Court's syllabus, which notes that "[t]he Act neither compels nor permits" the agency's reading. Justice Alito's separate opinion similarly noted that "the EPA is neither required nor permitted" to adopt its interpretation.

The Court's first Chevron holding leaves something for everyone. One possibility is that UARG actually followed the traditional view of Chevron articulated by the D.C. Circuit, where Step 1 inquires into the unambiguous intent of Congress before Step 2 considers permissibility. Put another way, UARG separately asked both about mandatoriness  (Step 1) and about reasonableness (Step 2). Another possibility is that, consistent with the Stephenson/Vermeule approach, the Court really meant it when it said it was concerned only about permissibility, which, after all, is the ultimately dispositive issue in any agency deference case; it just so happened that one very important argument for permissibility would necessarily also mean that the agency's view was compelled. Finally, UARG might even be compatible with the Bamberger/Strauss view. This reading is more of a stretch, since the Court didn't mention arbitrariness review and certainly seemed to be interpreting the statute, rather than merely passing on the agency's stated rationale. Still, the Court's Chevron analysis could conceivably be viewed as an extended Step 1 inquiry into statutory meaning that obviated the need to reach arbitrariness at Step 2.

The picture changes a bit when it comes to the Court's second Chevron ruling, which went in favor of the agency. Again, the Court framed Chevron as a one-step inquiry. This time, however, the agency's reasoning didn't run afoul of the statute's unambiguous meaning. More than that, there was a plausible argument that the agency's view was unambiguously correct. As the Court put it, the statutory text at issue in the second Chevron ruling was "far less open-ended," and "the more specific phrasing of the BACT provision suggests that the necessary judgment has already been made by Congress." The Court further noted that certain arguments would apply "[e]ven if the text were not clear," thereby suggesting that the text was clear. Despite all this, the Court found only that the agency had acted permissibly, stating that its "narrow holding" was "that nothing in the statute categorically prohibits EPA from interpreting the BACT provision" as it had. The Court thus chose to find the agency's reading reasonable, without passing on whether it was also mandatory -- contrary to the traditional view of Chevron, which seems to demand that courts first determine whether the statute is unambiguous. Because of this restraint, the EPA could in the future reject the reading that the Court sustained and instead adopt, for example, the different reading offered in Justice Alito's separate writing.

UARG illustrates that debates over the structure of Chevron tend to have relatively low stakes when the agency loses, since that finding necessitates that the agency's view was neither required nor reasonable. Yet agencies sometimes win. And, when they do, it is important to know whether their readings are mandatory. For instance, the D.C. Circuit didn't have to write its opinion in terms of agency compulsion; it could simply have said that the agency's view was permissible. Should the D.C. Circuit have been: required to consider mandatoriness, forbidden from doing so, or simply allowed to do it? The Court has never squarely confronted this question, but its rulings over time suggest that mandatoriness findings are neither prohibited nor required, but optional. That is, the Court sometimes finds agency readings to be unambiguously correct. In other cases, like UARG, the Court settles for finding reasonableness, while casting mandatoriness findings as a distinct and viable possibility.

Nor have Justice Scalia's past opinions taken a definite position on this issue. In a passage that appeared at the outset of Stephenson and Vemeule's paper, Scalia wrote that "any agency interpretation contradicting what Congress has said would be unreasonable." That statement is silent as to what happens when the agency prevails. More recently, in United States v. Home Concrete & Supply LLC, Justice Scalia wrote in a concurrence that "the so-called 'Step 1' determination of ambiguity vel non" is a "customary" but "hardly mandatory" component of Chevron. In other words, the mandatoriness inquiry normally ensconced in Step 1 is a distinct but optional analytic step. In a footnote, Scalia tacked back toward the Stephenson/Vemeule view by asserting that "[w]hether a particular statute is ambiguous makes no difference if the interpretation adopted by the agency is clearly reasonable." But, again, that assertion is wrong. While mandatoriness findings don't make a difference as to whether the agency wins, they most certainly do make a difference as to the agency's ability to revise its interpretation. Since Scalia is well aware of that fact, his footnote may have meant to say that there is no legitimate reason for a court to issue mandatoriness findings, since doing so would amount to a gratuitous holding. UARG supplied a chance to put that normative view into practice.

My own view (explained in more detail here) is that Chevron originally required consideration of mandatoriness (at Step 1) before consideration of reasonableness (at Step 2), much as qualified immunity cases once required consideration of the merits in addition to reasonableness. In both contexts, structuring judicial decisionmaking according to a two-step process forced courts to clarify the law, to the benefit of regulators and litigants alike. But, also in both contexts, forcing courts to issue unnecessary rulings created problems, including by increasing the risk of error and raising legitimacy concerns. In response to those problems, qualified immunity jurisprudence has now embraced a more flexible case-specific approach to deciding whether to reach the merits. Chevron jurisprudence should explicitly adopt a similar approach: while courts should always resolve the question of reasonableness, they should also have the option to rule on the distinct mandatoriness question. In other words, Chevron (like qualified immunity) should be understood to have two steps, where the second step is optional.

The above is cross-posted from Re's Judicata.

Goldstein on journalism and SCOTUSBlog's press credential

This morning, the Standing Committee on Correspondents denied SCOTUSBlog's request for a congressional press credential. Tom Goldstein's response is here.

Deviance, Lawmaking, and the Global Rules of Marathon Swimming

On September 2, 2013, thousands of people stormed the beach in Key West, Florida, to welcome 64-year-old Diana Nyad to shore. News outlets all reported that Nyad's fifth attempt to swim from Cuba to Florida  was successful; she swam 110 miles in 53 hours, arriving in Florida with a flotilla including her handlers and medical crew.

But as the public celebrated Nyad's messages on teamwork and perseverance, doubt and cynicism took hold of the people who were in a position to best understand Nyad's feat: The marathon swimming federation. Some of the resentment was ad-hominem and due to bad blood: Nyad has had quite a history with other marathon swimming, including her disparagement of Walter Poenisch, a man who successfully swam the distance (albeit with fins,) and her inaccuracies about swimming around Manhattan many years ago also rubbed people the wrong way. But some of it pertained directly to the swim and the conditions and terms under which it was conducted, and it sparked a lively discussion about the regulation of the sport and its culture, eventually leading to the creation of the Global Rules of Marathon Swimming.

I think an analysis of the marathon swimming community's response to Nyad's swim has a lot to teach us beyond sports law, about the way laws are made in response to perceived deviance.

In The Rules of Sociological Method, Emile Durkheim offers a functionalist perspective on law and deviance. Like any other social fact, he argues, deviance and crime are perceived as offering something valuable to the society in which they occur. First, deviance strengthens social solidarity by allowing members to unite against the transgressor. Second, Second, it is an opportunity to reaffirm and clarify existing rules. Third, it is an opportunity to reconsider the importance or hierarchy of rules. And fourth, it is a vehicle for preventing social stagnation, as a challenge to the rules might mean that the rules should change.

A few words about the law and culture of marathon swimming before Nyad's swim: Marathon swimming (roughly defined as swims of at least 10km in open water) differs from other sports, such as pro cycling, in two important ways: the lack of a well-oiled funding machine and the lack of official governing bodies with quasi-judicial capacity. Until 2014, there was no set of global rules governing swims. Recognized bodies of water, such as the English Channel, the Catalina Channel, the Santa Barbara Channel, and well-established races, such as the Tampa Bay Marathon Swim and the Manhattan Island Marathon, have their own rules, which differ slightly from setting to setting. But all swim rules conform to the same ethic, which is one of spartanism, purity, and minimalism. Marathon swimmers, generally, do not swim with wetsuits or any gear beyond a regular swimsuit, cap, and goggles. They do not come in deliberate physical contact with people or with the craft that accompanies them, and are fed via strings and poles during the swim. And they tend to frown upon technological innovations to assist the swim, believing that sighting in open water and handling rough conditions are as much a part of the sport as is swim technique.

(If you are unfamiliar with marathon swimming and are scoffing at this point, think of how you'd feel about pro cyclists having an engine attached to their bicycles, or about marathon runners using roller skates. That's how marathon swimmers feel about neoprene, fins, directional streamers, too many buoys, music players, ear metronomes, etc.)

In the absence of economic and legal incentives for compliance with the rules of the sport, other factors become important, namely the importance of verifiable evidence and the importance of personal reputation. Usually, impressive solo swims include an independent observer on the boat, who can vouch for compliance with the rules--not always easy to procure, as there are no big financial incentives for being an observer. Also, in the relatively small community of athletes, honest, rule-abiding people gradually attain a "clean" reputation, which provides them with enough status to wield respect and legitimacy when they comment about other people's swims or discuss their own feats.

This background should explain why cynical remarks about Nyad’s innovations–directional streamer, sting suit and mask, and a heated water neck device–abounded even before the swim and during Nyad's unsuccessful attempts. In public debates before the swim, as Karen Throsby observed, marathoners presented themselves as preserving the purity of the sport, while Nyad presented herself as a technical innovator. But after the swim, most attention was drawn to a mysterious acceleration in Nyad’s swimming pace during the last night of the swim. Nyad swims at about my speed; she is not fast, and averages less than two miles per hour. But during the night, her speed exceeded four miles per hour. This would be explainable if Nyad got lucky and caught a favorable current, but the crew was not forthcoming with information and that irritated the forum managers and several of the posters. Moreover, Nyad’s crew reported that she did not eat for seven hours during the swim, which most of us consider a fairly dubious practice. I feed every 40 minutes, which is on the lazy side; others in the sport feed every 20 or 30 minutes. I can’t even think of swimming that distance without consuming food or drink for seven hours. Finally, there was some frustration about the fact that the swim rules were not declared in advance. These suspicions furnished a long thread of debates on the marathon swimmers' forum, including statistical charts.

