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Friday, October 31, 2014

Popular votes

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."

Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.

* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.

Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.

Posted by Howard Wasserman on October 31, 2014 at 03:01 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Ebola and Korematsu

Ebola is an unprecedented public health crisis, but quarantine falls squarely within a long tradition of preventive detention: depriving liberty not to punish past wrongdoing but to prevent future harm.  In a recent article(here), I argue that the government has resorted to indefinite preventive detention only in response to fear of an undeterrable Other.  That conclusion (descriptive, not normative) is based on case studies of the Japanese internment, the Oklahoma City bombing, the War on Terror, both phases of sex offender commitment, and the Virginia Tech shooting. 

In my formulation, Otherness is perhaps the most elusive concept.  By it I mean being a member of an identifiable and devalued minority group.  Affected Others have included Japanese-Americans, Arab non-citizens, sex offenders, and the mentally ill.  But the Ebola quarantine teaches that Otherness is not required for short-term, as opposed to indefinite, preventive detention.  Fear of an undeterrable virus is enough.

Posted by Fredrick Vars on October 31, 2014 at 12:03 PM | Permalink | Comments (0)

Tenure standards and recruiting

A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?

Posted by Howard Wasserman on October 31, 2014 at 10:46 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (10)

A "Call for Annotations" from The Green Bag

Call for Annotations: “The Adventure of the Norwood Builder”

Our annual Almanac & Reader always has three main features: (1) exemplary legal writing, (2) chronologies of interesting moments in law and language, and (3) entertaining tidbits relating to some theme that we hope you will enjoy. The theme for the 2015 Almanac is “The Adventure of the Norwood Builder” – a Sherlock Holmes mystery set in 1894 and published in 1903. One of the tidbits will be a freshly annotated edition of the story, based on the 1905 U.S. edition in The Return of Sherlock Holmes. (It is available on our website.)

How to submit an annotation: Email us a Word document with the passage from “Norwood Builder” that you want to annotate, and the annotation included as either (a) a footnote to your document if the annotation is just text or (b) a separate attachment if the annotation is an image (photograph, chart, or whatever). If your annotation involves assertions of fact or law, include citations to – and quotations from – appropriate authorities. Thus, for example, it is not enough to say, “The will drafted by McFarlane was invalid because English law in 1894 required two disinterested witnesses and he had only one.” What law? What did it say? Where are the cases supporting your interpretion? Do any go the other way? Similarly, if “the Anerley Arms was a going concern in 1894,” we will need to see some record or contemporaneous report of its operations in 1894. You get the idea: We are giving “Norwood Builder” the law review treatment.

Each point of annotation should add to the reader’s understanding or enjoyment of the story, including but not limited to its legal aspects.

We will give credit where it is due: Annotations to our edition of “Norwood Builder” will appear as footnotes and illustrations. Each footnote will identify by name the author of that note. Each illustration’s caption will identify by name the contributor of that image.

Length limit: There is no length limit, but please be reasonable.

Deadline: Finished works must be received at [email protected] by December 24, 2014.

Criteria: We will select works for publication based on how useful, interesting, well-researched, well-written, and good-spirited they are.


Posted by Rick Garnett on October 31, 2014 at 09:14 AM in Rick Garnett | Permalink | Comments (0)

Thursday, October 30, 2014

An Anatomy of the Death of the Kibbutz: Review of Amos Oz, Between Friends

My grandmother Dora and her sister Batya were the sole survivors (so we thought, years later, a brother would emerge in Ukraine) of their family, having both moved to Palestine before the war. But Dora and Batya could not have had more different paths in their new life in the new state of Israel. Dora married into a prominent family and raised her kids in the vibrant bubbly urban culture of the young white city, my beloved Tel-Aviv. Batya married a devout kibbutznik, Yekush, a true believer as Amos Oz might describe him, and they raised their kids in kibbutz Ein Hahoresh (below is a picture of children of the kibbutz’s infirmary bathing in the sun in the 1940s). Poet Abba Kovner, a longtime member of Ein Hahoresh, wrote a poem about my uncle Yekush, a ballad of wonder of a man who was a thirsty intellectual, an antique collector, a historian, and the lifelong garbage collector of the kibbutz, never wanting another job but the essential one he had. Yekush was unique even for his time in his humility and selflessness. Even at the peak of the idealist era, human nature meant that there would be conflict and tension within the close-knit collectives of the new state. Envy, resentment, ego, discontent, doubts, cynicism, and more simply, human nature, would eventually bring an end to the dream of the kibbutz. Yes, kibbutzim still exist today but mostly by name only. The kibbutz as a utopian vision and an institution, the purist combination of socialism and Zionism, has ceased to exist. The kibbutzim of today no longer have communal infant dorms; parents are allowed to kiss their children good night and tuck them in. The kibbutzim of today can no longer order their young adults on when and where to go to college. The kibbutzim of today are basically privatized rural gated communities with differential wages and private property.

 Last week, I finished Oz’s latest, Between Friends. I read it in English, which I usually don’t do with books translated from Hebrew but that was the copy I had. The translation is good but even the title inevitably misses the key point of the book: Friends, haverim in Hebrew is also the word for members. Between Friends is an interwoven collection of short stories of the members of the fictional kibbutz Yekhat. They are all haverim because they are all members of the kibbutz but they are most certainly not all friends. They are occasionally friends, but also enemies, lovers, ex-lovers, bullies and, most frequently, simply strangers. That they call one another Haverim, friends, makes the loneliness, betrayals, and disillusionment of camaraderie sharper. Yekhat’s funny guy, who is also the distraught dad of a bullied child (and a stamp collector like my uncle Yekkush) quotes Levi Eshkol who said that a person is only human, and even that, only rarely. Ein hahoresh


The poignant unresolved scenes of human suffering at Yekhat are not unique to the kibbutz. A friend moves one day out of his wife’s house to the house of his lover next door. A friend is distraught by his lifelong friend dating his young daughter. A woman leaves her husband of many years and turns to her married childhood friend who has always been secretly in love with her for. A man dying of lung cancer cannot seem to stop smoking and does not want to stop working despite his body failing him. A misanthrope gardener takes pleasure of recounting sad world events; he befriends a widower but when she attempts intimacy he flees. Teens are lost and feel suffocated by the pressures and legacies of previous generations. The stories are human but the expectations, so often unmet, of the members of the kibbutz are that their friends will rise above their human vulnerabilities and create something new, collective, stronger.

Little Boy is the heartbreaking story of a five year old who is bullied at the kids’ sleeping quarters. When his father teaches him about the world through his stamp collection, “stamps are small visitors from distant countries each telling a story”, the child asks if there are countries where children are allowed to sleep with their parents at night and where children are not mean and don’t hit. The father answers that there are good and cruel people everywhere. In his heart, the father thinks, “here, cruelty is sometimes disguised as self-righteousness or dedication to principle.” (This sentiment is later echoed in other stories. One member Osnat muses about how at times, at the kibbutz, even compassion is a form of cruelty. Member Henia thinks bitterly, “in the kibbutz today, if you’re standing on your feet, everyone is just waiting for you to fall and if you fall…they all rush to help you up.”) The Committee for Preschoolers prescribes to the parents of the bullied toddler to resist the urge of trying to protect and intervene. The committee (always a committee) instructs the parents to be firm and to wean their child from self-indulgent “cry baby behavior”. The mother complies. She stops hugging or kissing him and orders the dad to do the same. The dad has a nervous breakdown after his son escapes to his parent’s house during another helpless night of bullying.

In the story Father, a pre-teen boy is sent to the kibbutz by a welfare worker as a boarder after his mother dies. In his 2002 memoir A Tale of Love and Darkness (which I read in Hebrew, and which also has a flawed translated title: in Hebrew it is a story of love and darkness – not a tale which connotes inventive fantasized fictionalization) Oz, lengthily narrating his life (understandably, the crispness of Between Friends was more difficult to achieve when the author was so invested), tells us about the suicide of his mother which led to his father sending him at the age of fifteen to live in a kibbutz as a lone child boarder (Yaldei Hutz we called them when I was growing up: Outside Children). In Father, Moshe, the outside child, is discouraged by the kibbutz members from visiting his sick father in the city. The kibbutz teachers encourage the boy to get a haircut, learn to swim, and loose that archaic religion (Shabbat? Kosher? Tradition? What would Marx says?) upon which he had been raised. They say, “the visits to your relatives pull you away from us. And you are almost one of us now.” They ask, “what is it that the city has that we don’t have here?” He says nothing but thinks: “Strangers.”

In Deir Ajloun, a teen who has returned to the kibbutz after completing his military service wishes to accept his uncle’s generous offer to put him through college in Italy where he would study mechanical engineering. The uncle not only defected from the kibbutz many years ago but also from Israel, living in the diaspora, married to a shiksa Italian, forgetting the-fate-of-the-jews (Oy! Nowadays we call it brain drain! http://tabletmag.com/jewish-news-and-politics/154483/brain-drain-or-gain either way, we feel guilty about it http://www.jpost.com/Features/In-Thespotlight/Professor-Brain-drain-is-good-for-increasing-global-Israeli-footprint-339574 ). The mother (sister of the disloyal uncle), Henia, tries to lobby Yekhat members, possibly her friends, to vote yes on this special request. But she hears loud “no”: her fellow kibutzniks believe that such gifts from rich relatives strike a blow to the principle of equality. My grandmother’s sister encountered the same kind of opposition when my grandparents helped out with opportunities for their nephews. History101, the principle of equality taken to the extreme is an ideology that easily replaces old ideologies, here the old religion, archaic Judaism which Moshe, the outside child, is urged to rid himself from if he wants to belong. This new religion is “just as full of sins and transgressions, prohibitions and strict rules…Marx is their Talmud. The general meeting is the synagogue.”

