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Friday, August 29, 2014

Video Chutzpah, defined

Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."

He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.

Posted by Howard Wasserman on August 29, 2014 at 11:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Substantial Similarity and Music

From Guest Irina Manta.

For those interested in more scholarship on the topic of substantial similarity in copyright law, Carys J. Craig and Guillaume Laroche (York University-Osgoode Hall Law School) recently posted a piece entitled Out of Tune: Why Copyright Law Needs Music Lessons. Here is the abstract:

This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors illustrate how and why this test may fail to perform its necessary role in the infringement analysis. The authors conclude by identifying some ways in which the legal analysis could be improved, including a more extensive use of both expert and survey evidence, and greater consideration of the accepted norms and practices of the relevant creative community. The overarching aim of this chapter is to demonstrate the importance of bringing the insights from musical and other creative disciplines to bear on the law of copyright, so that it might more accurately reflect the very practices it is meant to encourage.

Rebecca Tushnet has posted some of the key excerpts here. The authors give an interesting overview of the special problems entailed in similarity determinations for musical works and show that Canadian law largely suffers from the same problems as U.S. law in that area. They are also open to the possibility of introducing surveys in copyright litigation (similar to the ones we use in trademarks cases), as I suggested in previous work.

Posted by Howard Wasserman on August 29, 2014 at 10:29 AM in Intellectual Property | Permalink | Comments (0)

Another SCOTUS counter-factual: Justice Posner?

Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).

But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?

More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.

Posted by Howard Wasserman on August 29, 2014 at 08:42 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, August 28, 2014

Learning Outcomes Are Coming, Learning Outcomes Are Coming--What They Are and How to Draft Them

[From our guest Jennifer Bard]

My last correspondence with Dan was in May when he asked if I would do another month as a guest in the fall, I said “yes” and “Thank you” and we agreed to September.  Although I didn’t yet know him as well as many of you, and that is clearly my loss, I’m honored to be part of the continuation process and without further ado—I did get the be concise vibe—let’s go.

The ABA dropped something of a bombshell last week when it sent out a letter to the Deans of ABA approved law schools with an advanced copy of a document now on their website,  letting the Deans know that not only were going to adopt Standard 302 to require learning outcomes, but they expected Law Schools to implement the change immediately.  

Well “bombshell” is a relative term for a draft that has been kicking around since at least 2010, but dealing with reality, here is the entire revised document as a clean copy and redlined.

The topic of today’s Post is Standard 302.


A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:

(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.

Learning outcomes are already required of schools accredited by the Southeastern Associations of Colleges and Schools, as well as other regional accreditors,   Indeed, quite a few law schools and law professors are way ahead of the curve on this—here are some examples from Hastings, Belmont Law School, Thurgood Marshall, and a book by Gregory Munro.

But as we know, the temptation within law schools is to address anything new as “yet another administrative burden” and, always, that “just doesn’t fit with a law school education.”  We can’t do that anymore.  And I don’t think it’s going to be terrible.   In fact, I’d suggest that the way we teach now is unduly Procrustean--and these latest requirements are a path to measuring what’s going on the classroom and a method of identifying students who are struggling as well as those who may be bored.     Here is a very thoughtful article by Mary Lynch at Albany that addresses concerns specific to legal education.  Anyway, as the saying goes, this is not a situation that requires our belief—it’s something we have to do. 

So—to dive in.  The big concept here comes from Bloom’s taxonomy of learning in which he argues that there are “levels” of expertise that everyone goes through in learning new material.  People start at “knowledge” and end up moving through comprehension, application, analysis, synthesis, and evaluation.   Our job is to evaluate the level of student learning within our own classes along that continuum—and the way to do that within the Bloom framework is by using "measurable verbs."  And, Good News!  There is lots of help available.  I close today with some resources—and will go into more detail later.   This overview from the learning center at UNC Charlotte is helpful.  Here’s another from Tulane, a youtube video from a doctoral candidate, a lot of detail from Rutgers, and one we use at TTU.  Another interesting practice is to have students draft their own learning objectives—here’s one for an experiential learning program from the University of Central Florida.  

Posted by Paul Horwitz on August 28, 2014 at 10:20 AM | Permalink | Comments (0)

Welcoming Back Jennifer Bard, and a Note

We're happy to welcome Jennifer Bard back to Prawfs. She is the Alvin R. Allison Professor of Law at Texas Tech University School of Law and an adjunct associate professor at the TTU School of Medicine.

Let me say as an aside that in the wake of our loss of our friend Dan, many old and new friends have stepped forward to serve as guest bloggers over the coming year. We're eager to keep what I think of as The House That Dan Built going and grateful that so many people are helping to maintain a fraction of the energy that Dan brought to this blog, along with everything else. And we are grateful to our readers as well.  

Posted by Paul Horwitz on August 28, 2014 at 10:16 AM in Paul Horwitz | Permalink | Comments (0)

A Clearinghouse for Questions, 2014-2015

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

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

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

You may want to take a look at the many questions and answers in the threads from 2012-2013 and 2013-2014

Here is a link to the last page of comments.

First posted 8/28/14.

Posted by Sarah Lawsky on August 28, 2014 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (379)

Law School Hiring, 2014-2015, Thread One

Those on the market are invited to leave comments on this thread regarding whether they have received:

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

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

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

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

Four miscellaneous things:

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

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

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

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

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

Here is the spreadsheet, which is downloadable.

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

Good luck!

First posted 8/28/14.

Posted by Sarah Lawsky on August 28, 2014 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (118)

Wednesday, August 27, 2014

The Doctrine Formerly Known as "Statutory Standing"

Last week, I posted on Hobby Lobby and its effort to grapple with older cases that had assumed federal jurisdiction, contrary to the now-settled rule established in Steel Co. Some comments about the post reminded me that Hobby Lobby wasn't the only decision last year that dealt with assumed jurisdiction: Lexmark did as well--but you wouldn't know it from reading the Court's unanimous decision. On its face, Lexmark simply re-characterized the doctrine of "statutory standing" as a form of merits inquiry. But, in doing so, Lexmark silently demolished one of the foundations underlying Steel Co.

This episode offers a rich example of how legal revolutions can be achieved, not through grand decisions overruling precedent, but rather through gradual re-characterizations. This episode also has a discrete doctrinal payout: after Lexmark, it appears that federal courts must now assure themselves of jurisdiction before turning to the doctrine formerly known as statutory standing.

To simplify, Lexmark involved a Lanham Act claim that had been challenged based on a doctrine variously known as "statutory standing," "prudential standing," or "zone of interest" standing. The basic idea was that only certain types of plaintiffs could bring suit under certain statutes. This sounds a lot like the merits question of whether the plaintiff has a (statutory) cause of action. And that's exactly what the Court, per Justice Scalia, unanimously held in Lexmark. Upon arriving at this straightforward conclusion, the Court dropped a footnote that cited Steel Co. and acknowledged: "We have on occasion referred to this inquiry as 'statutory standing' and treated it as effectively jurisdictional." Whoa--what was that, again? The Court has "on occasion" treated "this inquiry"--that is, something that is fairly obviously a merits inquiry--"as effectively jurisdictional"? And in Steel Co., an iconic opinion by Justice Scalia, no less? How could that be?

Here is one stylized way to explain what happened, focusing on three time periods roughly 20 years apart from one another.

1. It's the 1970s, and the law of justiciability is relatively flexible, prudential, and lax.  Building on earlier visionary opinions by Chief Justice Warren, the Court sometimes assumes jurisdiction before denying claims on the merits. This isn't an everyday practice, but it is fairly regular and occurs in a variety of contexts. Of particular note, the Court sometimes finds that plaintiffs have no cause of action before ruling on whether the plaintiffs have Article III standing. Examples include Gladstone, Realtors v. Village of Bellwood (1979).

2. A couple decades later, it's the 1990s, and Justice Scalia is gaining momentum in making the law of justiciability more rule-like, formal, and strict. A case arises in which the Court has a chance to opine on the propriety of assuming jurisdiction, and Scalia naturally wants to say that the practice is impermissible, period. But the old precedents are a real problem. Is the Court going to say that all those venerable cases have to be overruled? That sounds pretty revolutionary. This is the problem of adverse precedent--a classic lawyer's challenge--and Scalia is nothing if not a great lawyer.

To set aside the problematic cases, Scalia proposes that many of them involved something called "statutory standing," which is a lot like the merits, except that it's jurisdictional and so can be resolved before other jurisdictional requirements, such as Article III standing. Does this category make sense? Justice Stevens certainly doesn't think so, and maybe Scalia doesn't either. In fact, Scalia says that statutory standing and the merits "often overlap," "are closely connected," and "are sometimes identical, so that it would be exceedingly artificial to draw a distinction between the two." But the category does the work required. The Court embraces statutory standing, distinguishes the old cases, and the rule against assuming jurisdiction becomes law. The case is called Steel Co. (1998).

3. Now we've reached the 2010s, and the law of justiciability is much more like Justice Scalia's vision than Chief Justice Warren's. Scalia is less a revolutionary than a supervisor. The Court gets a case that involves "statutory standing," as well as those old precedents that Steel Co. grandfathered in. The old cases suddenly seem useless and badly out of place. Despite the first half of its name, "statutory standing" is capable of being resolved before Article III jurisdiction. But, despite the other half of its name, "statutory standing" looks a lot like the merits.  This beast is neither fish nor fowl. It's time to ditch "statutory standing" as, well, what it always was: the merits. The Court does so, in Lexmark.

So Lexmark has just knocked out one of Steel Co.'s critical doctrinal premises--the only way that Steel Co. had distinguished a bunch of cases aggressively cited by Justice Stevens's separate opinion. Does that mean that Steel Co. is no more, and it's now OK to assume jurisdiction on the way to the merits, like Chief Justice Warren used to do? No. In fact, that point doesn't even come up in Lexmark, for the rule against assuming jurisdiction is now carved in every federal jurisdiction casebook and in the mind of every federal judge. The upshot is that the once-useful category of "statutory standing" simply evaporates. Lexmark purported to correct an error in Steel Co., but it actually vindicated and extended the theory of Steel Co. by finally admitting that one of its built-in limitations never really made sense.

With the rule against assuming jurisdiction firmly entrenched, it's (presumably!) only a matter of time before the Court squarely rejects the old precedents as incorrect: since "statutory standing" is now viewed as part of the merits, it can't be done before Article III jurisdiction. The Court was unwilling to overrule the old cases in Steel Co., but now it can do so as an afterthought.

The rule against assuming jurisdiction is on the verge of becoming a little more absolute. The doctrinal revolution is nearly complete.

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

Posted by Richard M. Re on August 27, 2014 at 11:43 PM | Permalink | Comments (0)

Two from Dorf on policing and body cameras

Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.

Posted by Howard Wasserman on August 27, 2014 at 11:27 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

ASU Aspiring Law Professors Conference

A quick note: ASU's annual aspiring law professors conference is coming up on Saturday, September 27. The keynote speaker this year is Paul Caron of Pepperdine. The conference announcement, which can be found here, includes the following description:

Designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.

  • Learn to succeed in the entry-level law teaching market
  • Obtain an insiders perspective on the appointments process from faculty with extensive hiring experience
  • Participate in a mock interview or mock job talk and gain feedback from law professors

I had the pleasure of speaking at the conference a couple of years ago. It's a well-designed and, I believe, helpful event. It will certainly help you if you're in the market; it may also help you decide whether you want to be in the market or not.  

Posted by Paul Horwitz on August 27, 2014 at 02:40 PM in Paul Horwitz | Permalink | Comments (0)

Bloom, "Against Empathy"

There has been a long debate in law about the role of empathy in judging, a debate that gained new prominence during and after the nomination of Justice Sonia Sotomayor. Those who are interested in that debate may enjoy a new essay in the Boston Review by Paul Bloom titled "Against Empathy." There are a host of responses, with a reply by Bloom. He defines empathy as "the process of experiencing the world as others do, or at least as you think they do." A couple of snippets:

I’ve come to realize that taking a position against empathy is like announcing that you hate kittens—a statement so outlandish it can only be a joke. And so I’ve learned to clarify, to explain that I am not against morality, compassion, kindness, love, being a good neighbor, doing the right thing, and making the world a better place. My claim is actually the opposite: if you want to be good and do good, empathy is a poor guide.

* * * 

Certain features of empathy make it a poor guide to social policy. Empathy is biased; we are more prone to feel empathy for attractive people and for those who look like us or share our ethnic or national background. And empathy is narrow; it connects us to particular individuals, real or imagined, but is insensitive to numerical differences and statistical data. . . . In light of these features, our public decisions will be fairer and more moral once we put empathy aside. Our policies are improved when we appreciate that a hundred deaths are worse than one, even if we know the name of the one, and when we acknowledge that the life of someone in a faraway country is worth as much as the life a neighbor, even if our emotions pull us in a different direction.

I encourage you to read the essay and the responses. I would note one pet peeve of mine about the empathy debate in law: the frequent, implicit assumption that empathy for the plight of another ought to entail legal victory for that claimant. I tend to believe that empathy is useful in judging, both because it may aid in understanding a claim and, sometimes, the wider effects of a legal ruling, and because it may enable the empathetic judge to speak more clearly and effectively to the losing side. But there is no necessary connection between feeling someone's pain and ruling in favor of his or her claim.    

Posted by Paul Horwitz on August 27, 2014 at 01:38 PM in Paul Horwitz | Permalink | Comments (5)

Tuesday, August 26, 2014

More on body cameras

This morning, I was on Minnesota Public Radio's The Daily Circuit talking about police body cameras. The other guest is a captain in the Houston Police Department, where they have been doing a pilot program equipping 100 officers with cameras. It was the usual discussion--these are a good idea, but be careful in our use of the resulting video. On top of everything else, I was very happy to hear about the regulations the department has enacted, including requiring that the cameras always be turned on for all encounters (rather than leaving it to the officer's discretion) and spot-checks of the uploaded video. The specifics and details of implementation in each department will be an important consideration going forward.

Posted by Howard Wasserman on August 26, 2014 at 04:11 PM | Permalink | Comments (0)

Checking in With the Episcopal Chaplain at Yale

The New York Times has this interesting letter to the editor today, responding to an op-ed from Deborah Lipstadt the other day about anti-Semitism in Europe. Without comment, I offer it in full:

To the Editor:

Deborah E. Lipstadt makes far too little of the relationship between Israel’s policies in the West Bank and Gaza and growing anti-Semitism in Europe and beyond.