The doubts expressed by community members increased in light of Nyad's refusal to share any data from the boat with the community at large. Eventually, the debate spilled beyond the confines of the athletic community and made it to the mainstream media and to a confrontation between Nyad and her critics, which didn't yield a lot of useful information to illuminate the swim.

In the aftermath of the discussion, several well-respected members of the community, in consultation with various constituents, came up with a list of rules general enough to apply to all bodies of water. currently unregulated by official channels.  There are still debates about the minutiae of the rules (are we allowed to wear wristwatches?), but the rules in general represent what many deem to be the "spirit of the sport." 

I come to the conclusion that the controversy has done an important service for the sport, in the spirit of Durkheim’s latent functions of deviance. First, it brought marathon swimmers together, on the wings of factual doubts and old grudges, and allowed them to foster a spiit of community by reaffirming their identity and values in opposition to those of Nyad's. Second, it was an opportunity to reaffirm and clarify the rules, especially the interesting, not-quite-mandatory-but-legitimizing status the English Channel rules occupy in the sport; some of these clarifications, such as the importance of clearing the water unassisted, were clearly not followed by illustrious marathon swimmers in the 1950s and 1960s (I have photos showing them assisted out of the water.) Third, it was an opportunity to examine what was more and less important, focusing more on the authenticity of the swim and the importance of accurate reporting and less on the assistance devices themselves, such as suits, masks, and streamers. And fourth, it provided an opportunity tochange rules going forward and consider technological innovations that were not on the table during the heyday of the sport in the 20th century. 

The marathon swimming community is insular and small enough that it enabled me to study its inner workings as a whole in light of Durkheim's functionalism, but some of the lessons can apply to other areas of law. First, I find some parallels between enforcement in this community and enforcement in international law, which also relies mostly on reputational devices in the absence of effective coercion mechanisms. And second, it is an interesting parallel to criminal legislation following redball crimes, whose benefits are exposing lacunae and problems in the system, but whose disadvantages lie in promoting excessive punitivism and fear.

Looking forward to your legal, sociological, and athletic thoughts.

Halliburton and the State of the Efficient Capital Markets Hypothesis

Very interesting set of opinions in Halliburton v. Erica P. John Fund, Inc.  The continuing vitality of the efficient capital markets hypothesis is one of the big issues in the case, and there are numerous cites to law profs, including the law professors' amicus brief and articles by Lynn Stout, Don Langevoort, and James Cox, among others.  Both big opinions cite to Lev and de Villiers.  A very interesting example of when theory has a big role to play in doctrine. 

From Chief Justice Roberts's majority opinion:

Even though the efficient capital markets hypothesis may have“garnered substantial criticism since Basic,” post, at 6 (THOMAS, J., concurring in judgment), Halliburton has not identified the kind of fundamental shift in economic theory that could justify overruling a precedent on the ground that it misunderstood, or has since been overtaken by, economic realities.

From Justice Thomas's concurrence in judgment:

The Court’s first assumption was that “most publicly available information”—including public misstatements—“is reflected in [the] market price” of a security.  [Basic, 485 U.S.] at 247. The Court grounded that assumption in “empirical studies” testing a then-nascent economic theory known as the efficient capital markets hypothesis. Id., at 246–247. Specifically, the Court relied upon the “semi-strong” version of that theory, which posits that the average investor cannot earn above-market returns (i.e., “beat the market”) in an efficient market by trading on the basis of publicly available information. See, e.g., Stout, The Mechanisms of Market Inefficiency: An Introduction to the New Finance, 28 J. Corp. L. 635, 640, and n. 24 (2003) (citing Fama, Efficient Capital Markets: A Review of Theory and Empirical Work, 25 J. Finance 383, 388 (1970)). The upshot of the hypothesis is that “the market price of shares traded on well-developed markets [will] reflec[t] all publicly available information, and, hence, any material misrepresentations.” Basic, supra, at 246. At the time of Basic, this version of the efficient capital markets hypothesis was “widely accepted.” See Dunbar & Heller, [Fraud on the Market Meets Behavioral Finance, 31 Del. J. Corporate L. 455, 463–464 (2006)].

This view of market efficiency has since lost its luster. See, e.g., Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 175 (“Doubts about the strength and pervasiveness of market efficiency are much greater today than they were in the mid-1980s”). . . .  

For further reading: interested folks might want to check out our book club for Justin Fox's The Myth of the Rational Market, which included the author, Lynn Stout, David Zaring, & Benjamin Means. 

JOTWELL: Thornburg on Hadfield and Ryan and information disclosure

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Gillian K. Hadfield & Dan Ryan, Democracy, Courts, and the Information Order, 54 J. European Sociology 67 (2013), exploring the demoratizing role of civil litigation, particularly discovery and the public value of information disclosure.

When Is an Anti-Homelessness Ordinance Vague?

"You know those ducks in that lagoon right near Central Park South? That little lake? By any chance, do you happen to know where they go, the ducks, when it gets all frozen over? Do you happen to know, by any chance?"

--Holden Caulfield, in J.D. Salinger, Catcher in the Rye

When I teach 1L criminal law, my preference is to focus not on the sensational cases of serious crime, but on the everyday workings of the system: drugs, property, and various quality of life offenses. As it turns out, teaching the principle of legality, vagueness, and other important basic tenets of criminal legislation becomes apropos and important when using the example of anti-homelessness legislation of various stripes. Many criminal law casebooks include Chicago's ban on loitering and Chicago v. Morales. I like creating a timeline of legislation, showing how cities have consistently tried (and sometimes failed) to find ways to target the poor and get them off the streets. Sit/Lie ordinances are a classic example, as is the latest bout of litigation about this, which involved ordinances that prohibit one from sleeping or living in his or her vehicle.

In Desertrain v. City of Los Angeles, decided a few days ago, the Ninth Circuit tackled a municipal ordinance prohibiting the use of a vehicle “as living quarters either overnight, day-by-day, or otherwise.” The ordinance itself is not new, but it became a convenient enforcement vehicle (pun intended) after an angry "town hall on homelessness" in 2010. As a result of the aggressive enforcement efforts, several folks down on their luck (read: petitioners) tried to craft their behavior to comply with the ordinance as best they understood it: one of them, thinking the ordinance probably applies only to public streets, slept in his car in a church parking lot. Another, in an effort to comply, slept in the street, but kept some items, such as his sleeping bag. Another petitioner, left without work after a head injury, slept in her RV parked in her church. And another one was cited despite not sleeping in his van, just because he stored many items in it.

The officers enforcing the law were not given much instruction. In a memo from 2008 cited in the decision, officers were instructed that  “report must describe in detail observations . . . that establish one of the following — (i) overnight occupancy for more than one night or (ii) day-by-day occupancy of three or more days." In another memo, from 2010, officers were told to “adhere to the ‘Four C’s’ philosophy: Commander’s Intent, Constitutional Policing, Community Perspective, and Compassion,” with no further details.

The Ninth circuit found the ordinance unconstitutionally vague, because its articulation left people in serious doubt as to what behavior constitutes "living" in a vehicle. "Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain?" But, of course, as the court knows, middle-class folks talking on their cellphone in the car would not be targeted; the court explicitly says that the law lends itself to arbitrary enforcement and criminalization of the poor. 

There are some pretty interesting things going on here. First, what is the relationship between vagueness and the potential for arbitrary enforcement? Yes, miscellaneous so-called quality of life offenses tend to be enforced disproportionately (exclusively!) against the poor. But don't we disproportionally target the poor in enforcing drug offenses, prostitution offenses, property offenses, and even some types of violent offenses? It seems that anti-homelessness bills in all their iterations seem unique to the court, and I think it might be because they are all rather clumsy ways to get around the challenges of prohibiting status rather than criminal behavior. Loitering, sitting on a sidewalk, and sleeping in your car are all things you do when you have nowhere else to go. There seems to be some sort of status/behavior continuum, by which being addicted to drugs is a status one can't help, but being drunk in public is a legitimate offense (even if you have nowhere else to go. Homeless? Don't drink.) Living in your car is vague, but sitting or lying on the sidewalk between certain hours is behavior you can presumably control and therefore a legitimate target of law enforcement. While we can dispute some of these distinctions (I know I do), you could at least make a half-decent argument that there's a free will element, flimsy as it is, that needs to be there to distinguish between a legitimate behavior prohibition and illegitimate prohibition of status.

But there's something else that seems to be going on, and that's a balance of NIMBYism and individual rights. The Ninth Circuit's Judge Kozinski, who thought that sit-lie ordinances were fine and peachy, describes the motivation of the City of Seattle right at the beginning of his decision: "Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road," he says, "the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening." Ostensibly, this is about legislative accuracy - hours defined, places clearly defined, all of which makes the behavior presumably easy to avoid. But the undercurrent is also that a city is right to clear its sidewalks for some of its residents by prohibiting others from blocking the way by sitting on them.

Which begs the question, how are people sleeping in their car a problem? True, the Los Angeles city ordinance, as it is, is vague. But what if the ordinance,  in lieu of prohibiting "using a vehicle as living quarters", prohibited "spending the night, between midnight and 5am, inside one's functioning vehicle, no matter where it is parked, for three consecutive days"? That's not all that vague, is it? And yet, we all have a nagging feeling that, despite the clearer articulation of prohibited behavior, some people are going to get arrested and some aren't. 