Beyond the equality/gift problem, in Yekhat the Higher Education Committee decides what exactly the child will study such that it will benefit the enterprise. Yekhat already has two mechanical engineers, what do they need another for? Henia encounters cold responses even from those who she believed to be true friends. “Really, And why should I vote for him? When my Zelig asked to work in the vineyard six years ago, did you support him? You all voted against him. All you hypocrites and paragons together. Then you spoke so nicely at his funeral.” So goes the slap on the face by her close friend Brunia and Henia responds, “don’t worry, Brunia. I have a very long memory, too. A very very long memory.” Friendship, in the life long membership sense, is suffocating – people and judgment and observation are everywhere from the day you are born to the day you die but loneliness is equally pervasive. One member, a kind quiet woman, reflects, “most people seem to need more warmth and affection than others are capable of giving, and none of the kibbutz committees will ever be able to cover that deficit between supply and demand. The kibbutz makes small changes in the social order but man’s difficult nature doesn’t change. A committee vote will never be able to eradicate envy, pettiness, or greed.” Small changes in the kibbutz social order loom against the background story of Deir Ajloun, the too-big-to-look-directly-at dislocation tragedy of the abandoned neighboring Arab village.

The final story in Between Friends is about Martin, a dying member/friend, perhaps the last true believer, a vegetarian shoemaker, the Gandhi of kibbutz Yekhat, a Dutch survivor who had left his previous kibbutz because of ideological disagreement. He believed that property was the original sin and could not witness his previous friends/members collect German reparations.  Like my uncle Yekush, Martin was “an intellectual and also a man who believed in the importance of physical labour, a man of principle and of uncompromising hard work.”  He sees even the smallest slips of the kibbutz members (think: wearing pantyhose; getting a vacuum cleaner) as a slide toward the doom of petty bourgeoisie. Material pleasures, which women more than men will be bringing into the sacred haven of the kibbutz, will be the death of ideology. The book ends with Martin’s funeral. His eulogy, quite obviously, is a eulogy to the kibbutz: “He saw (as a Holocaust survivor) in his own eyes how low human beings could sink, but still he came to us imbued with belief in people and in a future burning with the bright flame of justice.”  As the book is ending and we are reading the eulogy, Oz is demanding that we question this alleged disconnect between having witnessed the worst and expecting the best out of human beings. Rather, to truly internalize the lessons of the past we are better off recognizing, rather than denying, deep human contradictions.


Posted by Orly Lobel on October 30, 2014 at 04:11 PM | Permalink | Comments (1)

A Mistake Regarding Korematsu

Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu.   Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes.  Here is what Ilya wrote:

"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision."   http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/

Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps.  http://korematsuinstitute.org/institute/aboutfred/  Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.

Second Ilya continues to defend Justice Thomas by saying Hamdi was an enemy combatant, unlike Korematsu.  But Justice Thomas's almost plenary authority language about executive power in wartime, and his stated aversion to judicial involvement, are inconsistent with limiting his view just to combatants.  In other words, Ilya makes a nice lawyerly distinction that does not make a difference in the analysis.  I have previously quoted some of Justice Thomas's language in Hamdi, and its breadth is stunning.  http://prawfsblawg.blogs.com/prawfsblawg/2014/10/justice-clarence-thomas-and-korematsu-the-sequel.html#more  Presumably this is one reason why he was alone in dissent.  Moreover, though not an enemy combatant, Fred Korematsu would have been a convicted wartime prisoner to Thomas as just mentioned.

Third high level American military authorities justified their discriminatory imprisonment of Japanese-Americans based in part on the risks of a supposed west coast invasion.  These were not just state or local prison officials. Thomas would have likely seen that danger (given who predicted it) as greater than, for example, the likely danger of an east coast Al Qaeda invasion of the same scope (which was never predicted).  Al Qaeda was, and is, horrific and enaged in an abominable attack, but Al Qaeda was not thought of as an invasion danger of the World War II scope.  That 's why I believe Justice Thomas would have been even more deferential to the government in World War II.

In my earlier post, I agreed with Ilya that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus."  But my response was not limited to a consensus situation.  Thomas often writes openly about his disagreement with precedent or with other commonly held views.  I think of Thomas's view that the Establishment Clause is not "incorporated" which he has written about.  Thomas showed no written reticence, however, in describing the Korematsu facts either in Fisher or Grutter. 

But my bottom line in this post is that Fred Korematsu was convicted, a prisoner, and would have had almost no rights in the Thomas view of wartime or prisoners.


Posted by Mark kende on October 30, 2014 at 02:49 PM in Constitutional thoughts | Permalink | Comments (3)

Gun Control Targeting Dangerous Symptoms

New York has revoked gun rights for over 40,000 people deemed dangerous by mental health professionals.  Are all of these people really dangerous?  Are other people who fear losing their gun rights deterred from seeking help?  These questions suggest a differently targeted alternative: empower law enforcement officers to revoke gun rights for individuals they encounter who are actively psychotic.
Psychotic symptoms, particularly paranoid delusions, are strongly associated with violence.  Police officers could be trained to reliably recognize these symptoms.  Putting the power to remove gun rights in the hands of police rather than health care professionals would eliminate any disincentive to seeking treatment.
The Navy Yard shooting illustrates.  Aaron Alexis’s obvious paranoid delusions were memorialized in a police incident report just weeks before he lawfully purchased one of the firearms used in the shooting.  He would not have been on New York’s no-guns list because no health care professional had detected the problem.  Alexis is not alone: in 2011, 40% of those with serious mental illness did not receive treatment.

Posted by Fredrick Vars on October 30, 2014 at 02:15 PM | Permalink | Comments (0)

Scholarly productivity, generational change, and empirical data

Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.

    * Who also chides me for not bringing data to bear in my original post.

    ** For what it is worth, she did not find them inversely correlated.

But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.

I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.

Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.

Posted by Howard Wasserman on October 30, 2014 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (0)

On Being Sued, 3

In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.

So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it

One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.

Scholarship is a cooperative effort. Carissa's comments may have led me down defamation alley, but she was right about the paper, and the paper was better for the change. The funny thing is that I never really stopped thinking about the real case as a hypothetical. Yes, I used the litigants' real names, but in my mind the case was always just an entry point into a larger discussion about the limits of antidiscrimination law. It's easy to forget that the cases we write about and teach involve real people--real people with families and feelings and grievances.

I get this now in a very practical way. A colleague of mine taught Catalenllo v. Kramer in her advanced torts class, and I sat in for the discussion. The students were studying defamation at the time, and they were deep in it. During my case, I had to learn defamation law on the fly (I didn't study it much in law school), so my understanding of it, not surprsingly, was clouded by my feelings about my situation. But the students were incredible--engaged, supportive, deeply interested in my team's theory of the case.

For me, the experience was odd. The teacher in me was pleased, as the students dug deep into the material. The defendant in me wanted to hear them say that I was right, that I didn't do anything wrong. And the scholar in me wanted to stand up on the table--Oh captain, my capatain--and scream about the virtue of academic freedom.

The last thing I'll say is that I am grateful for the support. So many students, friends, and colleagues--some I had never met before--reached out during the case to say kind things. The best thing about being a law professor is the opportunity to engage with smart, curious, committed people. It's a wonderful way to spend your days. Thanks, everyone.


Posted by Zachary Kramer on October 30, 2014 at 01:48 AM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink | Comments (0)

Wednesday, October 29, 2014

The "New Normal" and Generational Change

Howard's interesting post below on whether there is a "new normal" for law school tenure standards brings up a broader subject: The different scholarly productivity expectations among law professors over time.  In the last generation or two, expectations have changed considerably.  Here are some broad-brush thoughts on that shift.

My understanding is that a generation or two ago, the usual scholarly expectation in law schools ran something like this.  First, getting an entry-level teaching job didn't  require any scholarship.  Instead, by the time a person came up for tenure, he (and it was almost always a "he") had to produce an article or two.  The lawprof job was more focused on teaching than scholarship, so an article or two was enough to get tenure. Consider now-Justice Stephen Breyer commenting on tenure standards at Harvard back in the late 1960s:

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Today, the idea of a tenure-track professor at Harvard asking “How can I possibly write an article?” seems exceedingly strange. The norm today is very different.  By the time a law professor today at any ABA-accredited school comes up for tenure, she -- and fortunately, the professor often is a "she" -- probably has been writing consistently for several years.  A typical professor up for tenure might have the following post-J.D. writing on her resume:

1.  The pre-VAP article(s).   This article (or articles) was written and placed to build credentials to get a VAP position. 

2.  The VAP article(s).  This article (or articles) was written and placed during the VAP window in order to build credentials for the tenure-track market.

3.  The tenure-track articles.  These articles were written during the tenure-track in order to prepare for the tenure decision.

One consequence of the new patterns is suggested by Howard's post: For many junior professors, the stated tenure standards at their law schools seem low.  If you wrote two or three articles just to get a tenure-track job, the requirement that you write two or three more over five or six years to get tenure has a certain Dr. Evil quality to it. It's not surprising that many tenure-track professors are doing more.

The contrast between the scholarly expectations of today's junior professors and today's senior professors when they were juior is particularly dramatic in the current hiring environment.  With many schools struggling, and lawprof vacancies few, there are many candidates on the market who can't get a job but who have more scholarship than already-tenured professors at the schools where they are unsuccessfully interviewing. 

Quantity doesn't mean quality, of course.  Some might say that today's junior professors write a lot, but not well.  But I think the relevant standard is a relative one.  Let's accept Sturgeon's Law that 90% of everything is crap.  Is the quality of today's tenure-track scholarship better or worse than that of tenure-track scholars in generations past?  I'm skeptical that the quality of such scholarship has gone down, and I think there are good reasons to think it has gone up.  

In any event, whether these developments are good or bad is a big question that is beyond this post. My point is really just that the dynamic Howard points to in terms of tenure standards is just a symptom of a broader shift over time.

(Update: I fiddled with this post a bit immediately after posting it.)

Posted by Orin Kerr on October 29, 2014 at 04:30 PM in Life of Law Schools | Permalink | Comments (7)

Kentucky Law Journal: Exclusive Submission Window

The following was forwarded by Josh Douglas at Kentucky. If you have an August piece that did not place or you want to get a head start on February:
The Kentucky Law Journal is opening an exclusive submission window for articles until November 14, 2014, at 5:00 PM EDT. All papers submitted during this window will be reviewed for publication in Volume 103, Issue 4, set for publication in Spring 2015. By submitting your article during this window, you agree to accept a publication offer, should one be extended. This window is available for articles on all topics, including articles previously submitted to the Kentucky Law Journal, though resubmission will be required. Submissions should be between 15,000 and 25,000 words with citations meeting the requirements of The Bluebook.
Submissions should be sent via email to [email protected]. Please include your article, a copy of your C.V. and a short abstract or cover letter.

