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Tuesday, September 30, 2014

Ebola in the United States—Some Resources for the Law School Curriculum

Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola.  Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts, Commercial Law, International Law, immigration, etc. going as well.  An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.

Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation.   As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself),  or  interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole.   That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others.  Here’s a helpful article.  This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health.  Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service.  While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%.  Here’s how Vox explained it using visuals.


Posted by Jennifer Bard on September 30, 2014 at 06:45 PM in Constitutional thoughts | Permalink | Comments (0)


I wanted to take this opportunity to thank everyone at Prawfs for having me here. For those interested in following my work and activities, my SSRN page is here and my Twitter handle is @irina_manta. 

Posted by Irina Manta on September 30, 2014 at 06:26 PM | Permalink | Comments (0)

Hiding Behind the Law

Today’s report in the New York Times provides disturbing information about the government’s decision in 2008 not to bail out Lehman Brothers, a decision that may well have deepened the economic downturn considerably. The report is disturbing in a number of ways—for example, Federal Reserve chair Ben Bernanke and New York Fed president Timothy Geithner apparently were not aware of an analysis that suggested Lehman could have been saved. It also is troubling that Bernanke and Geithner have claimed since the collapse of Lehman that their hands were tied by the law. In subsequent responses to questions about their approach to Lehman, Bernanke and Geithner have replied that they lacked legal authority to bail out Lehman.

According to the Times’ analysis, that was not true, and it is unfortunate that public officials would try to avoid accountability for their decisions. Of course, Bernanke and Geithner are not the first people to blame the law in an effort to avoid taking responsibility for their actions—judges and others do that all too frequently. And there is no small irony in blaming the limits of the law in an era when presidents are quick to take actions that exceed their legal authority. 

Posted by David Orentlicher on September 30, 2014 at 01:20 PM | Permalink | Comments (0)

AALS Recruitment Conference Advice

Before I sign off, I thought I'd put out a request on behalf of my fellow job market candidates for advice about the upcoming hiring conference.  I've come across a number of helpful posts from a few years ago, but didn't find as much from the immediate past, and I think it would be particularly interesting to hear from anyone who was on the market in one of the recent down years.  But of course all tips are welcome!

Here are a few helpful posts with interview tips from Lyrissa Lidsky (2011)Tim Zinnecker (2011), and Daniel Solove (2005).  And here's a collection of teaching market advice posted on Prawfsblawg back in 2005.

Thanks again to the Prawfs team for giving me the opportunity to guest-blog, and best of luck to everyone going on the market this year!

Posted by Richard Chen on September 30, 2014 at 10:55 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Balance of video

This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."

But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.

Posted by Howard Wasserman on September 30, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, September 29, 2014

JOTWELL: Wasserman on Redish & Aronoff on judicial retention

I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.

Posted by Howard Wasserman on September 29, 2014 at 10:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

The Professor As Node

It's hard not to notice a shift this fall(?) among the lawblog world to Twitter.  Though the cool kids are already up on something called "Ello," the rest of us, having only recently figured out how to create a "split post" on a blog are now trying to limit ourselves to 140 characters through imaginative vowel-deletion.

When I entered full-time teaching, the big, symposium-worthy question was whether blogging "counted" as scholarship. At that time and today, I thought that question somewhat off point -- it didn't and doesn't matter whether blogging is scholarship or counts as scholarship. The only real question was whether blogging was a worthwhile activity for a scholar and teacher.  That is to say, is blogging what our students are borrowing money to have us do?  Because Twitter posts are necessarily less detailed and thus, at least individually, seem to lack the usual scholarly weight, they perhaps more obviously raise the question of appropriateness as an activity for those whose lives are funded by the future repayment obligations of others.

I've come to the opinion that Tweeting, "LinkedIn-ing", and blogging -- along with other forms of online networking -- are exactly what our students are paying us to do.

They're not paying for a brilliant lecture -- after all, thanks to digital video, they could pool their money and pay for that just once.  They are paying, to a degree, for individualized discussions in class -- for guiding them through the "thinking like a lawyer" piece of law school (though you can do that on line too).

But a big part of what they are paying for is our help in finding them jobs.  Our law school career counselers, for years, have been telling students about the importance of (tasteful) social networking (e.g., LinkedIn) as a means for expanding career networks.  As professors, one of the ways that we can help students build robust social networks to enhance their job searches is by serving as nodes in their networks.

This may mean setting up Twitter accounts, blogging, and making public one's profile on at least some social networks (LinkedIn, for instance, since Facebook is just for old people like Joe Slater Geoff Rapp now anyway).  For me, coming to the realization that I could serve my students better by incorporating them into my online activities has required some mental adjustment.  It seemed twenty years ago that one could have a public voice but still be a private person.  But that's seeming to be less so today.  Not that everyone needs to know what I ate for dinner at Bob Evans last night, but the idea that I can be part of public debates while remaining as anonymous as Anonymous no longer strikes me as convincing.

So I've got a LinkedIn account through which I accept student connections, a Twitter Feed and have kept up blogging as much as possible. One's on-line presence is layered and interconnected -- a series of blog posts turns into an SSRN-posted article, which gets announced on LinkedIn and Twitter (and referenced down the road on Twitter as needed to defeat trolls).

It's hard not to miss the old days.  I've always enjoyed maintaining a bit of mystery, for instance, with my students, about which way I lean on ideological or political questions -- I've found that it makes me a better teacher to be able to adopt, in the classroom, a view that may or may not actually be my own. With greater online identities, with more of our public lives accessible to students with less effort, it's hard to preserve that air of ideological ambiguity (although being confused and internally inconsistent can help).  

Posted by Geoffrey Rapp on September 29, 2014 at 09:32 AM | Permalink | Comments (9)

Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2014.  

The conference seeks to address the following topics:

  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on September 29, 2014 at 09:31 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)


As September turns to October, our thanks to our September visitors--Seema, Irina, Richard, and Jennifer--for helping kick-off the new school year.

For the new month, we welcome a slate of returning GuestPrawfs: Mark Kende (Drake), Geoffrey Rapp (Toledo), Marcia McCormick (Saint Louis), Zak Kramer (Arizona State), Orin Kerr (GW), and David Orentlicher (Indiana-Indianapolis). [Update: And Richard Re (UCLA) will continue his extended visit with us]

Posted by Howard Wasserman on September 29, 2014 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, September 28, 2014

ASU Aspiring Law Professors Conference

Yesterday I attended the sixth annual Aspiring Law Professors Conference at Arizona State University.  I thought I would share a little about my experience for those who might want to attend in future years.  Overall, I found the conference to be very helpful to me as someone who is on the market this year, and I really appreciated the enthusiasm and generosity of Dean Doug Sylvester and all the professors who attended.  They are doing all of us aspirants a great service by spending their free time on a Saturday trying to prepare us as effectively as possible for the process that lies ahead.  (I haven't attempted to reproduce most of the specific advice that we received, but a quick Google search reveals that past conferences were recapped in further detail by permanent Prawfs bloggers here and here.)

The day began with a keynote address by my Pepperdine colleague, Paul Caron, titled Law School Rankings, Faculty Scholarship, and the Missing Ingredient.  The address started by asking a question Paul had previously raised with a co-author in What Law Schools Can Learn from Billy Beane and the Oakland Athletics, namely how we can better measure faculty contributions to a law school’s success.  Paul went on to argue that, while existing rankings based on faculty scholarship are undoubtedly important, more metrics need to be developed to assess other aspects of a professor’s value to the institution, particularly with regard to the student experience (the “missing ingredient” in existing rankings).

After Paul’s address, we broke into three concurrent sessions: one for people who are on the market this year, another for clinical or legal writing candidates, and a third for people who are thinking about going on the market in a future year.  I of course went to the first session.  The panelists there shared helpful tips on issues such as how to prepare thoroughly but still have a natural conversation in the interview, how to ask thoughtful questions, and how to stay energized and be your best self for the duration of the hiring conference.  I’d picked up a decent amount of similar advice from friends and colleagues who have gone on the market recently, but I still found it helpful to hear some additional perspectives.

After lunch, all the participants were invited to sign up for a mock interview, mock job talk, or both, and all the sessions were open to everyone to observe, including current and future candidates.  I watched three of my fellow candidates deliver 10-minute versions of their job talks and answer a few questions each before receiving feedback.  Apart from the very useful suggestions I received on my own talk, I found it more helpful than I expected to watch other people deliver their presentations and get feedback on what they did well and where they could improve.  Doing and watching some mock interviews likewise helped me to better appreciate the unique challenges of that setting, and I left with a good plan on what I needed to prepare between now and October 17.

All in all, I found the conference to be very worthwhile.  For those who are considering whether to attend in the future, I think the conference would be essential for anyone going on the market straight from practice or perhaps a Ph.D. program.  I also think the conference would be useful for people, like me, in a smaller or relatively new VAP program.  I have been very fortunate to get lots of advice and tremendous support from my colleagues at Pepperdine, but it was still helpful to have a chance to practice my job talk in front of an additional audience and to get advice from people at a few different law schools.  Not surprisingly, there were fewer attendees from some of the larger fellowship programs, and I imagine people at such programs have multiple opportunities to do practice job talks and watch their colleagues do the same.  But even for them I think the conference could be useful in giving opportunities to practice with strangers, as a past conference speaker pointed out

As for people who are only thinking about law teaching or planning to go on the market in a future year, I don’t know exactly what was covered in the concurrent session, but I think the usefulness of the conference will depend on how much you already know about the process.  If you went to panels on how to become a law professor as a student in the relatively recent past, then the main value of the conference would be the chance to watch some mock interviews and job talks, and I’m not sure that alone would justify the trip for anyone who has to travel a long distance.  But if you didn’t get this advice as a student, then the ASU conference would seem to be a great opportunity to get firsthand insight that’s not otherwise readily available, and then the chance to observe the afternoon mocks will give you a nice headstart on the process.

Thanks again to Dean Sylvester and all the professors who came to this year’s conference!

Posted by Richard Chen on September 28, 2014 at 11:41 AM in Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (2)

Saturday, September 27, 2014

Intellectual Property Infringement as Vandalism (Part 4)

This is the fourth and last part of my post on my new co-authored piece Intellectual Property Infringement as Vandalism (the first part is here, the second here, and the third here.

While, as discussed previously, a number of people advocate for intellectual property to receive the same level of protection as property, few would openly say that it should receive more. In the discussions about intellectual property as property, the latter is generally viewed as a ceiling in that category. One would therefore expect at first blush that when it comes to sanctions, intellectual property infringement would at most be punished at the same level as property violations. Our paper shows that intellectual property infringement bears the most resemblance to vandalism and trespass. In the realm of sanctions, however, not only are the statutory criminal and civil sanctions generally higher for intellectual property infringement than those for vandalism, they are also higher than for downright property theft.