The trend to which she alludes parallels the carnage in Gaza over the last five years, not to mention the perpetually stalled peace talks and the continuing occupation of the West Bank.

As hope for a two-state solution fades and Palestinian casualties continue to mount, the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question.

(Rev.) BRUCE M. SHIPMAN Groton, Conn., Aug. 21, 2014

The writer is the Episcopal chaplain at Yale.


Posted by Paul Horwitz on August 26, 2014 at 09:38 AM in Paul Horwitz | Permalink | Comments (0)

Monday, August 25, 2014

Heien and Certificates of Reasonable Cause

Near the start of its new term, the Supreme Court will hear argument in Heien v. North Carolina, which poses the question whether a police officer violated the Fourth Amendment when he performed a traffic stop based on a mistake of law. When the case was granted, I suggested that Heien involves the "other" rule of lenity--that is, the notion that government officers (not criminal defendants) should be given clear notice before suffering personal consequences for having performed illegal action. The briefs in the case have now been filed, and they contain a surprise: a significant chunk of the briefing revolves around founding-era customs law. That history provides a fascinating point of comparison for current law and practice.

Founding-era history makes its biggest appearance in the amicus brief for the United States. Here's the background. At the founding, customs officials engaged in searches and seizures in order to confiscate illicit goods. Once confiscated, the goods were subject to forfeiture proceedings in which the putative owner could appear and defend the property. Federal statutes provided that, if the owner won the case, the court had the option of approving a "certificate" of "reasonable cause" or "probable cause" that would immunize the customs official from suit. The United States argues that these certificates regularly issued in cases where the seizure of goods was the result of a reasonable mistake of law.

Here is an excerpt from one of the statutes (Act of July 31, 1789, ch. 5, § 36, 1 Stat. 47) that the United States cites:

And when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares or merchandise, and judgment shall be given for the claimant or claimants; if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the same court shall cause a proper certificate or entry to be made thereof, and in such case the claimant shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor be liable to action, judgment or suit, on account of such seizure or prosecution.

And here's a discussion of a key case, from the amicus brief for the United States:

In United States v. Riddle[,] a customs collector seized certain goods because he believed that a merchant who arranged their importation had violated a customs statute by creating a set of false invoices, even though the consignee declared the goods' true value to customs officials. This Court held that the collector was incorrect to believe the false invoices violated the statute, concluding that “[t]he law did not intend to punish the intention, but the attempt to defraud the revenue.” Nevertheless, Chief Justice Marshall concluded that the customs inspector was entitled to a “certificate of probable cause” for the seizure because “the construction of the law was liable to some question.” “A doubt as to the true construction of the law,” Chief Justice Marshall explained, “is as reasonable a cause for seizure as a doubt respecting the fact.”

In his reply brief, petitioner argues in part that the relevant historical baseline is actually a common law rule that mistakes of law were no defense to suit. In addition, petitioner argues that immunity schemes are simply irrelevant to the question of reasonableness. If the founding-era statutes are analogous to any modern principle of law, petitioner argues, they are relevant not to the Reasonableness Clause of the Fourth Amendment, but rather to the modern doctrine of qualified immunity (that is, the non-constitutional doctrine that officers can generally be held personally liable for constitutional violations only if they have transgressed clearly established law). Here's a key passage from petitioner's reply brief:

The sole purpose of the Founding-era customs statutes was to immunize collectors from damages for concededly wrongful seizures. The statutes, that is, were nothing more than a precursor to the concept of qualified immunity now implemented on a more universal basis under 42 U.S.C. § 1983. Even though the customs statutes used the term “probable cause” to implement the immunity they created, the circumstances under which courts found the statutes satisfied tell us no more about the meaning of “probable cause” under the Fourth Amendment than the circumstances under which modern courts immunize officers for “reasonable” illegal searches tell us about what the term “reasonable” means under the Fourth Amendment.

Petitioner's argument about qualified immunity is of considerable academic interest. Some commentators think that founding-era Fourth Amendment practice is at least in tension with modern immunity doctrines, which generally allow Fourth Amendment plaintiffs to recover damages only if they can overcome qualified immunity. According to these scholars, a central purpose of the Fourth Amendment was to make officers personally liable at tort for "unreasonable" searches and seizures. But if reasonable mistakes of law could shield officers from liability, then qualified immunity jurisprudence starts to look more like a return to the founding than a break from it. Under both regimes, courts have the ability to make a precedential finding of unlawful official action, but then immunize the officer for having made a reasonable mistake of law.

But were these very early customs statutes constitutional? Or did they authorize impermissible post-search warrants -- despite the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"? There are many possible answers. To suggest a few, perhaps the Fourth Amendment wasn't originally understood to guarantee any tort remedy against officers. Alternatively, the Fourth Amendment's reference to "persons, houses, papers, and effects" might not have protected ships and cargo, perhaps based in part on an early notion of exigency. It's also possible that a search cannot be unreasonable if it is based on a reasonable mistake of law -- in which case, issuing a certificate would have been tantamount to finding no Fourth Amendment violation at all. The existence of "reasonable cause" would make the seizure itself reasonable.

Finally, the founding-era certificates might inspire new approaches to Fourth Amendment remedies today. One interesting feature of the certificates is that they issued in forfeiture proceedings initiated by customs officials, but in effect adjudicated private plaintiffs' ability to bring damages lawsuits. In this way, the certificate process promoted efficiency by allowing the judicial system to avoid duplicative legal proceedings -- much as though the officer had sought a declaratory judgment against the property owner. Something similar is imaginable today. In adjudicating suppression motions, for instance, judges could issue "certificates" to resolve issues that might arise in private damages actions against police. Assuming that such a practice would be constitutional, it would harness the effort that goes into suppression proceedings and use it to either avoid or facilitate resolution of potential damages suits.

Heien was always a fascinating and important case. The historical issues it raises only make it more so.

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

Posted by Richard M. Re on August 25, 2014 at 06:58 PM in Constitutional thoughts | Permalink | Comments (1)

Pity the Non-Donor

Eric Posner's recent co-authored article, An Empirical Study of Political Bias in Legal Scholarship, has attracted a good deal of attention. On his blog today, he writes an interesting follow-up, asking whether Republican law professors are cited more often than Democratic law professors and answering, "yes." He offers some speculations about why that might be. Intuitively, I tend to think the second reason he offers--"Because they must find someone to criticize in their papers, [liberal law professors] end up citing Republicans frequently. Citations by Republican law professors are divided among the larger pool of Democratic professors, so on a per capita bases the latter are less frequently cited than the former."--is more convincing than the other three possibilities he raises. But that's just intuition.

More interesting still, to me, is Posner's finding that "non-donors are cited less often than both Democrats and Republicans are." He speculates that "articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited." That hypothesis is quite similar, I think, to the explanation he ventures above about why Republican law professors are cited more often than Democrats.

Posted by Paul Horwitz on August 25, 2014 at 01:39 PM in Paul Horwitz | Permalink | Comments (2)

Judging Similarity (Part 3)

This post is by guest Irina Manta

Now that I have discussed the background and methodology of the studies in “Judging Similarity”, it is time to turn to a fuller discussion of the implications of our results for the third and last part of this post.

We had three key findings:

1)   Knowledge of copying significantly raises the similarity rating.

2)   Knowledge that a high level of labor went into creating the original work significantly raises the similarity rating.

3)   Knowledge that market substitution occurred does not appear to significantly raise the similarity rating.

As discussed in Part 2, we have reason to believe that the first finding is the result of confirmation bias. This finding is troubling in that it suggests that, at the most basic level, decision-makers may be unable to separate the two prongs of the substantial similarity test and that the copying prong (to borrow rhetoric from Barton Beebe’s work on the trademark multi-factor test) is “stampeding” the similarity prong.

Unlike in a trial setting, where the facts in copyright cases greatly differ from one situation to another, our first study enabled us to isolate the copying element. Nothing changed between the two conditions aside from the statement that the creator of the junior work copied from the original. Given our research design and the fact that we purposefully picked work pairings that are the type likely to go to court, there is reason to believe that the powerful effect of the knowledge of copying may sway decisions on infringement at the margin.

The second finding raises its own problems. We believe that knowledge of a high versus low expenditure of labor played a role in two possible ways. First, it might have triggered the intuition that the greater expenditure of labor ought to correlate to a stronger property right or ownership interest. Generally associated with Lockean ideals, this intuition is thought to map onto people’s beliefs about owning the products and fruits of their labor-intensive activities. The association with “stronger protection” for the work may have translated into a looser standard for similarity. Second, the expenditure of labor may not have triggered subjects’ beliefs about the strength of the property right, but instead directly affected their intuitions about the wrongfulness of the copying. Copying is commonly perceived as a form of free riding and is often associated with plagiarism or cheating. It is therefore conceivable that the creator’s expenditure of labor led subjects to view the copying involved as entailing greater (and more morally outrageous) free riding, which they treated as wrongful.

If our interpretation of subjects’ reasoning is correct, it suggests that copyright law and policy have done a poor job of cabining labor-based considerations. In its now notorious decision in Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340 (1991), the Supreme Court categorically concluded that “sweat of the brow” considerations—i.e., that copyright should be used as a reward for hard work—are largely irrelevant to copyright law, especially in determining whether and how much protection works obtain. While this may be true as a formal matter, our study shows that decision-makers have a tendency to re-introduce these labor-based considerations during their assessments of similarity as part of the copyright infringement analysis. Interestingly, while scholars usually try to adjust copyright law based on utilitarian considerations, subjects were swayed in their similarity ratings at a statistically significant level by labor considerations (finding 2) but not by market substitution ones (finding 3).

Our study suggests that instead of claiming to have labor-based considerations play no part whatsoever in its working, copyright law should do one of two things. First, it could make a more concerted effort to eliminate labor-based considerations from the different elements of the analysis. Alternatively, it could embrace the reality that moral intuitions relating to labor and free riding directly influence the assessment of similarity, which in turn serves as a simple proxy for wrongfulness. I have written previously about how we might work toward the first goal, but much research remains to be done in this area.

Posted by Howard Wasserman on August 25, 2014 at 10:00 AM in Article Spotlight, Intellectual Property | Permalink | Comments (0)

Saturday, August 23, 2014

NPR on police body cams

I was interviewed for an NPR Weekend Edition story on police body cameras and whether they represent any sort of great solution to the problem of figuring out what happens in police-public encounters. As expected, I provide the "no, video is not some all-showing neutral observer" perspective.

Posted by Howard Wasserman on August 23, 2014 at 02:14 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Friday, August 22, 2014

Number of FAR Forms in First Distribution Over Time

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

(All information obtained from various blog posts and blog comments over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

FAR Forms First Distribution.20140822

2009: 637

2010: 662

2011: 592

2012: 588

2013: 592

2014: 492

Posted by Sarah Lawsky on August 22, 2014 at 01:13 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (11)

An Update on the "Satanic Black Mass" Story

For students of law and religion, not to mention the much larger audience that likes stories about replevin, the story about the planned Satanic "black Mass" at the Oklahoma City Civic Center Music Hall has been very interesting. Here are some updates about this controversy. In short, the organizer of the event has returned (or said he has returned) what he said was an authentic piece of the Catholic host that he intended to use at the Mass. The story quoted at the MoJ cite adds: "Archbishop [Paul] Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility. 'I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.'" I cannot help but wonder, on the basis of this and similar statements that he has made, what Archbishop Coakley's position is on the Bronx Household of Faith case.  


Posted by Paul Horwitz on August 22, 2014 at 12:16 PM in Paul Horwitz | Permalink | Comments (0)

Talking about free speech or talking about racial justice?

The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protestsit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).

 (*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.

(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.

On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.

But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).

Posted by Howard Wasserman on August 22, 2014 at 10:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Would “Pattern or Practice” Litigation Work in Ferguson?

The following guest post is by Stephen Rushin, a VAP at Illinois.

Earlier this week, Howard wrote an interesting post about the possibility of DOJ intervention into the Ferguson Police Department under 42 U.S.C. § 14141. This statute gives the Attorney General authority to initiate structural reform litigation against local police agencies engaged in a “pattern or practice” of misconduct.

This post raised some important questions. How might the DOJ use § 14141 to reform the Ferguson Police Department? And would it work? Over the last two years, I've been empirically studying the DOJ’s use of § 14141 litigation in American police departments as part of my doctoral dissertation. I am in the process of converting this dissertation into a book (in contract with the Cambridge University Press) that argues that § 14141 is the most effective legal mechanism available to combat police misconduct. So it is safe to say that I am a strong proponent of § 14141 litigation. But this regulatory mechanism is not without its limitations. After the jump, I’ll breakdown what we know about § 14141, and I’ll describe how this sort of structural reform litigation could work in Ferguson. 

Let me start with a little background. Since Congress passed § 14141 in 1994, the DOJ has used the measure to reform police departments in cities all across the country, including Los Angeles, Washington, D.C., New Orleans, Pittsburgh, Cincinnati, Albuquerque, Seattle, Detroit. One of my earlier articles documents all of the formal DOJ action under § 14141. Below is a map showing all DOJ action under this statute (this doesn’t include DOJ action in Puerto Rico and the Virgin Islands). That same article also describes trends in DOJ enforcement of § 14141 over time.


In practice the DOJ has settled virtually all § 14141 cases through largely extrajudicial negotiations. One notable exception is the recent litigation in Alamance County, North Carolina. In a forthcoming article, I draw on original interviews to describe and evaluate this largely “off-the-books” process and theorize on its effectiveness. Scholars like Mary Fan (UW Seattle) have argued that this sort of bargaining of constitutional reforms in the shadow of the law “may yield smarter and farther reaching reforms.” And as Howard alluded to in his earlier post, Rachel Harmon and Kami Chavis Simmons have made valuable contributions in this field by describing how the federal government could use § 14141 to bring about more widespread and effective change in local police departments.  