Posted by Howard Wasserman on October 29, 2014 at 01:03 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Photo ID Laws and Voter Suppression

My colleague, Mike Pitts, has posted his latest analysis in a series on the impact of Indiana’s photo ID law, the law that was upheld by the U.S. Supreme Court in 2008. (The earlier papers also are posted on SSRN.) Pitts draws three major conclusions:

First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.

Of course, photo ID laws in some states have more stringent provisions, so may have a greater disenfranchising impact.

Posted by David Orentlicher on October 29, 2014 at 11:35 AM in Article Spotlight, Law and Politics | Permalink | Comments (0)

Tenure's "New Normal"

Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?

The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*

    * So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.


Posted by Howard Wasserman on October 29, 2014 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Yates, A Fishy Case

Next week, the Supreme Court will consider whether a fisherman violated an anti-obstruction provision in Sarbanes-Oxley by throwing illegally caught fish overboard. The case is Yates v. United States, and it's a weird one.

The oddity of Yates begins with its factual background. A federal investigator caught a fishing crew with illegally small fish, in violation of a federal environmental and conservation law. The investigator recorded the 72 undersized fish and directed that the fishermen hand over the unlawful catch on their return to shore. Once the investigator had left, the fishermen threw the illicit cargo overboard in an apparent attempt to replace it with larger, lawful fish. When the fishermen returned to shore, the investigator realized that the substitute fish were red herrings. Since the discarded fish were evidence that the fishermen had engaged in illegal fishing in violation of federal law, the lead fisherman, named Yates, ended up being convicted of violating Sarbanes-Oxley’s obstruction of justice provision (18 U.S.C. §1519) and receiving a 30-day sentence. Yates lost his first appeal and petitioned for certiorari.

Consistent with a rising trend in Supreme Court litigation, Yates benefitted from a savvy publicity campaign coincident with the Court’s consideration of his petition. On April 24, 2014, the day before the Justices met in conference to discuss petitioner’s case at the Supreme Court, Politico prominently ran a piece entitled: “A Fish Story: I got busted for catching a few undersized grouper. You won't believe what happened next.” Written in the first person from Yates’s point of view, the piece discusses Yates’s cert petition and provides arguments in favor of his case that would seem out of place in a brief. For example, the piece concludes: “It says something about federal criminal law that it can be used against unassuming, hardworking Americans for a state civil matter. It says something else that federal officials can trespass those same laws with impunity.” The Court voted to grant cert the next day.

Despite the petitioner’s favorable publicity and support from prominent cert-stage amici NACDL and Cause of Action, the Court’s decision to grant was still something of a surprise. There was no circuit split, no transgression of Supreme Court precedent, and no special national interest justifying immediate resolution of the case. Moreover, much of the emotional energy behind the case seemed factbound in the extreme. The Court’s decision to hear such an odd and splitless case strongly suggested a desire to reverse and rule in favor of the defendant, perhaps on grounds that would reflect a broader skepticism toward the growth of federal criminal law. Reinforcing this impression, the Court’s decision to grant roughly coincided with its decision in Bond v. United States, a treaty power case that surprisingly turned on the Court’s sense that federal prosecutors had overreached and intruded on an area best left for states.

In the months that followed, a remarkably diverse coalition of prominent amici rallied to petitioner’s side. Yates’s supporters on the merits include the NACDL, Cause of Action, the Cato Institute, the Chamber of Commerce, leading criminal law scholars, and even Congressman Oxley of Sarbanes-Oxley. At the same time, a number of thoughtful commentators have suggested that the Court might change its mind after diving into the legal issue. Kevin Walsh nicely expressed this sentiment when he said that he started out “on the side of liberty” but “ended up on the side of text.”

The briefing is expansive, but a few salient points bear mention. By way of setup, here is the relevant text from 18 U.S.C. § 1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

In brief, the government straightforwardly argues that the statute applies to the “conceal[ing]” of “any ... tangible object” with the intent to impede a federal investigation. Read in isolation, that prohibitory net is wide enough to catch the act of throwing undersized fish overboard. The defendant, by contrast, urges a contextual inquiry, emphasizing the phrase “mak[ing] a false entry in any record, document, or tangible object.” That language connotes the kind of conduct that prompted the law’s enactment—namely, Enron’s shredding of thousands of pages of potentially incriminating files. In Yates’s view, “tangible object” should be read as limited to objects, like files, that store information.

One way to assess Yates's prospects is to ask whether he can capitalize on any of the case's legal oddities. Here are some prominent contenders.

The feds shouldn’t worry about “a few undersized groupers.” You might expect that federal prosecutors would have bigger fish to fry. A similar sentiment was at work in Bond, where the majority couldn’t accept that it was a federal offense for a jilted lover to give her rival a minor burn or (hypothetically) poison a goldfish. The problem with this approach is that Yates was being investigated for violating an environmental regulation related to the conservation of fish in waterways—which, unlike mild chemical burns, is a routine thing for the federal government (and not just states) to be concerned with. Yates’s position thus seems to link the defederalization of criminal law with the defederalization of environmental law. Notably, some of Yates’s amici would likely welcome both forms of defederalization, but many would not.

Fish aren’t “objects.” One theme swimming just under the surface in Yates’s Politico piece and briefs is that it’s just plain silly to think that Sarbanes-Oxley meant to encompass fish when it prohibited the concealment of a “tangible object.” In Politico, for example, Yates was shocked that “the federal government charged me with the destruction of evidence—yes, fish.” Yates’s opening brief labels this result an “absurdity.” The suggestion, apparently, is that it’s odd to refer to fish as mere “objects,” which is stodgy and arid legal language. Surely that type of language is more naturally used in fluorescent-lit office spaces filled with humming shredders, rather than aboard sun-drenched boats on a rumbling ocean. But that intuition would require the Court to read a fishing exception into the statute, and even petitioner doesn’t argue for that result. Instead, petitioner’s rule would exclude many “objects” from the statute’s scope, including many things found in offices.

Congress doesn’t hide big fish in small ponds. Yates’s strongest legal claim to oddity is that the government’s reading has the effect of making § 1519 a very capacious provision—indeed, so capacious that it swallows up the listed terms “record” and “document,” as well as other federal laws relating to similar conduct. The Court has said that Congress doesn’t hide elephants in mouse-holes, and a similar sentiment may be at work here. In effect, the defendant limits the statute by reading it as: “any record, document, or similar tangible object.” While that conclusion finds strong support in the ejusdem generis canon, the government responds that the statute was deliberately modeled on similarly written provisions that are understood to be very broad. The government also gives examples involving concealment of corpses, drugs, and bloody knives. The suggestion is that Congress legislated a new, broader obstruction provision, rather than let wrongdoers even worse than Enron go unpunished.

To my mind, the assessment above indicates that this will be a much harder case for the defendant than the splitless grant would suggest.

From a theoretical standpoint, the most interesting issue in Yates is the question of how to ascertain ambiguity. In Bond, the Court seemed to reason that constitutional doubts could create ambiguity in a criminal statute. In his separate opinion, Justice Scalia railed against that result, arguing that ambiguity must preexist reliance on a substantive canon like constitutional avoidance. A similar interpretive choice is available in Yates, in that numerous defendant-friendly default rules—including ejusdem generis, noscitur a sociis, the rule of lenity, and a potential presumption against federal criminal regulation—seem capable of both creating and resolving statutory ambiguity. To the extent that the Court addresses this issue, Yates may shed light on whether the interpretive move in Bond was just a fluke.

Finally, I noted the other week that the North Carolina Dental Board case led to an astonishing amount of teeth-based wordplay in the press. Yates is bound to be even more irresistible on this score. When it comes to this case, coming up with contrived puns is like shooting -- well, you know what.

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

Posted by Richard M. Re on October 29, 2014 at 12:24 AM | Permalink | Comments (5)

Tuesday, October 28, 2014

Elections and Gerrymanders

With Republicans poised to retain, and probably increase, their majority in the U.S. House of Representatives, expect political observers to criticize the partisan gerrymandering of House districts. The GOP likely will win a disproportionate number of seats because in many states, representation in Congress does not correlate well with the voting strengths of the parties. In Indiana, for example, Republican candidates for the U.S. House of Representatives outran Democratic candidates by a 53-45 percent margin statewide in 2012. Yet Republicans hold 78 percent and Democrats only 22 percent of Indiana’s House seats.

Observers are correct when they worry about the mismatch between voting strength and representation. But partisan gerrymandering is not the main culprit. Even if electoral mapmakers drew simple, compact districts without looking at voting data, representation would not correlate well with voting strength. Why is the conventional wisdom about partisan gerrymandering wrong? If partisan line drawing is not the main problem, what is?

Residential patterns are much more important than partisan gerrymandering as an explanation for the mismatch between voting strength and party representation in Congress. Republicans get more electoral bang for their votes because Democrats are bunched in urban areas and Republicans are scattered more evenly throughout suburban, rural, and other nonurban communities.

While gerrymandering is not the primary problem, it can be part of the solution. Electoral mapmakers can compensate for residential patterns by eschewing compact districts in favor of districts that combine urban and nonurban areas. That would bring party representation more in line with voting strength.

[Partisan line-drawing does have a bigger effect for state legislatures.]

Posted by David Orentlicher on October 28, 2014 at 11:14 AM in Current Affairs, Law and Politics | Permalink | Comments (5)

JOTWELL: Vladeck on Richman & Reynolds on the appellate court crisis

The new JOTWELL Courts Law essay comes from our own Steven Vladeck, reviewing William M. Richman & Willliam L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford 2013).

Posted by Howard Wasserman on October 28, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

What can you tell about a law school by its building?

I've been thinking a bit about law buildings because of a press release issued earlier this month for the rather silly "50 Most Impressive Law School Buildings" list, which TaxProf covered in August.

I did think about suggesting a list of the "Least Impressive Law School Buildings in the World" but I've never actually been in one outside of the USA so I'm perhaps unqualified.  And there's always a danger when working in a 41-year-old state-constructed Law Center that your own abode could show up on such a list, sending the College's Architecture Committee into a tailspin.  It may be that one in fact comes to work in a piece of "visual indigestion" (see below), but no one likes to admit that.