One of the ways to make a comparison is to imagine a hypothetical good of a certain value and examine how it would be treated under intellectual property versus property law. As will become apparent, this exercise is not without its problems and perils, but it is informative nonetheless. Let us assume that an individual distributes a song illegally to 1,001 other individuals. The song would normally cost $1 to download legally. Had all 1,001 individuals who thus obtained illegal copies bought the song in a legitimate fashion, its owner would have earned $1,001. That being said, in this type of situation, undoubtedly not all 1,001 people would have actually bought the good, so the harm to the song owner is lower than that. Furthermore, one could argue that this distribution may constitute a proximate cause for future redistributions, which would bring about greater harm. The extent of this redistribution and of the role that the initial distributor played in their causation are difficult to predict, as is the number of people who would or would not have bought a given song. As a matter of approximation, let us therefore proceed with the figure of $1,001 for the harm (the high end) but with no regard for subsequent harm involving redistribution. Indeed, that is the figure that copyright law would use to evaluate the gravity of the offense. Whether the action was taken for profit or not, a person guilty of this violation could go to prison for up to a year and be fined up to $100,000. If that individual distributed the song to 2,501 people (thus causing a potential harm of $2,501), she would face a maximum sentence of five years if it was done for profit or three years if it was not. She could also be fined up to $250,000.

What do maximum sentences look like in the context of theft and vandalism for offenses that deprive an owner of $1,001 and $2,501 of his property, respectively? Here are the maximum figures for theft:





One year prison, $5,000 fine

One year prison, $5,000 fine

New York

Four years prison, $5,000 or double profits fine

Four years prison, $5,000 or double profits fine


One year prison, $4,000 fine

Two years prison, $10,000 fine

As one can see, the possible fines for intellectual property offenses (i.e., $100,000 for the $1,001 value, $250,000 for the $2,501 value) vastly outpace the fines for property offenses. When it comes to prison offenses, the sentences on the intellectual property side (one year for the $1,001 value, five years for the $2,501 value) are the same as or higher than all but one of the six possibilities in the table above (New York at $1,001 has a higher prison sentence). Meanwhile, here are the figures for vandalism:





One year, $50,000

One year, $50,000

New York

Four years

Seven years


One year, $4,000

Two years, $10,000

 Again, the fines for intellectual property offenses greatly exceed any of the ones for vandalism. The prison sentences are generally either the same for intellectual property offenses or higher, except in New York where vandalism leads to higher maximum prison sentences at both values. 

When it comes to offenses under the DMCA, as mentioned previously, the maximum penalty for a first offense is a five-year prison sentence and $500,000 in fines (figures that are not connected in the statute to the size of the economic harm). Here is the comparison to trespass on land:




$100 fine

New York

Fifteen days in prison, $250 fine


180 days in prison, $2,000 fine

Both the maximum prison sentence and fines that the DMCA carries are vastly larger than the possible penalties for trespass.

Overall, the pattern emerges that we do not actually treat intellectual property like property but rather often provide the option of harsher punishments for offenses against the former—sometimes dramatically so—than against the latter. This disparity is made more extreme when one considers the differences in the commission of the acti rei for property offenses as opposed to those typically related to intellectual property infringement. For instance, to return to the earlier hypothetical, distributing a song to thousands of people need take no more than a few mouse clicks. Within seconds, an individual can make himself eligible for the highest sanctions under the criminal copyright laws. Within a few more, he may have committed a second, separate offense that carries its own penalties. Meanwhile, stealing or vandalizing high-value goods generally takes quite a bit of effort and/or time (and may involve the use of force). When we consider the situation focusing on mens rea, the illicit distributor of files may be acting maliciously for five seconds and then even realize that he acted inappropriately. With copyright infringement, a mens rea of very short duration can incur significant sanctions. After violations are committed and discovered, a prosecutor in a copyright case has a lot of discretion in how to stack charges and get offenders to agree to harsh plea bargains because they are intimidated by the high maxima they face.

The disparities that we see between the property and intellectual property regimes may not be driven so much by a reasoned conclusion that intellectual property infringement is worse for society or more morally culpable than theft. Rather, as an initial matter, sanctions are often higher across contexts at the federal level than the state level for similar offenses. Second, owners of copyrighted (and trademarked) goods have exerted a lot of pressure into the political process to maximize sanctions through a variety of bills over the years. While the argument that intellectual property should be treated like property has been used many times to continue to increase sanctions, we show that bringing intellectual property fully in line with property in the arena of sanctions would actually likely mean that the sanctions for the former should be decreased rather than increased. 

Posted by Irina Manta on September 27, 2014 at 06:59 PM | Permalink | Comments (3)

Friday, September 26, 2014

Ah, censorship

Shudder to think how different Western Civilization would have been. (H/T: The Big Lead).



Posted by Howard Wasserman on September 26, 2014 at 10:18 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Thursday, September 25, 2014

"Conscience and Community: Understanding the Freedom of Religion"

Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project.  A taste:

 “Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .

The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.

Posted by Rick Garnett on September 25, 2014 at 04:20 PM in Rick Garnett | Permalink | Comments (0)

Karima Bennoune Wins Dayton Prize

Congratulations to UC Davis Prof Karima Bennoune whose book Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Extremism (Norton) won the Dayton Literary Peace Prize.  As one of the judges put it: 

In Your Fatwa Does Not Apply Here, Karima Bennoune walks a tightrope between, on the one hand, the tragic  consequences of Islamist fundamentalism and, on the other, the West’s inability to imagine Muslims as anything more  than terrorists or passive victims. Her solution is to tell us the stories that disturb both of these stereotypes,  vividly presenting us the experiences of individuals from a vast array of identities and social positions — as women,  as journalists, as educators, as makers of and keepers of cultural tradition. She conjures what those of us living  inside the Western media bubble have never seen before: a dizzingly diverse Muslim culture (that is no more cohesive  than, say, that global cohort labeled “Christians”) represented by a bevy of activists from across the globe determined  to realize their personal and communal desire beyond fundamentalist strictures.

Her TED talk When People of Muslim Heritage Challenge Fundamentalism  has had more than a million views.


Posted by Jack Chin on September 25, 2014 at 02:14 PM | Permalink | Comments (0)

Suboptimal Human Rights Decisionmaking

In a forthcoming paper, I explore ways in which human rights violations may result from suboptimal decisionmaking rather than utility-maximizing conduct by state leaders.  Most strategies to influence the human rights practices of a country involve efforts to alter its expected utility calculation, either by introducing material incentives so that compliance is more attractive or by changing underlying preferences so that human rights concerns are seen as more intrinsically valuable.  These are known in the literature as coercion and persuasion respectively.  Drawing on social science research that demonstrates how individuals often fail to maximize their expected utility, my paper argues that at least some human rights violations likely result from such suboptimal decisionmaking.  And if that is correct, then the human rights community may be missing out on opportunities to improve compliance that do not require altering a state’s expected utility calculation through coercion or persuasion, but instead work within a state’s existing incentive structure.

For this blog post, I thought I’d describe the three specific causes of suboptimal decisionmaking that I discuss in the paper and invite suggestions on other lines of research to explore.  As I discuss in the paper, there are methodological obstacles to applying behavioral research, which is generally based on studies of individuals in laboratories, to real-world state conduct, which involves decisionmaking by groups consisting of experienced elites who might not make the same mistakes that participants in artificial experiments do.  I chose the three causes of suboptimality that I did in part because there is a substantial international relations literature that has already attempted to make that translation, and in part because they seemed likely to contribute to the types of flawed decisions that would result in human rights violations.  But of course the behavioral literature is quite vast, and I may have missed some other promising avenue.

The first cognitive bias I discuss is loss aversion, and in particular the prediction that people who are operating in the realm of losses will engage in risky behavior in the hopes of obtaining an unlikely gain.  Many human rights violations arise from acts of desperation by state leaders who are under severe threat.  For example, leaders of an authoritarian regime facing domestic uprisings may take bold steps to reassert their power, resulting in brutal crackdowns.  Or a country that has recently experienced attacks by terrorists or rebel forces may take drastic measures to restore security, leading to widespread infringement upon individual liberties.  Risk taking can also be a rational course of action, and it will often be difficult from the outside to figure out whether loss aversion is at work in a particular situation.  But it is nonetheless valuable to recognize the possibility of loss aversion because it may call for different strategies for improving compliance.

The second bias I discuss is overconfidence, which is the tendency people have to make overly optimistic assessments of their abilities and prospects for success.  Overconfidence could contribute to suboptimal human rights decisionmaking at various stages in the process.  For example, at the planning stage, state leaders may consciously choose to violate a human rights norm, believing with overoptimism that the righteousness of their conduct will be recognized by the international community while failing to anticipate a costly backlash.  Likewise, at the operational level or implementation stage, state leaders may be overconfident in their assessment of the resources needed to meet human rights standards and thus fail to comply even when they intended to do so. 

Emotion-based reasoning, the third line of research I discuss, is not a bias per se, but it does produce distortions that undoubtedly lead to some suboptimal decisions.  The research on the role of emotions in decisionmaking has many facets, but one specific idea discussed by political scientist Stephen Peter Rosen is that human beings view situations through the lens of particular patterns that were formed during emotionally resonant past experiences.  This phenomenon may help to explain human rights violations that take place in the course of longstanding conflicts between religious or ethnic groups.  Leaders of a regime that has had a history of clashes with a particular minority group will view new conflicts through the lens of that history, and thus be prone to adopt more repressive policies than a more rational assessment would produce.

That is a very abbreviated sketch, but I hope the basic connection between the various causes of suboptimality and human rights violations seems plausible.  I do not argue in the paper that all or even most human rights violations result from suboptimal decisionmaking, but instead merely highlight the possibility as an alternative to exclusively rational explanations.  The paper then goes on to explore strategies that the human rights community could adopt in response, with the goal of supplementing rather than replacing coercion and persuasion.  In short, since coercion is costly and persuasion often takes a long time, there may be missed opportunities to make more immediate gains in compliance by addressing the causes of suboptimal decisionmaking and thereby clearing the way for states to comply when it is already in their interest to do so.

Posted by Richard Chen on September 25, 2014 at 11:54 AM in International Law | Permalink | Comments (0)

Self-Defense Against Firearm Suicide

If you're interested in mental illness, guns, or suicide prevention, check out my new article on SSRN:

Putting Arms at Arm's Length: Precommitment Against Suicide  

Here's the abstract and link: "Nearly 20,000 Americans each year commit suicide using a gun. Many would survive if it were more difficult to obtain the gun. The proposal here is not gun control, but self control. Specifically, this article proposes allowing individuals to confidentially put their names into the existing federal background check system and thereby to prevent their own future firearm purchases. Empowering people to restrict their own access to guns has the potential to save many lives, is supported by other self-binding regimes, and poses no serious constitutional concerns."   http://ssrn.com/abstract=2500291

Posted by Fredrick Vars on September 25, 2014 at 10:37 AM | Permalink | Comments (6)

How to Save the World Without Being Happy or Virtuous?

It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement. 

Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.

Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.

Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.

My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...

... The writer was making a strictly utilitarian argument, with a focus on maximizing overall social utility. More specifically, I think, his implicit focus was on maximizing the well-being of the poorest and most suffering among us, since he did not bother to account at all for any possible utility increases stemming from working for a corporate law firm itself. He was not arguing that the would-be public interest lawyers would be happier or more fulfilled or more decent people if they took his recommendation. And, really, under that set of assumptions why should he, or we, care that much about that? If we're erecting a utilitarian argument aimed at increasing the well-being of the least among us, the fulfillment and virtue of elite law school graduates should be, with one or two caveats, irrelevant. What we want to know is whether more people in need will do better, not how the people who already have those opportunities will feel about themselves.