Studies in Los Angeles, Pittsburgh, and Cincinnati have suggested that § 14141 litigation can help police departments reduce misconduct. In my research, I argue that federal intervention via § 14141 helps reduce misconduct in several ways. For one thing, it forces municipalities to prioritize investment in police reform. Preventing unconstitutional misconduct is expensive. Take New Orleans as an example. There, estimates place the annual cost of the consent decrees facing the New Orleans Police Department and Orleans Parish Prison at around $18 to $33.5 million. In confronting such an immediate financial burden, communities are left with two options: reallocate scarce municipal resources to the cause of police reform, or generate more revenue through higher taxes. While this might seem troubling, interview participants in my study suggest that municipalities can recoup some of this cost through future reductions in civil suits for officer misconduct. As one city official in Detroit told me, “the amount of money that we have saved on lawsuits that we had endured for years … have paid for the cost of implementation of the monitoring two or three times” over.

Federal intervention via § 14141 also commonly spurs municipalities to bring in outside, reform-minded leadership to their police department. Federal intervention arms these local police leaders with legal cover to implement potentially unpopular, but necessary reforms. And it utilizes external monitoring to ensure that frontline officers substantively comply with top-down mandates.

That is the good news. But this regulatory method is far from perfect. For one thing, virtually all interview participants that took part in my study acknowledged that § 14141 litigation is most effective when the local police and political leadership are supportive of the reform. In 2010, Assistant U.S. Attorney Tom Perez announced that the Civil Rights Division was again “open for business” and would aggressively use its authority under § 14141 to reform local police departments. Even so, real questions remain about whether the DOJ can effectively use § 14141 to force reform in a municipality that defiantly and obstinately opposes federal intervention.  

There are also serious questions about the sustainability of reforms achieved via § 14141. For example, in Pittsburgh, Police Chief Robert McNeilly oversaw the city’s Bureau of Police throughout the implementation of § 14141 reforms. During his process, McNeilly was an ardent supporter of federal intervention, despite fierce backlash from his own officers. After federal oversight ended, though, the newly elected Pittsburgh mayor removed McNeilly from his post. Since then, the Bureau “is now sliding back towards where it was” before federal intervention. One of McNeilly’s successors, Chief Nathan Harper, is currently serving an 18-month prison sentence on corruption-related charges. And the current Pittsburgh mayor recently acknowledged that the Bureau had regressed so much that it may be “on the verge of another consent decree.”

All of this is to say that § 14141 is not a silver bullet. If a full DOJ investigation finds evidence of a pattern or practice of police misconduct in Ferguson, the use of § 14141 may help facilitate organizational change. At the end of the day, though, long-lasting reform in the Ferguson police department will require more than § 14141. It will require dedication by local politicians, supportive leadership in the police department, and organizational buy-in by frontline officers.

Posted by Howard Wasserman on August 22, 2014 at 10:00 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Thursday, August 21, 2014

A Somewhat Interesting Question from a Terrible, Terrible Writer

At Slate, regular higher education writer Rebecca Schuman raises the question whether a professor should ever assign to students a book that he or she has written. Her answer: No, never! Except, yes, sometimes. And adjuncts probably should do so, because the mistreatment they receive matters more than the mistreatment that students receive.

I find the question an interesting one. But, I readily confess, I link to it here mostly to make publicly a point I've made more privately elsewhere: Rebecca Schuman is, by leaps and bounds, the worst writer on higher education I've ever read. That's not a critique of her views or her complaints about the university, only some of which are wrong. Nevertheless, taken on the whole, article for article, screed for screed, she is just awful--so consistently "love-to-hate" awful that I almost can't get enough of her work. This is not true for everyone--I wouldn't say it of Eric Jarosinski, for example--but in this case I would say that the fact that Schuman is leaving the academy for web journalism says far more about web journalism than it does about the academy. Nor does her regular column at Slate speak well for Slate, which used to be quite good.   

Posted by Paul Horwitz on August 21, 2014 at 12:09 PM in Paul Horwitz | Permalink | Comments (0)

Two-way video

Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.

But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).


On a different video-related point: Will Baude tries to find good arguments against the right to record, but finds all lacking. I agree, but would add an additional spin: Whatever their attitudes towards public recording (Will says police unions generally oppose it), police generally seem supportive of bodycams, dashcams, and other recording technology that they use and control. But that means recording is not the real concern, police control over it is. But obviously the government cannot be the sole actor with the power to record public events.

Posted by Howard Wasserman on August 21, 2014 at 10:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Judging Similarity (Part 2)

This post is by August/September GuestPrawf Irina Manta.

In my first post on this subject, I wrote about the background that motivated us to conduct our studies on copyright infringement for our paper “Judging Similarity”. Today, I would like to discuss our methodology and results in more depth.

In the first study, we tested the hypothesis that images seem more similar simply by virtue of being copies. We used an online format and recruited subjects on Amazon Turk. Subjects were told that they would be shown image pairs and would be asked to rate their similarity on a numerical scale. We specified that subjects had to base their answers entirely on a comparison of the works themselves. We also told subjects that while there would be both similarities and dissimilarities, they had to judge the works as a whole. Further, we told them to assume each time that the work shown on the left was created before the work shown on the right. Subjects were randomly assigned to either the independent group or the copy group. The former group was told that the creator of the work on the right did not know about the work on the left during the process of creation. The latter group received the instruction that the creator of the work on the right copied from the work on the left during the process of creation. Subjects then proceeded to view image pairs such as this one.

We conducted statistical analyses and found that the individuals who were told that copying occurred rated works as significantly more similar to one another than did individuals who believed that the creation process had been independent.

The results of the first study can mainly be explained in one of two ways. First, confirmation bias may lead individuals to find similarities more easily when told that a work was copied. Alternatively, motivated reasoning may influence people to punish copiers as part of the similarity analysis because they find copying morally distasteful. The first explanation struck us as more plausible in this case because subjects were not told about the consequences of the similarity judgment.

We then conducted a second study that would provide more legal context for the similarity judgment. Our goal was to test two hypotheses about how moral intuitions about unfairness of copying might affect judgments of similarity. We tested the effect of information about high versus low effort invested by the original creator. We separately tested the effect of information about negative versus no change in market demand for the original since the copy became available. This study used a single image pair in hopes of eliciting a clean response and approximating the conditions that a jury or judge would encounter in a trial. We changed our instructions to include explanations of copyright infringement and of the types of consequences that could result from a finding of liability. We also briefly explained “substantial similarity” and how it had to be present for a claim to succeed. The rest of our instructions resembled those from the first study, and subjects were told to rate similarity on a numerical scale comparing only the works themselves and viewing them as a whole. We told subjects across conditions that the work on the left is the original and the one on the right is the copy. We used this image pair.

We used four conditions. In our “high labor” condition, we told subjects that the creator of the original spent about two months designing and setting up the shot on the left. In the “low labor” condition, we said that this process had taken ten minutes. In the “market effect” condition, we told subjects that since the copy has become available, it has had a strong negative effect on the demand for prints and licenses of the original and that sales of the original decreased by over 60% since the copy came on the market. In the “no market effect” condition, we told subjects that the arrival on the market of the copy had no effect on sales of the original.

When we compared the two labor conditions, we found a significantly higher similarity rating for the group that believed that the original work had taken a high level of labor to create. When we analyzed the two market substitution conditions, however, we found no statistically significant difference between the groups. In part 3 of my post, I will discuss the implications of our findings.

Posted by Howard Wasserman on August 21, 2014 at 09:30 AM in Intellectual Property | Permalink | Comments (0)

Thoughts about Perez on Courage and Rationality in Regulation

Oren2Oren Perez (Bar Ilan University) has published Courage, Regulatory Responsibility, and the Challenge of Higher-Order Reflexivity in Regulation and Governance and on SSRN.  Here's the abstract:

Contemporary regulators must respond to ever-increasing societal demands in various domains. Regulators must cope with these demands under conditions of extreme epistemic scarcity and ideological divide. This leaves regulators perplexed about what action they should take. Regulatory praxis offers two primary responses to this moral and epistemic dilemma: technical canonization and reflexive regulation. While these two approaches represent contrary regulatory philosophies, they suffer from two common blind spots: (a) disregard of the critical role of discretionary judgment in regulatory action; and (b) disregard of the dilemma of higher-order reflexivity. The article explores the idea of higher-order reflexivity in the regulatory context. This exploration renders visible the abysses that are faced by regulators as they attempt to resolve regulatory dilemmas through a cognizant and introspective process. The article argues that the Socratic concept of courage and the idea of forward-looking responsibility provide a plausible framework for thinking about the challenge of regulatory judgment. It concludes with a discussion of the legal and institutional mechanisms that could both facilitate and put to scrutiny the realization of this ideal (but noting also several features of the contemporary regulatory system which constitute potential barriers). 

I always take note of Professor Perez's work, because he (among others) confronts, as he refers to it, the higher-order rules that determine how we go about applying rules, and the inherent regress or circularity in trying to come up with an objective foundational concept of judgment, an archimedean place to stand (as Ronald Dworkin characterized it here at page 88).  

This particular essay is in the context of regulatory judgments, but it applies more generally.  What do we mean by "higher order"?  Let's suppose that I need to decide on an appropriate response to my child's misbehavior.  Should I choose the first level rule of justice (in which case he's grounded until he's thirty) or the first level rule of mercy (oh, c'mon, I did the same thing when I was his age)?  What rule do we apply in choosing between justice and mercy rules?  Let's call this "Rule-Prime".  Do I apply "justice" rules when the action involves a physical danger?  Do I apply "justice" rules when the action has consequences for others?  Okay, what's the rule for deciding how to decide how which rule is appropriate in "Rule-Prime" cases?  Well, I guess there must be Rule-Prime-Prime.  You can see when this is going to end.  Never.  (Note the application of this to the problem of the internal point of view in the "what is law?" jurisprudential debates.  We could do an objective study of parents' disciplining habits and that would tell us about the practice, but it wouldn't tell us anything about how the parents came to see that as the governing first order rule.)

The lesson here is that, sooner or later, the power of rational thought runs out, and we have to turn to something else when we make decisions.  Not only do I like his choices - courage (i.e. deciding even if we are uncertain) and responsibility (i.e. accepting the consequences of the decision) - I've written something similar in connection with business (and other) decisions:  "The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions."

Posted by Jeff Lipshaw on August 21, 2014 at 07:53 AM | Permalink | Comments (0)

Wednesday, August 20, 2014

Who's Afraid of Assuming Federal Jurisdiction?

In the Supreme Court's much-discussed Hobby Lobby decision (decided at the end of June), the Court addressed whether for-profit corporations should be able to assert claims under the Religious Freedom Restoration Act (RFRA). The majority answered “yes” for a variety of reasons, mostly involving the statute’s text and history. But at one juncture, the majority and dissent also jousted over a pre-RFRA decision called Gallagher v. Crown Kosher Super Market. In the opinion of the Hobby Lobby majority, Gallagher “suggests, if anything, that for-profit corporations possess [free exercise] rights.”

Gallagher is a remarkable decision. In short, a plurality of the Court assumed standing before reaching the merits—contrary to the general rule later established in Steel Co. v. Citizens for a Better Environment. And, almost as remarkably, both the majority and the dissent in Hobby Lobby appear to be in denial about it. Hobby Lobby thus represents an interesting example of the Court’s willingness to engage in doctrinal revisionism. And, on inspection, the Court’s revisionism could have been done better.

Gallagher involved a Free Exercise Clause challenge against Sunday closing laws. The plaintiffs included customers of a kosher market, the kosher market itself, and a rabbi. In addition to addressing the merits, the defendants vigorously disputed whether any of the plaintiffs – either individual or corporate – had standing to sue.The Court splintered. A plurality, led by Chief Justice Warren, found no violation based on another case, Braunfeld v. Brown, decided on the very same day: "Since the decision in that case rejects the contentions presented by these appellees on the merits, we need not decide whether appellees have standing to raise these questions." Meanwhile, the concurring and dissenting justices didn't specifically address the majority's reservation. Because the plurality expressly reserved standing and no other justices complained about it, Gallagher seems like powerful evidence that it was once accepted practice to assume standing on the way toward the merits.

Remarkably, the Hobby Lobby majority and dissent papered over the Gallagher Court's reservation of jurisdiction.

Start with the Hobby Lobby majority’s oddly misleading summary of Gallagher. At the outset, the Hobby Lobby majority observed that the Gallagher defendants “argued that the corporation lacked ‘standing’ to assert a free-exercise claim.” The Hobby Lobby majority then dropped a footnote indicating that the defendants had objected to the corporate plaintiff's standing. Finally, the Hobby Lobby majority noted that the Gallagher plurality had "reserved decision on the question whether the corporation had 'standing' to raise the claim." But the defendants in Gallagher had vigorously argued not just that the corporation lacked standing, but that none of the plaintiffs had standing. And the Gallagher plurality expressly reserved whether “appellees” had standing, without limiting that reservation to the corporate party.

The Hobby Lobby dissent gamely engaged in the same revisionist account, wherein Gallagher assumed only corporate standing. “True,” the Hobby Lobby dissent conceded, “one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews.” However, the “other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” The Hobby Lobby dissent offered this line of reasoning specifically to help explain why "the plurality [in Gallagher] stated it could pretermit the question 'whether appellees ha[d] standing.'" Perhaps the Gallagher plurality should have resolved the standing issue by focusing on the non-corporate plaintiffs, as the Hobby Lobby dissent suggested. But that approach doesn’t line up with what was actually argued or reserved in Gallagher.

Fortunately, there's another, better way to harmonize Gallagher with now-settled notions of federal jurisdiction. The key is that the Gallagher plurality adjudicated the merits based on another case issued the very same day. That scenario triggers a kind of exception (recognized in Steel Co.) for cases where there is “a merits issue dispositively resolved in a companion case.” The basic idea is that, if your claim was just rejected on the merits, then there’s no longer a substantial federal question for purposes of federal jurisdiction. So while Gallagher’s use of hypothetical jurisdiction was unusually blatant, it doesn’t contradict the rule against assuming jurisdiction—or, at least, doesn’t contradict it to any greater extent than already allowed by Steel Co. itself.

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

Posted by Richard M. Re on August 20, 2014 at 11:59 PM in Constitutional thoughts | Permalink | Comments (1)

More on police "pattern or practice" in Ferguson

Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.

Posted by Howard Wasserman on August 20, 2014 at 05:31 PM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (0)

Response(s) to Rick Garnett's Essay on Freedom of Religion and Freedom of the Church

As Rick noted here a while back, he has a piece up at the Liberty Law site on "Freedom of Religion and Freedom of the Church." There have been several interesting responses to it by Donald Drakeman and John Inazu. Here is my own, less interesting response. It was a pleasure to read and respond to Rick's essay.