These days, with law applications down, most college kids don't have to leave their dorm rooms to get in-person visits from multiple law school deans looking to find them the perfect forward-leaning experiential student-centered program.  Or you can take an on-line building tour on some schools' web sites.

But some will still trek out for a campus visit.  For what should they be looking?

1. Can you find the faculty offices?  At some law schools, faculty offices are located down some corridor that only a member of the MIT Spelunkers' Club could navigate.  If you can't find faculty offices, there is a good chance you won't be able to find the faculty when you have questions on your paper or in preparation for an exam.  Their offices are hidden for a reason -- they are hiding from you.

2. Where is the parking lot?  Many law students will be going from dorm or dorm-like neighborhoods to living off campus for the first time in years.  As I learned the hard way in law school, mountain bikes don't work in the snow.  Or on California freeways.  So other than those lucky Michigan quaddites (?), law students are commuters.  That means they need parking.  Is there a parking lot?  Where is it?  Is it shared with the music department?  Particularly as students spend more of their time out in the real world in clinics and externships, but still have to make it back in time for twice-weekly Commercial Paper lectures, parking matters. 

3. Which are nicer, faculty offices or classrooms?  You can tell something about the values of a school and its leadership, at least for an older and "updated" law building, from what they spend limited remodeling funds fixing first.  If the faculty office suites are nicer than the classrooms, that might tell you something.  

4. Are there names everywhere and does the law school look like they bought it at Ikea?  If every classroom, conference room, washroom and water fountain is named the "A.C. Slater Memorial _____", that means the law school has alums who both (a) have money and (b) give money to the law school.  Same for the law schools with slick new buildings with clean lines and rational HVAC systems that look like something you could buy at a Scandanavian import store.  Knowing that alums of the school you are considering make money can tell you something about your job prospects (though the school's "employment outcomes" data is probably more reliable).  That the alums give money back to the school tells you something about how they felt about their experience.  Of course, if the school has a brand new building but no names appear anywhere, that might be a sign it borrowed more than it should have. 

5. Could you fall in love in this library?  We all know the great love story of our time, Bill and Hillary, and how they met in the law library at Yale.  You may show up to law school single but leave not just with piles of student loan debt but also a spouse or a partner.  At your wedding, when you recall meeting that special someone in the law library, will the memory be of vaulted ceilings or will it be of mold?

Posted by Geoffrey Rapp on October 28, 2014 at 08:44 AM in Life of Law Schools | Permalink | Comments (3)

Monday, October 27, 2014

Ebola: A Problem of Poverty rather than Health

Undoubtedly, the death toll in West Africa would be much lower if Guinea, Liberia, and Sierra Leone had better health care systems or if an Ebola vaccine had been developed already. But as Fran Quigley has observed, Ebola is much more a problem of poverty than of health. Ebola has caused so much devastation because it emerged in countries ravaged by civil wars that disrupted economies and ecosystems.

Ultimately, this Ebola epidemic will be contained, and a vaccination will be developed to limit future outbreaks. But there are other lethal viruses in Africa, and more will emerge in the coming years. If we want to protect ourselves against the threat of deadly disease, we need to ensure that the international community builds functioning economies in the countries that lack them.

Our humanitarian impulses in the past have not been strong enough to provide for the needs of the impoverished across the globe. Perhaps now that our self-interest is at stake, we will do more to meet the challenge.

[cross-posted at Bill of Health and Health Law Profs]

Posted by David Orentlicher on October 27, 2014 at 10:09 AM in Current Affairs, Science | Permalink | Comments (0)

State Courts Choosing to Follow Federal Precedents

Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:

One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.

Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:

I.  Doctrine

Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions. 

But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)

At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."

II.  Policy

Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.

It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.

Posted by Steve Vladeck on October 27, 2014 at 09:41 AM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (1)

Should Apprendi Apply to Substantive Reasonableness Review?

A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here's some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court's denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.

Under Apprendi and related cases, the Sixth Amendment requires that juries (not judges) find all facts that increase defendants’ sentences (either the maximum or the minimum). Imagine, for example, that theft has a sentencing range of 0-10 and theft using a firearm has a range of 0-15. If a defendant is convicted of theft, can a judge find that the defendant used a firearm and impose 15? No. In Booker and related cases, the Court extended this principle to sentencing guidelines. So imagine that theft has a range of 0-15, but sentencing guidelines dictate a punishment of 10 unless the defendant used a firearm. The sentencing guideline would then operate just like the theft statute in the first example. It would set a ceiling that could be exceeded only if a judge found a fact—namely, that the defendant used a firearm. The solution adopted in Booker was to make the guidelines advisory, so that the Sixth Amendment ceiling in the last hypo would be set by the mandatory 0-15 statute, not by the advisory guideline. So far, so good.

The new frontier in this area has to do with reasonableness review. After Booker, the guidelines are advisory, but federal courts of appeals still review sentences for procedural and substantive reasonableness. In Rita v. United States, the Court gave some guidance about how to conduct this review, and Justice Scalia drafted an insightful concurrence that foresaw a problem to come. Scalia’s concern was that, as appellate courts established a jurisprudence of substantive reasonableness, the result would be a set of effective sentencing maxima. To adapt the earlier example, imagine that the statutory sentencing range for theft is 0-15 and that a court of appeals finds that a sentence of more than 10 is reasonable only if accompanied by a factual finding that the defendant used a firearm. The upshot would be that a sentence of 10 would have become the maximum possible sentence without any judicially found facts. Sentences over that amount would then violate the Sixth Amendment, even if a judge found that the defendant used a firearm.

The Court just denied cert in the first strong vehicle for review of this question, with Justice Scalia and two of his colleagues, Justices Thomas and Ginsburg, dissenting. (The fact that Justice Ginsburg joined the dissent is especially noteworthy, because she was the swing vote in favor of the Booker remedy and so is largely responsible for the current doctrine of substantive reasonableness review.) The constitutionality of post-Booker substantive reasonableness review is definitely an important question that the Court should eventually resolve. But I’m not so sure that the Court should extend Booker and find a violation in this context. My hesitancy stems from important functional differences between: (i) mandatory sentencing guidelines that are promulgated by legislatures or agencies and (ii) judicial precedents on substantive reasonableness review.

Consider the once-mandatory federal sentencing guidelines that prevailed before Booker. Under that system, Congress both enacted criminal statutes and exerted control over the U.S. Sentencing Commission that promulgated the guidelines. Because it had control over both statutory sentencing ranges and guidelines ranges, Congress could exert mandatory control over criminal punishments—at juries’ expense—by raising statutory maximums and then instructing the Commission to require additional judicial fact-finding pursuant to mandatory sentencing rules.  Clearly, Booker hasn’t prevented Congress from engaging in this behavior or from otherwise shifting fact-finding responsibilities away from juries and toward judges. Indeed, the Booker remedy—finding the guidelines advisory—was widely criticized for paradoxically empowering judges, not the juries actually mentioned in the Sixth Amendment. These critics had a point: How can Booker promote the right to jury trial, when it had no direct effect on jury fact-finding?

One possible answer is that Booker indirectly promoted jury fact-finding by reshaping long-term legislative incentives. After Booker, Congress can no longer increase its own control over sentencing outcomes by shifting fact-finding responsibility toward judges operating under mandatory guidelines. The mandatory guidelines, after all, are now unconstitutional. Instead, Congress can shift fact-finding away from juries and toward the sentencing phase only by empowering judges operating without mandatory guidelines. Put another way, Booker holds that the only way for Congress to establish mandatory sentencing rules is to shift fact-finding responsibility toward the trial, where juries find facts. Congress’s desire to control mandatory sentencing rules thus reinforces, and no longer undermines, its willingness to promote jury fact-finding. Booker might therefore be compared with other constitutional doctrines that (as Matthew Stephenson put it) “raise the costs to government decision-makers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible.”

This functional argument suggests that the Apprendi rule most forcefully applies to sentencing rules created by legislatures and agencies, and not to sentencing rules that are crafted by independent federal judges. The temptation to circumvent the jury arises when the same entity (or coordinated pair of entities) has control over both statutory sentencing ranges and mandatory sentencing rules. Congress had both types of control before Booker. But Congress can’t count on federal judges to impose the mandatory sentencing rules that Congress itself desires. Unlike the Sentencing Commission, the federal courts are independent of the political branches. And while Booker reasonableness review represents a gloss on a federal statute, the statutory gloss facilitates judicial discretion rather than curbing it. So if Congress legislates higher statutory sentencing ranges and writes up new guidelines, the federal courts are free to accept or reject those advisory results. Unless federal courts of appeals predictably fashion reasonableness rules in the manner that Congress desires, the legislature’s desire for mandatory sentencing rules would cut in favor of jury fact-finding, even if substantive reasonableness review flourished.

Admittedly, this last point places a lot of weight on federal judges' willingness to deviate from the advisory guidelines in ways that will frustrate Congress. And while evidence on post-Booker sentencing is mixed and complex, it's fair to say that the guidelines, while frequently set aside, are still taken seriously. To the extent that the guidelines are advisory-in-name-but-followed-in-fact, Congress still has some reason to circumvent the jury by shifting fact-finding to the sentencing phase. But the more direct solution to that problem would be to make clearer that sentencing courts can and often should deviate from the guidelines. What the independent judiciary does, after all, is within its own control. This is why Scalia's Rita concurrence was wrong to worry that "this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that Booker invalidated." Instead of blatantly deferring to Congress in that way, the Court can easily move in the opposite direction. For example, it could partially overrule Rita and prohibit the circuit courts from presuming that in-guideline sentences are reasonable. Given this and other potential solutions, it seems an overreaction to cure any residual form of legislative influence by taking Justice Scalia's advice and declaring each district court judge the final word on the substantive reasonableness of sentencing--a result that raises serious uniformity and fairness concerns.

Of course, the Supreme Court hasn’t quite articulated the functional argument outlined above, which is subject to a lot of questions and potential objections. Of particular note, any attempt to view Booker as directed specifically toward legislative incentives would have to address the history of the Sixth Amendment and how it bears on this question, particularly because the Court’s recent jurisprudence in this area has been so extensively grounded in originalism. But that will have to be a topic for another day.