The real question beneath the surface is, why does it matter to the city whether someone down on his or her luck sleeps in their car? Presumably, if someone sleeps in her car, she doesn't get cold and sick; she's not drunk in the street; and she's not otherwise causing mischief or taxing our already scant welfare dollars. The response has got to be some sort of NIMBYist aesthetic distaste, which Judge Kozinski's decision in Roulette glosses over but never addresses directly. What the architects of this ordinance would really want is for the homeless population to disappear. But because these are real people, they're not going to just vanish like Holden Caulfield's ducks in Central Park. They still have to sleep and eat, and they're going to have to find ways to do it, and going one by one to eliminate these modes of survival, vague or not, arbitrary or not, is cruel and inhumane.

As a brief coda, this case didn't raise any Fourth Amendment issues, but it has always fascinated me how the Fourth Amendment makes both homes and cars into special places with special rules, in opposite ways: homes receive extra protection and cars receive explicitly less protection. Presumably, the consitution protects "people, not places", but what with the return to tresspass theory in Jones, It seems to me that the economic downturn calls for a more sensitive conceptualization of the car and its role in people's lives. What with the scholarly attention to the American cult of homeownership (see here, here, here, and here) we forget that we also have a fairly robust car culture, which impacts urban planning and even globalization. The centrality of the car to one's lifestyle is as American as apple pie. Maybe the downturn has created an important permutation in the cultural role of vehicles, meriting them more constitutional protection than would be justified by a narrow conception of them as vehicles.

 

Accusations of law prof self-delusion and mendacity; predictable cheering from the bleachers; and a basic point remains missing

Prof. Burk wades cleverly into the debate about JD advantage and law school worth with an angry post about post-law school employment and an analogy to the MLA's case for PhD humanities work.

One argument in the post is unassailably right and important to make:  Even if one supposes that a law graduate has succeeded in finding a position for which the JD degree provides a clear advantage in the work required, it does not follow that law school was the right educational path or, relatedly, that the benefits of this JD degree outweighed the costs.  Of course.  Point well taken.

But what remains missing is a careful engagement with the point made by many, including me, that there are positions which ought to count, for those who purport to do the counting (ATL is one; LST is another), although a credential as a lawyer is not formally required.  Insofar as law schools can and will describe these positions and, further, explain why substantial legal training, leading to a JD, provides special skills for these positions, then current and prospective students should evaluate whether the benefits of three years of legal education justify the costs.

Apparently Prof. Burk, channelling the irritated folks who pepper this post with "stick it to the man" comments in a redundant and wholly predictable way, simply declares that law profs and administrators who counsel students to pursue non-traditional jobs -- in a world, I hasten to add, in which the traditional silos between "practicing law" and deploying legal skills in a business setting are weakening -- and who report, happily, when their graduates in fact secure these jobs, are engaging in subterfuge and worse.

Let's talk candidly about the reconfiguration of legal practice, the growing interface among law-business-technology, and the efforts underway to shape business environments to engage law graduates in the performance of management strategy, human resources, regulatory compliance, entrepreneurship -- in short, in spaces where law and legal skills are prudent, and perhaps essential.  And, further to the critical point, let's insist that law schools be candid and transparent about exactly which jobs their students land after graduation.  Then the marketplace will be in a better position to evaluate the important claim about whether and to what extent X or Y or Z law school is worth it. 

Lance Armstrong: Another Civ Pro exam

Judge Wilkins on the District of the District of Columbia  addressed a host of motions to dismiss in the False Claims Act and common law fraud lawsuit against Lance Armstrong and others over false statements and claims relating to the Postal Service sponsorship of Armstrong and his team; the case began as a qui tam action by rider Floyd Landis and the United States intervened. For some reason, when sports disputes hit the courts, they carry procedure and jurisdiction problems with them.

If you are looking for a single source for a lot of possible exam issues, this 81-page decision has a little bit of everything: 1) Presentation of outside documents and facts on a motion to dismiss and the possibility of converting a 12(b)(6) to summary judgment; 2) when an action commences under Rule 3 and the validity of Rule 3 in the face of different state law; 3) handling lawsuits against no-longer existing corporate entities; 4) Relation back of a new party's complaint (the U.S., when it intervened) where the relevant statute of limitations provides for relation back; 5) propriety of the manner of service of process; 6) propriety of using 12(b)(6) to assert a statute of limitations defense; and 7) how to plead fraud under FRCP 9(b).

Creating Good Incentives in the Correctional Market

I'm so glad I came across John Pfaff's terrific post about private prisons and their (smaller than you think) contribution to the mass incarceration project. It came just in time; I'm working on a piece that relies on neoliberalism literature AND on public choice economics to argue that focusing on private incarceration companies, as such, doesn't make much sense. First, public prisons are also privatized to a great degree; many of their functions, such as healthcare, food services, transportation, and industry, have long ago moved to private hands. And second, in a hypercapitalist environment, public and private actors alike behave in homo economicus ways, maximizing profit, minimizing cost, and largely not caring about maintaining prison conditions. There's a lot more, and I'll elaborate in a future post.

But the question I have is about solutions. If regulation is something that correctional authorities are able to circumvent, how are we supposed to do it right? How to create minimal incarceration standards? How to incentivize private and public actors to maintain a rehabilitative, recidivism-minimizing facility? Can you tie payments for services to recidivism reduction? How should the calculation be done? I have some ideas, but I'm probably more naive than you on regulation and the administrative state. Looking forward to your thoughts.

 

When dissent rhetoric comes true

In covering summary judgment in civ pro, I teach an Eighth Circuit case called Sitzes v. City of West Memphis. A police officer drove, perhaps without lights or sirens, 80-90 mph through a residential neighborhood towards what may or may not have been a genuine emergency and hit a car, killing the driver and injuring the passenger. A divided court held that intent-to-harm was the applicable standard and granted summary judgment in favor of the officer. It is a great teaching case because both the majority and dissent parse the evidence in the record in identifying what may or may not be genuine disputes of material fact and join issue with what facts are material in light of the applicable legal standard. It is also one of the few cases in Civ Pro that genuinely seem to get students riled up.

At one point, the dissenter (a district judge sitting by designation) went into parade-of-horribles mode. The majority held that there was no intent to injure since the officer genuinely subjectively believed he was rushing towards an emergency. That being so, the dissent argued, "an officer could avoid Section 1983 liability for driving 100 miles per hour through a children’s playground during recess time, by stating that he subjectively believed there was an emergency and the path through the playground was the most direct to get to the claimed emergency." The majority's only responses were: 1) that's not this case and 2) "we think it very likely that an officer who intentionally drove through a playground . . . could be held liable even under the intent-to-harm standard, regardless of the officer’s avowed belief, at least absent some compelling exigency not described in the hypotheticals."

Well:

 

True, it is a golf course not a playground and the video seems to suggest it was not crowded. And it was a pursuit, apparently begun when officers attempted to serve outstanding drug warrants, perhaps the "compelling exigency" the majority demanded; it was not the officers using the golf course as a short-cut to reach some other location. And, fortunately, the officers did not hit anyone, so we need not address the § 1983 or due process questions.

On the other hand, why chase him onto the course, with all the attendant risks? There was a police helicopter in the chase, so the guy was not going anywhere.

Oral Argument (in Athens, GA) on Regleprudence

I had the great fortune this week to be on Christian Turner & Joe Miller's podcast, Oral Argument, which they run out of Athens, GA.  We talked about my new forthcoming paper with Nestor Davidson: "Regleprudence -- At OIRA and Beyond," 103 Geo. L.J. (forthcoming 2015) -- and many things besides, like this cover of REM's Country Feedback.  These guys run a fabulously entertaining show.  Their clever title for our show together , "Rex Sunstein?," probably is a better title than "Regleprudence."  And they have some really useful links you can scan as you listen to the podcast.  Here is the abstract for the paper we spent most of the time discussing:

There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into one case study – the Office of Information and Regulatory Affairs and the legal work it undertakes through regulatory review – and gesture at how more general attention to regleprudence can improve our understanding of important corners of the Executive Branch.

Weekend Reading: Driver, Reactionary Rhetoric and Liberal Legal Academia

Justin Driver has an excellent paper by that title in the new issue of the Yale Law Journal, which is an excellent issue devoted to Bruce Ackerman's new We the People book. Here's the abstract:

As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to misapprehend the nature of that mainstream opposition, contending it assumed more aggressive forms than it actually did. Upon examining the actual arguments respected figures wielded against the Civil Rights Act during the 1960s, certain patterns of argumentation become almost immediately apparent. Mainstream critics consistently opposed the legislation not by challenging it head on, but instead by employing three standard arguments that Professor Albert O. Hirschman’s The Rhetoric of Reaction identified as sounding variously in perversity, futility, and jeopardy. In addition to demonstrating how Hirschman’s taxonomy illuminates mainstream opposition to the Civil Rights Act, this essay proceeds to argue that modern legal academia accords The Rhetoric of Reaction inadequate attention. That is so because the forms of argument Hirschman explored now frequently appear in what would initially seem an improbable place: the scholarship of liberal constitutional law professors. Left-leaning legal scholars often propose revised assessments of high-profile Supreme Court opinions, asserting that—properly understood—those opinions have had perverse effects, ended up being futile, or jeopardized some larger achievement. Legal scholars also deploy such reactionary rhetoric prospectively, warning about the dangers that they assert will accompany future efforts to issue progressive judicial decisions. Given the prevalence of reactionary rhetoric among liberal law professors, it is crucial both to grapple with the reasons that may explain its current ascendance and to identify some of the undesirable consequences that could flow from its common usage.