Of course, most of us are not utilitarians. Mystal's current job certainly indicates he is not. So does mine. I once heard a law professor say, fairly earnestly, that they wrote legal scholarship "to change the world." That seems unlikely, and from a utilitarian perspective even more doubtful; probably the welfare of others would have seen a net improvement if this scholar--whose work is excellent and has my full respect--had quit the legal profession altogether and become a social worker. I assume that person, like most of us--like me--writes because writing brings him or her a great deal of personal satisfaction, and will stick with it even if it becomes clear that his or her suggestions for legal reform will bear no fruit at all. I assume personal satisfaction is one reason that graduates with substantial opportunities (a limited set of individuals, to be sure, but the discussion took place in the Harvard Law Record) take jobs in big law firms. And, of course, I assume people take public interest jobs when and because it will be most satisfying to them personally.* 

Without rendering judgment on whether any of this is right or wrong from an absolute moral perspective, it is certainly entirely natural. But it is worth emphasizing again that these factors are just not things the initial author cared about. Unlike Mystal and most of the other people who responded, the only thing the author cared about was easing the suffering of others. If that's our only concern, it's perfectly reasonable to ask whether we--or those people who purport to care primarily or exclusively about alleviating misery and helping others--would achieve better results by giving large amounts of money to others than by taking fulfilling, satisfying work in that area.

Whether that scheme would work is a different question, although it's a perfectly reasonable general question to raise for those contemplating future jobs. The personal happiness and satisfaction of these elite law graduates should not matter much to those of us who truly care about the poor and suffering, to be sure; but we would have to calculate how likely it would be that they would stay in those jobs and/or continue donating if they were sufficiently unhappy in their work. But that's a very different kind of calculation than asking about satisfaction, or what people who care about the public interest think about the world, for its own sake. 

Incidentally, while I ultimately am not convinced by the initial op-ed writer's "proposal" (which was really nothing of the sort--it was simply a suggestion that those privileged persons thinking about their future work take a strictly utilitarian approach to that question), I do think that big law firms should get almost entirely out of the business of doing pro bono work directly, with a few exceptions in areas where their existing skill sets would actually render them highly qualified to do that work, and instead mostly pay other, more qualified and dedicated lawyers to do their pro bono work for them. It's true that it won't help the happiness, job satisfaction, or cognitive dissonance reduction of the people who work at those firms. I just don't see why we should care about that all that much compared to doing good for others.

* A side-note: One of the response writers in the Law Record writes: "Even where my work gives me meaning, the emotions I feel while engaging with the world are far from the 'warm and fuzzies' the author assumes adequately compensate me (and equally qualified, intelligent, hardworking classmates) for my work. In fact, in my opinion, when you work with marginalized communities, you are reminded every day how unjust and unfair and disempowering our system is. This does not make me feel warm and fuzzy, but rather pretty angry and upset." This is an interesting addendum. But it does not take into account the degree to which many or most of us--all of us, if Facebook is any indication--derive substantial personal satisfaction from being angry and upset. I assume that for many young lawyers, being angry and upset at injustice is in fact one of the positive factors to be weighed in their individual utility calculus.

Posted by Paul Horwitz on September 25, 2014 at 10:10 AM in Paul Horwitz | Permalink | Comments (7)

Inazu, "Institutions in Context"

John Inazu has a new review up on SSRN of my book First Amendment Institutions. (Incidentally, it makes a fine Rosh Hashanah present.) It is supportive of the general institutional project but carefully critical of some important aspects of its implementation in the book. I am grateful to John for reading it, which places him in a small select club, and for his thoughtful remarks. Here's the abstract:

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously.  Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities.  He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries.  These chapters bring to life our diverse institutions and their differences.  It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates.  In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them?  I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches.  I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges.  I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.

Posted by Paul Horwitz on September 25, 2014 at 09:21 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 24, 2014

The Reluctant Dissenter

On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski's reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.

The basic fact in Sessoms is that police failed to cease an interrogation and procure an attorney for the defendant, despite the following exchange:

Sessoms: There wouldn’t be any possible way that I could have a—a lawyer present while we do this?

Det. Woods: Well, uh, what I’ll do is, um—

Sessoms: Yeah, that’s what my dad asked me to ask you guys . . . uh, give me a lawyer

The en banc majority concluded that this was an unambiguous request for an attorney and that the police therefore had a duty under Miranda to cease interrogation and get the defendant a lawyer.

Chief Judge Kozinski’s reluctant dissent is short, and you should read the whole thing. Three passages struck me as most remarkable:

First, Chief Judge Kozinski expressed his disapproval of governing law, while simultaneously acknowledging that it is binding on him:

I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated.

Second, Kozinski suggested that the “carefully crafted” state court opinion was written with a goal in mind: to preserve the wrongfully obtained conviction.

This is not a case where the state judges were confused about the law or overlooked key evidence . . . . No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager.

Finally, Kozinski expressed satisfaction that his own view of current law lost, and he hoped that his view would also lose out in the Supreme Court.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. ... The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

It’s noteworthy that Kozinski described his colleagues as being “able to conclude” that the defendant should obtain relief. In that passage, Kozinski was explaining his dissenting vote as a product of incapacity rather than desire.

Kozinski has written reluctant opinions before. Last year, for instance, Kozinski wrote what could be called a "reluctant concurrence" in Williams v. Johnson, where he joined a unanimous decision denying habeas for a violation that "cuts at the heart of our adversary system." Kozinski said that he took "comfort in knowing that, if we are wrong, we can be summarily reversed." The Supreme Court obliged by issuing a GVR.

Kozinski’s reluctant opinions call to mind the remarks of another Ninth Circuit Judge, Harry Pregerson. During his confirmation hearings, Pregerson famously said: “If I had to follow my conscience or the law, I would follow my conscience.”

In Sessoms, did Kozinski offer a contrary answer, favoring law over conscience, or did his conscience ultimately dictate that the law had to be followed? Is it even possible that Kozinski wasn't truly put to the test in Sessoms, since he was able to vote the law as he saw it, while knowing that the court would still grant relief?

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

Posted by Richard M. Re on September 24, 2014 at 12:41 AM | Permalink | Comments (7)

Tuesday, September 23, 2014

The Washington Redskins, the Lanham Act, and Article III

As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.

I.  The Lanham Act's Cause of Action for "Adverse" Parties

In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:

an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.

But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:

Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.

Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.

II.  The Case-or-Controversy Requirement

But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.

The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.

On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.

As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...

III.  The Equities

Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)

Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.

Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)

Teaching current events

Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.

On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.

Posted by Howard Wasserman on September 23, 2014 at 04:40 PM in Current Affairs, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Relative Standing in the Seventh Circuit

In Association of American Physicians and Surgeons, Inc. v. Koskinan, the Seventh Circuit recently found no standing where plaintiffs challenged the IRS’s failure to collect an Affordable Care Act tax. Koskinen may prove to be a bellwether for future cases involving challenges to executive inaction. But what's most interesting about Koskinen is that it cited last year's Supreme Court decision in Lexmark as a reason to argue in terms of relativity—that is, in terms of whether the plaintiffs before the Court were the best ones available--even though that inquiry seemed irrelevant as a doctrinal matter. The takeaway is that relativistic reasoning often lies just under the surface of current standing doctrine.

The Seventh Circuit’s decision is a crisp five-pager by Judge Easterbrook. Here’s an edited excerpt providing background:

The Patient Protection and Affordable Care Act requires almost everyone to have health insurance. See National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). The principal enforcement mechanism is a tax that most businesses must pay if they fail to provide health insurance as a fringe benefit, or that anyone not covered by an employer’s plan must pay in lieu of purchasing insurance. 26 U.S.C. §§ 4980H, 5000A. The Internal Revenue Service has announced that it will collect the tax in 2014 from uninsured persons, but not from certain businesses that fail to provide insurance as a fringe benefit.

Plaintiffs asked the district court to enjoin what they describe as a violation of the separation of powers (perhaps more accurately of Art. II §3, which requires the President to “take Care that the Laws be faithfully executed”) and the Tenth Amendment.

Plaintiff McQueeney is a physician; the other plaintiff is an association of physicians. McQueeney and many of the Association’s members operate cash-only practices and do not accept insurance. ... They appear to believe ... that insurance is “free” to workers—that wages do not adjust to reflect the value of pensions, insurance, and other fringe benefits. If that is so, then employers that do not provide insurance also will not offer higher wages (other things equal). Then, when workers buy their own insurance (or pay the penalty tax), they will have less income available to purchase medical care from plaintiffs. That change in the demand for their services gives them standing, plaintiffs maintain.

Having summarized these points, the Seventh Circuit immediately noted: “By the same logic, [the plaintiffs] could litigate about any tax policy.” Later, the Court underscored that point: “To allow a long, intermediated chain of effects to establish standing is to abolish the standing requirement as a practical matter.” This is the problem of too much standing. Federal courts do not like to let everyone sue over anything. Instead, federal courts want to hear from a subset of possible plaintiffs, such as those with adequate injuries or with relatively strong interests in seeking relief.

Most of Koskinen, consistent with the governing case law, is framed in terms of adequate standing. In other words, the court predominantly asked whether the plaintiffs had suffered an injury of sufficient directness and concreteness to justify standing. As the court’s penultimate paragraph concluded: “Plaintiffs . . . invoke a long and contestable chain of causation; they do not complain about anything done to them personally.” In this passage, the court assumed that injuries are adequate to confer standing only when plaintiffs complain about “anything done to them personally.” But, as the Seventh Circuit itself recounted, the plaintiffs arguably did raise a complaint of just that type. According to the plaintiffs, the government’s failure to enforce the law had caused them to suffer lost business. Perhaps the plaintiffs’ claim of injury was based on bad economics and so (after appropriate fact-finding) could have been rejected as false. But surely the plaintiffs claimed to have “personally” suffered. Alternatively, Koskinen--like many modern standing cases--could have invoked traditional norms of personal injury associated with the common law. Yet all agree that those norms do not exhaust modern standing doctrine.

Having arrived at its questionable finding of inadequate standing, the court concluded by expressly raising the issue of relativity:

Plaintiffs would be the wrong persons to litigate even if they had standing. Only persons seeking to advance the interests protected by the mandatory‑insurance portions of the Affordable Care Act would have a plausible claim to relief. See Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (discussing the zone‑of‑interests requirement). Yet plaintiffs, who do not accept insured patients, want to reduce rather than increase the number of persons who carry health insurance. Someone else would be a much more appropriate champion of the contention that the IRS has not done what it should to accomplish the statute’s goal of universal coverage.