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

Posted by Richard M. Re on October 27, 2014 at 12:33 AM in Constitutional thoughts | Permalink | Comments (6)

Saturday, October 25, 2014

The Ebola "Czar"

In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?

Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.

[cross posted at Bill of Health and Health Law Profs]

Posted by David Orentlicher on October 25, 2014 at 05:33 PM in Current Affairs, Law and Politics, Science, Travel | Permalink | Comments (1)

The "Oral Argument" Podcast

I realize that, for some, podcasts are very five years ago. But for those who still partake, one of my favorite legal podcasts is "Oral Argument," produced by (and starring) my friends (and University of Georgia School of Law Professors) Joe Miller and Christian Turner. Unfortunately, in this week's episode, they fell victim to one of the classic blunders: They had me as the guest. Among other things, we talked in detail about the minefield that is the availability of private remedies to challenge government action (see, e.g., Howard's post on the Eleventh Amendment). The catalyst of the discussion is the Armstrong case the Supreme Court is scheduled to hear during its upcoming Term (which, as I've previously written here, could be the real sleeper of the Term if the Court scales back the availabity of Ex parte Young relief).

This week's blip notwithstanding, the other episodes have been quite entertaining (and enlightening), at least for nerds like me...

Posted by Steve Vladeck on October 25, 2014 at 09:02 AM in Steve Vladeck | Permalink | Comments (0)

Friday, October 24, 2014

The Eleventh Amendment is a pain

This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.

Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.

Posted by Howard Wasserman on October 24, 2014 at 08:36 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

The push for quantity

Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).

1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.

2.  Publications are the coin of the realm. Most, even if not all, law schools use scholarship (defined relatively narrowly) as a central criterion for evaluation of law professors. This might be because the universities law schools are a part of consider scholarship to be the hallmark of an academic discipline and so put significant pressure on their law faculties to demonstrate that they are academics rather than practitioners. It might also be because U.S. News, by giving so much weight to faculty peer evaluation, creates an incentive for more scholarship. In addition, because the focus on scholarship and "productivity" have been part of law school culture for a fairly long period of time, law faculties take for granted the central importance of publishing--and tend to expect more and more of their newer colleagues as a matter of course.

3. Tenure has weird effects. The meaning and value of tenure is subject to serious debate right now, and I don't intend to make any value statements in this post. That said, job security of any kind is unusual in the U.S. system of employment, and so requires special justification to exist at all. Tenure is thought to be a way to protect academic freedom--the ability to say unpopular things--that helps ensure that as much data and full debate can happen as a way to contribute to knowledge. Scholarship is seen as the justification for tenure, and also, then, the consideration for tenure. And because it's the quid pro the quo of tenure, schools want to ensure that even after tenure, professors continue to contribute to knowledge through scholarship. What better way to predict future productivity than past productivity? It's kind of like content validity of employment testing--the best predictor of job performance is the chance to perform a sample of the job for a period. And because denying someone tenure means essentially firing them, and maybe ending their career at least as a teacher, no one wants there to be any question about whether tenure will be awarded. So, the pressure to demonstrate future productivity moves to the point of hire (or even before, ever earlier) to ensure no problems in achieving tenure later.

4. Quantity as equalizer. One of the commenters noted that it's easier to count than to evaluate quality, and this is especially true across disciplines. But that is not the only way that quantity is used as an equalizer. Hiring decisions are based on proxies for qualities schools think are valuable--merit badges, in the words of my friend Brannon Denning (as noted by John Nelson in this comment to a thread on the nontradition JD candidate). Traditional badges of merit have been the ranking of the law school one went to, class rank, membership on law review, clerking for a federal judge or possibly a state supreme court judge, and short experience in a big firm. They are almost literally stamps of approval by some other person who has judged the intelligence or abilities of  the candidate. Because of the system of student-edited law reviews (and the number of outlets for publication), those of us without those merit badges have the opportunity to make our own by engaging in the conduct that law faculties say they value. And that conduct is much more within our own control. That pushes those even with the merit badges to also engage in that conduct to remain competitive. It also gives a more diverse group of candidates access to opportunity. Finally, it allows law faculties to rely on what looks like a more objective measure of candidate quality.

5. Increasing requirements in faculty evaluation. Schools continue to increase the number of publications as a requirement for tenure. At one time, a single work in progress was enough in some schools for a person to be awarded tenure. Now, the expectation seems to be 1-2 articles published per year. And those expectations are being "codified" into tenure and review requirements.

6. Technology. This may sound trite, but it is simply so much easier to produce and disseminate our writing that we do it a lot more. The advent of the word processor spawned a revolution in the length and number of briefs filed in cases and the length and number of court opinions. It just became so much easier to draft and revise writing that writing proliferated. The ability to transmit that writing via the internet spawned another revolution. Access to readers and avenues for writing meant more of it.

Working all together, these create a lot of pressure to publish early and a lot.

Posted by Marcia L. McCormick on October 24, 2014 at 12:52 PM in Deliberation and voices, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (5)

"It is a book you will not be able to put down often enough."

I was not favorably impressed by Bruce Allen Murphy's recent biography of Antonin Scalia, Scalia: A Court of One. It was certainly a substantial labor, but in my view not a successful one as a matter of either substance or style. My review of the book is finally out in Commonweal. I note that Commonweal, which is currently celebrating its ninetieth birthday, is currently providing free access to the entire site for registered readers.

A number of people were struck by how favorably the book was treated in some early reviews by liberal writers, despite what I consider its highly evident flaws. (By no means all of of the liberally inclined reviewers praised it, to be sure.) It was also the target of enthusiastic evisceration by conservative writers, albeit there was much more basis for those criticisms. I suggest in the review that there are in fact two or three sound basic points in the book, but those points are not new. And

[w]hat’s new, alas, is not useful. Murphy['s book] is full of opinions and speculations. The opinions are conventional, the speculations tendentious. They’re easy to spot, at least: you know you’ve reached the end of the record and the beginning of fanciful speculation when the footnotes suddenly vanish. There are countless examples of overconfident speculations that quickly become treated as fact, and of downright questionable conclusions. 

I conclude:

Whether Scalia: A Court of One is good or bad, fair or not, has been largely irrelevant [to a number of early reviews and discussions]. What matters is the occasion the book provides for liberals to come together in gleeful disdain for their stock villain, or for conservatives to gather in joyful defense of their hero. They’ve relived the Scalia controversy rather than reviewing the book. An experienced judicial biographer, Murphy has chosen well and labored hard—but in vain. 

Enjoy. And be sure to read Justin Driver's excellent review of the book in The New Republic, whose "back of the book" continues to delight.  

Posted by Paul Horwitz on October 24, 2014 at 11:31 AM in Paul Horwitz | Permalink | Comments (0)

Con Law Offerings at AALS This Year

The panels in and around constitutional law at the upcoming AALS annual meeting are pretty impressive this year. Here's the AALS promo, with links to the panel descriptions and lineups. I was slightly involved in the Law and Religion program, which I think is extremely timely, has a great list of speakers, and will be well worth attending, for people interested in equality as well as those interested specifically in law and religion issues. And I look forward to catching the Fish-and-Posner Show. 

The AALS Annual Meeting includes many sessions exploring important topics of constitutional law, legislation, federal courts, federal regulation, politics, equality, interpretation and history. 
Here is a sampling of programs being presented: 

Posted by Paul Horwitz on October 24, 2014 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Writing, Fast and Slow

Zachary Kramer's thoughtful post, "The Slow Writing Movement," brings up a broader choice between two approaches to producing legal scholarship.   Fast versus slow.  Or what I think of as the Chicago style versus the Harvard style.  

The Chicago style is to pump out a bunch of articles every year.  When you get an idea for an article, whether big or small, you write it up.  The idea is to produce a steady stream of scholarship. Not every article will be a home run.  But among your articles enough will be a hit that you'll produce a major body of influential work.  I call this the Chicago style because it is most closely associated with the traditional faculty culture at the University of Chicago Law School.  

On the other hand, the Harvard style is to write less but bigger.  You focus on quality instead of quantity, not sending out an article unless and until you think it is the definitive statement about that area of law.  You won't win any productivity awards.  But what you send out should be a signficant statement -- if not a home run, at least a double or triple.  And by focusing your efforts on really big ideas, the thinking runs, you'll produce a major body of influential work.  I call this the Harvard style because I have heard it associated with the traditional faculty culture at Harvard Law School.  

These diferences partly reflect different assumptions about what advances knowledge.   The Chicago approach makes sense if you think authors are poor at predicting what ideas will take off.   Better to write up everything and let the audience of readers decide.  There's a risk that any one article may be a dud.  But then you miss all the shots you don't take.  By putting lots of ideas out there, the thinking runs, you're making the maximum contribution to the world of ideas.  

In contrast, the Harvard approach makes sense if you think that really big articles are the ones that change the terms of the debate.  A single profound work will change how people think more than a dozen less-developed pieces.  As a result, taking your time with one big piece is better than wasting your time on lots of smaller ideas.  By giving each article a long and sustained focus, the thinking runs, you're making the maximum contribution to the world of ideas.

My own sense is that neither approach is necessarily better.  It depends on the person.  Some professors hit on ideas relatively fully formed.  For them, sitting on an article over time would just be lazy. Other professors work best by mulling over ideas over time.  For them, putting out lots of articles quickly would mean sending out articles half-baked.   And a lot of us are a mix of the two.  Some articles come out quickly Chicago-style while others come out slowly Harvard-style.   (With that said, going back to my earlier post, my recommendation for first-year professors is the same: Even if you see yourself as a Harvard-style writer over the long run, there are good reasons to start out Chicago-style.)

Finally, I should clarify that the labels "Chicago style" and "Harvard style" more accurately reflect the faculty cultures at those two schools ten or twenty years ago than today.   Lateral moves and entry-level hiring have blended the categories over time.  In particular, Harvard crossed the streams when it hired away several Chicago style professors from Chicago. An obvious example is Cass Sunstein, perhaps the epitome of the Chicago style, who probably wrote a new article during the time you read this blog post.  

(Title with apologies to Daniel Kahneman.)