Posted by Paul Horwitz on August 20, 2014 at 04:09 PM in Paul Horwitz | Permalink | Comments (0)

"Criminals In Uniform"

I have been profoundly disheartened by the police shooting, peaceful protests, draconian police response, and the slide into sporadic rioting currently dragging out in Ferguson, Missouri. The frustration expressed by the Ferguson protestors has reminded me of the restrained anger behind Professor of Jurisprudence at the University of Oxford, John Gardner's discussion of another police shooting: the London Metropolitan Police killing of Jean Charles de Menezes in 2005

In a broadly "Diceyan" take on legal equality, Gardner argued that police officers are properly understood as "citizens in uniform." The austere Diceyan approach to police responsibility argues that lawless policing—searches and seizures without authority of law—are criminal acts. If an ordinary citizen who invades property, offensively touches, or detains and removes someone is guilty of a trespass, battery, or kidnap, then so is the citizen in uniform who acts without proper legal authorization. Worse, when a person charged with protecting the public and upholding the law harms the public and violates the law, they fail in their moral duties in particularly egregious ways.

Suppose this austere Diceyan approach applied to the police in Ferguson Missouri—or American policing more generally. Then Fourth and Fifth Amendment violations renders those few who engage in such acts police criminals in uniform just as much as extra-judicial killings do. The result is that, from an austere Diceyan perspective, those police officers fail the citizenry in the most egregious way: by becoming criminals themselves.

From this Diceyan perspective, Justice Cardozo's famous dismissal of the exclusionary rule in People v. Defore is deeply disingenuous. Cardozo asked should the criminal "go free because the constable has blundered." Blunderers do not intend harm: they are innocent-but-clumsy. More Keystone Cops than Stacy Koon (of Rodney King fame). But the austere Diceyan might argue that central problem with police misconduct is not clumsy cops, it is criminal ones. 

For the austere Diceyan, the problem is police officers who, without authority of law, engage in offensive contact with persons, thereby committing a battery (which is what happens in a search of a person without legal authority). Or police officers who detain a person against their will and carry them away, thereby committing a kidnap (which is what happens in a seizure of a person without legal authority). Or police officers who, without authority of law enter property and commit a criminal trespass (you get the picture). And if the cops are criminals when they act without legal authority, then a judge faces a Hobson's choice. On the one hand, she has evidence of trespasses, assaults, batteries, and kidnaps by the police. On the other, evidence of criminal activity by the defendant. That means whatever the court decides, a criminal goes free. The only difference is: one wears a uniform, one does not.

Justice Cardozo is a fantastic wordsmith: he achieves palpable literary and emotional effects with his choice of language. But what he fails to acknowledge in Defore is the fact that the law grants the police a permission to engage in acts that, if undertaken by a security guard or a member of the neighborhood watch, would be criminal. What gives the police officer protection from criminal prosecution is the fact that he establishes that his actions conform to the relevant legal standard—reasonable suspicion, or probable cause, as the case may be—and follows the appropriate procedure—obtaining a warrant if necessary, and using the appropriate amount of force for the appropriate amount of time. Anything else is not covered by law. The central image he conjures up in Defore is our police—the friendly, neighborhood constable, Perhaps he's thinking of someone like Michael, the affable cop in "Make Way for Ducklings, acting in a cack-handed and thoughtless manner—blundering. According to Cardozo, the central problem of police misconduct is, at worst, some sort of negligence-based tort. But Cardozo's picture of Michael-the-blundering-constable erases the harm caused by illegal policing from the calculus. I think it's time we recognized that the permission granted state officials is to engage in otherwise wrongful---viz. harmful---activity. Activity that, if unjustified, would subject the official to moral and criminal opprobrium (i.e., shaming and punishment). he problem, as the Court saw in Mapp v. Ohio,is lawless policing. Lawless policing is, quite literally, criminal. If only it were perceived as such (instead of macho Dirty Harrys doing what it takes to protect the rest of us), we might do something about it.

If we think of the harm involved as criminal—the cop acting unlawfully intends to engage in an offensive contact or detention—we would no longer think of the default sanctions as loss of evidence or a tort, but as a crime requiring prosecution, and the officer as a low-level criminal (and a high-level moral offender).


At this point, in a law review article, we'd test the consequences of this claim. Surely, if all illegal searches and seizures were criminally prosecuted, there would be no police left. I'm not going to spend time on this point in a blog: but ponder that objection for a minute. It could be a claim about chilling effects. But it could be a claim that most or many officers routinely violate citizens' rights (which would be a claim that police are extreme recidivists). Either way, it suggests that out model of policing is broken if major defenses rest upon the need to tolerate police criminality. I could also tell a whole story about the warrant and other pre- or co-authorization devices that establish scope of the police permission to search and seize, and so provide a defense againt criminal prosecution. But that is not my goal here either.


Instead, what I want to suggest is that the austere Diceyan model accurately captures sense of public outrage expressed by the citizens of Ferguson Missiouri (but not only those citizens). It provides, perhaps, the moral and normative counterpart of the familiar sociological account of legitimacy as a set of feelings of responsibility, induced by the inclusive actions of public authorities, so that the individual recognizes an obligation to obey the law (or the authority). The austere Diceyan model identifies a way in which police officers are perceived as themselves discounting the obligation to obey by engaging in what would count as mala in se (trespass, battery, kidnap), and so ones that strike us as real wrongs.

In Ferguson, however, th problem, from an austere Diceyan perspective is even more pointed: suppose that the police includes a coterie of officers who are recidivists, that is, who repeatedly engage in trespasses, assaults, batteries, and kidnaps. And suppose those officers target particular communities on the basis of race. And suppose those officers' criminal activity victimizes lots of law-abiding citizens. And suppose a prosecutor, by inclination or necessity, declines to criminally prosecute those officers' illegal police activity. Who then are the victims of police criminality to turn to? Will the good cops turn in the bad ones? Or does catching the "real" criminals justify breaking the law?

What the police have been doing in the City of Ferguson is criminal. Not (just) the homicide of Michael Brown, which could be anything from a terrible act of self defense (the police officer's version) to an act of murder. But the criminal assaults on journalists and state representatives. The criminal use of battlefield weapons on protesters exercising their first-amendment rights. The criminal invasion of property.

The most dispiriting features of the Ferguson stand off is the attempts by local citizens and politicians to try to negotiate the stand-down of two criminal gangs, one of which burns and loots, and one of which beats and batters and kidnaps and assaults.

[If you are interested, tweets from St. Louis Alderman Antonio French (@antoniofrench) or Rembert Browne's wonderful and horrific article in Grantland give a flavor of what i happening on the streets. For example, Browne has some footage of the now-infamous "siren"—actually an LRAD sonic cannon, a military weapon—used to disperse protestors, both peaceful and violent, indiscriminately. It is truly horrifying: you can get a sense of the sound of it in his article.]

The police are not special beings entitled to unquestioning compliance whatever they do (though some seem to believe that): they are citizens like the rest of us. Citizens in uniform, to be sure. But they are our legal and moral equals. Not our superiors. Not clothed in with some special right to interfere with non-criminal conduct at their whim. And on the austere Diceyan account of police responsibility I have been pushing: when they go beyond their lawful authority, they shuck off the protection given by the law—the legal permission to engage in criminally harmful conduct—and act outside the law, on their own.

The Court recognized the stakes of unlawful police activity in Mapp, the case that originally applied the Constitution to misconduct by state police officers. In that case, Chief Justice Warren wrote that "the right to be secure against rude invasions of privacy by state officers is…constitutional in origin, [and] we can no longer permit that right to remain an empty promise. … [W]e can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled." There's a whiff of austere Diceyanism in the Chief Justice's opinion. And it's all the better for it.

On NPR yesterday, a protester stated that the protests would not end until Darren Wilson, the officer who shot Michael Brown, is criminally prosecuted. If he was justified in his actions, then he has a complete defense. Rather than investigating, in a transparent way, the shooting, the Ferguson police have established that they are unaccountable to the law, and to the people they serve who ask them to account for their actions. They are lawless police. 

Posted by Eric Miller on August 20, 2014 at 01:35 PM | Permalink | Comments (5)

Does it Even Matter What Steven Salaita "Tweeted?"

I have followed with interest the various stories and blog posts about Steven Salaita. Although there are aspects of Mike Dorf's initial post on the subject that I am uncomfortable with, I agree with him that there are some possible differences between firing and not hiring an academic candidate. We shouldn't be sanguine about those differences; refusing to hire a candidate for the wrong reasons--not liberal enough, say, or too liberal--is also a dereliction of academic duty. And we should be very cautious about "collegiality," without treating it as irrelevant. But there are, I think, potential differences between the kinds of factors that are relevant at one stage and those that are relevant at another.

I agree that the Salaita case raises serious concerns about academic freedom. I'm less convinced by some of the confident descriptions of the process and its legal consequences, but I haven't read every document. To my surprise, moreover, I find some aspects of the argument that some of Salaita's tweets have been overread persuasive. (We should always be cautious about confidently assuming that some statement is really a "dog whistle," as long as it can be read otherwise. I find it unfortunate that this seems to be an inconsistently applied principle.) I should add that that's a far cry from admiring the heated, obnoxious rhetoric that Salaita seems comfortable with in his tweets. In my view, which admittedly may be an outlier, most academics should be embarrassed to tweet at all; and all of them should be embarrassed to tweet like that. (The post I link to promises to go on to demonstrate that "Nelson's authority to speak about Salaita's termination"--note the assumption--"is compromised." I assume that most of the serious critics of university's treatment of Salaita consider that part of the argument irrelevant, if not damaging to their arguments.)

What I'm moved to wonder is how relevant much of the later discussion has been. The letter to which Dorf is a signatory describes Salaita's tweets, in rather general terms, as "statements on a matter of public concern," as as the voicing of views on "complex matters of public concern," as "participat[ion] in a rich, and at times heated, climate of debate on the issue of justice in the Middle East," and so on. Some critics, such as Steven Lubet, have criticized the letter writers and others for "soft-pedaling the anti-Jewish sentiments in [Salaita's] tweets." In addition to pointing to the post I linked to earlier reading those tweets differently--which, as I said, I found somewhat persuasive--critics of that position have ended up in a lengthy discussion of Hamas, the situation in and around Israel and Gaza, etc. And I wonder: Does it matter?

As I understand the strongest statement of the position that has been offered, this is a matter of academic freedom, pure and simple. On this view, Salaita was fired, or refused a process that should have led to his employment, and not just "not hired." The firing was a result of the content and viewpoint of his speech on Twitter. That is a violation of basic principles of academic freedom. Salaita's hiring itself, based not on his tweets but on a review of his scholarship and, presumably, his teaching and service, indicate his suitability for the position. If that's the case, it seems to me that what Salaita said is basically irrelevant. Provided that he was engaged in a "rich, and at times heated," debate on "a matter of public concern," and that he was fired, in violation of academic freedom, for doing so, why should we care whether his tweets were anti-Israeli, anti-Zionist, offensive, or indeed anti-Semitic? The question should be (almost?) entirely irrelevant.

On this view, it does not matter--except for public relations purposes--that the letter writers offered a rather anodyne description of Salaita's tweets. Nor--except for public relations purposes--would it matter if the letter writers had written instead, "A number of critics have said that Salaita's tweets trade in anti-Semitic tropes and imagery, are indifferent if not gleeful about doing so, and are enthusiastic in displaying bloodthirstiness about the people he reviles. We don't care, and we're outraged that he was fired."    

It seems to me that if we take seriously the criteria applied by Salaita's defenders--and not without reason, if we care about academic freedom--it would hardly matter if Salaita had instead "tweeted" (leaving aside the question why grown-ups, let alone grown-up academics, bother with such an activity) any of the following:

"I'm beginning to think the Protocols of the Elders of Zion are right."

"One, two, a thousand Auschwitzes!"

"Obama is a traitor and a dictator. Time to exercise some Second Amendment remedies, NOW!"

"Maybe if the girls on campus dressed with decency and stayed off the booze, there would be fewer rapes at this school."

"If those monkeys in Ferguson want to burn down their own town, let them! Why waste the rubber bullets?"

Of course most people will find these statements objectionable. But that's hardly the point. They are, and the letter writers would describe them simply as, part of the rich climate of debate on matters of public concern. It's strange to me, then, how quickly the discussion in the comments has moved to questions about the nature and motivations of Hamas, whether it bears moral agency for the murders it commits, and so on. It should matter no more than it would matter whether Salaita, or some other academic, believed and argued that women's indecency and promiscuity is a major contributing factor to campus sexual assault, or that black criminality is a greater problem in Ferguson than police brutality. And, given that the real issue is one of academic freedom, the letter writers would surely be within their rights to describe one set of beliefs and arguments as abstractly as they describe any other. 

One last note: an interesting comment on the Faculty Lounge wrote, in response to a question whether it would matter if Salaita were, instead, a Grand Wizard of the KKK who concealed his membership until he was hired, "[T]here is obviously a fundamental difference between holding racist ideas and acting upon them, just as there is a fundamental difference between engaging in terrorist acts and expressing sympathy for them. No one would argue academic freedom requires hiring either a Grand Wizard or a terrorist." That may be right, but note that this response assumes that the question is one of hiring, not firing. That is not what the question to which he was responding said. Moreover, the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason. And of course a suite of responses to such a dismissal is required, including protest and, for some, a refusal to participate in any events at that university.  


Posted by Paul Horwitz on August 20, 2014 at 10:22 AM in Paul Horwitz | Permalink | Comments (15)

Tuesday, August 19, 2014

Reforming the Ferguson Police Department

This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency. 

Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.

One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.

The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.

Posted by Howard Wasserman on August 19, 2014 at 04:15 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Understanding Prophylactic Supreme Court Decisions

William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis. 

Posted by Lyrissa Lidsky on August 19, 2014 at 11:53 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Lyrissa Lidsky | Permalink | Comments (0)

Summary judgment and the infield fly rule

No, not together, sadly.

The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).

And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:

This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.

Posted by Howard Wasserman on August 19, 2014 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, August 18, 2014

Can Standing Immunize Surveillance Programs From Judicial Review?

One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.