This is a very interesting paragraph. In citing Lexmark and the “zone-of-interests requirement,” the court pointed toward the doctrine formerly known as statutory standing. After Lexmark, the zone-of-interests requirement is now viewed as part of the statutory merits inquiry. But the plaintiffs in the Seventh Circuit were raising a constitutional claim, not a statutory one. Therefore, the “zone-of-interests requirement,” as discussed in Lexmark, did not straightforwardly apply. Intriguingly, Judge Easterbrook may believe that a Take Care Clause claim based on a statutory duty is equivalent to, and should be treated as, a suit under the statute itself. Perhaps the court didn't explain this point in any greater depth because, having found no standing, it lacked jurisdiction to reach aspects of the merits. On that reasoning, the court shouldn't have appended its final paragraph at all.

Yet Koskinen seemed to view its final paragraph as pertinent to its larger discussion of standing and, therefore, of jurisdiction. Indeed, the court framed its zone-of-interest analysis in terms of the classic standing question of whether the plaintiffs were “the wrong persons to litigate.” Linking standing and the zone-of-interests requirement in this way could easily lead to a collapse of standing and the merits—much as happened in Lexmark and as long advocated by then-Professor and now-Judge William Fletcher. Koskinen gestured in that direction by noting who "would have a plausible claim to relief." However, the court framed its point in decidedly relativistic terms. According to the court, the plaintiff’s “contention” should have had a “more appropriate champion.” A claim to enforce a health insurance mandate should be brought by "[s]omeone else"--that is, by someone who "want[s]" there to be more health insurance. In a recent paper, I called this general form of argument "relative standing."

As Koskinen illustrates, relativity and standing are closely linked—current doctrine notwithstanding. Indeed, it was not that long ago that the Supreme Court was prepared to underline this linkage. As then-Justice Rehnquist put it in Valley Forge: “The Art. III aspect of standing also reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order.” Justice Blackmun used extremely similar language in Diamond v. Charles: “The nature of the injury is central to the Art. III inquiry, because standing also reflects a due regard for the autonomy of those most likely to be affected by a judicial decision.”

In appending a paragraph on relativity at the end of its standing decision, Koskinen followed the spirit of a long line of standing cases.

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

Posted by Richard M. Re on September 23, 2014 at 01:26 AM | Permalink | Comments (0)

Monday, September 22, 2014

Markel Memorial

Last Tuesday, Florida State University College of Law hosted a memorial service for Dan. Here is the program from the event, which included some very touching remarks from several colleagues from FSU and elsewhere, as well as one former and one current student. There is video of the event; I will provide the link as soon as I can.

Posted by Howard Wasserman on September 22, 2014 at 11:18 PM in Howard Wasserman | Permalink | Comments (0)

Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market

It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's  brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school.  One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services.  We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance. 

   The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the  Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.”  See report, Documenting the Justice Gap in America.   Individual states also have some subsidized civil aid programs.  Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand

Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that:  "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."

And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question. 

If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues. 

The “why” of this situation is interesting--it probably comes from a combination of factors including a lack of demand for legal insurance-perhaps because most people have little understanding of how much they might need a lawyer at crucial junctures in their life, let alone what such a lawyer would cost.  Here’s some history from Prof. Alan Housman at Penn.  Certainly at least one of those factors is the strong lobby of corporate interests who benefit from the often David and Goliath like disparity in disputes between individuals and corporate entities.  Although here’s an argument from the Brennan Center for Justice at NYU School of Law explaining why civil legal aid would be economically beneficial for the states providing it.  Here, too, is some very interesting work by Professor Victoria Shannon at Washington & Lee Law School about the emergency of “third-party funding” of civil law suits.

Posted by Jennifer Bard on September 22, 2014 at 03:46 PM in Current Affairs, Law and Politics | Permalink | Comments (0)

Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.

It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.

Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.

Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?

Posted by Howard Wasserman on September 22, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday, September 20, 2014

Intellectual Property Infringement as Vandalism (Part 3)

This is the third installment of my post on my new co-authored piece Intellectual Property Infringement as Vandalism (the first part is here and the second here).

The problems that have arisen in the discussion over whether intellectual property infringement is theft have a number of causes. Content owners know that the message “intellectual property infringement is [a property offense lesser than theft]” does not pack the same rhetorical punch as their current statements. Opponents of the present rhetoric, however, are right to argue that infringement rarely removes all value, which distinguishes it from theft. Meanwhile, there are other types of offenses against physical property that characterize actions whose effect is to partly reduce the value of goods. The most prominent of these is likely vandalism. Vandalism involves the destruction rather than removal of property. The concept of vandalism does not suffer from the majority of flaws that open up to attack the analogy to theft. Vandalism, by definition, does not require a complete removal of the good or of its value. The owner may still retain the ability to sell or license the good. And, in some cases, both intellectual property infringement and vandalism have the potential to enhance rather than reduce the value of goods.

Naturally, no analogy is perfect. Vandalism often results in physical damage, while infringement does not affect the quality of the original good. And vandalism generally does not lead to monetary free riding, although it may bring non-financial enjoyment to the vandal. What generally matters most to the intellectual property owner, however, is the state of the value of his good. And just like infringement can result in lower value for an intangible good, vandalism does so for a tangible one. One can further quibble that vandalism must result in damage to be actionable. Indeed, there may be cases in which another form of property violation may provide an even better parallel, and that is trespass. There is usually no requirement that trespass result in damage. The culpability of an illicit downloader of copyrighted goods will lie, at most, somewhere between that of a vandal and of a trespasser. I say “at most” due to the recognition that vandals and trespassers may also make property owners feel unsafe, which is usually not the case with intellectual property infringers.

Having the public and courts use the mental model of vandalism or trespass to approach copyright infringement poses some difficulties for the content owner, especially in the context of non-commercial infringement. One big problem that content owners face is the cost of pursuing infringers. Indeed, the “thief” label precisely obscures the important fact that, in many cases, no single perpetrator of non-commercial infringement is responsible for much damage at all. At most, that perpetrator is a vandal or trespasser, and how much of a punishment does an individual like that deserve or how much should he owe a content owner by way of restitution? Indeed, how much damage does a single commercial infringer cause? Even she is more of a vandal than a thief for the reasons delineated above.

The next and last part of this post will examine the statutory framework surrounding property violations and compare it with the laws that punish copyright infringement. This analysis will show that while individual perpetrators are more culpable in theft scenarios and at times even in vandalism ones, copyright infringers frequently risk incurring higher penalties for their offenses than for what would have been the equivalent property violation. 

Posted by Irina Manta on September 20, 2014 at 02:15 AM | Permalink | Comments (0)

Friday, September 19, 2014

Who Is Justice Ginsburg Talking To?

Justice Ginsburg recently offered some surprising public remarks on the pending same-sex marriage petitions currently before the Supreme Court. (H/t Dale Carpenter at VC.) In particular, Justice Ginsburg suggested that the Court should not (would not?) grant the currently pending petitions at the end of the month because, in her view, there is no post-Windsor circuit split. As Lyle Denniston has noted, discussing pending cases in this way is highly unusual. Why would Justice Ginsburg take this unusual step?

By way of background, here is Dale Carpenter’s transcription of Justice Ginsburg’s remarks:

So far the federal courts of appeals have answered the question the same way–holding unconstitutional the bans on same-sex marriage. There is a case now pending before the Court of Appeals for the Sixth Circuit. Now if that court should disagree with the others then there will be some urgency in the Court taking the case. But when all the courts of appeals are in agreement there is no need for us to rush to step in. So it remains to be seen what the Sixth Circuit will rule, when it will rule. Sooner or later, yes, the question will come to the Court.

One of the many reasons for Justice Ginsburg’s fame is that she has criticized the Court for too quickly constitutionalizing abortion rights in Roe v. Wade, and her new remarks seem to be in that spirit. Still, Ginsburg's recent remarks are doubly surprising.

First, they are surprising because of their content. Federal appellate courts have now invalidated state marriage laws in large swaths of the United States, and those decisions are in conflict with pre-Windsor rulings affirming no-same-sex-marriage laws. The result is a tremendous legal disparity: same-sex couples have a constitutional right to marry in large parts of the United States, but not in most of it. This is a real problem for same-sex couples, including because states have taken different positions on whether to recognize one another’s same-sex marriages. At the same time, the federal courts have intruded into a traditional domain of state sovereignty. What’s more, the Court just a few years ago granted cert in the same-sex marriage case Hollingsworth v. Perry. Given all this, many observers thought the Court would certainly grant one or more of the pending cases. Indeed, there is a fair argument that these are among the most cert-worthy petitions ever filed.

Second, Justice Ginsburg’s remarks are surprising because of their timing and subject matter. As Lyle Denniston put it over at SCOTUSBlog: “It was highly unusual for Justice Ginsburg to raise the curtain on internal considerations that may be at work as the Court approaches its first look at the new round of same-sex marriage cases.” Normally, judges do not discuss their views regarding pending cases. And Justice Ginsburg spoke not only about the pending cert petitions in her own Court, but also about the pending Sixth Circuit case that she might soon review. Moreover, in asserting that there is currently no relevant circuit split, Justice Ginsburg appeared to advance a position that is controversial and in fact disputed by the petitioners and other parties currently before the Court.

Why would Justice Ginsburg have made these remarks? One way to pursue that issue is to ask who Justice Ginsburg was talking to. Carpenter mentions a few possibilities: “Justice Ginsburg had multiple audiences for these comments: the students and faculty assembled before her, of course, but also the Sixth Circuit and her colleagues.”

Let’s consider these possibilities separately, and add one or two more.

  1. The assembled students and faculty. Maybe Justice Ginsburg was just reacting candidly to a question and spoke her mind to a closed audience. This possibility would be most tenable if Justice Ginsburg believed that her remarks would be off the record. Clearly, however, she was not off the record, for not only did Carpenter blog about his recollection of them, but an official University of Minnesota video of the remarks is now online. Assuming Ginsburg understood that her remarks would soon become public fodder, she would presumably have had a larger audience in mind. Still, it’s possible that Justice Ginsburg just didn’t think past the largely academic audience in front of her.
  2. The Sixth Circuit. Could Justice Ginsburg have been putting the Sixth Circuit on notice regarding the consequences of its ruling? A few days ago, the Sixth Circuit might reasonably have assumed that its decision would just be one more opinion on gay marriage. Indeed, the Sixth Circuit might have expected its decision to issue (if at all) only after the Supreme Court had granted cert. But, in light of Justice Ginsburg’s remarks, the pending Sixth Circuit case takes on much greater significance. In essence, Justice Ginsburg suggested that the Sixth Circuit has short-term control over whether the Supreme Court will consider gay marriage this Term. Would communicating that information influence the Sixth Circuit, perhaps by discouraging it from being reviewed by the Court on such a momentous, historic issue? Could Justice Ginsburg have wanted to exert such influence? It is doubtful whether such a goal would be proper.
  3. Other Supreme Court Justices. Is it possible that Justice Ginsburg wanted to supply her colleagues with a reason to deny cert? From one standpoint, that explanation is obviously insufficient: surely Justice Ginsburg could simply have circulated a memo setting forth her views. As Denniston noted, the Court has already taken administrative action on the petitions, including by distributing the most recent petition much faster than normal. Those kinds of events could easily prompt formal or informal discussion, even before the Long Conference. But perhaps Justice Ginsburg sought to persuade her colleagues indirectly by changing public expectations regarding the pending cases. That leads to the next category.
  4. The public. Many people have assumed that the Court would take one of the pending gay marriage cases at or soon after the Long Conference at the end of this month. On their face, Justice Ginsburg’s comments undermine that widespread expectation. But why challenge that public assumption now? Why not just wait until, say, the denial of cert? Perhaps simply denying all the petitions without comment would be too much like a splash of cold water, particularly for the gay rights community. And if Justice Ginsburg wrote an opinion concurring in the denial of certiorari to explain the Court’s decision, that might provoke a counter-opinion by another Justice—thereby adding confusion and reducing the odds of denying the petitions at all. In addition, Justice Ginsburg might want to float the possibility of denying or holding the petitions to get a sense of how such a move would be received. If it were received well--or at least not badly--perhaps that result would increase the chances of a denial or hold.