Posted by Orin Kerr on October 24, 2014 at 02:18 AM in Life of Law Schools | Permalink | Comments (8)

Thursday, October 23, 2014

More scholarly outlets?

Zak started a conversation and Bridget Crawford asks a follow-up: When did it become the case that one post-law school is not sufficient to make one a viable candidate and that 2-3 post-school pieces are the norm? One possibility (raised by Bridget and Glenn Cohen in the comments to Zak's post) is the rise of the VAP and the time and writing expectations it provides.

I want to connect it several changes in scholarly publishing (which may be complementary to the VAP explanation):

   1) There are more outlets for scholarship. Most schools have several journals and the number seems to be rising. The number of speciality journals has increased, including "law-and-policy" journals that publish the same type of public-law stuff that already plays well in general law reviews.

   2) The "typical" article is shorter than it was 10-15 years ago, prompted by the guidelines adopted by several of the t14 reviews. The typical piece is 15-20k words, as opposed to 25-30k. This means, I suppose, that you can write two articles in roughly the time you used to be able to write one.

   3) The rise of on-line supplements and similar outlets for shorter scholarship provides an incentive and opportunity to publish one big piece and one small piece in a year.

I am not looking at FAR forms this year, so I do not know if any of these explanations is empirically supported. But I do know that all 3 have affected how and what I write. So it makes sense that they also might affect what VAPs and others planning for the market do (especially if they are getting advice from people in roughly the same position as me).

Posted by Howard Wasserman on October 23, 2014 at 11:13 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Justice Clarence Thomas and Korematsu: The Sequel

I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.”  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 .   Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article.  http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/    Respectfully, I think Ilya is wrong.

First, Ilya and I actually agree on several things.  We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime.  Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not. 

Yet Justice Thomas in Hamdi wrote that:  “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.”  Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.”  Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous."  Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters.  I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position.  He is way out on a limb in finding this U.S. citizen has virtually no rights.  And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant.  Thomas also indicates that he believe courts should hesitate to intervene in such decisions.  All of these views are consistent with Korematsu.

Second, Ilya and I agree that Justice Thomas’ dissent in Johnson v. California is inconsistent with the Thomas view that the government must be color-blind.  Justice Thomas said that California could racially segregate prisoners at intake for security reasons.  Again as in Korematsu, for Thomas, security concerns trump color-blindness. 

Where Ilya and I part ways is on what inference can be drawn from these decisions, and from other statements that Justice Thomas has made.  I think Justice Thomas’s statements on executive power during wartime are consistent with the Korematsu decision, in that his easy acceptance of asserted national security concerns (his Hamdi dissent), and his judicial caution when security is at stake, trump his normally passionate commitment to color-blindness (his Johnson dissent).  Ilya think this is a stretch for several reasons.

Ilya initially has a dilemma because in the Fisher v. Texas affirmative action, Justice Thomas cites to Korematsu as supporting the forcible relocation of Japanese-Americans on the west coast even under strict scrutiny.  Thomas in Fisher said that Korematsu found the internment “had a definite and close relationship to the prevention of espionage and sabotage.”  But Ilya then says that Justice Thomas is only “summarizing” Korematsu without necessarily approving it (despite Thomas’s recitation of the facts).  This is odd.  For example, at the end of his essay Ilya says that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus.”  By that logic, one would suspect Justice Thomas cited Korematsu approvingly in Fisher.  Thomas could have cited other cases.  The citation by Thomas is even more troubling because, as Ilya admits, the Court in Korematsu did not really use strict scrutiny.    

Second, Ilya says that Hamdi is distinguishable from Korematsu because the President declared Hamdi to be an enemy combatant whereas the “Japanese Americans interned during World War II were not in prison, and had never been convicted of any crime or even charged with one.”  Respectfully, I think Ilya has it backwards.  The alleged grave national security concerns asserted by American military leaders and by the President regarding Japanese-American loyalty on the west coast, and regarding the supposed danger of invasion, would have likely created far greater national security worries for Justice Thomas than a single enemy combatant.  Moreover, Thomas’s views in Johnson show his deference to allowing prison officials to take race into account, yet how can one suggest the Japanese-American internment camps were not the essential equivalent of prisons. 

Third, Justice Thomas curiously omits mentioning Korematsu in Hamdi despite Korematsu’s obvious relevance, though Justice Thomas cites other World War II cases favoring executive power.  This raises the question of what is to be gained by the omission.  One answer is that Justice Thomas can avoid stating his view of the case.  Fourth, Ilya indicates one of his objections to Korematsu is that the government provided false information.  I agree with him here.  Yet Justice Thomas has apparently never written a sentence (despite numerous chances) expressing this concern about Korematsu, and Thomas also ignored the possibility that the government lied about Hamdi’s supposed dangerousness since Hamdi was released so quickly.  Thomas’s Hamdan dissent for example says nothing of the Hamdi release.  Once again, a la Korematsu, Justice Thomas does not generally question military decision-making.   

Ilya correctly points out that John Yoo has criticized Korematsu.  That’s a good thing.  It would be great if Justice Thomas did the same, but Justice Thomas instead continues to treat the case like standard equal protection material.  Overall, the evidence shows that Justice Thomas’s wartime, and security focused, jurisprudence is well in line with the majority’s approach in Korematsu.  


Posted by Mark kende on October 23, 2014 at 07:10 PM in Constitutional thoughts | Permalink | Comments (1)

The Slow Writing Movement

Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.

In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.

Slow down.

I tend to think that, as a general matter, we write too much, too quickly. Sure, there are execeptions, freaky people who pound out amazing stuff at an intimidating pace. But I've always admired the folks who take their time a little, who publish more like every other year. These folks tend to workshop the junk out of their stuff. They road test, reflect, restructure, rewrite.

One impact of VAPs on entry-level hiring is that new professors come to schools with writing habits/tendencies already built in. I have always felt that I am more a scholarly creature of my VAP than my home institution. My mentors during my VAP years pushed quality over quantity. Quality and quantity aren't mutually exclusive. But there's something to be said for beating the crap out of a paper before publishing it.

There are other factors at work here, to be sure. Sometimes tenure policies specify a certain amount of output. Other times there are social norms that dictate a specific level of productivity. Tenure matters, and you have to do what it takes to get tenure. But if there is wiggle room, slow down.

Rather than cranking to submit in your first year, another option is to write and reach out. Orin is correct that faculties value productivity. But only when it's good. Rather than impress your colleagues with your speed, make your paper the absolute best it can be. Engage your colleagues, ask for advice, get their feedback on what you've done.

For the slow writing movement to take hold, however, faculties have to be on board. If newly-hired faculty members don't submit a paper in their first year, rather than whisper behind their backs about productivity, take them to lunch. Engagement is a two-way street.

Posted by Zachary Kramer on October 23, 2014 at 03:49 PM in Life of Law Schools, Teaching Law | Permalink | Comments (7)

On Being Sued, 2

Man kills puppies, allegedly.

In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.

Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.

At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.

The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.

Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.

I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.

While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.

More to come.

Posted by Zachary Kramer on October 23, 2014 at 12:47 AM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink | Comments (4)

Wednesday, October 22, 2014

Doubts About Jurisdictional Doubts in Dart

Could there be outside-the-box solutions to the jurisdictional puzzle in Dart Cherokee Basin Operating Company, LLC v. Owens? I recently chatted about this topic with Akhil Amar, one of the five people still interested in it. If you are people three to five, then this is the post for you.

I’ve already done two posts on Dart, but here’s another, more detailed statement of the relevant jurisdictional issue. The district court in Dart remanded a removed case back to state court. The defendant unsuccessfully sought discretionary review in the Tenth Circuit and then obtained cert. The Supreme Court's certiorari statute (28 U.S.C. § 1254) provides in part that “[c]ases in the courts of appeals may be reviewed by the Supreme Court” via certiorari. Was Dart a case “in the courts of appeals”? In one sense, the answer is clearly yes. The Class Action Fairness Act (28 U.S.C. § 1453(c)(1)) provides for discretionary appellate review, and the defendant had sought such review. So there was clearly a case in the court of appeals. But, according to amicus curiae Public Citizen, the case in the court of appeals concerned only the question of discretionary appellate review—not the removal issue resolved in the district court. Because the court of appeals summarily denied review, Public Citizen argues, the removal issue never made it “in” the court of appeals. To overcome that problem, the Supreme Court would apparently have to hold that the Tenth Circuit’s denial was legal error and, therefore, that the removal issue was “in” the court of appeals as a matter of law. That’s a tall order, since the Tenth Circuit seems to have ample discretion and gave no reasons for its decision.

In my chat with Akhil, he suggested that deep constitutional principles should inform the scope of the Supreme Court’s appellate jurisdiction, including its statutory certiorari jurisdiction under 28 U.S.C. § 1254. Let me outline the basic argument and how it would apply to Dart. Article III creates “one Supreme Court” which, by default, has appellate jurisdiction over listed categories of cases. That structure seems to create a constitutional default rule in favor of Supreme Court appellate review over the listed categories, including diversity cases. Congress must act in order to overcome the constitutional default in favor of appellate jurisdiction. In particular, the Constitution’s allocation of appellate jurisdiction to the Court allows for “such exceptions ... as the Congress shall make.” In Akhil's view, Congress's power to make "exceptions" to the constitutional default rule suggests that a clear statement rule should apply in this area. That is, in reading the relevant jurisdictional statutes, Court should err on the side of finding that it has appellate jurisdiction. This also makes structural sense, since it helps situate the "one Supreme Court" in a supervisory role within the judicial branch.

Based on this analysis, the key question in Dart is whether Congress has enacted a statute that clearly divests the Supreme Court of appellate jurisdiction over the district court's decision. The strongest candidate for divestment—and the one that Public Citizen emphasizes—is 28 U.S.C. § 1447(d). On its face, the text of § 1447(d) looks pretty absolute: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” Based on this text—particularly the words “... or otherwise”—Public Citizen plausibly argued that compliance with CAFA’s provision for discretionary appellate review is the only way of getting the district court’s statutory merits holding within the Supreme Court’s appellate jurisdiction. And, based on analogies to Hohn v. United States and other AEDPA cases involving certificates of appeal, Public Citizen further argued that a discretionary appeal must be accepted for the district court's decision to be "in" the court of appeals at the time of cert.