I think it's a terrific read, although I don't necessarily agree with all of it.

It is worth noting two caveats Driver draws from Hirchsman's excellent book:

1) "Reactionary rhetoric is not the exclusive province of reactionaries. To the contrary, non-reactionaries can, under particular circumstances, feel moved to advance such arguments." 2) "In addition, Hirschman noted that his examination was primarily concerned with classifying and exploring recurrent rhetorical tropes, not assessing the underlying validity of those arguments within discrete historical contexts. Hirschman understood that simply because 'an argument is used repeatedly is no proof, to be sure, that it is wrong in any particular instance.'"

Thus, reactionary rhetoric may not be limited to liberal legal academics: it may indeed, for various reasons, be a standard trope for legal academics of various stripes. And the presence of a reactionary argument does not mean that the concern expressed is necessarily wrong; moreover, given the complexity of legal and social change and the lack of agreement on what constitutes a good outcome, it will be difficult after the fact to draw strong conclusions about whether a reactionary argument was correct. Repeated evidence that the sky did not fall completely, however, offers good reason to be avoid dire predictions when making a reactionary argument. For these reasons, I think Driver is on weaker ground when he expresses concern that reliance on reactionary arguments could produce "an unduly anemic understanding of the Supreme Court’s capacity to promote social change," and on stronger ground when he argues more modestly that reactionary tropes can be "overemployed." Nevertheless, he marshals his arguments and examples well and enjoyably. I particularly enjoyed this paragraph:

A second explanation for the trend in liberal academia’s usage of reactionary rhetoric stems from the nature of the academic enterprise. Professors often establish their own scholarly agendas at least partially in response to the generation of scholars who preceded them. If the generation of liberal scholars who came of age during the Warren Court and in its immediate wake heralded the Supreme Court’s ability to refashion society, it is not especially surprising that subsequent liberal scholars would dedicate themselves to revising that received wisdom. As the scholarly pendulum regarding the Supreme Court’s efficacy began to swing in the opposite direction, reactionary rhetoric fairly cried out for usage. The perversity argument, in particular, seems almost irresistible for those possessing the sensibilities of a legal academic. Although Hirschman did not portray the perversity thesis in these terms, his explanation of its mechanics helps to capture some of perversity’s appeal for academic audiences: “This is, at first blush, a daring intellectual maneuver. The structure of the argument is admirably simple, whereas the claim being made is rather extreme.” Later, Hirschman described the perversity thesis as “[s]imple, intriguing, and devastating.” It seems difficult to imagine any three adjectives to describe an academic article that would more readily grab law review editors by their lapels.

How to Prosecute Crimes Committed Abroad?

Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth.  He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad.  The Pepe case had been lingering for eight years.  The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).

I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over.  Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.

If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply?  It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible.  That seems simplistic, and, indeed, case law is unclear.  For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts."  At that point, the U.S. citizen has the right to constitutional protections.  But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.

What about evidentiary issues?  For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia.  When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial.  From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles.  Given how easy international travel has become, these issues will become more and more prominent.

Alice Corp. v. CLS Bank...thanks for nothing

A few weeks ago, I complained about the Supreme Court's continued efforts to change patent law, but without any guidance as to how it was supposed to happen.  I concluded with my hope that the Court would tell the Federal Circuit what they got wrong (7 opinions issuing from 10 judges) and what the right answer was about the patent eligibility of software and computer-implemented inventions.

Well, this morning Alice Corp. v. CLS Bank issued - and remarkably, the Court unanimously affirmed the Federal Circuit (??) and specifically declined to provide the guidance that has been lacking:  "In any event, we need not labor to delimit the precise contours of the 'abstract ideas' category in this case"  I'm sure I'll have some more thoughts on this, but my initial reaction is "Thanks for nothing."

Changing Law Professor: Job Security and Governance

Following up on a recent post on the "changing law professor," let me comment on what the phenomenon of what might be called the separating of the law professioriate, as law schools look to experienced lawyers to teach and work full-time in the experiential (clinical and more) space and increasingly-credentialed academics to do more interdisciplinary teaching and writing.  As a couple commenters noted, this is not a brand new phenomenon; nor is it absent elsewhere in the academy.  But my claim is that the pressures on law schools to carry out two fundamentally different objectives simultaneously --   to be traditionally and successfully "academic" and to be increasingly practical -- points toward a model of a twin full-time faculty, with law teachers following more or less the principle of comparative advantage.

What implications does such a model, well underway at a number of American law schools, for important matters of security and governance?  The "job security" issue has gone through accreditation twists and turns for a number of years.  The ABA walked right up to the precipice just this past year of removing what is essentially a tenure requirement for full-time faculty members, deciding at the last moment to maintain existing accreditation standards in this area.  Yet, the requirement of tenure for full-time ladder rank faculty has not swept in the large numbers of full-time faculty whose work is principally teaching and who, usually although not always, are teaching practical, skills-training courses.  It has to a substantial degree done so with respect to full-time clinicians.  But not all faculty members who are carrying out the experiential and practical-skills parts of the academic program are rightly labeled clinical faculty.  So, the maintaining of the current structure of ABA standards does not settle the matter.  Far from it.

In any case, the crucial matter here is not whether tenure exists and persists as a requirement for "non-traditional" full-time faculty.  We could and should debate this issue, and this debate is highly to continue as the ABA (and perhaps the AALS) revisit their standards in the current environment of law school instabilities.  Rather, the internal institutional question is how best to construct a regime of job security for faculty members who continue to be deeply invested in the law school and, moreover, are carrying out major parts of the focused, innovative skills training which both the profession and academy views as essential to law schools' contemporary missions?  Let me put the point more sharply:  It makes little sense to see one big hunk of what I have called the two faculties represented by the "changing law professor" as not having the job security befitting this role and earned by the impactful work they do in the institution.  The traditional case for weak job security was flexibility in hiring, in promotion, and in administrative and financial structure.  While such flexibilities are (here putting my dean hat on) very appealing indeed, such flexibiity is at odds with a faculty configured to do both high-level research and publication and to implement a curriculum which trains skillful lawyers for the new legal economy.

And, as to governance, here the direction is toward expanding the tent to ensure that all those who are invested in the well-being of the institution -- its mission, its students, and its culture -- have a say in the key decisions that matter.  These decisions include the scope and contours of the curriculum, the shape of its programs and, consistent with university rules and practices, input into the selection of its leaders.  Governance is a tricky issue, not only because changing the rules can unsettle existing expectations of some faculty members who think of themselves (or, past tense, thought of themselves) as being the ones central to enterprise decision-making, but also because it must be exercised responsibly.  The paradox here is that, with some sharper distinctions between the role, functions, and expertise of two faculty cohorts, it is harder to find the kind of common ground on essential expectations that makes responsible governance possible.  "What do experienced lawyers know about empirical research in law and social sciences?"  "What do JD-PhDs with minimal practice experience know about how to best try a civil case?"  These are difficult, important questions and ones that can drive a wedge between the ideals of collective governance and community-building.  But it is important to the well-being of law schools that these conflicts be effectively managed.  And, lastly, it is important that governance regimes be in the service ultimately of building a community of faculty who are committed in their work, their research, and even their affect, to improving legal education at their respective law schools. 

Standing is easier when you're Younger

An open issue in the standing discussion in SBA List is the extent to which the threat of an administrative proceeding, a la a complaint about false electoral speech before the Ohio Elections Commission, constitutes sufficient harm to allow standing for a preenforcement challenge to the underlying statute. The Court emphasized that adminstrative proceedings impose burdens on time, cost, and distraction to possible speakers and that a Commission finding that some speech was false may be viewed by the public as a state-imposed sanction--all genuine injuries-in-fact. The Court cited Ohio Civil Rights Commission v. Dayton Christian Schools for the proposition that "If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not." But the Court ultimately punted on the question because Commission proceedings might be followed by criminal prosecution, presenting an additional element of harm in this case.

But the Court's hesitancy or ambiguity on this point is unwarranted and potentially troubling. There should be no question that genuinely threatened administrative enforcement proceedings should be sufficient for preenforcement standing.

Dayton was a Younger case, which held that federal courts must abstain in deference to ongoing coercive enforcement proceedings before a state civil rights commission. The portion of Dayton quoted  in SBA List was from Footnote 1, in which the Court quickly disposed of any ripeness concerns, citing two other Younger decisions, both of which involved threatened criminal prosecutions, Steffel v. Thompson and Doran v. Salem Inn.

The key is recognizing that connection between standing and Younger. Younger requires abstention in deference to three types of pending state proceedings, including civil enforcement proceedings, especially those in which the state is party to the proceeding and in which the state initiates the formal process following some other preliminary investigation. The Sprint Court expressly recognized the administrative proceedings in Dayton as of the type to which a federal court must abstain. And the Court has never suggested that administrative proceedings must be supported by criminal prosecution to trigger abstention; a purely civil administrative proceeding is enough. Younger does not require abstention where those civil-enforcement proceedings are threatened but not pending. The issue then is one of standing or ripeness (or both)--whether there is a sufficiently credible threat (how sufficient is the point of Marty's post) that any such proceeding will be initiated. This creates a window for individuals to get into federal court--in the time between when the threat of initiation becomes real and when proceedings actually have been initiated.