None of these explanations seems entirely satisfactory, and perhaps several operated in tandem to various degrees. Are there other possibilities?

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

Posted by Richard M. Re on September 19, 2014 at 12:23 AM | Permalink | Comments (5)

Thursday, September 18, 2014

Ratification of the Canada-China BIT

It was announced last week that Canada ratified its bilateral investment treaty (BIT) with China that was signed about two years ago.  The treaty will take effect on October 1, 2014.  At the time of the signing, a Canadian international investment law scholar named Gus Van Harten wrote an editorial warning of dire consequences if Canada ratified the BIT.   In particular, he expressed concern that the BIT would impose constraints on Canada's sovereignty and put important policy questions in the hands of foreign arbitrators.

In an earlier phase of international investment, when capital flowed primarily from developed to developing nations, only the latter had to worry about constraints on their sovereignty.  But as more capital has begun to travel in the opposite direction, established democracies like Canada will increasingly have to respond to claims brought against them by foreign investors.  The Canada-China BIT, like other recent BITs that both Canada and the United States have entered into, adopts a narrower definition of fair and equitable treatment that should in theory avoid the most serious sovereignty concerns described in my prior posts.  But as other commentators have observed, some tribunals have proceeded to apply the same broad standard used in arbitral precedent as if the limiting language were not there.

The United States has not yet signed a BIT with China, but the countries did agree recently to restart negotiations.  It will be interesting to see whether the United States tries a different approach to fair and equitable treatment or otherwise departs from its model BIT in anticipation of the possibility that the protections of a China-U.S. BIT will be invoked as much by Chinese investors against the U.S. government as by U.S. investors against the Chinese government.

Posted by Richard Chen on September 18, 2014 at 12:27 PM in International Law | Permalink | Comments (0)

Cameras and unintended consequences

In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.

In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.

On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.

With respect to public officials such as police (the people who will be wearing cameras), official immunity (especially qualified immunity) is driven by similar concerns for over-deterrence. Officials enjoy immunity so they can exercise their learned judgment and discretion vigorously; immunity also encourages creativity in job performance that may be beneficial. We do want officials to play it overly safe, avoiding any risk of liability by steering so far away from the constitutional line, where doing so may leave significant performance and enforcement gaps.* Perhaps we should at least be aware that, in equipping officers with cameras, we may be creating the same disincentives that immunity was designed to eliminate--officers will play always play it "safe" and steer clear of the line for fear that, even if not unconstitutional or unlawful, their behavior "looks bad" to the people who are going to see the video and reach conclusions based on nothing more than the video. Bernstein's solution is to promote video and transparency in the use of body cams, but to create some "zones of privacy," in which video is used for education and training rather than punishment, thereby providing officers the needed "breathing space."

    * I would argue that current qualified immunity strikes the wrong balance, too heavily weighting over-deterrence at the loss of accountability. But I recognize that both need to be taken into consideration.

The point is that police body cameras are as likely to produce unintended consequences as video in baseball or video monitoring of UPS drivers and assembly-line workers. Those unintended consequences must be considered and addressed by departments in establishing careful and clear rules and policies for camerause. And they should ring as another reason to treat cameras as one good idea, not as a complete solution.

Posted by Howard Wasserman on September 18, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, September 17, 2014

Fan speech, once again

The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player (the link contains video), could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.

I hope a lawsuit is coming.

Posted by Howard Wasserman on September 17, 2014 at 04:59 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11)

Happy Constitution Day--Some Thoughts on Constitutional Issues in Health Law

As readers of this blog already know, today is Constitution Day.  An occasion mandated by Congress that requires every institution of education receiving federal funding (which includes nearly all colleges and universities) to present some sort of "programming" related to the Constitution.   In the context of suggesting that it may be an Unconstitutional mandate in regard to k-12 schools, Slate offered a history of where this idea came from and how it became law.

Since our TTU Health Sciences Center is a separate entity from TTU University, it is required to have its own, separate Constitution day event and it's been my honor as an adjunct faculty member to give the "Constitution Day Address" since the law took effect in 2004.   At the beginning, it was an interesting challenge because, of course, the word "Health" appears nowhere in the Constitution.  But what started as a service project turned into more as I developed a course for the law school based on one taught first by Maryann Boblinski at the University of Houston (now dean at the University of British Columbia) on Constitutional Issues in Health Law (and yes, this extends far beyond Obama care) to capture topics like First Amendment Issues in Prescription Drug Off-Label marketing, Entitlements, and, of course, the Right to Refuse Treatment, Non-Right to Physician suicide issues that get covered in a traditional bioethics class.   Last year we looked at (and re-enacted the oral argument from) Hobby Lobby and this spring will focus on Halbig v. Burwell.

There have always been Constitutional issues in health care and fine constitutional work done by health law academics [more name checks to come--but to make an incomplete list of some giants,  Sandy Johnson, Marshall Kapp, Diane Hoffman,  Karen Rothenberg,  Judith Daar, Alan Meisel, Paul Lombardo, Fran Miller, Rebecca Dressler, Mark Rothstein, Lori Anderson, Tim Jost and Mark Hall(now I really need to stop--the danger always in starting to list names is to leave people out)  but --but it was the intense attention brought by the Obamacare Constitutionality cases (that in my opinion had almost nothing to do with health care, but that's another post) that has attracted interest both locally (last year I had 11 students, this spring 30) and more broadly.   I've been working with my research assistant to put the course material into a package that can be used by others interested teaching a similar course--and who knows, maybe someday a book.

Happy Constitution Day,<2014 Constitution Day Flyer.pdf>

Posted by Jennifer Bard on September 17, 2014 at 12:11 PM in Constitutional thoughts | Permalink | Comments (2)

Tuesday, September 16, 2014

Channeling Whistleblowers

For those interested in national security, Edward Snowden, and some such, Glenn Reynolds has a new, short (8 pages) essay up on SSRN entitled Don't Fear the Leaker: Thoughts on Bureaucracy and Ethical Whistleblowing. Here is the abstract:

"In this brief Essay, I argue that rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns. I also offer some preliminary suggestions about how to accomplish this goal."

Some of my own previous thoughts on related issues are here and here.

Posted by Irina Manta on September 16, 2014 at 09:37 AM | Permalink | Comments (0)

Scientific misconduct and the First Amendment

This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.

Posted by Howard Wasserman on September 16, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, September 15, 2014

(Still) more on "The Freedom of the Church"

Over at the Law & Liberty blog, they ran a short essay of mine in which I set out the short-version of some claims I've been making in recent years about the freedom of religion and "the freedom of the church."  They also solicited and posted some very thoughtful reactions to the piece by Paul Horwitz, Don Drakeman, and John Inazu.  And now, here is my (grateful) reply.  With respect to my friend and co-Prawf Paul, a bit:

Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance.

Horwitz underscores another point (one that I also tried to make in a short paper called, “Church, State, and the Practice of Love”: To endorse the “freedom of the church” or “church autonomy” “is hardly the same as insisting that these institutions can never err. Autonomy involves the right to make central choices, not the assurance that the right choices will always be made.” He continues: “[T]he committed institutionalist must be an active observer and critic of these institutions, urging them to do the right thing (as he or she understands it) whether or not they are legally obliged to do so.” Absolutely. The “freedom of the church” claim is that the state’s authority is limited, that other authorities exist and operate, and that – all things considered – pluralism is conducive to human flourishing. It is not the (easily falsifiable) claim that non-state authorities, or religious institutions specifically, never act badly.

Posted by Rick Garnett on September 15, 2014 at 12:01 PM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

A "Shell" Game in the Sixth Circuit?

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note (h/t Sentencing Law & Policy). As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it—and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Here are the basic facts, from the start of the Sixth Circuit’s opinion.

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms—resulting from felonies committed some twenty years earlier—extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s sentence.

This synopsis makes Young’s sentence seem truly extreme, and it’s understandably been the focus of blog commentary. Some think that Young’s sentence violates the Eighth Amendment, and others think it shows the foolishness of federal sentencing law.

But the opinion in Young quickly complicated this innocent-looking picture:

Police officers later showed up on Young’s doorstep investigating recent burglaries at an auto repair shop and a storage building. During the consent search, officers found several items reported stolen, though it is unclear whether the items were associated with the recent burglaries. They also found the box of seven shotgun shells in a drawer, which Young readily admitted to possessing.

In this passage, the Sixth Circuit insinuated—without actually finding or substantiating—that Young was involved in recent crimes. And if that insinuation were accepted as true, then Young’s sentence wouldn’t seem nearly so severe.

The Sixth Circuit’s more complex picture of the case directly affected its analysis of Young’s Eighth Amendment claim. Here is the relevant portion of the opinion, which I’ve organized into three paragraphs:

Young’s Achilles heel, however, is his recidivism. . . . Young’s recidivism, resulting from numerous felony convictions roughly twenty years prior to his present offense, increases the gravity of his offense . . . .

On the other hand, these offenses occurred long ago, with Young’s most recent release from prison in 1996. In the meantime, his only conviction for any crime was misdemeanor assault in 2005, for which he spent no time in jail.

But the remoteness is offset somewhat by the offense conduct listed in the PSR. We make no findings as to whether Young actually committed new burglaries in 2011, but it is relevant that the ammunition was found during a search for stolen tools and that several stolen items were found in Young’s house.

The reasoning above goes something like this: (i) the defendant’s recidivism is the single strongest point against his Eighth Amendment claim; (ii) in principle, the critical recidivism point could be discounted, given that the defendant’s past crimes “occurred long ago”; (iii) however, the recidivism point is ultimately decisive because of “relevant” facts raising the possibility that the defendant recently committed “new burglaries."

Put more succinctly, the Sixth Circuit seemed to treat the allegations in the PSR and the circumstances of the investigation as decisive—even though the court made “no findings” as to whether Young had "actually committed" any new offenses.

Viewing Young in this way has two implications.

First, whether Young’s particular sentence is just may turn on whether the insinuated “new” crimes actually took place. At this point, however, that issue is best addressed outside of court. The public should therefore press the Executive to justify its initial charging decision in this case, as well as its ongoing decision not to grant a pardon. Maybe a good justification is available; maybe it’s not. But the public should try to find out.

Second, the Sixth Circuit should not have relied on the insinuated “new” crimes in the way that it did. Whereas the Executive's role is to think broadly about justice and policy, courts should follow legal procedures and stay close to the record. Maybe Young’s Eighth Amendment claim should prevail; maybe it should lose. But its viability shouldn’t turn on mere insinuations of wrongdoing that the court is unwilling to test or endorse.