But that approach may be too quick, at least if we assume a constitutional presumption in favor of appellate review. For one thing, CAFA’s discretionary review provision states that “Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court ....” But whether a court of appeals has "accept[ed] an appeal" does not necessarily determine whether or what appeal is "in" the court of appeals for purposes of certiorari jurisdiction. Consider, for example, the possibility that the Court had jurisdiction to grant cert before judgment as to the merits before the court of appeals ruled on the request for appeal. CAFA seems ambiguous on this point, which suggests that the entire appeal--including the merits--may have been "in" the Tenth Circuit from the moment that the defendant first filed there. (Justice Breyer made a similar point on page 49 of the oral argument transcript.) For another thing, the Court has blurred even § 1447(d)'s apparent absolutism, including by allowing appellate review where a district court's remand was “expressly based on the District Court’s crowded docket” (quoting Kircher v. Putnam Funds Trust (2006)) or on “discretionary choice not to hear the claims” (quoting Carlsbad Technology, Inc. v. HIF Bio, Inc. (2009))--the very sorts of reasons that may have animated the Tenth Circuit's appeal denial in Dart.

Alternatively, a constitutional presumption in favor of appellate review may support avenues of review apart from the certiorari statute. A few years ago, Jim Pfander argued that § 1447(d) is best understood to prohibit only review by courts of appeals, not by the Supreme Court. On this view, “the restriction in § 1447(d) was aimed at review conducted by the intermediate courts of appeals and did not affect the Supreme Court’s all-writs authority.” Based in part on Ex Parte Yerger’s constitutionally inflected “presumption against implied repeals of supervisory authority” and on the history of removal statutes and practice, Jim concluded that the Court can and should sidestep § 1447(d), invoke its supervisory authority over district courts, and issue discretionary common law mandamus writs to review remand decisions. If you’ve read this far, you should probably check out Jim's paper, “Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court," for yourself. (Also available here.) You might also review footnote 6 in Public Citizen's brief, which tries to head-off Jim's general approach based on § 1447(d).

In sum, a constitutionally grounded presumption in favor of Supreme Court appellate jurisdiction might have an important role to play in Dart.

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

Posted by Richard M. Re on October 22, 2014 at 01:39 PM | Permalink | Comments (2)

Tuesday, October 21, 2014

Another voice on classroom technology

From Clay Shirky, a professor media studies at NYU. I especially appreciate the point that student distraction by technology is a biological inevitably; as he writes, "[h]umans are incapable of ignoring surprising new information in our visual field, an effect that is strongest when the visual cue is slightly above and beside the area we’re focusing on." This is important on two levels--one personal, one professial First, it gives lie to the "if you'd be more interesting in the classroom, they'd pay more attention" trope. Second, I can use it to explain to my wife why my eyes always move to watch sports on a tv screen in a restaurant.

Posted by Howard Wasserman on October 21, 2014 at 03:47 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Subject matter jurisdiction crossword

From Spencer Weber Waller (Loyola-Chicago): The Subject Matter Jurisdiction crossword puzzle.

The answer to 12-Down is "thetutor" (Spencer's TA); the answer to 15-Down is "Locke" (that section's torts professor). New York Times rules apply, so an answer can be more than one word. Have at it.

Posted by Howard Wasserman on October 21, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tips for First-Year Law Professors

I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching.  Everyone has a different perspective, of course, and  if I go astray, I hope others will respond in the comment thread.  But if this is your first year of tenure-track law teaching, here are some tips you might consider:

1.  Send out an article in the spring submission window of your first year.   When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar.  Now they're watching you to see if their bet was correct.  Prove them right by sending out an article in the spring of your first year.   You'll benefit in lots of ways.  First, your colleagues will be very pleased to see you off to a good start.  Second, tenure will look (and be) so much easier with a new article already under your belt.  And third, it will get you into the habit of sending out an article in the spring submission window.  My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.

2.  Invite your senior colleagues out to lunch.   Your senior colleagues can be a tremendously useful source of wisdom and insight for you.  They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined.  Plus, some of them are even really nice people.  (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops.   Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're  particularly prominent scholars -- and invite them each to lunch.    Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can. 

3.  Don't assign too much reading.   It's common for new law professors to assign a lot of reading for class.  In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way.  And in many cases, more reading means more students unprepared for class.  I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark.  If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester.  Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.

4. Lay low in faculty meetings, with one possible exception.  New profs usually don't know of any long-running tensions on the faculty.  If you're lucky, the tensions will be very minor.  Still, it's best to stay away from fault lines if you can, especially before your tenure vote.  Given that, you should plan to stay out of any particularly contentious faculty debates that might come up your first year.  Go to faculty meetings and pay close attention, but mostly stay out of controversies for now.  A possible exception is entry-level appointments. Having just been through the appointments process yourself, you're particularly well-suited to weigh in on entry-level hires. You may know the candidates personally, and as a peer you'll be familiar with their accomplishments in a way that more senior faculty won't be.  So consider weighing in on entry-level appointments as your one area of participation. 

5. Consider guest-blogging, at least at some point.  This advice is probably more for second-year or third-year professors than first-year professors.  But relatively early in your academic career, consider guest-blogging for a month at a general-law-blog site like Prawfs.  Ideally, write a handful of posts connecting your scholarly work and scholarly interests to some news story or issue of interest to the broader readership.   This is a great way for your work to come to the attention of other law professors.  Sites like Prawfs are widely read by legal academics, especially among more junior scholars.  A few blog posts introducing your work is an effective and relatively easy way to promote your work within the academy.  

Posted by Orin Kerr on October 21, 2014 at 02:25 AM in Life of Law Schools, Teaching Law | Permalink | Comments (14)

Supreme Retirements and the Habit of Politics

There's been a lot of debate over the past year or so about whether Justices Ginsburg and Breyer should or will retire in order to maximize the chances that President Obama will be able to name their successors. In an effort to put out this fire, Justice Ginsburg recently fed the flame by asserting that “If I resign anytime this year,” the President “could not successfully appoint anyone I would like to see in the Court.” Jeffrey Toobin asked the President about this, and he responded with a measure of skepticism, while conceding: "Life tenure means she gets to decide, not anybody else, when she chooses to go.”  Underlying these events is an important question: should supposedly neutral Justices time their retirement decisions based on what seems like political strategy?

Consider a few recent instances when Justices have commented on the timing of their retirement decisions.

  • Justice Souter was asked back in 2009 whether he'd have retired if Senator McCain had won the presidency. Souter's reply began: "Probably so."
  • Justice Scalia was asked in a 2012 interview, "Will you time your retirement so that a more conservative president can appoint a like-minded justice?" Scalia initially said "I don't know," but, when pressed, later said: "I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years ...."
  • When Justice Stevens was interviewed about retirements in January, he was emphatic that his retirement wasn't the product of timing: "My decision wasn't made for any political reason whatsoever ...." But, when asked if it was "appropriate" for a Justice to consider politics, Stevens said yes, noting: "You're interested in the job and the kind of work that's done, you have to have an interest in who's going to fill your shoes."
  • In addition to her public comments noted earlier (and many others), Justice Ginsburg has repeatedly said that she will retain her post "as long as I can do the job full steam," regardless of who controls the Senate. Those remarks are obviously in tension with Justice Ginsburg's more recent assertions about the confirmability of people that Ginsburg herself "would like to see on the Court."

There are a couple interesting patterns here. First, no Justice seems eager to trumpet political calculations as the basis for timing her retirement. Rather, the Justices express interest in political assessments only responsively, and typically only when pressed. Second, and in some tension with the first point, all of these Justices ultimately accept or acknowledge that political calculations are relevant. What can explain this?

One conventional answer starts with the idea that politics is only contingently relevant to retirement decisions. On this view, what really matters is that each Justice wants a successor who will share her ideological vision and continue it. It just so happens that one political party or another is more likely to appoint a successor with the desired ideology. Yet this contingent relationship between ideology and politics is fraught, since it can easily be mistaken for out-and-out partisanship. And, when it comes to the government in general and the judiciary in particular, appearances of impropriety can matter as much as realities. On this view, the Justices might be striving for a kind of acoustic separation, in that they want to reveal part of their True Thinking to part of the population, while preserving the overall appearance of non-partisanship. Justice Ginsburg's recent comments may be causing that acoustic separation to break down, however, in that her highly publicized remarks make clear that political calculations are at work here.

Should the Justices time their retirements based on their expected successor and, if so, should they publicly explain that intention? I confess that I am torn on this point. On the one hand, if the Justices are really thinking about political calculations, and if it is truly naive to expect anything else from them, then it would probably be better for the Justices to be open about that. Doing so might prompt a political response, such as a movement toward judicial term limits. Or perhaps it wouldn't, and the public would be just as happy to let things go along as they have--with each Justice quietly timing her retirement in order to advance the goals of one party or another, but only as a means for promoting particular visions of the law. Either way, the people would be better able to make an informed choice about how things actually work at the Court. On this view, Justice Ginsburg has recently done a great service in drawing attention to what seems like a widespread (though perhaps not universal) pattern of thinking on the Court.

On the other hand, it is hard to mark the boundary between contingently thinking in political terms and just thinking in political terms. This applies both to the Justices and to the public. Every time that Justice Ginsburg thinks about who can and can't get nominated and confirmed, she gets a little more used to thinking of President Obama as her friend and the Senate Republicans as her adversaries. And every time that Justice Ginsburg says those thoughts in public, members of the public get used to thinking of Justice Ginsburg as having that partisan orientation. It is hard work to remind yourself: "This partisan alliance is only contingent." The tendency of mental habits to influence conscious decision-making has prompted some judges  to avoid partisan thinking even when acting in their private capacities. Justice Harlan, for instance, is reported to have stopped voting in elections after becoming a judge: "It was wrong, he thought, for a member of the Supreme Court to think of himself as a Democrat or Republican, even for the minute it took to cast a ballot.”