So now we can frame the standing question for preenforcement challenges in those terms. If there is a credible threat of initiation of any proceeding and it is a proceeding from which Younger would require federal abstention once that proceeding is initiated, then the plaintiff has standing (or the action is ripe, whatever) for a preenforcement challenge. This now preserves that window for getting to federal court. Otherwise, if a genuine threat of a purely administrative proceeding is not sufficient to trigger standing, then a plaintiff is forever blocked from that federal forum--he cannot bring a preenforcement challenge and Younger kicks-in once the government initiates the administrative proceeding. In SBA List, it seems obvious that a federal court would abstain once Commission proceedings were pending against a speaker--that is what the district court initially held in the case (before other things happened procedurally). Therefore, the real threat of those Commission proceedings alone--whether or not supported by criminal prosecution--should be enough to establish standing.

The Precedent Spectrum

The Roberts Court has given us a lot of interesting uses of precedent, including a proliferation of doctrines that purport to dilute the power of stare decisis. The upshot is that the familiar, old-school divide between precedent and dictum has given way to a complex precedent spectrum. Below are a few examples, as well as some misgivings about them.

1. Controversial precedents. Perhaps the most conspicuous demotion of precedent during the Roberts Court appeared in the Chief Justice's Citizens United concurrence. Tacitly breaking from Planned Parenthood v. Casey, which suggested that opposition to a case paradoxically strengthens it, the Chief concluded that past campaign finance decisions were due less respect because they were issued over dissents and remained controversial. "The simple fact that one of our decisions remains controversial is, of course, insufficient to justify overruling it," the Chief explained. "But it does undermine the precedent's ability to contribute to the stable and orderly development of the law." This reasoning seems unpersuasive. The controverted nature of a decision may well increase the chances that it's wrong, as the Court appeared to suggest in Payne v. Tennessee. Yet the mere fact that a precedent is controversial doesn't necessarily translate into legal disorder. If anything, the fact that the dissenting view has long been in dissent suggests that the precedent at issue has been repeatedly reaffirmed, solidifying its legal status.

2. Summary precedents. In the Court's most recent campaign finance decision, McCutcheon v. FCC, the Chief's plurality opinion demoted part of the Court's seminal precedent in Buckley v. Valeo, explaining that it "does not control here." Part of the plurality's argument distinguished Buckley as involving a meaningfully "different statute." But the plurality also repeatedly noted that the relevant precedent consisted of "three sentences ... that were written without the benefit of full briefing or argument on the issue." In support of that point, the plurality cited to case law affording diminished precedential effect to true summary decisions issued without plenary briefing and oral argument. Though Buckley wasn't actually a summary decision, the McCutcheon plurality treated its three-sentence holding as one, partly because of Buckley's remark that the relevant issue "ha[d] not been separately addressed at length by the parties." On this view, the McCutcheon plurality arguably afforded Buckley's three-sentence holding even less precedential respect than a true summary decision, which (the Court has previously said) should control "the precise issues presented and necessarily decided."

3. Common law precedents. A couple weeks ago I blogged about the connection between Michigan v. Bay Mills Indian Community and personal precedent, or each justice's fidelity to her own past opinions. But Bay Mills is interesting even apart from personal precedent's contribution to the precedent spectrum. The key ruling at issue in Bay Mills was Kiowa Tribe of Okla. v. Manufacturing Technologies, a common law decision regarding tribal sovereign immunity. In another 5-4 case several years ago, the Court had asserted greater freedom to revisit decisions involving "common-law statutes" like the Sherman Act, on the theory that Congress expected the Court to make policy in that area. Citing that rule, the four Bay Mills dissenters argued for overruling Kiowa. But the majority refused, in part based on congressional acquiescence. In short, Bay Mills treated a common law precedent like a statutory one. Perhaps there is a principled reason why common law precedents in certain areas, like antitrust, have a uniquely diminished status. More likely, Bay Mills signals a persisting division in the Court as to the status of the common law, with the result that litigants will have a hard time predicting the reliability of common law precedents.

Notably, the uses of precedent described above may not themselves be entitled to full precedential respect. In Citizens United and McCutcheon, the Chief's opinions supplied critical votes, but weren't denominated as opinions for the Court. And Bay Mills didn't squarely confront past decisions that treated common law rulings as having diminished status. It therefore remains an open question where these "precedents about precedent" will themselves fall on the precedent spectrum.

The above is cross-posted from Re's Judicata.

More on SBA List and standing

Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).

That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.

Waiver and Forfeiture in the Court

The Supreme Court frequently relies on principles of waiver and forfeiture to limit the scope of its review. But waiver (the voluntarily relinquishment of an argument) and forfeiture (the failure to press an argument) are most naturally at home in traditional litigation that affects only a limited number of parties. In those cases, a court's main institutional role is to adjudicate the narrow dispute at issue, perhaps without even creating any legal precedent. Think, for instance, of adjudication in a small claims court. By contrast, waiver and forfeiture are in tension with some of the Supreme Court's most salient institutional goals -- namely, to provide correct precedential guidance as to important legal disputes affecting many parties and interests. Several recent cases illustrate how the Court has used waiver and forfeiture while navigating its dual identity as both a traditional adjudicator and a precedential rulemaker.

To find a consequential use of forfeiture, one need only review yesterday's decision in Argentina v. NML Capital, which spends a surprising amount of time explaining what it is not about. While acknowledging that the oral argument involved extensive discussion of various discovery rules, the Court declined to reach those issues. Instead, the Court focused on what it regarded as the sole issue appealed below and preserved in the petition for cert: whether the Foreign Sovereign Immunities Act barred certain discovery into Argentina's assets. After explaining that "Argentina has not put [the broader questions] in contention," the Court noted that Argentina's reply brief had tried to do just that. The Court's response was curt: "We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief." NML Capital's use of forfeiture makes sense because it resembles forfeiture's traditional application. What made NML Capital so important was that it involved a high-stakes litigation involving a foreign nation. In that kind of case, it's entirely appropriate to hold the foreign nation to the standards of any of litigant: by resolving the expressly "narrow" question presented in "the rather unusual circumstances of this case," the Court did not fall down on its responsibility to clarify pressing legal ambiguities.

Contrast that with the Court's decision in EPA v. EME Homer City, which I blogged about here. EME Homer involved a challenge to an important EPA regulation. As a threshold argument, the EPA argued that the challengers had failed to preserve some of their concerns during the rulemaking. The decision below had squarely rejected that argument and specifically found that the challengers' objections were adequately preserved in the rulemaking process. The Supreme Court took a different approach. According to the Court, the EPA couldn't take advantage of its failure-to-preserve argument because it hadn't "unequivocally" raised that point in the DC Circuit. EME Homer's use of forfeiture is odd on its face. When the decision below has squarely ruled on the argument at issue and the parties have subsequently briefed the matter, why should the Supreme Court care whether a party "unequivocally" raised the issue in the lower court? One possibility is that the Court doubted that the challengers' objections had been adequately preserved in the rulemaking, but nonetheless wanted to issue a merits decision upholding the challenged rule. This unusual deployment of forfeiture principles would reflect the fact that EME Homer wasn't just a dispute between parties. It was also a declaratory ruling with widespread implications for environmental law.

Finally, consider the Court's recent decision in Bond v. United States, where the Court used federalism canons to narrowly construe a criminal statute. The major question lurking in Bond was whether the statute, if read more broadly, would be constitutional as an exercise of Congress's authority to implement treaties. That question was cleanly presented in part because, in the district court below, the United States had waived reliance on Congress's Commerce Clause authority; moreover, the decision below had relied on that waiver. If Bond were viewed as a traditional dispute, then the government's waiver would be conclusive. Yet, in the Supreme Court, the government insisted that its Commerce Clause authority applied and that the Court should consider the issue. The government's waiver created a problem from the standpoint of the Court's declaratory role, for it raised the possibility that the Court would strike down the implementing statute -- and so establish a major precedent -- without considering a significant argument for the law's constitutionality. What is more, some of the treaty-implementation arguments in play were linked to or dependent on Commerce Clause arguments. As Michael Ramsey put it over at Originalism Blog, "everything the Justices say about the threat to the federalism structure from treaty implementation is overwrought (to put it mildly) if Bond could have been prosecuted under Congress' interstate commerce power." In light of all this, the Court's reluctance to reach the constitutional merits may have been linked to its discomfort at enforcing the government's idiosyncratic waiver decision in a case with such broad implications.

The above examples provide at least some support for the following claim: it's hard to understand the Court's use of waiver and forfeiture without thinking about the Court's institutional role in the particular case at issue. When a case is more like a traditional dispute, waiver and forfeiture rules are most stringently enforced. And when a case is more about declaring widely applicable legal rules, waiver and forfeiture become much more complex in the Court.

The above is cross-posted from Re's Judicata.

IRS: "sorry, can't produce" or a bad example of hiding the ball?

Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed.  And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials.  Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).

The facts surrounding this issue almost read like a law school exam hypothetical.  The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting.  The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days.  The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found.  The IRS does not deny that the recipients, other government officials, may still be in possession of the emails.  The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.

If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste.  The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions.  Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."  The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost.  Did the IRS, in fact, make a good faith effort?

While there is confusion among the courts on how to apply the good faith standard, there is precedent for a court to monetarily sanction the IRS if the court found that the IRS acted negligently when it lost the emails.  The court would also have the authority to issue an adverse inference instruction (inferring that the lost evidence would have negatively impacted the IRS's position), if it determined that the IRS acted grossly negligent or willful. 