In sum, Young's appeal should be heard not just in federal court, but also in the court of public opinion. And the criminal justice system works best when each type of “court" sticks to its distinctive role.

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

Posted by Richard M. Re on September 15, 2014 at 11:15 AM | Permalink | Comments (0)

Spot the differences, if you possibly can

Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The team published a public apology to its fans, basically confessing to multiple incidents of racist comments and actions by the team "over a period of years" and its failure to stop or punish them. The league is holding off on punishment, probably because the team took the matter off its hands.

Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury; the case settled, following a jury verdict awarding more than $ 10 million in punitive damages. Thomas never lost his job and suffered no team- or league-imposed penalties. The league expressly said it does not get involved with "civil matters," not even civil matters directly affecting the team. The Knicks never publicly apologized for anything or even acknowledged having been found liable.

A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB. The Mets blandly insist that they have policies against harassment and discrimination (which obviously means nothing if those policies are ignored by the owner's son, general counsel, and other team officials, as the complaint alleges).

So can we find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices? One answer is that mere accusations are insufficient and teams must wait for the civil litigation process to play out. But then neither the non-action by the Knicks against Thomas nor the action by the Hawks against Ferry makes sense. Worse, accepting the facts alleged in each case as true, the Hawks case is probably the least likely of the three to produce legal liability, yet that is the only one in which the team responded. A more cynical answer is teams/leagues will jump to act when it comes to race discrimination involving players, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the problem that audio and video are overtaking our ability to judge evidence and proof. But that, in turn, says some troubling things about our ability or willingness to rely on judicial processes, not just recordings, to resolve disputes and determine legal rights and wrongs.

Posted by Howard Wasserman on September 15, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday, September 13, 2014

Investor-State Regulatory Disputes (Part 2)

In my previous post, I described the sovereignty concerns raised by investor-state regulatory disputes, the viewpoint that currently predominates in the literature known as the public law approach, and my criticisms of that proposed framework.  In this post, I explain why investment tribunals should instead adapt concepts or tools from contract law and theory and describe in further depth one such proposal.

The basic argument for a contractual approach is that tribunals could do more to approximate how the contracting states themselves would want to resolve these disputes.  No one would disagree that, if states actually addressed the issue in their bilateral investment treaties (BITs), their express intent would govern.  The problem is that the BITs do not define “fair and equitable treatment” or otherwise provide guidance on how that standard should be applied to regulatory disputes.  In contract law, when an agreement has a gap or otherwise contains an ambiguity, courts do not simply abandon the inquiry into the parties’ intent but instead apply other tools to form the best possible estimate.  I believe a few of these tools could be usefully adapted for the present context to fill this gap in the BITs.

I do not suggest that recourse to contract principles is mandated by the BITs themselves, but neither of course is the public law approach.  Like proponents of the public law approach, I recognize that tribunals have been delegated some authority to develop the law in this area, but I believe a contractual approach is functionally superior to the public law alternative.  I noted in my prior post that a public law approach suffers from concerns relating to expertise and legitimacy.  A contractual approach would constitute an improvement in both of these respects.

With regard to expertise, a contractual approach would not require tribunals to make the inevitable policy judgments inherent in the public law approach’s balancing test.  Instead, tribunals would engage in more traditional modes of legal analysis and thus be in position to develop a more principled jurisprudence.  With regard to legitimacy, in addition to the benefits that come with more principled reasoning, a contractual approach would reduce concerns about interference with state sovereignty.  That is because tribunals could avoid passing judgment on the substance of state policy and instead intervene only as part of an attempt to effectuate the intent of the contracting states themselves.

For the sake of brevity, I will focus here on one particular contract law principle; the paper from which this post is derived explores two others.  The question of when a state should be permitted to revise its regulatory framework without implicating its fair and equitable treatment obligation could be understood as a problem of changed circumstances.  In contract law, changed circumstances will sometimes permit a promisor to excuse nonperformance, either because having to perform would be so burdensome as to be impracticable or because the purpose of the contract has been so completely frustrated.  One factor for analyzing when excuse is permitted is foreseeability:  If the supervening event was sufficiently foreseeable, then nonperformance will not be excused.  The rationale is that parties should be expected to have priced the risks of foreseeable supervening events into their agreement, but would want courts to find an implied condition on performance for risks that were outside their contemplation.

A foreseeability test could similarly be used to distinguish between regulatory changes that violate fair and equitable treatment and those that do not.  The question would be whether the supervening event was sufficiently foreseeable that the host state should have priced in that risk at the time it ratified the investment treaty at issue.  If so, then the state should be liable for losses suffered by investors relating to the regulatory changes at issue.  If not, then the investor should have to bear its own losses.  Here, as in the contract law context, foreseeability strikes a middle ground that reflects an intuitively plausible balance of the parties’ competing concerns: preserving the regulatory flexibility states need to respond to new developments on the one hand, and ensuring that legitimate investor expectations will not be too readily disrupted on the other.

Like any standard, foreseeability will not always yield definite answers.  But in contrast to a proportionality test, a foreseeability approach falls more squarely within the core competence of tribunals and allows them to focus on the contracting states’ intent rather than more policy-oriented questions that they lack the legitimacy to decide.

Note: The draft paper from which this post and my prior one are adapted is not quite ready for SSRN, but I would be happy to share it upon request with anyone who is interested.  And of course I welcome comments here as well.  Thanks!

Posted by Richard Chen on September 13, 2014 at 11:20 AM in International Law | Permalink | Comments (0)

Privacy v. Justice

William Saletan at Slate argues that the benefits of having video and audio in evaluating legal disputes (in court or out) outweigh the privacy concerns raised by the possibility of everyone and everything being recorded. As he says, "privacy, broadly interpreted, can shield injustice."

Saletan's big mistake is assuming the absolute certainty of video--"with video, everyone knows." Only after everyone had seen the Ray Rice video did the NFL "know" what happened. And because everyone else "knew," the NFL lost deniability and Rice lost what Saletan calls the "presumption of innocence." But, as I have written repeatedly, video is not that certain and we do not necessarily know in every case or with every video. Some video is clearer or easier than others. Rice seems especially obvious (although the video is grainy and one looking to see mutual aggression might see her moving towards him for reasons that cannot be known from the video). But not every video will be so clear and thus not every video case will be so easy.

Which is not to say that Saletan is wrong about the privacy/justice balance; I think he has it right. But the reason is that this provides additional evidence with which to evaluate (in court and out) disputes controversies--and more evidence is better than less. But it still is a mistake to rely on the idea that video is unquestionably, always, and in all cases conclusive.

Posted by Howard Wasserman on September 13, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 12, 2014

Kopald on health problems from WiFi

Deborah Kopald has a post at Public Citizen's Consumer Law and Policy Blog, discussing health problems associated with WiFi, namely showings of Microwave Sickness by people living/working/going to school too close to wireless hotspots. Worth a read, as she has been pushing this issue for some time.

Posted by Howard Wasserman on September 12, 2014 at 04:00 PM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (15)

Intellectual Property Infringement as Vandalism (Part 2)

I would like to continue the discussion I began in Part 1 about my co-authored paper Intellectual Property Infringement as Vandalism, which is forthcoming in the Stanford Technology Law Review.

We first explore in the paper why the theft label for IP infringement has become so sticky in many milieus. We believe that the main reason that content owners and their associates use the rhetoric of theft is that they want to emphasize the gravity of the conduct. The average downloader might tell herself that it makes little to no difference in the grand scheme of things if she illegally downloads music or movies, or if she shares such materials with friends and even a few strangers. Basically everybody, however, understands the concept of theft and has been raised to understand, often axiomatically, that stealing is wrong.

If one were to ask content owners and other proponents of the “IP infringement as theft” theory to explain their views in greater detail, they would cite to a number of factors that create parallels between the two types of violations. The IP owner, just like the property owner, generally mixes her labor with pre-existing materials to provide society with goods and help it to flourish. She will sometimes only do so, however, if provided with a critical mass of remuneration, or at least that remuneration will affect her level of productivity and of her efforts to distribute her work. To the intellectual property owner, large-scale illegitimate distribution of her works may economically create the same effect as a horde of potato thieves does for a farmer. In the farmer’s case, there will be nothing left to buy if all the potatoes are gone. In the infringer’s, even though the song will still “be” there at the end, few people may want to buy it if they can obtain it at zero cost elsewhere.

Looking at it from the other end, the potato thief ends up with a good for which he provided no labor or other valuable effort in exchange. Thieves, by definition, free-ride on others’ efforts (although not all free-riding constitutes theft). Similarly, the IP infringer is just a few clicks away from illicit goods that he can obtain without in turn contributing to society. Had the infringer not downloaded illegally, for example, one of two things would have happened. For one, he may have bought the good legally and the owner would have made more money. Or, he may not have bought the good at all and while the intellectual property owner would have felt no financial difference, the infringer would not have been free-riding and would not have had the opportunity to distribute that good to people that would have purchased the good legally but for this opportunity. There is a further possible loss that arises from the fact that intellectual property can—contrary to popular wisdom—be rivalrous at times. In the case of trademarks, the fact that lots of people use fake Louis Vuitton bags could disincentivize legitimate buyers from buying that brand if they value exclusivity or fear being viewed as potential infringers themselves, as I discussed in my article Hedonic Trademarks, 74 Ohio State Law Journal 241 (2013). In the copyright world, some legitimate buyers of concert tickets may no longer be willing to pay the same amounts of money for what should have been an exclusive show if they know that illegal tapings of that show will circulate later. The more rivalrous intellectual property turns out to be in a given case, the more it resembles property and the more its infringement parallels theft.

There has been strong opposition, however, to the idea that the harm to an intellectual property owner that originates in infringement can be equated to the plight of the potato farmer in the example used above. For one, critics have suggested that the intellectual property owner retains the original work at all times even if it is infringed, whereas theft deprives an owner of a good, including the ability to enjoy it himself or sell it to someone else. Second, it is virtually impossible to remove all value from a good even through a large-scale infringement operation, which again distinguishes this scenario from theft.  Third, the individual culpability of a given infringer tends to be much smaller than the culpability of a thief. Even if an infringer would have bought an artist’s work, she would have perhaps paid a few dollars in most cases given the high proportion of infringement that consists of illegal file sharing, and so a few dollars is the most that the artist is likely to lose. While many infringers together can occasion a large loss to a copyright owner, the infringers each tend to only chip away at the value of the work. Put differently, few infringers can truly be called the “cause” of a loss in this context, which is not true of thieves.

Some have argued that from a safety perspective, intellectual property infringement also simply tends to involve a much lower risk to the public than theft does because the latter could lead to physical altercations and the like. From a moral (and practical) viewpoint, a number of scholars have questioned what it means to say that what has become routine behavior for many is genuinely reprehensible. Scholars have argued that current intellectual property law makes infringers out of everyone, even people that do not engage in blatant behaviors like illegal downloading. Tying that in with theft and with the fact that the thief is generally viewed as an outcast of society who disrespects its rules, the concept of vast proportions of the population as thieves is puzzling. In the next part of this post, I will delve more deeply into why vandalism and trespass may provide better analogies for IP infringement than theft does. 