I discussed this set of issues in a recent article entitled “Relative Standing.” Here’s the basic idea. In easy standing cases, plaintiffs assert common law injuries that have long been thought appropriate for judicial relief. Those historical practices give content to the idea of an “injury in fact.” But, in hard cases, the Court lacks a sound basis in historical practice and so the idea of an “injury in fact” lacks any stable meaning. In grappling with this problem, the Court has tended to make standing available only to plaintiffs with the strongest interest in seeking relief. This approach navigates a pair of widespread intuitions. On the one hand, standing doctrine shouldn’t make it impossible for federal courts to vindicate important principles of public law. On the other hand, standing doctrine shouldn’t give everyone an automatic ability to rush to federal court. In balancing these competing values, relative standing allows the Court to muddle through.

Relative standing made an appearance in the Court’s highly divisive 2013 decision in Clapper v. Amnesty International, USA. That case involved a suit by attorneys and journalists who interacted with people suspected of being terrorists. The plaintiffs believed that they were subject to surveillance by the government and so took precautions, such as traveling to meet clients instead of using the phone. These costly measures seemed to rest on something more than mere conjecture or speculation. As Justice Kennedy put it during the oral argument: “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute.” Therefore, the plaintiffs' allegations seemed like a credible source of factual injury, broadly understood.

Yet a majority of the Court (Justice Kennedy included) found that the plaintiffs’ claim was too speculative to sustain standing. Near the final pages of its opinion, the Court appeared to reject relative standing as irrelevant, stating: “the assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” However, the Court then proceeded to devote two pages of analysis to this supposedly irrelevant consideration. Of particular note, the Court suggested that people prosecuted based on potentially unlawful surveillance would be notified of that fact. And even if the defendants themselves couldn't obtain relief, their attorneys could. Sounding a distinctly relativistic note, the Court suggested that these alternative claimants had a “stronger” evidentiary basis for standing.

Clapper’s relativistic arguments were problematic. To be sure, Clapper was correct that alternative and even superior claimants were possible. But the Court failed to show that anyone who could actually sue had a greater interest in doing so than the plaintiffs. When the Court decided Clapper, the government had informed no defendants that they had been monitored pursuant to the challenged program. That left only two possibilities: either there were no defendants legally entitled to notification, or there were such defendants and the government had failed to give them notice. Either way, the “stronger” plaintiffs that the Court had imagined would not exist. In overlooking this problem, the Court let hypothetical plaintiffs defeat real ones.

We now know that, when Clapper was decided, the government was not in fact giving defendants legally required notice. Only after Solicitor General Verilli initiated an internal executive branch debate did the government belatedly supply notice to at least some defendants, thereby raising the possibility of a justiciable case. From one standpoint, these developments could be viewed as vindication for Clapper, since the Court’s holding might not ultimately prevent a ruling on the challenged surveillance program. But that appraisal would be too generous. The government chose to supply notice to defendants only after secretly failing to do so for several years. Moreover, the government could still employ the surveillance program indefinitely without ever engaging in new disclosures, so long as it does not use discovered information in ways that trigger disclosure obligations. Constitutional rights should not depend on whether the executive branch chooses to create a justiciable case.

Recently, attention has turned to another government surveillance program, apart from the one that was at issue in Clapper. This other program is conducted not under federal statutory authority, but under Executive Order 12,333. According to a recent article by Charlie Savage, it appears that the government is using this program in a way that is deliberately designed to avoid triggering notification requirements:

In practice, officials said, the government already avoids [introducing evidence obtained directly from 12333 intercepts], so as not to have to divulge the origins of the evidence in court. But the officials contend that defendants have no right to know if 12333 intercepts provided a tip from which investigators derived other evidence.

So if new plaintiffs challenge EO 12,333 intercepts, the government may not be prepared to make the same notice guarantees that appeared in Clapper.

Over at Just Security, ACLU attorney Patrick Toomey has provided a thoughtful analysis of these developments. Part of Toomey’s discussion suggests that relative standing could play a role here:

In Clapper, the Supreme Court indicated that notice to criminal defendants would ensure that there was some path to judicial review of the FISA Amendments Act. Not so, it appears, with E.O. 12,333 surveillance. Has DOJ invented, in essence, a foreign-intelligence exception to judicial review? Or does DOJ’s no-notice policy mean civil plaintiffs have standing to challenge E.O. 12,333 surveillance in the courts?

Toomey raises this point as a provocative question, which is appropriate given that Clapper purported to discount relative standing considerations, just before discussing them. What’s more, the four dissenting justices in Clapper plausibly argued that standing could be found without reference to relative considerations. So it’s quite possible that these problems will be resolved—one way or another—within the conventional standing framework.

Still, it seems fair to say that relative standing will form an important part of the debate. And it should.

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

Posted by Richard M. Re on August 18, 2014 at 04:36 PM in Constitutional thoughts | Permalink | Comments (3)

Dean Frank Wu on Rethinking Law School

Dean Frank Wu (Hastings) has a piece in the San Francisco Daily Journal called "It's Time to Rethink Law School" (HT:  Paul Caron).  The conclusion and central claim is this:

There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.

I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.

Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).

I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt."  I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man.  After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."

The "transition[]" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method").  It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "[]complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone."  The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated.  (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)

Posted by Rick Garnett on August 18, 2014 at 04:19 PM in Life of Law Schools, Rick Garnett, Teaching Law | Permalink | Comments (6)

JOTWELL: Walker on the effect of teaching procedure

The new Courts Law essay comes from Janet Walker (York--Osgoode Hall) reviewing A Community of Procedure Scholars: Teaching Procedure in the Legal Academy, a piece by authors from four different systems (including Elizabeth Thornburg of SMU) comparing how civil procedure is taught in their law schools and the effect that has on procedure scholarship and procedural systems.

Posted by Howard Wasserman on August 18, 2014 at 02:18 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

To the man who taught me the infield fly rule

I originally planned to post this last month, but obvious events made it feel inappropriate.

My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. Dan, being Dan, was one of the first people to reach out and extend condolences from afar--in fact, it was one of our last text exchanges. To tie this back to an earlier post, I just ended shloshim, the 30-day period of mourning in the Jewish faith, so this seemed a good time to write.

My dad was a huge baseball fan. He somehow became a Yankees fan in 1930s/1940s Brooklyn, an interesting choice that probably subjected him to some abuse (although his consolation was that the Yankees always won and the Dodgers always lost). He passed that love of the game down to me (even if I traded the Yankees for the Cubs as an adult--don't ask). I still cry at the end of Field of Dreams ("Dad, you wanna have a catch?"), because, who doesn't?

More importantly, though he certainly could not have imagined it at the time, he set me down the path of my two-plus-year (and counting) scholarly obsession with the Infield Fly Rule.

Crazy as it sounds, one of my vivid snapshot memories of childhood is that moment when I first learned about this crazy rule. I was about eight years old and my dad and I were watching a Yankee game on TV. One of the announcers said "Infield Fly Rule is in effect" (standard baseball broadcaster lingo on IFR plays, for reasons I have not yet been able to uncover); I asked what that meant and he explained. And he obviously did it in very clear terms, because I immediately understood both the rule and its logic and his explanation stuck with me going forward. If, as I have argued, to understand the infield fly rule is to understand baseball, then my dad understood baseball. And he made sure I did, as well.

One of the last times I visited him in New Jersey in the spring, I brought along two of my infield fly articles. He flipped through them while we were sitting together talking and he read them after I left. And I am quite certain it is the only thing I have written as a prawf that he read or understood. So that alone made this whole project worthwhile.

Alav ha'shalom.

Posted by Howard Wasserman on August 18, 2014 at 09:31 AM in Howard Wasserman | Permalink | Comments (2)

Judging Similarity (Part 1)

This post is by GuestPrawf Irina Manta.

I thought I would kick things off by talking a bit about the empirical intellectual property work in which I have been and continue to be engaged. Empirical work in this subject matter has been increasing in popularity in recent years after some pioneers like Barton Beebe and other scholars led the way. The relationship between social science and IP issues has fascinated me for years, so it is a much welcome trend in my eyes. Most recently, I collaborated on my own first project in that area with co-authors Shyam Balganesh and Tess Wilkinson-Ryan. The paper that resulted, Judging Similarity, will appear in the Iowa Law Review later this year, and I would like to offer a sneak peek here into some of the issues we examined.

The test for copyright infringement asks in part that fact-finders determine whether the original work and the allegedly infringing work are “substantially similar” to one another. Put differently, fact-finders—usually jurors—have to decide whether a “reasonable observer” would believe that the similarities between two works were of such a high degree as to involve wrongful appropriation. Further, fact-finders have to establish that actual copying took place, and similarity often plays a role to meet that prong as well when there is no admission of copying. While different circuits each have their own version of the copyright infringement test, they all require a showing of substantial similarity in some form or another. I expressed the concern in my earlier article “Reasonable Copyright”, 53 Boston College Law Review 1303 (2012), that the seemingly simple matter of determining similarity may create an inquiry that is particularly open to numerous cognitive biases. These biases, I argued, would distort the judicial process in a way that would likely generally benefit plaintiffs. My empirical work with Shyam and Tess allowed me to test some of these earlier intuitions I generated.

The first issue in the context of substantial similarity is that by the time the question of similarity reaches a jury, its members have already heard a great deal of evidence about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Although the similarity finding is meant to involve no more than a comparison of the two works to assess whether they are sufficiently similar to render the copying problematic (i.e., improper), that judgment may be affected by the availability of this other evidence. The fact-finder is required to answer the question of substantial similarity through a mere comparison of the two works, which will often involve actively ignoring instinctively relevant and highly salient information. Copyright law thus seems to assume that the inquiry into substantial similarity can serve as a simple comparison of the two works, even in the face of extensive factual evidence that bears directly on the dispute in question. The fact-finder is presumed to be able to cabin and exclude from the analysis all of the evidence with which the court has been presented in the lead-up to the issue of substantial similarity.

We know from other contexts that it is very difficult to ignore salient information when performing difficult cognitive tasks. In the judicial world, for instance, many have attacked the instructions to ignore inadmissible evidence as often not only failing to alleviate the problem but in fact aggravating it by actually making the information more salient. The similarity determination may have traditionally lulled people into a false sense of confidence by creating the impression that it involves a purely perceptual task that does not contain complex moral judgments. We posited, however, that similarities would appear as more similar and dissimilarities as less obvious when the judgment was embedded in a narrative that identified an actor who intentionally engaged in copying.

As I will describe in more detail in my next post, we conducted two different studies that asked subjects to rate the level of similarity between pairs of images. We varied the instructions and extraneous information with which we provided subjects so that we could determine which factors, if any, influence what the legal system would like to see involve an entirely perceptual task. We were able to show through these studies that knowledge of copying led subjects to view two works as significantly more similar than otherwise. In addition, the belief that the original work had taken a lot of labor to create also significantly increased the similarity rating. Meanwhile, information that suggested that the junior work partially supplanted the original work in the market, i.e., that market substitution took place, did not affect the similarity rating. I will discuss our methodology and explain our results in part 2 of this post.

Posted by Howard Wasserman on August 18, 2014 at 09:20 AM in Intellectual Property, Judicial Process | Permalink | Comments (0)

Sunday, August 17, 2014

Kar on Contract Theory: The Sequel ... And Putting Spectacles on the View from Nowhere?

Robin Bradley Kar has now posted the sequel to Contract as Empowerment: A New Theory of Contract.  The second piece is Contract as Empowerment II: Harmonizing the Case Law.   I did a quick review of the first piece in an earlier post.

I need to say first that the length and depth of this post is a reflection of the quality of Rob's work.  I heartily recommend both articles, taken together, as an incredibly ambitious, if not promising (no pun intended), approach, particularly for those of us (like me) who were so significantly unsatisfied with seeing either the doctrine or the practice of entering into contracts as wholly explained by rational actor economics.   So like most reviews, this is perhaps not as much about what Rob is arguing as much as a chance for me to pontificate.  In short, don't take my characterizations as gospel; if you have any interest, download the articles while they're hot!

The context here is the longstanding philosophical debate about why and how courts go about using the resources of state power to resolve matters that originate wholly in private ordering.  Over the last thirty or so years, those inclined to answer that question have tended to see the rationale for state involvement on two philosophical poles, one consequential and one deontological.  From my standpoint, Rob's work (likely in contrast to my own) is firmly within that debate, in that he is searching for a philosophical resolution - one that harmonizes both explanation (i.e. what does contract law do?) and understanding (i.e. what does contract law mean?).   Spoiler alert (yawn!):  I don't think that kind of complete harmonization is possible, although I tip my hat to Rob's rigor in linking philosophical justification and discrete portions of the doctrine, such as consideration, expectation damages, interpretation, performance, and so on.

Within the mainstream debate, one pole for the justification of contract law is the enhancement of economic welfare.  Under that view, contract law serves the purpose mainly of insuring that people follow through on the exchanges of property and services that are economically efficient - i.e., the whole point of an economy is to transfer stuff to those who value it most.  When that happens (in economic theory), everybody gets richer.  This is "law and economics" stuff, the Kaplow and Shavell arguments about fairness and efficiency applied by scholars like Alan Schwartz and Robert Scott in assessing contract doctrine.

The other pole is the view that contract law is (or should be) legal affirmation of promise-keeping as a moral obligation.  The seminal work is Charles Fried's 1981 Contract as Promise, but scholars like Seana Shiffrin keep that moral argument alive.

As I said, those are the polar positions.  Then there are the pluralists who fall somewhere in between:  Jody Kraus, Roy Kreitner, Nathan Oman.

And then there are theorists who are, as they say, orthogonal to the mainstream debate.  Randy Barnett theorizes contract law as being based in libertarian consent.  Stewart Macaulay, Jean Braucher and the contracts-in-action camp largely eschew philosophy in favor of the sociology aspects of contracting practices.  There are the metaphorists:  Curtis Bridgeman (contract as plan), Gordon Smith and Braydon King (contract as organization), Mark Suchman (social artifact), yours truly (ritual or narrative), and perhaps most famously,  Arthur Leff (contract as thing).  (For more on this I suggest, modestly, two of my own pieces.  The first is my introduction to our symposium (45 Suffolk L. Rev. 601 (2012)) a couple years ago commemorating the thirtieth anniversary of Charles Fried's Contract as Promise.  The second is my own take on contracts and contract law (116 Penn St. L. Rev. 987 (2012)) not from the usual retrospective view of the adjudicator, but as a transactional progression from subjective desire to inter-subjective communication to objective artifact.)