An important fact which will probably be discussed during the next few hearings is whether the IRS violated its own electronic information retention policy.  The IRS was put on notice of the investigation last year, and so had a duty to put a litigation hold on the emails at that time (the very essence of what "good faith" means).  It seems that the general IRS retention policy of ESI was six months (although now it is longer), but emails of "official record" had to have a hard copy which would never be deleted.  Whether these emails constituted an "official record" is hard to determine since Lerner won't testify to their content. 

Even assuming the emails were lost before a litigation hold could be placed (or despite a litigation hold being in place), at the very minimum, it seems "good faith" means that the IRS should have notified Congress in February that it lost the emails.  Rule 26 would have required Congress to do so.  Indeed, such notice would have brought this issue to the forefront and could have saved a lot of money - the money it apparently has already cost to piece together some of the emails, and the money it will cost as the parties argue over whether the IRS negligently or willfully destroyed evidence.  If the IRS had been upfront from the beginning, then subpoenas could have been issued months ago to other agencies who, as employers of the lost email recipients, might have copies of the missing emails.

If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction.  Shouldn't the IRS be held to these standards?

 

SLU PLR Call for Papers: The New Civil War: State Nullification of Federal Law 150 Years after Appomattox

From the Saint Louis University Public Law Review:

In recognition of the 150th anniversary of the end of the Civil War, the editorial board of the Saint Louis University Public Law Review (PLR) is soliciting articles for a special issue on the recent resurgences of state opposition to federal power.  The publication will consider articles on current federal/state tensions, as well as articles linking current events to the history of nullification in the United States.  Possible topics include but are not limited to:

* State efforts to nullify Federal Marijuana Laws

* State efforts to nullify Federal Gun Laws

* State resistance to Federally Mandated Health Care

* State efforts to constitutionalize bans on Same-Sex Marriage

Interested authors should submit an abstract of no more than 1,000 words to Managing Editor Dan Rankin ([email protected]) by July 1, 2014.  Publication offers will be made based on an editorial board review of the submitted abstracts.  Accepted offers will receive a publication contract from PLR that will require finished articles by October 15, 2014.  All inquiries should be directed to [email protected].

Looks like President O got an early start on that coconut

After the next inauguration, quipped President Obama in a hipster Tumblr interview today, he says he'll "be on the beach somewhere, drinking out of a coconut . . ."  Maybe sooner than that, as the president proclaims at the beginning of the interview:  "We have enough lawyers, although it's a fine profession.  I can say that because I'm a lawyer."

So "don't go to law school" is the message he wants to get across.  Larger debate, of course.  But let's see what he says right afterward.  Study STEM fields, he insists, in order to get a job after graduation.  STEM study, yes indeed.  But STEM trained grads often look beyond an early career as a bench scientist or an IT staffer, or a mechanical career or . . . that is, STEM-trained young people look to leverage these skills to pursue significant positions in corporate or entrepreneurial settings.  Hence, they look for additional training in business school, in non-science master's programs, and, yes, even in law schools. 

Tumblr promises #realtalk, so here is some real talk:  Significant progress in developing innovative projects and bringing inventions to market require a complement of STEM, business, and legal skills.  These skills are necessary to negotiate and navigate an increasingly complex regulatory environment and to interacts with lawyers and C-suite executives as they develop and implement business strategy.   Perhaps too many lawyers, but not too many lawyers who are adept at the law-business-technology interface.  "Technology is going to continue to drive innovation," wisely insists President Obama.  But it is not only technology that is this driver, but work done by folks with a complement of interdisciplinary skills and ambition.

Standing, ripeness, and SBA List

Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).

Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).

Although this is a free speech case and the Court relied on many free speech cases (especially Steffel v. Thompson and Babbitt v. United Farm Workers), the Court spoke about all preenforcement challenges generally. It did not suggest, as some lower courts have said, that there is a lesser standard or reduced burden for free speech cases, but that more is required as to other constitutional rights. This arguably could change lower-court analysis of challenges to, for example, some abortion regulations.

At the same time, the Court did not demand the certainty of injury (i.e., state enforcement of the law) that the Court appeared to require just last year in Clapper v. Amnesty International. The Court did cite Clapper's statement that "allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk’ that the harm will occur," but it focused more on substantial risk and did not demand a similar level of certainty. Although the Court does not discuss it, I think the difference lends support to my idea that the Court silently treats standing differently when the challenged law regulates primary conduct of individuals (i.e., whether they can engage in some political expression) as opposed to laws regulating what law enforcement officers can do in investigating oro pursuing criminal activity (i.e., whether they can surveil calls or use chokeholds).

Note that the Sixth Circuit had also analyzed the imminence of the threat of prosecution, concluding it was not sufficiently imminent. But it held that the lack of imminence meant the case was not ripe, while SCOTUS addressed the same question in standing terms. Justice Thomas noted Medimmune's footnote 8 that both standing and ripeness "boil down to the same question," and insisted on speaking in standing terms because that is what prior cases have done.

But the Court did not explain what is the proper realm for these doctrines and how litigants and courts are to know. To the extent standing and ripeness remain distinct aspects of justiciability, how are we to know which to argue? Lea Brilmayer long ago argued that standing arose when the plaintiff wanted to challenge a no-lawn-sign ordinance because his neighbor wants to post the sign, while ripeness arose when the plaintiff did not want to post the sign until next year. But standing cases (certainly since Lujan and including SBA) have focused on plaintiff's present intent and immediate plans to engage in some conduct (such as going to see the Nile crocodile), which sounds like ripeness as Brilmayer has defined it. Or we might say that the plainiff's immediate intent to engage in some conduct goes to standing, while the likelihood that the government will act to enforce goes to ripeness. But SBA discussed both of those as distinct elements that together went to standing.

The Sixth Circuit did consider two additional "prudential" elements for ripeness beyond imminent threat of prosecution--whether the factual record is sufficiently developed and the hardship to the plaintiffs if judicial relief is denied at this stage. SCOTUS cited its decision in Lexmark to suggest that such prudential factors no longer are part of any justiciability analysis, including ripeness (the focus of Richard's post). And even if they were, the Court disposed of both in a short paragraph, hinting that, at least where there is a legitimate threat of prosecution (creating standing), a preenforcement challenge to the constitutionality of a law always will be ripe.

So what role, independent of standing, if any, does ripeness continue to play in constitutional litigation?

Changing law professor? Changing law schools?

Interesting article in The Harvard Crimson two weeks ago notes what we have long known already:  Expectations of hiring faculty have grown, especially with regard to more published writing.  In turn, law schools are demanding more advanced academic training -- what Harvard's James Greiner says is "essentially requiring them to do a Ph.D." 

Looking principally at the positive, rather than normative, side of this issue, is it likely that these priorities will withstand turbulence in the current law school environment?  Is such a focus on ever-accumulating academic credentials a luxury in these present circumstances?  A difficult question, without an obvious answer. 

The push toward experiential learning may result in law schools looking at more legal experience, perhaps to go along with the advanced academic training.  After all, it is not uncommon to find joint degree holders with clerkships and at least a couple years of big firm or governmental lawyering experience under their belt.  At the same time, law schools are understandably skeptical of the great added value of such highly-credentialed folks in providing sophisticated experiential skills to a demanding audience.  Surely some idea of comparative advantage would see law faculty who have substantial (5+?) years of increasingly impressive legal experience as more suited to these practice-oriented educational initiatives.  Moreover, a PhD holding academic is going to see these many years of highy academic training as better amoritized through serious scholarly production, rather than designing and implementing complex experiential courses and simulations and in engaging her students principally on the terrain of practical lawyering.

So, another way to see the evolution of law faculty hiring is in the intentional development of two faculties:  Those made up of law teachers who principally write, and whose teaching is doctrinal and theoretical (understanding that these are two very different modalities), and those who are doing much more practice-focused, experiential work.  Even Harvard, the main subject of the Crimson article, builds out its experiential and clinical curriculum principally through the use of lecturer-rank, adjunct, and clinical faculty.  This is not only not a criticism, it may well be the wave of the present, and also the future.

More tricky is whether less-well-resourced law schools can make a similar investment in what are essentially two faculty cohorts.  In other parts of the university, some of this predicament is handled through truly part-time teachers; indeed, in other professional school settings, there has long been a deliberate divide between those are contributing significantly to the scholary objectives of the institution and those who are drawing upon a wealth of experience to build skills and provide practice-oriented instruction.

Yet, the interesting part of this story is, to me, not so much the dichotomy between full and part-time faculty (although this is of increasing controversy in the higher educ world in any event), but that between a full-time faculty who are brought aboard largely on the basis of scholarly acumen -- and, to put a finer point on it, interdisciplinary chops -- and those who are brought on full-time (albeit not necessarily with tenure) in order to configure an experiential program.

Such moves, well underway at various law schools, including mine, raise myriad issues.  One is job security; another is governance.  In future posts, I will offer some thoughts about these issues separately.  

Ripeness, In and After SBA List v. Driehaus

Today's unanimous standing decision in Susan B. Anthony List v. Driehaus generally came as little surprise: confronted with speakers wishing to criticize candidates for office, the Court gave a green-light to a pre-enforcement First Amendment challenge. Along the way, however, the Court had a few interesting things to say about ripeness. In this post, I'd like to explore the possibility that SBA foretells future changes in ripeness doctrine.