Posted by Irina Manta on September 12, 2014 at 10:15 AM in Intellectual Property | Permalink | Comments (0)

Federal control of all police prosecutions?

Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the  best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.

But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."

First, the problem  in the King case was not with the county prosecutor's office, which brought and vigorously pursued state charges. The federal government (and federal lawyers) became involved only after the jury acquitted and only pursuant to specific policies governing successive prosecutions. The federal government never would have gotten involved (efficiently or not)  if the state jury had gotten the case "correct" (as that is commonly understood in that case). So to jump from an (arguably) erroneous acquittal in King (or in a lower-profile, non-death case such as this one, that just shows how hard it is to convict cops even in the most-vigorous prosecution) to a blanket condemnation of the ability or willingness of all state prosecutors to prosecute police seems extreme. Similarly, it is extreme to go from one arguably conflicted prosecutor in Ferguson to that same blanket condemnation.

Second, how are federal prosecutors competent or appropriate to make charging decisions under state law? I guess the argument is that they are smart lawyers who can figure it out. But federal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state (or even any knowledge the law of that state--an AUSA need not be a member of a local Bar). This will be exacerbated if the decision is taken on not by the US Attorney Office for that district, but by Main Justice. So in gaining "independence," we potentially lose expertise in the applicable law.

So this proposal makes sense only if the idea really is that police shootings  should be prosecuted exclusively as federal civil rights violations, never as state crimes (such as murder or attempted murder or aggravated assault). That certainly resolves the efficiency concerns--everything goes straight to federal prosecutors, federal substantive law, and federal court, and we need never wait around to see what state officials do or what happens in state court. But it comes at the expense of some federalism considerations. I am no big believer in federalism, but an across-the-board assumption that crimes should go automatically and exclusively to federal law--not an as one option but as the only choice--seems excessive. Which is not to say federal prosecution is n0t appropriate in many of these cases, including in the Brown shooting; only that it should not be the sole option.  I also wonder if § 242, which requires specific intent to deprive a person of their constitutional rights, can be proven in many of these shootings. Finally, there might be resource limitations preventing the federal government from investigating and prosecuting every single police shooting. All of which means the net result could actually be fewer prosecutions or convictions against police.

The federal-prosecutor proposal unfortunately distracts from some good ideas in the piece, namely requiring that police shootings be investigated by a special prosecutor brought in from another county. Better still, I would argue, bring in the state attorney general, which can better (not perfectly, perhaps) bring distance from all local passion and politics, while retaining expertise in state law and state prosecutions.

Oddly, Levine points to the George Zimmerman prosecution as a positive example in which a special prosecutor was brought in after the local prosecutor refused to charge. Of course, Zimmerman was acquitted, in part because the special prosecutor overcharged and generally put on a terrible case. Moreover, Zimmerman was not a police shooting. So it appears Levine really is arguing that no local prosecutor should ever handle a high-profile or controversial case. But if those cases also should be taken from them, then why have local prosecutors at all--just to handle cases no one cares about?

Posted by Howard Wasserman on September 12, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 11, 2014

America’s Prison System is Broken

This news item reporting on the release after 30 years of two North Carolina brothers, described in news reports as both being “mentally disabled” after being declared innocent based on DNA evidence is a timely excuse to bring up a topic that no one likes to discuss—as John Oliver put it in song, dance and puppets a few weeks ago, American’s Prisons are Broken.     And one of the primary reasons for this is, as I and others have written before, is that they have become de facto warehouses for those with mental illness, mental disability, and substance abuse conditions.   73% of female prisoners and 55% of male prisoners in state systems have mental health problems (unrelated to the fact that they are prisoners).    A recent edition of Health Affairs had several very useful and interesting articles on the mental health issues of prisoners.   Because prisoners are the only population in the United States with a Constitutional Right to health care,  the cost of prisons, including the cost of health care, has become ruinously expensive- States spent 7.7 billion on prisoner health care in fiscal 2011 the cost of health care provided to prisoners—with the aging population a considerable source of expense.

And despite whatever care they receive in prison, they leave with medical needs as or more serious than when they come in.  Study after study confirms that a high rate of prisoners don’t survive the first two weeks after release-often because of a fatal drug overdose.   This problem is one we share with Europe and with Australia.  And the expenses continue post release with ex-prisoners making high use of emergency services-see here and  here.  Those prisoners who survive the first two weeks after release, and have a look at how many don’t, find themselves umemployable due to a toxic combination of lack of marketable skills, pre-existing disabilities, and the chronic illnesses that they either acquired in prison or brought out with them.  A few states  including Kentucky and California have developed their own programs to address these post-release issues by coordinating the transition.  But these efforts are uncoordinated and underfunded.

A public health perspective of the problems we face in regard to US Prisons, would ask one question: what could prevent them?  What could prevent people from going to prison in the first place and what could prevent them from returning there when they get out?   And a legal perspective has to be how this situation can be consistent with a system of laws the purport to protect those with mental disabilities from discrimination and on those lawfully convicted of criminal offenses from cruel and unusual punishment.

Posted by Jennifer Bard on September 11, 2014 at 03:32 PM in Current Affairs | Permalink | Comments (2)

Is Hobby Lobby a Precedent on Jurisdiction?

Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.

Here’s Hawley’s argument in a nutshell. Under the Anti-Injunction Act (AIA), federal courts lack jurisdiction to hear challenges to taxes unless the challenger has already paid the tax. In the challenge to the Affordable Care Act a couple years ago, the Court said that, despite the AIA, it did have jurisdiction to hear a challenge to the Act’s mandate. Why? Because the Act expressly called the mandate a “penalty,” not a “tax.” Hawley argues that, under the reasoning of the healthcare case, the law at issue in Hobby Lobby should have been deemed a tax for AIA purposes. Why? Because this time Congress did call the provision at issue a “tax.” Therefore, AIA's jurisdictional rule applied, and the Hobby Lobby challengers should have had to pay the tax before filing suit. Yet not a single Justice in Hobby Lobby raised this arguably fatal jurisdictional problem.

How could this have happened? Hawley outlines possibilities that could be placed into three categories. First, the Court might have had a secret theory for why the AIA posed no jurisdictional bar. Second, the Court might have just missed the issue. Finally, the Justices might have had long-term strategic reasons to sweep the problem under the rug.

These three types of explanation aren’t mutually exclusive, and a combination of them may provide the best guess for what happened. When Hobby Lobby reached the Court, the AIA issue wasn’t front and center, as it had been in the healthcare case. Instead, the Government—which is normally vigorous in raising jurisdictional points—didn't press the matter. This meant that a Justice who did notice the issue would have to overcome a lot of inertia to make it into a big deal. And for what? The majority probably didn’t want to be distracted by an issue that hadn’t been briefed. And if the dissenters had pressed the AIA, then the majority would likely have declared the AIA to be non-jurisdictional: as Hawley argues—both in her piece and in an amicus brief she filed in Hobby Lobby—moving the AIA into the non-jurisdictional column would have been consistent with other recent cases. Or perhaps the majority would have followed the decision below in construing the challenge as a claim against a regulatory mandate, not the tax associated with it. But all this is just speculation. As Hawley notes, we “may never be certain why” the Court didn't address the AIA.

Hawley’s argument calls to mind a decade-old Supreme Court case raising similar issues. In Hibbs v. Winn, the Court reviewed the AIA’s cousin for state taxes, the Tax Injunction Act (TIA). Per Justice Ginsburg, the Court found no TIA bar in part because: “In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a [TIA] objection that, according to the petitioner in this case, should have caused us to order dismissal of the action for want of jurisdiction.” Justice Stevens concurred to argue that Congress had acquiesced in the “procession of cases” that Ginsburg alluded to. In sharp contrast, Justice Kennedy and three of his colleagues would have found a TIA bar, despite the Court’s “procession” of silent decisions. For these dissenters, “our failure to consider a question hardly equates to a thing’s being decided.” Thus, the Court’s earlier “exercise of federal jurisdiction does not and cannot establish jurisdiction.”

In light of Hibbs, it’s interesting to wonder how the Roberts Court would deal with Hawley’s argument, if it were to arise in the future. On the one hand, Hobby Lobby is just one decision—hardly a “procession”—so perhaps even Justice Ginsburg would not view its silence as evidence of the AIA’s scope. On the other hand, the Hibbs dissenters were all part of the Hobby Lobby majority and so might be reluctant to suggest that they had previously issued an ultra vires decision of such magnitude.

The big-picture lesson here is that doctrinal arguments based on precedential silence are generally unreliable. Instead of supporting whatever point you might want to make, a lacuna in a judicial opinion—even a Supreme Court opinion—could just be a blunder. As the Court itself put it almost a century ago: “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”

And it can take quite a bit for an issue to be “brought to the attention of the court.” In Hobby Lobby, for instance, the lower-court opinions discussed the AIA at some length, finding that it did not apply. In addition, Hawley's amicus brief in Hobby Lobby argued that the “first and foremost” reason for finding no AIA bar was that the AIA “is not jurisdictional.” With so much agreement that the AIA posed no obstacle, albeit for different reasons, the Court let the issue slip by.

The next time someone argues that a silent court must have had a particular point in mind, remember Hawley and Hobby Lobby.

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

Posted by Richard M. Re on September 11, 2014 at 03:11 PM in Constitutional thoughts | Permalink | Comments (0)

Still (Unvaccinated) in Hollywood

This is off-topic for me, but  I found this lengthy piece in the Hollywood Reporter, suggesting that LA's Westside is experiencing a significant increase in non-vaccinating (or departing from standard vaccination schedules) very interesting. Given its audience, one can understand why the story gives so very much time to vaccination skeptics in the piece, although I think it went overboard on this. Probably the most interesting and dispiriting quotes in the story are those from some of the school administrators, who, it is not hard to discern, would do anything but offend some of their clientele. (That's not universally true; a couple of administrators are fairly straightforward in their concern.) In any event, it's an interesting article.  

Posted by Paul Horwitz on September 11, 2014 at 09:54 AM in Paul Horwitz | Permalink | Comments (0)

The Video Effect?

A problem with the increasing ubiquitousness and (perceived) power and accuracy of video is that we (the public, judicial fact-finders, prosecutors making charging decisions, everyone) are no longer moved by testimony and descriptive evidence, by verbal descriptions of events. Only video will influence, persuade, or even trigger a response.

We got a sense of this during the Ferguson protests, where video, especially television reporting, was the topic of conversation. The Ray Rice story, as it has developed this week, is driving this point home.

The Ravens (who cut Rice) and the NFL (who suspended Rice indefinitely) did not act with any sense of seriousness (the original two-game suspension was a joke) until the video from inside the elevator was released on Monday. NFL Commissioner (for now) Roger Goodell said he felt compelled to act because"what we saw yesterday was extremely clear, it was extremely graphic, and it was sickening." But reports indicate that the story Rice told Ravens officials was consistent with what was shown on the video--he did not tell a story of self-defense or of her hitting him first or of both people throwing punches (Ravens officials seem very proud that Rice did not lie to them, although he apparently lied to his teammates). Goodell insists that Rice's story to them was more ambiguous, although we can ask why the NFL never compared notes with Ravens officials and draw conclusions from the inconsistency. [Update: According to this report, four people with knowledge of conversations state that Rice told Goodell in June that Rice had "hit"or "punched" his fiancee and that there was no "ambiguity" about what he said or what happened].