In my view, however, the main philosophical battle (if that's an appropriate metaphor) tends to be between the consequential "efficiency" camp and the deontological "morality" camp, and it plays out in particular aspects of doctrine.   The idea of "efficient breach" - the Holmesian idea that you aren't really promising performance but only either to perform or pay damages - strikes the moralists as immoral.  The efficiency camp sees the moralists as failing to explain why accepted contract doctrine has so many aspects that have nothing to do with the affirmation of a promise (best articulated in a Michigan Law Review article by Richard Craswell).  

This is the briar patch into which Rob has jumped.

In Empowerment I, Rob is telling us there's a better way of looking at the justification for state involvement - the law should step in when a particular party has entered into a particular contract with the specific purpose of inducing another to act; and, second, when meeting this purpose depends on granting another contracting party the legal authority to demand compliance. All other things being equal, the law should not—on the other hand—enforce promises in other circumstances.  

In Empowerment II, Rob makes his argument that the foregoing rule does a better job of offering complete and coherent descriptive and normative justification for contract doctrine.

Rob begins by identifying a core constellation of doctrines, which—in his view—crystallize some of the core challenges for modern contract theory.  He then argues that contract as empowerment is uniquely capable of harmonizing this core constellation of doctrines.  He explains:

Contract as empowerment simultaneously offers (1) a more compelling account of the consideration doctrine than exists in the current literature; (2) a more penetrating account of the expectation damages remedy, which significantly moralizes the remedy, and suggests that it need not be understood to permit “efficient breach”—as some economists have suggested; and (3) a special framework to determine the appropriate shape of legal doctrines that make the scope and content of contractual obligations depend on facts other than parties’ subjective wills.  Contract as empowerment also explains key doctrines and answers central puzzles about contract law at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses, and the standard remedies.  When coupled with its other normative and explanatory advantages, contract as empowerment offers the best general interpretation of contract.


It suggests that contract law is not simply a set of rules that aim to maximize efficiency and promote personal consumption, rooted solely in competition and self-interest run wild. Contract law is instead a set of rules that produce genuine legal obligations in part because its rules are simultaneously personally empowering and reflective of a deeper moral ideal of equal respect for persons. If — as this article argues — this represents the best general interpretation of contract, then contracts and many related market activities have a distinctive moral fabric that has been running through them for some time now. This moral fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of these phenomena. Contract as empowerment seeks to cure these distortions. It can lead to a distinctive societal self-understanding, which better integrates economic activity into lives that brim with moral and civic virtue.

In my earlier post, I wondered aloud about the need to find a harmonizing justification for contract law.  Here, I raise two different questions, the first about the ultimate efficacy of another rule that seeks to ameliorate between other rules that affirm diverse values and the second about approaches to law that aspire to, in Thomas Nagel's famous coinage, "the view from nowhere."   I need to preface this by saying that Rob and I have been having an offline discussion about how our views coincide and differ, so to a large extent I am informed and enriched by words not necessarily in the articles themselves.  

The ultimate futility of definitions 

As I see it, "contract as empowerment" is an attempt to propose a better definitional divide between that which contract law addresses and that which is left to other norms and mechanisms (like trust, morality, market forces, power, etc.).  And it's a subtle definition.  It doesn't say "enforce all promises," or "don't interfere with private ordering."  No, it says something like, "if you have to decide whether something is going to be the subject of contract law, determine whether those involved in the transaction manifest an intention to empower one or the other (or both) to use the promises for instrumental purposes, and with the backing of legal enforcement."  That's the gatekeeping question, and thereafter if we have reason as a society to restrain that empowerment, it's at least not inconsistent with the initial empowering proposition. So Rob's project is to provide an all-encompassing explanation of both the broad deference that contract law gives to parties’ subjective choices and many seemingly conflicting doctrines, which invite courts to police contracts for fairness, on public policy grounds, or to capture objective aspects of intent.

Moreover, his view is that this cashes out practically in better guidance to people about what the answer will be if there's a question of enforceability or not.

I will leave it to others in the more traditional camps to take issue with whether he succeeds or not with respect to specific doctrinal questions.  As I said in the earlier post, I'm sympathetic to the viewpoint that contracting parties know implicitly (with Mick Jagger) that when you leave to others to decide the issue, you can't always get what you want, and I think Rob's work is an advancement on either polar view from that standpoint.  But I return to my own particular orthogonality about the mainstream debate (to which Rob's contribution is indeed, as Larry Solum noted, important).

First, I'm long on record as being skeptical that there's any significant connection between what the parties agree upon before the fact and what they fight about later.  (See The Bewitchment of Intelligence: Language and Ex Post Illusions of Intention, 78 Temp. L. Rev. 99 (2005).  Moreover, the gating question of whether it's a matter for contract law or not is far more important to philosophers than to real people in the real world.  Invariably the consideration cases arise in non-commercial situations where the very issue after the fact is whether the conception of a bargain ought to apply to something that one of the parties now argues after the fact was a gift (or vice versa).  In other words, we have a pre-analytic notion of what a bargain is and what a gift is, and the after the fact problem is trying to draw rational, definitional lines that place bargains in one basket and gifts in another.

Second, does a more thinly sliced definition do a better job of that?  I'm skeptical.  First Kant and later Wittgenstein demonstrated for us that there is no rule for application of a rule.  The very nature of casuistry is that one contending party is going to argue that Rule A applies (i.e. the rule that defines a bargain) and the other contending party is going to argue that Rule B applies (i.e. the rule that defines a gift).  And there is no rule for deciding which of those rules apply!  Or to put it another way (to quote from Rob's note to me), "Wittgenstein was trying to show that when we follow a rule, the applications are not logically entailed by any proposition (including any proposition about the rule and its content).  We go on the same way, when we do, because we share a form of life—which means that there are non-propositional aspects to rule following of all kinds."  (This is the subject of another lengthy conversation, because Wittgenstein wasn't saying that rule-following was wholly indeterminate, as has been suggested by the crits, but instead governed by our shared social understandings.) 

As I suggested in the Metaphors article, this plays out over and over again in almost every hard case.  

[M]y contracts class reads Judge Skelly Wright’s landmark 1965 opinion in Williams v. Walker-Thomas Furniture Co., in which the court deemed a cumulative financing scheme directed at low-income buyers to be unconscionable and unenforceable. A student asked whether Batsakis v. Demotsis, which we had studied earlier, was relevant to the discussion. In Batsakis, a case decided sixteen years prior to Williams, the court declined to inquire into the unfairness of the consideration, even though it was clear that the contract was grossly unfair and the result of wartime profiteering. Why, asked the student, had Batsakis not been considered as an “unconscionability” case? The student’s observation was profound: there was no logical reason that the lawyers could not have argued unconscionability in Batsakis, but either they did not or the court declined to consider it. Nonetheless, Batsakis regularly appears in casebook chapters on consideration because the basis of the decision is a legal proposition about consideration, even though the sense of unfairness that caused the litigation is equally relevant to legal propositions about unconscionability.

* * *

Analogies and metaphors put pressure on category structures by “unmask[ing], captur[ing], or invent[ing] connections absent from or upstaged by one’s category structures.”35 In that respect they are pre-logical and pre-propositional. They are at work in that irreducible “aha” moment of freedom,36 when somebody like my thoughtful student reading a case like Batsakis faces a new situation and there is no decision path that demands to be followed. Is this a consideration issue to which the consideration algorithms apply, or is this an unconscionability issue to which the unconscionability algorithms apply? 

* * *
The drive among students for conceptual coherence is always most apparent to me in the free-for-all Q&A that constitutes my pre-exam “review session.” During these sessions, students display a remarkable ability to spot incoherencies. As noted earlier, Batsakis v. Demotsis,142 a mainstay of the casebooks, holds that courts will not inquire into the sufficiency of consideration even where one party entered into the contract under the strain of wartime financial distress and the other party was aware of those circumstances. In Berryman v. Kmoch,  another oft-used case, the court held that an option contract was not enforceable, first, because it was insufficient merely to recite and not pay the $10 consideration for the option, and second, because a promissory estoppel theory did not suffice to make the option contract binding. Berryman appears primarily to teach the limits of promissory estoppel in the offer and acceptance setting. A student asked me, however, why the court was willing to go beyond the recitation of consideration in Berryman and not in Batsakis. We discussed possible distinctions. Nevertheless, it ultimately seemed to me that the attempt to reconcile the cases into coherent doctrine was futile, that the student was correct in sensing the inconsistency, and that the problem was less one of the reality of incoherent doctrine than the human desire to see often incoherent and messy reality as rationally coherent.
* * *

Return again to Batsakis v. Demotsis, which dealt with whether courts will inquire into the adequacy of consideration in an exchange. There were two legal propositions in conflict. One proposition was that courts will not police the adequacy of consideration. Another proposition was that gross inadequacy of consideration, such that it shocks the conscience, may support a finding of fraud, duress, or oppressive conduct. I give my students two examples of middling cases: (1) the condominium for which I turned out to have grossly overpaid because of the need to do far more renovation work than I expected in order to make it habitable, and (2) a “rent-to-own” contract in which a low-income person commits to pay $2,500 for a $900 sofa. Which proposition applies in each case? The problem is that the analog, continuous world does not divide up into neat little boxes in which it is clear that my condo purchase falls on one side of the line, in the box that is labeled “free market, you pays your money and you takes your chances transaction,” and that the rent-to-own contract falls on the other in the box labeled “exploitation.” Langdellian classification works like this. One looks at all the cases and proposes inductive propositions that reduce those cases to their common elements. “A binding contract is one in which there is a promise supported by consideration. Courts inquire only as to the presence of consideration and not its adequacy.” The answer in each case is either “yes” or “no.”

Figure3The analog world, as to which we think not just in deductive or inductive terms but also process cognitively by way of metaphor, looks something more like Figure 3 [at left]. We have idealized conceptual models of “bargain” on one hand and “exploitation” on the other, and these arise from physical events in the world for which we have clear and unambiguous prototypes. We make an initial intuitive judgment in each case about how close the salient aspects of the circumstances in question meet the prototype. The question is whether we even look to the proposition in that initial intuitive process. 

In short, the very clash of subjective interests that creates litigation plays out in a battle of contending definitions for which there is, and will never be, a rule of resolution.  Now, at this point, Rob and I probably agree about something.  By allowing oneself to manifest anything that could later be argued by anyone to be a manifestation of contract as empowerment, one falls within the jurisdiction of the social contract that says "you may not like the objective result because it conflicts with your subjective wants and understandings, but that's the price you pay for living in a civil society rather than the state of nature."

Putting spectacles on "the view from nowhere"

There is a deeper dilemma here, one Rob has addressed both in his "Deep Structures" work about obligata and in Empowerment II, and that is the task of harmonizing not just complete normative structures or complete descriptive structures about contract law or anything else, but trying to do both at the same time.

I'll try not to go full Kantian here, but there's a reason for the "is-ought" or "fact-value" or "descriptive-normative" or "subjective-objective" dualisms.  That's because they really are hard to reconcile.  Does the real of "is" or "fact" or "description" ever map fully on the rational of "ought" or "value" or "normative"?  The minute you characterize an "ought" as an objective truth you've made a significant cognitive leap.  It's not that philosophers and theologians don't make it; it's that you can persuaded out of a belief by being shown it's wrong as a matter of empirical fact, and you can be persuaded out of many "oughts" by reasoned arguments, but there are still remaining many "oughts" that are going to take events of conversion rather than persuasion in order to change a belief.

Another way to express this is that when we are talking about scientific fact, we might indeed have, in Nagel's coinage, an objective view from nowhere.  I can explain the legislative process or quantum mechanics and my particular viewpoint, my inner self, doesn't make much difference to the explanation.  But when we talk about meaning and significance, to say that there is objective meaning is to take the "view from nowhere," or God's view.  

Harmonizing the descriptive of explanation and the normative of meaning invokes the view from nowhere.  As I said in the previous post, I think we have a hardwired desire to see the world as coherent and rational, morally and descriptively, but I don't think we are capable of a universal harmonization of the two - a complete view from nowhere.  Nor do I think a better normative theory puts spectacles on the view from nowhere.  The moral or normative side of the task is still my subjective take, and thus a view from somewhere.

I mentioned that I just finished Roger Scruton's very interesting book The Soul of the World.  Scruton rejects what he calls "ontological dualism," i.e. that there is some kind of noumenal reality out there in which the real and the rational coincide.  (For example, he says on the last page, "The afterlife, conceived as a condition that succeeds death in time, is an absurdity.")  He advocates something else, a "cognitive dualism" under which we are never going to be able to reduce our subjective take on the objective world, our derivative of meaning, in the way that we explain how the physical world works.  

That's precisely the motivation behind Rob's philosophical recasting of the justification for the law of contracts.  On one hand, there's something moral going on there in addition to that which the science of economics can explain.  On the other hand, there's nuance to the law of contracts that doesn't match up very well to an unqualified affirmation of the morality of promise.  On its own terms, is Rob's articulation more satisfying than the polar camps?  As I've said, almost certainly. 

Where I think we part company is whether playing in the space between the two camps is worth the candle.  To attempt the reconciliation Rob attempts is to have greater faith than I do is the existence of an overlay between the explainable and knowable fact of the law and the morality reflected in a respect for persons.  Contract law comes about because individuals with subjective interests call on objectively articulated rules to fulfill those interests in the face of opposing interests.  Is there a "view from nowhere" correct answer?  I just don't see it.  The application of the rules to the circumstances is always, in my view, the result of a view from somewhere.  Either it's the result of a contending party's argument, or the view of the court.  But it doesn't come from God or any other transcendent source.  Nor do I think there's a view from somewhere that originates in some sort of non-transcendent or non-transcendental collective consciousness.  (I suspect Rob disagrees with my empiricist leanings on that score - in other words, that there is indeed the possibility of objective right answers created by our shared intentions to cooperate in the social contract.)

And now we know why Roy Kreitner called me a metaphysical pluralist of contract law.  I do think there's a moral aspect to our transactional relationships, but the contract is a significantly reduced map.  It gives the parties rights, but doesn't say anything about the moral imperatives surrounding the assertion of those rights.  

This leads me back to the same conclusion as above. Where I think Rob and I do agree is that by objectifying our subjective desires whether by document or other manifestation, part of living in the real world is deferring to the deeper social contract under which we recognize that we don't always get our way, and that the social institution of contract, which we adopt individually, is inestimably superior to merely having a bigger stick.