By way of background, SBA List involved a First Amendment challenge to Ohio's law against recklessly false speech regarding officials and candidates for office. One of the plaintiff groups had previously suffered early enforcement proceedings under this law and felt chilled from further speech of a similar kind. Viewing the case as one about standing, the Court explained that the key question was whether the plaintiff's threatened injury was sufficiently likely. The Court found the requisite threat based on a variety of considerations, including the fact that the plaintiffs planned to continue speaking on the same subject and the legal possibility that administrative complaints could be initiated by any person, including political rivals with an incentive to do so. Though the Court didn't say so, these and other considerations seem to distinguish SBA List from the famous/infamous case Los Angeles v.  Lyons, which found that the threat of a police choke-hold policy didn't give rise to a justiciable injury.

Perhaps the most basic question in SBA List was what doctrinal box to use. The Sixth Circuit had treated the case as one about ripeness, by which it meant three factors: the likelihood of the alleged injury, the record's fitness for review, and the hardship to the parties if relief were postponed. By contrast, the Supreme Court focused on standing, which demands an actual or imminent injury in fact that is traceable to the violation and redressable by a favorable judgment. In a footnote, however, SBA List said that the standing and ripeness issues both "originate" in Article III and "boil down to the same question," at least in this case. In other words, the key issue was whether there was a sufficiently credible threat of enforcement to give rise to an adequately probable injury, as demanded under both standing and ripeness. Later, SBA List confronted the "prudential" ripeness factors going to fitness and hardship. After raising doubts about whether prudential grounds are ever a sound basis for denying federal jurisdiction, the Court left that matter for another day, since all the ripeness factors had been satisfied in the case at hand.

Reading between the lines, SBA List appears to be setting the stage for holding that the prudential ripeness factors aren't constitutional at all, but rather are either unwarranted or substantive components of certain statutes providing for judicial review. This move is familiar after the decision earlier this year in Lexmark International v. Static Control Components, which (among other things) clarified that "prudential standing" doctrines are actually substantive requirements embedded in various statutory causes of action. Making this connection apparent, SBA List quoted Lexmark when it noted that merely "prudential" factors normally aren't a sound basis for denying federal jurisdiction. This approach also seems consonant with recent ripeness cases. Consider National Park Hospitality Association v. Department of the Interior, a 2003 Supreme Court decision that, like SBA List, was written by Justice Thomas. While noting that ripeness is rooted in part in Article III, National Park described ripeness without breaking out likelihood of injury as a distinct requirement, and it followed Lujan in characterizing ripeness as being at least potentially grounded in the Administrative Procedure Act.

If the Court ultimately goes down this path, there is a chance that something valuable might be lost. Under the prevailing standing framework, the key question is whether the plaintiff faces a sufficient threat of injury. Under the ripeness heading, by contrast, the intuitive question is whether the plaintiff has a sufficient threat of injury right now, as opposed to at a later time. In other words, ripeness calls for a comparison of risks across time. That comparative or relative aspect allows the Court to alter the required showing of injury in light of the situation at hand. If the Court rejected that relative ripeness analysis as merely prudential, it might find it harder than expected to live with a non-comparative, one-size-fits-all notion of adequate injury for constitutional purposes. SBA List itself illustrates that difficulty when, in attempting to reconcile competing standing cases, it notes that imminent injury requires either a "certainly impending" injury or only a "substantial risk" of one. Relative analysis, it seems, is hard to purge from the law of justiciability.

The above is cross-posted from Re's Judicata.

The Flawed NRC Report: The “Prison-Industrial Complex” Part 1: Private Prisons

(This is Part 10 in my criticism of the recent National Research Council report on incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4,  Part 5, Part 6, Part 7, Part 8, and Part 9 look at the role of prosecutors.)

I want to turn my attention now from how the NRC report handles prosecutors to its discussions of the impact of interest group pressure on prison growth. As with prosecutors, it barely touches on this issues, despite its critical importance, and its brief analysis highlights effects that appear to be relatively unimportant and overlooks those that matter most.

In this post, I want to focus on one putative cause that receives outsized attention in the popular accounts of prison growth despite its relative irrelevance: the private prison.

When I tell people I study the causes of prison growth, I usually get one of two responses: “isn’t it just the war on drugs?” or “isn’t it just private prisons?” The former point I’ve belabored to death. Now I want to dispatch the latter.

To start, here is the NRC report’s entire discussion of the role of private-sector pressures that may drive prison growth:

Over time, however, the buildup created new economic interests and new political configurations. By the mid-1990s, the new economic interests—including private prison companies, prison guards’ unions, and the suppliers of everything from bonds for new prison construction to Taser stun guns—were playing an important role in maintaining and sustaining the incarceration increase. The influence of economic interests that profit from high rates of incarceration grew at all levels of government, due in part to a “revolving door” that emerged between the corrections industry and the public sector. Another factor was the establishment of powerful, effective, and well-funded lobbying groups to represent the interests of the growing corrections sector. The private prison industry and other companies that benefit from large prison populations have expended substantial effort and resources in lobbying for more punitive laws and for fewer restrictions on the use of prison labor and private prisons (Elk and Sloan, 2011; Thompson, 2010, 2012; Gilmore, 2007; Hallinan, 2001; Herival and Wright, 2007; Gopnik, 2012; Abramsky, 2007).*

First, a brief note on sources (an issue I will return to more fully in a later post). The report cites eight sources for this summary. Looking in the bibliography we find: an article from The Nation, an article from The New Yorker, an article from the partisan New Labor Forum, three non-academic trade books (by journalists, not academics), one academic-press book (by an author who was also a founding member of Critical Resistance, an anti-prison group), and one academic article (by the same person who published in New Labor Forum). 

These sources lack the sort of rigor and ideological diversity I would expect from an NRC report.

But partisanship is irrelevant if the facts are right. And here things fall apart as well.

It is easy to show why private prisons do not drive prison growth. And while the report only makes glancing reference to this possible causal factor, I think that is actually quite harmful: such a glib analysis could actually strengthen people’s conviction that private prisons matter by making it seem like the issue is so obvious it doesn't even merit extensive discussion.

So, how can we show that private prisons are not that critical?

First, the math simply doesn’t work: only about 6% to 8% of all state prisoners are in private prisons, and only about 15% of all federal prisoners are in state prisons (data from various years of these reports). Almost all prisoners are in public prisons.

Second, we can’t even attribute all of those 6% to 8% to private prisons. The relationship between private prisons and incarceration rates, such as it is, is at least somewhat endogenous. Perhaps private prisons firms lobby for more prisoners (more on that in a second), but to some extent states will turn to private prisons when their populations are growing anyway. So some of those 6% to 8% would have been incarcerated even if private prisons were impermissible; perhaps all of them would be.

Third, the lobbying efforts aren’t really all that large. A Justice Policy Institute report stated that private prison firms contributed over $6 million to state races over the past five election cycles. This number was presented on its own, apparently shocking on its own terms. 

But with campaigning, nothing is “on its own terms.” Looking at the same source as the JPI report, it is easy to see that during the same time the educational lobby gave over $35 million, and total political spending at the state level ran to almost $14.5 billion. So private prisons were outspent almost 6-to-1 by a single oppositional interest group, and their donations comprised less than 0.5% (the decimal place is correct there) of total spending.

And it is critical to keep in mind the zero-sum nature of state spending, in contrast to the much-more-widely-studied federal budgetary process. States are often subjected to (admittedly porous) balanced-budget requirements, they borrow money on less friendly terms than the feds, and they cannot print their own money. As a result, the standard “who is willing to be soft on crime?” argument for why prison spending grows “unchecked” is wrong (my next post will address this in more depth). The zero-sumness of state spending means that the education lobby is fighting for the same dollar as the private prisons. That 6-to-1 ratio is important.

So perhaps we should not be surprised that only a few years ago that the senate in one of the most conservative states in the country, Florida, still narrowly rejected the largest private-prison plan ever proposed (despite Florida having one of the largest concentrations of “private prisoners” in the country).

But maybe we are just at the beginning of a privatization spree (Florida aside), and as privatization grows so too will prison populations. A plausible hypothesis, but one with little to no empirical support. 

The next graph is simple, but it provides an important counter to the private-prisons-drive-up-incarceration story. The x-axis is the average percent of a state’s prisoners held in private prisons between 2000 and 2008, and the y-axis is the state’s rate of incarceration growth. If private prisons drive growth, we should see some sort of upward-sloping line: low private prison population states with low growth, high private-prison population states with high growth.

We just don’t see that at all. First, we see that a large percentage of states have zero or very few private prisoners. And among those who have more private prisoners, we see almost no relationship between prison growth and private prison size. The red dots are on the jurisdictions that, among them, hold over 50% of the nation’s private prisoners. Even in these states it is hard to see a relationship between privatization and growth.

There may be reasons to be concerned with privatization, whether conditions of confinement or moral problems. But as a causal factor of growth, the evidence simply isn’t there,** and the NRC report’s facile treatment of the issue represents yet another missed opportunity to confront a persistent, inaccurate myth.

 

* There is also a brief discussion of prison siting pressures: of rural towns lobbying for prisons to be built as a form of financial stimulus. The report notes that evidence about such beneficial effects is slight to non-existent, and that strikes me as a reasonable reading of the literature.

** Even if you are concerned that poor conditions of confinement lead to future offending—a valid concern—it still seems unlikely that enough prisoners pass through private prisons for that marginal effect to explain much of the subsequent growth. (After all, public prisons are not nice places either, so what matters for this argument is the effect of the additional unpleasantness of private prisons.)