The point is that the video released Monday provided the Ravens with exactly no new information, and the NFL with little that it should not already have known. The "sickening" acts were known to everyone on the inside. Yet Goodell did not feel compelled to act until confronted with video images; a narrative would not do the trick. Of course, some of that can be blamed on the media and the public, which responded with renewed outrage only after seeing the video themselves, thus backing Goodell into a corner. Josh Lewin has a nice satirical take on this.

The old saw is that a picture is worth 1000 words and perhaps video is worth twice that. But the relative value of visual compared with verbal evidence should not be taken to render verbal evidence entirely worthless. I would be quite concerned if we begin to see--in court and in public debate--a video-evidence version of the CSI Effect.

Posted by Howard Wasserman on September 11, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, September 10, 2014

Investor-State Regulatory Disputes (Part 1)

The project I am currently working on looks for new approaches to the problem of investor-state regulatory disputes.  The problem is well-known among international investment law scholars, and a variety of solutions have been proposed, but none in my view has been satisfying. 

The basic problem arises when a foreign investor challenges a generally applicable regulation that was enacted by the host state as a good-faith attempt to promote the public interest.  Although any effect on the foreign investor’s business would have been incidental, the investor has at least a viable claim under the fair and equitable treatment obligation contained in the bilateral investment treaty between the host state and the investor’s home state.  Such claims do not need to show bad faith or other opportunistic conduct by the host state, as the fair and equitable treatment standard has been construed to require a degree of stability in the regulatory framework irrespective of the host state’s motives.  To give one particularly controversial example of this increasingly common form of dispute, tobacco companies have challenged regulations on cigarette marketing in a few different countries as violating their rights as foreign investors, even though the regulations are clearly designed to promote public health and not to extract value from them. 

The increasing prevalence of such claims is troubling to many because it puts international investment arbitral tribunals in the position of evaluating the policies of host states.  In an earlier phase of international investment, when investors were more likely to challenge outright expropriations or other forms of bad-faith conduct, the availability of impartial tribunals was seen as a valuable check on host state abuse.  But as investor-state disputes increasingly involve challenges to regulatory efforts that only incidentally affect foreign investment, the discussion has shifted to concerns about the potential for tribunals to interfere with host state sovereignty.

In response to such sovereignty concerns, commentators -- and increasingly the tribunals themselves -- have begun to converge around a view that analyzes regulatory disputes within a public law framework.  That means proceeding with special concern for the needs of the sovereign state, recognizing that the parties to the dispute are not co-equal in status but stand in a vertical relationship.  Commentators have drawn on analogies to constitutional and administrative law to propose a variety of doctrinal solutions, such as a balancing test that would weigh the host state’s regulatory concerns against the investor’s rights to determine whether the enacted measure is proportional to the burden imposed on the investor.

I am skeptical about the existing proposals and more generally about whether the public law analogy points us in the right direction.  While it is true that we entrust domestic judges to employ balancing tests and the like when reviewing domestic legislation, international arbitrators lack the expertise and legitimacy to do the same.  One concern is that most arbitrators do not have experience or training in public policy, as they typically come from commercial backgrounds.  But the more fundamental problem is that foreign arbitrators are not part of the same political community that enacted the challenged measures and thus lack the expertise (and accompanying legitimacy) a domestic court would have to make the context-sensitive, value-laden judgments required.  Others have made similar points, though they go on to propose a solution that, in my view, suffers from the same essential problem and creates additional concerns as well.

Having set up the basic issue and described my concerns about the prevailing ideas in the literature, I will turn in a follow-up post to the alternative path I propose.

Posted by Richard Chen on September 10, 2014 at 06:26 PM in International Law | Permalink | Comments (0)

Boston University Law Review Symposium on Dworkin's "Religion Without God"

The Boston University Law Review in recent years has done a superb job of running symposia on new and important legal books. Many of us have lamented the decline in the number of book reviews in legal periodicals, a decline that has corresponded to a rise in the number of books published by law professors in the last decade or so. BU has filled that gap admirably, and sparked some terrific conversations as a result. 

The new issue of the Boston University Law Review has two such symposia, on three different books. I was delighted to be rather distantly involved in one of those, a print symposium on the late Ronald Dworkin's book Religion Without God. The symposium can be found here. Notwithstanding my own contribution, it's really a stellar gathering, thanks to the work of Professor Jim Fleming, and I found the pieces well worth reading. The table of contents follows:

Volume 94, Number 4 – July 2014



Introduction to the Symposium on Ronald Dworkin’s Religion Without God James E. Fleming Page 1201

Religion Without God by Ronald Dworkin – Review Jeremy Waldron Page 1207

The Challenge of Belief Stephen L. Carter Page 1213

“A Troublesome Right”: The “Law” in Dworkin’s Treatment of Law and Religion Paul Horwitz Page 1225

Ronald Dworkin, Religion, and Neutrality Andrew Koppelman Page 1241

Dworkin’s Freedom of Religion Without God Cécile Laborde Page 1255

Can Religion Without God Lead to Religious Liberty Without Conflict? Linda C. McClain Page 1273

Religion, Equality, and Public Reason Micah Schwartzman Page 1321

Is God Irrelevant? Steven D. Smith Page 1339


Posted by Paul Horwitz on September 10, 2014 at 04:57 PM in Paul Horwitz | Permalink | Comments (2)

Tuesday, September 09, 2014

Remembering Danny

Remembering Danny has been set-up by Dan's family and loved ones as a place to collect stories, videos, photos, memories, and more, to share with Ben and Lincoln and let them know who their father was and the many lives he touched. Please click over and share.

Also, a reminder that Florida State College of Law will host a memorial service for Dan at 3 p.m. next Tuesday, September 16, 2014, at the College of Law.

Posted by Howard Wasserman on September 9, 2014 at 01:58 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Call for Papers: AALS Program of the Business Associations Section

You may have seen this elsewhere on the web, or on the listserv, but if not -- you have until Friday!  You can submit a paper or an abstract.


CFP: AALS Program of the Business Associations Section

AALS Program of the Business Associations Section

The Future of the Corporate Board

AALS Annual Meeting, January 4, 2015


The AALS Section on Business Associations is pleased to announce that it is sponsoring a Call for Papers for its program on Sunday, January 4th at the AALS 2015 Annual Meeting in Washington, DC. 

The topic of the program and call for papers is “The Future of the Corporate Board.” 

How will boards adapt to recent changes and challenges in the business, legal, and social environment in which corporations operate?  The recent global financial crisis and the continuing need for many corporations to compete internationally mean that today’s boards face economic pressures that their predecessors did not.  This pressure is heightened by the rise of activist investors, many of whom aggressively push for changes to corporate management and governance. On the legal front, new regulations, such as Dodd-Frank, impose heightened compliance and other burdens on many companies and boards.  And on the social front, pressures for socially responsible corporate behavior and greater racial and gender diversity on boards continues.  Our program seeks to examine the ways in which boards have, and will in the future, respond to these challenges.    

Form and length of submission

Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of papers they propose. Papers may be accepted for publication but must not be published prior to the Annual Meeting.  Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.  

The initial review of the papers will be blind.  Accordingly the author should submit a cover letter with the paper.  However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school.  The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. 

Deadline and submission method

To be considered, papers must be submitted electronically to Kim Krawiec at [email protected].  The deadline for submission is SEPTEMBER 122014

Papers will be selected after review by members of the section’s Executive Committee.  The authors of the selected papers will be notified by September 28, 2014. 

The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.


Full-time faculty members of AALS member law schools are eligible to submit papers.  The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.

Please forward this Call for Papers to any eligible faculty who might be interested.

Posted by Matt Bodie on September 9, 2014 at 09:12 AM in Corporate, Life of Law Schools | Permalink | Comments (0)

Monday, September 08, 2014

No Grants From the Long Conference?

The Court’s new policy of automatically re-listing cert petitions before granting them raises an interesting question: will the Court’s first conference of the new term (the “long conference”) generate any cert grants? This question has some practical importance and also draws attention to the Court’s frequently opaque operating procedures.

Here’s the background. In the past, the Court has generally voted on all petitions for certiorari at its first opportunity to do so—that is, at the first internal conference in which those petitions were considered. This conference date was publicly noted on the docket for each cert petition, and parties sometimes made strategic decisions based on that information. Only in unusual situations did the Court “relist” grant-worthy cases by postponing a vote on them until the next scheduled conference. A relist might occur, for example, if a Justice found that a complex case demanded extra consideration.

Last year, however, something changed. Early in the term, the Court had to deal with what seemed like an unusual number of vehicle problems. In some instances, the Court had to “DIG,” or dismiss cases as improvidently granted. Then, around the middle of the term, the Court started systematically “relisting” petitions before granting them. This pattern was first observed by Hashim Mooppan and reported on SCOTUSblog by John Elwood. (I blogged that the policy shift could have to do with the rise of the Supreme Court bar, and Roy Englert and Tom Goldstein responded.) Notably, the Court never issued a public statement announcing or explaining its new policy. Presumably, the Court changed its procedures in order to give itself more time to scrutinize petitions before granting them.

That brings us to today. We’re now approaching the “long conference” (slated for September 29), when the Court returns from its summer-long recess and considers all the cert petitions that have come in since the end of June. Traditionally, the long conference has generated a significant number of grants as the Court has tried to fill its calendar for the new term.

Will this year be the same? Perhaps, consistent with last term’s apparent policy change, the long conference will not actually grant any of the accumulated summer petitions, but will instead relist them for later review. With novice clerks writing pool memos and a daunting number of cases to consider, the auto-relist policy might look more helpful than ever. Alternatively, the Court may think that the reasons for its policy change don’t apply to the long conference. If the Court was worried about making snap decisions, for instance, then maybe it’s enough that the Court has so much time for review of petitions in advance of the long conference. Of course, it’s also possible that the entire policy change was just a tentative experiment. Having tried it out for a while, the Court might go back to business as usual this term.

Whether the Court adheres to its auto-relist policy has practical consequences for litigants. Advocates often like to plan out the timelines of their cases, particularly at certain times of year, such as the fall. Right now, prospective petitioners for cert are trying to gauge how early they have to file in order to maximize the odds of getting their cases heard this term. File too late, for instance, and you might have your case pushed off into the next term, which may well be to your client’s disadvantage. If the auto-relist policy continues, then advocates will have to factor it into every strategic decision of this kind.

And that leads to the broader point: the Court could be more transparent when it makes policy decisions such as the auto-relist policy. Instead of implementing the change and leaving it to specialists to notice after the fact, the Court could simply post a brief announcement, or even revise its rules. That modest reform would prevent parties from being surprised by undisclosed rules, equalize the playing field between Supreme Court specialists and other lawyers, and reduce uncertainty as to what the Court will do next.

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

Posted by Richard M. Re on September 8, 2014 at 01:46 PM in Judicial Process | Permalink | Comments (0)