Posted by Jeff Lipshaw on August 17, 2014 at 06:17 PM | Permalink | Comments (0)

Does Ferguson show that Fischel's Homevoter Hypothesis undermines minority power?

One of the oddest aspects of the racial strife in Ferguson, MO is that the state government is providing more racially representative leadership than the municipality. Although Ferguson's population is two-thirds black, its municipal leadership is overwhelmingly white. The (black) chief of the state highway patrol turns out to enjoy more popularity with Ferguson's own (white) municipal police chief.

The idea that state government would protect the interests of a local majority of African-American residents from their own municipal government seems bizarre in light of Southern history. Southern white supremacists seeking to "redeem" government from black power during the 1890s and early 1900s stripped municipalities of power, concentrating decision-making at the state level, in order to prevent local majorities of black voters from controlling taxation of real property. (For a description of the white supremacists' "general hostility to home rule" in Alabama, see Knight v. Alabama, 458 F.Supp.2d 1273, 1284-85 (N.D.Ala.2004)). Moreover, the research of the late Elinor Ostrom and her colleagues in Indiana U.'s Workshop on Political Theory from the early 1970s suggested that black voters in small municipalities within St. Louis County trust their police forces more than black residents in the central city.

Why, then, has not Ferguson's local voters taken control of their own municipal government, electing a mayor and council that creates a police force that the majority can trust? The question has relevance beyond Ferguson's particular situation: The whole point of jurisdictional fragmentation of counties among many small local governments is to give voice to groups that otherwise would be drowned out at the county and state level. If small local governments like Ferguson cannot represent the preferences of two-thirds of their residents, then what good are they? At least one commentator has used Ferguson as a fable of the follies of local decentralization. To academics for myself who have a fondness for decentralization as a vehicle for protecting local voters' power, Ferguson presents a troubling data point. Is there any explanation for how localism seems to have gone awry in Ferguson?

1. Does Ferguson's districting system dilute black power?
Ferguson's city council is elected through three wards, each of which elect two at-large council members. At-large districts, of course, can be used to dilute the votes of a local minority by increasing the vote threshold necessary to win a seat. But black voters are a local majority: It is not obvious to me how at-large districting would strengthen the hand of white voters.

2. Does homevoter control undermine black power? It is a familiar point from William Fischel's Homevoter Hypothesis that homeowners are more likely to vote, because they have a powerful interest in protecting their down payments from misspent taxes or inefficient regulatory decisions. Anecdotal evidence from Ferguson suggests that the disproportionate representation of whites in Ferguson's city government might be the result of black voters' disproportionately being renters rather than owners.. Ferguson's disproportionately black renters are harder to mobilize for low-salience municipal elections. Both black and white politicians in Ferguson seem to agree that the transience of Ferguson's renting population contributes to their lack of political participation.

The paucity of blacks among homevoters presents a dilemma for advocates of robust municipal power. On one hand, Fischel makes a strong case that the quality of local decision-making improves when constituents have strong ties to the local government. (The Ferguson protestors' attribution of looting to "outsiders" suggests a version of this "local stakes" theory of constituent interest). On the other hand, the price of homevoters' attentiveness is submersion of younger renters' interests in city government.

The problem of promoting the power of racial minorities through local autonomy, in short, seems to face some intractable obstacles. But, being perhaps sentimentally attached to localism, I am open to any thoughts on why local democracy seems to have failed in Ferguson and whether this failure can be remedied without throwing out the local autonomy baby with the bathwater of racially unresponsive local politics.

Posted by Rick Hills on August 17, 2014 at 08:00 AM | Permalink | Comments (4)

Saturday, August 16, 2014

Why do big cities strangle themselves with zoning? (And will voting with your feet solve the problem?)

Mayor de Blasio is trying to create 200,000 new units of affordable housing in New York City over the next decade. An essential element of his strategy is to increase floor-area ratios (FARs) in return for developers’ leasing some percentage of the new units for rents below market rates. The entire strategy depends on the mayor’s persuading City Council to “up-zone” land – that is, increase the densities permissible under the NYC Zoning Resolution.

The obvious obstacle to this plan is that New Yorkers – like everyone else – tend to oppose new construction in their neighborhood. The wagons are already circling: Just blocks away from where I live, the neighbors are rallying against a couple of new towers with affordable units, ostensibly because they are too close to the new Brooklyn Bridge Park. But these neighbors’ politics ought to favor de Blasio’s plan, right? After all, de Blasio is standing up for affordable housing, a left-liberal goal, and the NIMBY neighbors are liberal brownstone types who allegedly support such goals. So de Blasio and his housing team (including NYU Law’s own Vicki Been, de Blasio’s new housing chief) ought to be able to talk the NIMBY folks out of their opposition, right?

Wrong. It is not just that neighbors’ fear for their condo down payment tend to trump their liberal sympathies for the poor. As David Schleicher and I argue in City Replanning, the less obvious obstacle is that the political economy of NYC’s legislative process tends to favor NIMBY ism, by placing neighbors from different parts of NYC into a collective action quandary. Even if each neighborhood were willing to take their fair share of affordable housing, there is no mechanism for inter-neighborhood bargains assuring that every other neighborhood will be equally accommodating to new construction. Moreover, the parcel-by-parcel bargaining typical of NYC land-use politics so raises the opacity and uncertainty of re-zoning that many developers will be driven out of the market.

After the jump, I’ll explain why contrary to vote-with-your-feet optimists like Ilya Somin, competition from other cities for NYC’s residents is not a great remedy for the NIMBY problem. Instead, David and I suggest a paradox: Command-and-control, centralized, comprehensive planning is actually libertarian. By getting rid of parcel-by-parcel bargaining and reassuring each neighborhood that they will not be left holding the affordable housing bag when they relent in their NIMBYism, the comprehensive plan can diminish the ferocity of the NIMBYs.

UPDATE: Ilya has a response to my post here. I agree wholeheartedly with his statement that foot-voting "makes the situation [of restrictive zoning] significantly better than it would be otherwise." But I think that Ilya errs in stating that "NYC and many other cities with restrictive zoning policies already have 'comprehensive' land use planning." In fact, New York courts (like courts in most states) have long construed the statutory requirement that zoning be "consistent with a comprehensive plan" to mean nothing more than that zoning amendments have a rational basis -- a test that places no practical limit on ad hoc deal-making.

1. Why won't inter-city competition break the NIMBY stranglehold in big cities? First, why will not migration away from zoning-strangled towns to cheaper jurisdictions solve the NIMBY problem? Ilya suggests as much over at Volokh's, noting that Americans are moving from expensive jurisdictions to pick up housing bargains in Oklahoma and Texas. Ilya is a famous proponent of "voting-with-your-feet" as opposed to the usual hand-voting at the ballot box. The idea is that, if one subnational jurisdiction regulates too much, then buyers aggrieved by the resulting cost increases can flee to a less restrictive locale.

The problem with Ilya's solution, as David has noted, is that cities create "agglomeration economies" by bringing large numbers of people in close proximity with each other. Dispersion through foot-voting destroys these agglomeration benefits. The productivity of, say, an adman, actor, banker, accountant, lawyer, or anyone else with high human capital investments is greater in NYC than in Tulsa, because there are more people in the former locale with whom they can network, from whom they can learn their craft, and through whom they can insure against loss from risky educational investments. An aspiring musician in NYC has hundreds of venues with which to ply their craft. An aspiring musician in Oklahoma City might have a dozen -- which means that they just might stop aspiring and instead opt for an office job. That's fine if they really suck -- but they might actually be diverted from their highest and best calling by the constricted character of the local market to which they have been consigned.

The "Sinatra theory" of NYC, in short, is flat wrong: Just because you can make it here (in NYC) does not mean that you can make it anywhere, because anywhere else might have slimmer agglomeration economies. The result is a serious loss of job opportunities, as NIMBY neighbors slam the door on aspiring workers who are then relegated to second-best opportunities elsewhere. The economist Enrico Moretti has described this effect on labor markets in San Francisco, and Ganong and Shoag have shown how land-use restrictions have walled lower-income workers out of job markets where their labor is most valuable. As they note in an important and widely publicized paper, housing restrictions seem to be slowing regional income convergence, as rich places get richer and poor places ever poorer.

2. The need for a political solution: In short, we need to improve local voice, not inter-local choice, to solve the NIMBY problem. One reform that could ameliorate the NIMBYism of big cities and their suspicious brown-stoners is comprehensive planning. Libertarians traditionally have disliked planners, so it might seem odd to tout the comprehensive plan as a de-regulatory device. David and I argue, however, that binding land-use plans could help solve two distinct problems that contribute to the restrictiveness of Big City zoning.

First, big cities lack competitive political parties, which means that landuse politics in the local legislature tends to disintegrate into an orgy of mutual, non-ideological log-rolling. Each member of the non-partisan local legislature exercises what is known as "aldermanic privilege," excluding all new development from their district opposed by vocal neighbors. The other members support each other in these exclusionary ventures in an informal universal log-roll: You vote for mine, and I'll vote for yours. Absent a strong party leader to allocate new construction across districts, the norm of "universalism" (everyone votes for everyone else's restriction) is the only way to get things done in a disorganized legislature.

The comprehensive plan can mitigate this problem by facilitating inter-neighborhood deals, all of which are contained in a single plan, passed under a closed (non-amendable) rule. Think of the plan as akin to the military base closing commission that solved the problem of Congress' clinging to obsolete bases by presenting a single take-it-or-leave-it package of closures for up-or-down approval.

Second, plans increase zoning transparency and thereby enlarge the market of developers willing to bid on projects. Right now, NYC zones are essentially requests for proposals: Swathes of land are in zoning classifications like non-cumulative manufacturing that everyone knows need to be re-negotiated. The process of negotiating an up-zoning, however, is a matter of insider knowledge, with a few well-connected players massaging the process through lengthy backroom deals at the "pre-certification" stage and protracted public acrimony during the various public hearings. There is no plain price sheet setting forth what a developer must pay to obtain the up-zoning, and this uncertainty is exacerbated by the possibility of a last-minute city council demand (as in Council's 2010 insistence on a 15% set-aside from women- and minority-owned firms at 15 Penn Plaza). This unpredictability and opacity drives away developers, making it more difficult for de Blasio and Vicki to extract the maximum housing contribution from the developers that remain in the market.

Comprehensive plans that set forth precisely how much any bidder will have to provide to the City in return for any up-zoning can reduce these informational costs and thereby enlarge the market, to the City's advantage, Of course, this requires that the plan tie the City's hands -- a tricky matter, when Council stands ready to overturn the plan for any particular parcel when they think that they might be able to extract a bit more.

In short, planning might be a libertarian's best friend. At least, given the lousy track record of parcel-by-parcel negotiated rezoning, David and I think that comprehensive planning is worth a try.

Posted by Rick Hills on August 16, 2014 at 11:49 AM | Permalink | Comments (0)

Friday, August 15, 2014

First Amendment repealed in Ferguson, MO

Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.

Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done,  but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.

Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?

Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).

Posted by Howard Wasserman on August 15, 2014 at 09:31 AM in Constitutional thoughts, Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (2)

Introduction: Irina Manta

The following is by Irina Manta, who will be guest-blogging with us for the rest of August and all of September.

My last exchange with Dan was on the topic of my guest-blogging here, and I hope to honor his memory by contributing to the wonderful community that he started and ran in the form of PrawfsBlawg. I will mainly be talking about my work in the area of intellectual property over the next month and look forward to the exchanges that will follow. My faculty profile is available here.

Posted by Howard Wasserman on August 15, 2014 at 09:00 AM in Blogging | Permalink | Comments (0)

Thursday, August 14, 2014

Lubet on Academics, Law, and Politics

Steve Lubet published an op-ed in the Chicago Tribune today regarding the recent controversial non-hiring at Illinois.  Seems to me he got it just about right.

The link will lead you (I believe) to a pay wall; the Tribune's editors have graciously allowed us to reprint - which you can find below the fold.

UPDATE:  I have opened the comments.  My concern originally was the fact that this is about the bounds of civil discourse (apart from the legitimately debatable issues of academic freedom and law), and because all the comments get e-mailed to me even when unmoderated, I didn't want to be a potential adjudicator of civil discourse.  There's even a legitimate debate about what constitutes civil discourse, which is the part of Steve's essay that resonated with me.  But there IS a line, albeit not always clear where it is, and I agree with Steve that this person crossed it.  With that reservation now express, go to it.

Chicago Tribune, August 14, 2014

Free speech and U. of I.'s Steven Salaita

By Steven Lubet



Controversial scholar Steven Salaita — who has been most benignly described as "deeply critical of Israel" — has been fired or "non-hired" by the University of Illinois, depending on which news source you believe. In either case, it appears Salaita's numerous tweets, which have included venomous comments about Israelis and Jews, played a role in his job loss. Thus, he is either an avatar of academic freedom or the victim of his own extremism, again depending on your point of reference. Needless to say, the situation is not quite that simple. There are actually three distinct principles involved, and they do not necessarily lead to a single neat conclusion.


To understand the Salaita contretemps, we must separately consider academics, law and politics.

Salaita's strongest case can be made in the name of academic freedom. Ever since the McCarthy era, when professors were required to sign loyalty oaths as a condition of employment, it has been an article of faith among scholars that political considerations should play no role in academic appointments. It was therefore predictable that the Association of American University Professors would issue a statement defending Salaita's right to tweet his "views without fear of retaliation, even where such views are expressed in a manner that others might find offensive or repugnant." I am among those who find Salaita's tweets loathsome and incendiary, and not merely outspoken — more on that below — but, like nearly all academics, I do not think his political opinions should affect his job security at his university.

Salaita's legal position, however, is weaker than his academic freedom claims. According to press reports, Salaita's appointment had never been endorsed by the University of Illinois at Urbana-Champaign chancellor, Phyllis Wise, who has declined to submit his name to the board of trustees for official approval. Wise has great discretion when it comes to hiring professors — as opposed to firing them — and there is no rule that prevents her from considering Salaita's history of vulgar and intemperate outbursts. That may seem like a technicality, but law is technical by its very nature. Whatever he might have been told during the hiring process, it is virtually certain that Salaita was informed in writing that no appointment was final without the approval of the chancellor and trustees.