Wrap-Up for "Making the Modern American Fiscal State"

Many thanks for all our participants, especially Ajay Mehrotra, for our club on "Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929."  Here is a list of the posts:

• Introduction
• Bank: The Rise of Progressive Taxation:  What Does it Mean to be Progressive?
• Parrillo: American Fiscal State-Building, Crisis, and Contingency
• Morse: Mehrotra tackles two mysteries in Making the Modern American Fiscal State
• Avi-Yonah: Avi-Yonah on "Making the Modern American Fiscal State"
• Lindsay: “You didn’t build that” and the “Benefits” Theory of Taxation
• Mehrotra: Making the Modern American Fiscal State, Central Themes and Claims
• Lindsay: The Citizen-Consumer and the Origins of Progressive Income Taxation
• Mehrotra: Taxation, Civic Identity, and the Future of Consumption Taxes

Many thanks to all our participants for a great club.  And if you enjoyed this club, check out the online symposium at Balkinization for Nick Parrillo's book, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.

Marital Infidelity and the Public/Private Divide

I've just read this U.S. News editorial, suggesting that the American public has come full circle in its approach toward infidelity of public figures. It echoes some thoughts I had after watching a few episodes of Scandal, House of Cards, and The Good Wife. All three shows are deeply invested in exploring the public/private divide, and in particular, the connection between sexual infidelity and public political performance. But each of the shows does it a bit differently.

If the editorial is right, then we've seen the rise and fall of American concern with infidelity--from the indifference toward Kennedy's extramarital affairs to today's indifference to Vance McAllister's kiss. And during the heyday It seems that the combined message from the Clinton, Wiener, Spitzer, Petreaus et al. affairs is that evidence of marital infidelity has some bearing on one's function as a public citizen.

To try and understand why, let me borrow a seemingly-unrelated exaple: the Paul Ryan sub-3 marathon lie. While the fib itself was ridiculous--as an endurance athlete, the idea that Ryan wouldn't remember if he ran a 3-hour or a 4-hour marathon is utterly ludicrous to me; I remember my time in big races down to the seconds and so does everyone else I know--it did make me wonder what possible reason a vice-president-hopeful would have to brag, truthfully or falsely, about an athletic achievement. Presumably, the ability to effectively run the affairs of the state doesn't depend on one's physical endurance. Except for the following:

1) Our gendered perception of leadership means that a male politician's performance is a reflection of his masculine prowess, which includes impressive athleticism.

2) Running a marathon, especially in an impressive time, is a task that requires dedication, discipline, self-deprivation - all qualities that fit our somewhat Calvinist idea of good leadership.

3) We look for something admirable and cool in people we vote for - we want to like them as people. Therefore, any trivia about their personal life that makes them look good is acceptable and vice versa.

Similarly, it would seem that, if marriage infidelity is a problem for people holding public office, it's because it tells us something about their ability to lead. Let's see if the Paul Ryan rationales I thought about hold up:

1) How we treat infidelity is closely related to our construction of masculinity. Is a "real man" one who holds "decent family values", which include sexual fidelity, or one who possesses sexual prowess and is attractive? The media might've had something to do with the difference in which Kennedy and Clinton were treated for their respective indiscretions, but it's also about changing times and changing perceptions of masculinity.

2) As far as what we can learn from people's private behavior about their public performance, look at this interesting poll. Apparently, in the aftermath of the Clinton/Lewinsky affair, "the American public has substantially changed its view of Clinton as an individual but barely readjusted its perception of President Clinton as a political leader." If public opinion changed later, it was because of the concerted top-down effort made by Ken Starr to blemish Clinton and push for an impeachment hearing.

Think, on the other hand, about Petreaus, whose professional capability and talent was never in question (he's doing fairly well in academia and consulting). There was some effort to argue that his infidelity reflects serious problems with the ability to keep secrets and confidentiality, which had direct bearing on his military position.

3) Take a look at this anti-Harold Ford ad:

 Yes, there's some effort to tie his sexual indiscretions to his political performance, but you know what? It's mostly about communicating the message that he's simply sketchy, unpleasant, unlikeable.  

There seems to be a lot of top-down media messaging about this in an effort to either predict how "ordinary Americans" feel about infidelity or dictate their opinion. And in that respect, it may be that real media reports of infidelity are not all that different in their messaging agenda than fictional ones. And as in real life, the messaging in fiction is far from consistent. In three shows that make politician infidelity the focus of the plot, it's treated in three dramatically different ways:

The Good Wife plays a lot with, but does not fully problematize, the political double standard. It's fairly clear that the protagonist's husband, a politician caught in a prostitute scandal, has committed an original sin, and the show consistently portrays him in an unsympathetic light. By contrast, his separated-but-not-yet-divorced wife, who is clearly attracted to her boss but does not consummate this attraction, is portrayed very positively. Lots of gender double standard here, and lots of equating people's private behavior and public performance.

Scandal hammers a self-contradictory message in on each episode: Cheating is the ultimate original sin; nothing is worse; while murder, political corruption, and a million other pecadillos can be "fixed", sexual infidelity is the ultimate dealbreaker, understood implicitly as a valid and legitimate reason to end a marriage. At the same time, virtually every episode offers an example of sexual indiscretion, highlighting the message that this is prevalent, natural, and inevitable behavior. So, common and unavoidable, while simultaneously being condemned and unforgivable. This is a particularly interesting message in a show that attempts to portray a mild Republican presidency in a post-racist, post-homophobic world (the Chief of Staff is openly gay, married to his partner, and has adopted a baby; a powerful wheeler-and-dealer is a Black woman.) We've presumably done away with race and sexual orientation, but sexual hypocrisy is alive and well.

Finally, House of Cards has a Macbeth-like instrumental approach to politicians and sexual indiscretions: for the reigning couple, if they use their indiscretions wisely and adopt a "don't-ask-don't-tell" approach about them at home, it's all part of their general political ruthlessness. The extramarital sex in itself is not a moral failing; it's merely another expression of the corruption, selfishness, and ruthless ambition.  

What to make of all this? Has television made us more indifferent to marital infidelity, or were we always pretty indifferent and just swayed by top-down smear campaigns? I'm not sure. I also haven't done a Democrat-vs-Republican scandal analysis, and I also don't know if the media's tendency to smear some people and to ignore others' infidelities has to do with other markers of class and charisma. You tell me. But I find this an interesting case study of how indicia of personality--if marital infidelity provides such indicia--are used in contradictory and complex ways to construct people's public image.

------------

many thanks to Jonathan Korman for his interesting thoughts and contributions to this post.

CFP Deadline: Seventh Junior Faculty Fed Courts Workshop

The full CFP is here. The submission deadline is Friday, June 20. Send abstracts to [email protected]. Contact Matt Hall or Kent Barnett (both at Georgia) with questions.

The Economics of the Offside Rule

The recently begun World Cup allows us to think about soccer (or football, for those of you reading outside the United States) as a source of laws and rules, as opposed to our usual focus on baseball. Well, for all the complaints about the technicality and incomprehensibility of the Infield Fly Rule, it has absolutely nothing on Offside (Law 11 of Football's 17 Laws). I could not explain the rule in the space of this post, although I think I now sort-of  understand it thanks to the videos embedded after the jump.

Offside (note the singular: people get persnickety if you add an 's' at the end) is soccer's counterpart to the infield fly rule as being what marks you as someone who really knows and understands the game--you know baseball if you can explain the infield fly, you know soccer if you can explain Offside. But is Offside a limiting rule as I have defined that term--is it soccer's logical and policy counterpart to the infield fly? I am not sure.

Offside is an anti-"cherry-picking" rule, preventing teams from having one or more players hang around the goal and doing nothing but kicking long balls up the field pitch. It also prevents the defense from having to keep multiple defenders back by the goal to guard the cherry-picker. The result is to push the action up the field and keep more players involved on both ends. The underlying logic is aesthetics and the look of the game. The rulemakers did not want what one soccer web site called a "ping-pong match" of long kicks back and forth, as opposed to short passes and runs up and through the middle of the pitch. It also avoids what many would regard as "cheap" goals.

But Offside does not seem to be about extreme cost-benefit disparties, as is the IFR. I suppose it would give the offense an advantage--the cherry-picker could  get the ball in position to go one-on-one with the goalkeeper, a big advantage to the offense. Importantly, however, the opponent is not helpless. Absent Law 11, the defense simply counters the cherry-picker by moving a defender back to his area. The opponent also might be able to prevent the long pass to the cherry-picker or otherwise prevent the team from taking advantage of the loitering player. More importantly, the cherry-picker is not intentionally failing to perform the expected athletic skills. The infield fly rule aims at a play in which the infielder might otherwise intentionally not catch the ball (the thing he is expected to do). In being in offside position, a soccer player is trying to succeed as expected--he is trying to score a goal by getting into the best position for himself. (Note: I know little about soccer, so please correct me if I miss anything here).

Lastly, the complexity of the rule likely reflects an attempt to calibrate it and the game. As written, the rule allows for long balls, so long as the player was onside when the pass is made. And it only penalizes if the offside player is involved in the play (itself subject to a detailed definition). Again, check out the videos below if you want to learn.

In Esquire's Father's Day edition, there is an article about fathers and sports, with a sidebar giving the approximate ages that kids typically can do certain sports-related things (e.g., sustain a game of catch--8). The last entry: "Understand the Infield Fly Rule--34." I'm 46--what does that say about Offside?

Now for the videos:

 

Watch this one if you like PowerPoint:

 

 

Watch this one if you like British accents, bad graphics, and cheesy music.