To date, both Salaita and the university have maintained absolute silence about the case. It would be unusual for a university to comment publicly on a personnel matter, but such reserve is uncharacteristic of Salaita, who has never been known for reticence. This strongly suggests that a deal is in the works, probably involving a buyout and mutual covenants of confidentiality and non-disparagement. Whatever his appeals to scholarly high ground, Salaita's legal position is shaky. So don't be surprised if he accepts the money and cuts his losses.

That brings us to the political dimension, where Salaita's position is weakest of all. Many of Salaita's supporters have been unfortunately eager to obscure the true nature of his tweets, usually by calling him a passionate supporter of Palestinian rights who reacted strongly to recent events in Gaza. That does not begin to tell the whole story. Salaita's demeaning comments about Israelis and Jews predate the current fighting, and they go far beyond the bounds of civil, or even passionate, discourse. For example, Salaita celebrated the kidnapping (and subsequent murder) of three Israeli teenagers and proudly called for more such crimes to be committed: "You may be too refined to say it, but I'm not: I wish all the (expletive) West Bank settlers would go missing." He once retweeted a vile suggestion that journalist Jeffrey Goldberg ought to get "the pointy end of a shiv."

Salaita also traffics in anti-Semitism, having tweeted: "Zionists: transforming 'anti-semitism' from something horrible into something honorable since 1948." It should go without saying that racism — toward any group, for any reason — is never honorable, despite Salaita's own indulgence of bigotry. Even bigots, of course, are entitled to academic freedom, but Salaita's supporters have been regrettably disingenuous. A committee of the Illinois AAUP, for example, argued that Salaita had merely made "an impassioned plea to end the violence currently taking place in the Middle East." This is manifestly untrue. Salaita has not called for an end to violence against Israelis. Quite the contrary, he has reveled in it.

I worked with the American Civil Liberties Union on the Nazis-in-Skokie case in the 1970s, and I would gladly do so again. It is always rewarding to defend free speech, but it is also important to be candid about the speech we are defending — which is why the ACLU never soft-pedaled the Nazis as merely passionate critics of international banking.

Some of Salaita's tweets have been inexcusably violent and racist. That may not disqualify him from teaching college students, but let's not be naive about his hateful message.

Steven Lubet is a law professor at Northwestern University. His most recent book is "John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook."


Posted by Jeff Lipshaw on August 14, 2014 at 05:05 PM | Permalink | Comments (9)

Wednesday, August 13, 2014

Social and Legal Prejudice in Runyon v. United States

Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.

Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.

The defendant in Runyon was convicted of performing murder for hire, and his cert petition raises questions concerning harmless error and cumulative error. During the penalty phase, the defendant sought to establish, as a mitigating circumstance, that the people who hired him to commit the murder were equally culpable and would not be sentenced to death. To rebut that argument, the government showed jurors a video of the defendant's interrogation in which the defendant failed to admit his role in the offense. However, the lengthy interrogation video also included numerous objectionable statements on the part of the police. Here are a few examples, all taken from the petition for cert:

  • “You know, if you’re an honorable Asian man and your integrity is intact and you have any respect for anybody at all, then you’ll do the right thing today, okay?”
  • “If you asked God for forgiveness, do you believe that He’ll forgive you for that? You can repent your sins, can’t you?”
  • “But don’t let me walk out of that, that door right there thinking that you’re some piece of shit that murdered a U.S. naval officer and didn’t have enough respect to man up when he — when it was done.”
  • “[W]hat do you think twelve reasonable people would, uh, conclude from that? . . . [T]hey’re going to make you out to be a monster, man.”

The interrogation video was meant to go to whether the defendant had cooperated and shown remorse, as compared with the other defendants. But the interrogators' remarks insinuated clearly improper reasons for treating this defendant differently from the others.  These improper reasons could have shaped the jury's perceptions of the defendant and his failure to confess. While none of these statements drew a specific objection, the trial court directed the jury not to rely on the officers’ statements and required the jurors to sign a statement that race and religion didn’t figure into their reasoning.

The Fourth Circuit affirmed the convictions in Runyon while noting that the interrogation statements were “stereotyping” and “insulting” and should not have been presented to the jury. But the court didn’t think that the capital sentence was a close call. After noting that the defendant had arguably forfeited any objection to the offensive remarks, the court applied regular harmless error analysis and found harmlessness. In its opposition brief, the government argues in part that the case is a poor vehicle because plain error review should apply—even though the Fourth Circuit chose not to rely on it.

One aspect of Runyon calls to mind the harmless-error petition that the Court granted but then dismissed in Vasquez v. United States. During the 2012 Vasquez oral argument, the Justices pressed counsel on whether harmlessness should be tested by inquiring into the thought processes of the actual jury, as opposed to a hypothetical “rational” jury. Most of the justices seemed to think that the answer was yes, despite the government’s hesitancy on that point. As compared with VasquezRunyon’s question presented is better framed to reach the actual/hypothetical jury issue. According to the defendant, the court of appeals in Runyon failed to account for the actual jury’s signals that the case was close. For example, the jury declined to recommend capital punishment on all capital charges.

Another, related aspect of Runyon calls to mind Justice Sotomayor’s 2013 statement respecting denial of cert in Calhoun v. United States. The central fact in Calhoun was that the prosecutor had made the following remark to the jury: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?" This appeal to racial guilt, Sotomayor made clear, was unacceptable. Still, Sotomayor “did not disagree” with the Court’s denial of cert in light of the case's vehicle problems: the defendant had forfeited any claim of prejudice or structural error, and the defendant’s claim was reviewable only for plain error. Sotomayor concluded her statement with these words: “I hope never to see a case like this again.” A similar sentiment may explain why the government sought so many extensions in Runyon, despite having already taken a position on the question presented in Vasquez.

It will be interesting to see whether the Court views Runyon as a more certworthy version of either Vasquez or Calhoun—or both.

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

Posted by Richard M. Re on August 13, 2014 at 04:57 PM in Constitutional thoughts | Permalink | Comments (0)

Death Penalty Update

Dan Markel's last post here addressed the decision in Jones v. Chappell, in which US District Court Judge Cormac Carney declared the death penalty unconstitutional by reason of delay. He would probably have had a field day with the recent developments in the case. 

A day after the decision, I started a petition on Change.org, calling on Gov. Brown and Attorney General Harris not to appeal the decision. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal. By the time I submitted the petition, it was 2,198 signatures strong. 

There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn't mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I'm beginning to think that the death penalty can't be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)--much like the vast majority of the inmates on death row.

I think everyone understands this, even if they don't like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer's discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a private citizen by the name of Robert Justice.

Don't believe it? Here's the notice of appeal.

I bet you're wondering who these mysterious appellants are, and what gives them standing, given that they are not Jones OR Chappell OR the Attorney General. Well, the signatures on the petition give away their interest in seeing the death penalty continue its slow limp into the sunset. Mr. Soos and Mr. Justice are "citizens of the State of California".

First thing's first: this is obviously not going to work. Unless Mssrs. Soos and Justice have some truly acrobatic standing argument up their sleeve, the issue of standing in a case like this has already been decided by the Supreme Court. If the Attorney General does not support our 1978 voter initiative to reinstate the death penalty, citizens have no standing to do so in her stead, not even if they're the ones who fundraised and pushed the initiative in the first place. This is going to be thrown out of court for lack of standing faster than I can say "Hollingsworth v. Perry." If any constitutional law prof thinks otherwise, please let us know.

You have to give Dr. Justice credit for his enthusiasm regarding the political and legal process. It's good to see citizens of California spend energy and resources on vital matters of public importance, such as his previous legal endeavor, which involved trying to get the State of Hawaii to reveal President Obama's birth certificate. The Hawaii court said, "while Dr. Justice may have a strong desire to personally verify President Obama's eligibility, pursuant to article II, section 1 of the United States Constitution, to serve as President of the United States, such desire does not constitute compelling circumstances within the meaning of HRS ÿÿ 92F-12(b)(3). Dr. Justice does not have the power or authority to determine President Obama's eligibility. Only the Congress of the United States has the power to remove a sitting president. Indeed, Dr. Justice has not alleged any factual basis for his implicit contention that President Obama may not be a natural-born citizen of the United States. Dr. Justice has not stated an overpowering or urgent need for the records to protect the life or safety of an individual in a medical or other emergency." I expect Dr. Justice's newest foray into the exciting world of legal standing will meet with similar success.

But let's get serious for a bit. I want to give Robert Justice the credit that he doesn't seriously think he has standing, and that this might be his attempt to persuade, or shame, our elected officials into doing his bidding. Anticipating some arguments from death penalty supporters, here goes:

The Attorney General has to do what the people want.

No. No, she doesn't. Not when the people's will goes against what's fair and just and makes sense. Remember Jack Conway, Attorney General of Kentucky? This is him, courageously saying that he is going to do the right thing and refrain from appealing a decision that same-sex marriage bans are unconstitutional "even if some disagree."

The people want the death penalty to remain.

What we know from the last election is that the percentage of people who want the law to remain is the lowest it's been in decades: 53 percent. And it will continue to go down, in the same way that support for same-sex marriage went up. The population is getting younger. And, as a French student reminded me this week, France abolished the death penalty before most of the public agreed with abolition.

The Attorney General should uphold the law.

Well, of course she does. But what counts as "law" is a changing, evolving thing. The death penalty was constitutional until 1972. That was "the law". Then it stopped being "the law", and became "the law" again in 1976. When Jack Conway declined to defend a bigoted, homophobic law, he expressed his opinion--that the court's decision was law now. Similarly, a decline to appeal Judge Carney's decision makes it "law", and opens the door to more changes and processes that may make abolition "law" in the entire state of California.

The Attorney General owes it to us to see this through, so we can have a Ninth Circuit decision up or down. 

That's an interesting one, and I've heard it from several people I respect. But I think we all understand that litigation involves strategy. Appeals are discretionary for a reason, and it is a legitimate opportunity to employ strategy and shape the law of the future--whether by appealing or by refraining from appealing.

This is the end of the death penalty. Isn't it healthier if it comes about by means of extensive public debate?

First of all, this is not the end of the death penalty, for reasons I explain in detail here. There is still plenty to be done and plenty of room for extensive public debate to take place. But public debate about this has been going on for centuries, and many arguments have been made on the pro and con sides for the last forty years in particular. We've discussed deterrence, racial discrimination, innocence, botched executions, ad nauseam. In some ways, it's befitting that the death penalty perish in the same way that most of its subjects perish--namely, slowly, quietly, of natural causes, exhaustion and dysfunction.

Thoughts and reactions welcome.

Posted by Hadar Aviram on August 13, 2014 at 12:45 PM | Permalink | Comments (2)

Conversion from Bluebook to Chicago Manual of Style

I was advised that there will be a book incorporating the Kelsen conference papers, so I just spent the better part of a full workday converting this essay from Bluebook to Chicago Manual of Style, using the publisher's template for headings, footnotes, references, and so on.

BoxingIt's been a long time since I used the Chicago Manual.  As with all languages, it takes a while to get fluent.  But if you don't work a lot with court cases, statutes, and the other usual stuff of legal writing, it actually makes more sense, contains more information, and results in a shorter piece.  The big pains in the patoot are that you have to show beginning and end pages for journal articles as well as publisher information for books.  For law review articles, you can get the page ranges pretty quickly by clicking the "print/download" button on Hein Online, and Amazon is pretty good about publisher information, although it doesn't list the city of the publisher.

Normal people would have a research assistant do this but (a) I don't have one, (b) I probably wouldn't trust him or her to be as anal about it as I am anyway, and (c) I get a kind of sick pleasure out of it.

I am now available for consultation on these weighty matters as a service to the community.

Posted by Jeff Lipshaw on August 13, 2014 at 11:42 AM | Permalink | Comments (7)

Reviving the Research Canons: What Every Law Prof Needs to Have Read

Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law."  In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline.  His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work."  The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field.  Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work.  And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."

The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project.  The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones.  At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas.  We had 220 comments and links from 18 fellow bloggers supporting the endeavor.  You can find a list of the subject areas, with links to the individual posts, here.

At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource.  However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten."  I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten.  So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.

So this post is intended as an announcement for the project and a request for feedback.  What's the best way to proceed?  I'm planning on having individual posts for individual subjects, as before.  But this time, I'm thinking of asking for the following:

  • Classic Canons.  The pieces that form the foundation for the discipline.
  • Forgotten Canons. The pieces that have not gotten the attention they deserve.
  • New Canons.  The pieces from the last decade that deserve canonical status.

Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.

Posted by Matt Bodie on August 13, 2014 at 11:06 AM in Article Spotlight, Blogging, Research Canons | Permalink | Comments (1)

Even football coaches are banning laptops


Posted by Howard Wasserman on August 13, 2014 at 10:56 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Tuesday, August 12, 2014

They in Their Humanity

In The Prince, Machiavelli describes the pleasure he derives from studying. “When evening has come, I return to my house and go into my study. At the door…I enter the ancient courts of ancient men…There I am not ashamed to speak with them and to ask them the reason for their actions; and they in their humanity reply to me. And for the space of four hours I feel no boredom, I forget every pain, I do not fear poverty, death does not frighten me. I deliver myself entirely to them.”

I had cause to think a lot about this, one of my favorite quotes, recently. An underrated pleasure of academic life, it seems to me, is getting "into our study," and the form of conversation it brings with it. It's a way in which to connect (albeit at a geeky level) with folks that (on a personal level) I might know quite well, or not at all. Some of these connections go beyond the rather impersonal academic interrogation implicit in asking the reasons behind another's work, and become the more personal collaborations in which ideas are directly exchanged, and the process of learning and growing becomes accelerated and fun. In the internet age, these connections are often made, and maintained, online as much as in person, but are not the less personal for that.

In a couple of short pieces, appropriately inspired by a short Prawfsblawg piece he posted, and my comments upon it, I was lucky enough to collaborate with Dan Markel. Through that process, I got to know him a little better than I did before. He was ticked off at some weird conditions a judge had demanded a defendant satisfy to be released on bail. I was taken with his righteous indignation, and then by his fastidious argument-checking. I enjoyed meeting his family and friends online, and catching up at conferences, and reading and re-reading his work, both finished and unfinished. I learned a lot from Dan, and still study and still learn.

Posted by Eric Miller on August 12, 2014 at 08:31 PM | Permalink | Comments (3)