Justice Harlan's extreme approach to judicial neutrality points toward another, perhaps less conventional way to understand the Justices' retirement decisions. Each Justice could view her seat as not her own in any sense, but only the people's. On that view, each Justice should, in her official capacity, be prepared to accept any replacement whom the people constitutionally select.  After all, each Justice holds her own seat only due to that very constitutional process. Respect for one's successor is like respect for one's colleagues, who likewise have constitutional authority because of the confirmation process. This approach wouldn't entirely preclude timing considerations. For example, a Justice could still avoid retiring at a time of war, election, or other crisis. But it would rule out considerations about who would be selected, which quickly blur into raw politics. Justice Ginsburg seemed to be channeling this conception when she emphasized her desire to work "as long as I can do the job full steam," regardless of what that would mean for her eventual successor.

In outlining this alternative conception of judicial retirement, I may have exposed my own naiveté. The Justices are of course flesh and blood people who are partly the product of politics, and it would be a mistake to assume otherwise. But I still suspect that many people would be surprised--and sorry--to find out that my possibly naive conception is so contrary to actual practice.

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

Posted by Richard M. Re on October 21, 2014 at 01:41 AM | Permalink | Comments (11)

Monday, October 20, 2014

Misunderstanding Rule 11

Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.

First, FRCP 11(b)(1) only prohibits actions done for the purpose of causing delay or expense. It is surely a legitimate purpose for government to obtain a definitive and binding Supreme Court ruling on an issue of constitutional import.

Second, since SCOTUS has not spoken on the issue, it cannot be said that Arizona's constitutional arguments, even if a clear loser in the Ninth Circuit, are frivolous before SCOTUS. As Josh points out, neither SCOTUS's undoing of stays or cert. denials are binding precedent. And the state always can pose an argument for "modifying, or reversing existing law," perhaps by seeking en banc Ninth Circuit review. Or the state can skip unfriendly Ninth Circuit law by seeking cert before the court of appeals judgment. But any of those options requires that the state first defend and appeal to the Ninth Circuit. Surely FRCP 11 cannot be read to cut-off such litigation strategies.

Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?

Posted by Howard Wasserman on October 20, 2014 at 06:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Whose job is it, FRE edition

I finally got around to reading the argument in Warger v. Schauers, dealing with whether FRE 606(b) prohibits inquiry into jury deliberations in trying to show that a juror was untruthful during voir dire. During the argument, counsel for respondent (the defendant, who won at trial) repeatedly argued that, if the Court believes it would be better to allow juror testimony on such claims, then it is a job for Congress to change the rule. Counsel repeated this point several times, always mentioning Congress as the source of any change.

But it is not Congress's job, at least not primarily--it is the Court's job, under the Rules Enabling Act. It is true that the original 606(b) from 1973 (it was amended once, in 2006) was affirmatively enacted by Congress as part of the original Federal Rules of Evidence. But since then, changes to the FRE follow the same procedure as changes to the FRCP or FRCrP, with the advisory committees and the Court taking the lead and Congress merely exercising a power to disapprove a submitted rule. And while Congress can always amend the rules through ordinary legislation, that is not the primary or presumptive way to make a change. When litigants talk about the meaning of the FRCP or the need for amendment, it is always discussed primarily in terms of the Court and the committees. I am wondering why it should be different with the FRE.

Posted by Howard Wasserman on October 20, 2014 at 01:56 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Parents and the Privacy of Their Children

In a fascinating article about her son’s relationship with Siri in yesterday’s New York Times, Judith Newman does a terrific job illustrating some key benefits of artificial intelligence. Newman observes how Siri has infinite patience for lengthy and detailed discussions of her autistic son’s obsessions, how it forces him to enunciate clearly if he wants to elicit an answer, and how their interactions improve his communication and social skills. Very exciting stuff.

While I enjoyed learning about Siri's impact on Newman's son, the article also reminded me that when writers take us into the privacy of their families’ lives, we may learn more than we should. Millions of other readers and I now know very intimate details about Newman’s son. We know what he likes to discuss.  We know which social skills he lacks.  We learn about his speech skills.

In this case, Newman may have drawn the right balance. From her description of her son, it sounds like his autism is obvious to people who meet him, so it’s not as if she disclosed a medical condition, such as HIV infection or diabetes, that otherwise would not be detected by others. And her son may be very proud of his role in teaching so many people how technology can influence the lives of people with autism.

But other revelations about children are more problematic. In many cases, it seems difficult to justify the intrusions into the privacy of their children’s lives by author-parents. Often, the writings may serve many purposes but not the interests of the children they depict. At a time when government, corporations, and other outsiders are too quick to invade the privacy of children, one would expect parents to be more careful about doing so themselves.

Posted by David Orentlicher on October 20, 2014 at 12:58 PM in Article Spotlight, Information and Technology | Permalink | Comments (0)

Law School Hiring, 2014-2015, Thread Two

Please leave comments on this thread regarding whether you have received:

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

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

Five miscellaneous things:

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

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

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

4. The year's first hiring thread is here. Comments to that thread are now closed.

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

Update: We once again have an aggregator! Below is the spreadsheet, which you can view and download here.

All information should come in through the comments. Our aggregator will use the spreadsheet to aggregate the information.  Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.

The aggregator will update the spreadsheet approximately once a week.

You can reach the aggregator at aalsaggregator (at) gmail (dot) com.

 A link to the last page of comments is here.


Posted by Sarah Lawsky on October 20, 2014 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (224)

Sunday, October 19, 2014

An Op-Ed on Alabama's Amendment One

Here's an op-ed from the local paper, the Tuscaloosa News, discussing a state constitutional amendment that is on the Alabama ballot next month. That amendment, which bars the application or enforcement of "foreign" law (including religious law, and indeed the history of this provision suggests it is just a next-gen anti-Sharia law) in highly limited circumstances--circumstances that I argue are already covered by current law, rendering this law redundant at best--can be found here. More background on the amendment can be found at Ballotpedia. Comments are welcome, and more detailed inquiries via email are also welcome. Enjoy. Here's the opening paragraph:

Normally, when legislatures do foolish things, at least they do them on their own. But sometimes they ask for our help in being foolish. Alabama's Legislature has done so this year by putting Amendment One on the ballot in this November's election. We should decline the invitation.

Posted by Paul Horwitz on October 19, 2014 at 02:09 PM in Paul Horwitz | Permalink | Comments (0)

Audio at Oyez

Does anyone know why Oyez no longer offers audio of SCOTUS arguments with the transcript embedded into the audio (Compare this audio from last term with one from this term)? It was a great feature that made reviewing arguments easier and more engaging. True, you get the same effect by reading the transcript while listening to the recording. But I am curious why the site has stopped using a truly unique and beneficial feature.

Posted by Howard Wasserman on October 19, 2014 at 10:31 AM in Howard Wasserman | Permalink | Comments (2)

Saturday, October 18, 2014

Chairing, Hiring but Not Attending FRC

This year at USD law school I am chairing our appointments committee and we are focusing on hiring an environmental and/or energy law candidate, whether entry-level or lateral who will assume institutional leadership in the field given that we have a program, concentration, journal and an Energy Policy Initiatives Center (EPIC). We decided to not send a team this weekend to DC. Given our focused search, we believe we can identify the best candidates through the FAR forms, speaking to references, to the candidates over the phone/skype and reading their scholarship. I heard some other schools are following this pattern of skipping DC and our guru Paul Horwitz suggested I post something about this trend. It seems to have been working rather well on our end though it is always nice to have the opportunity to meet two dozen wonderful new scholars in a condensed period of time.


Posted by Orly Lobel on October 18, 2014 at 07:22 PM | Permalink | Comments (4)

Friday, October 17, 2014

Religious accommodations and legal pluralism

In this piece, ("Religious accommodation's roots in legal pluralism"), Columbia's Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme."  She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."

Now, for me -- unlike Katherine, it seems -- to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment!  (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new bookThe Structure of Pluralism.)  But, put that general matter aside:  Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I don't think that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority."  In practice, and in most of the arguments for religious accommodation, it seems to me, the conversations and litigation happen in terms of interest-balancing, toleration, benevolence, getting-along, etc.  

It is true that -- for some of us, anyway --  the idea that the state's authority is both bounded and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception and decisions like Kedroff (more on that here).  But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.  

We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control.  But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should.   It seems to me that there is nothing -- to borrow Katherine's word -- particularly "radical" about that.

Posted by Rick Garnett on October 17, 2014 at 03:31 PM in Religion, Rick Garnett | Permalink | Comments (0)

Egg Freezing and Women's Decision Making

The announcement by Apple and Facebook that they will cover the costs of egg freezing predictably provoked some controversy—predictably because it involves reproduction and also because too many people do not trust women to make reproductive decisions.

Interestingly, the challenge to women’s autonomy can come from both sides of the political spectrum, as has happened with several assisted reproductive technologies. Scholars on the left criticized surrogate motherhood on the ground that surrogates were exploited by the couple intending to raise the child, and other new reproductive technologies are criticized on the grounds that women will feel obligated to use them rather than free to use them. Indeed, this concern about coercion drives some of the objections to egg freezing.

Some women freeze their eggs because they face infertility from cancer chemotherapy; other women may not have found a life partner and want to suspend their biological clock until that time comes.

But some observers worry that with the option of egg freezing, some women will succumb to the pressures of the workplace and choose egg freezing not because they really want to but because they feel that have to. After all, if a woman can delay procreation and put in long hours at the office, why shouldn’t she do so? Employers might think that women who forgo egg freezing are not really committed to their jobs.

These concerns are legitimate, but are people too willing to invoke them? Egg freezing is not a simple procedure, nor is its success a certainty. Even if covered by insurance, women are not likely to choose egg freezing lightly. We should worry that egg freezing critics may be too ready to question the decision making capacity of women contemplating their reproductive choices.

[cross-posted at Bill of Health and Health Law Profs

Posted by David Orentlicher on October 17, 2014 at 02:51 PM in Culture, Current Affairs, Science | Permalink | Comments (4)

Giving reasons

Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.

The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.

Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.

Posted by Howard Wasserman on October 17, 2014 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Should Lower Courts Facilitate Supreme Court Review?

Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?

Here’s some background (see also here). In Dart, a district court issued a statutory holding, and a court of appeals summarily denied discretionary appellate review. The Supreme Court then granted cert in the hope of reviewing the statutory merits. But the Court arguably has jurisdiction only over the circuit court’s discretionary decision to deny appellate review--and that decision was issued summarily, without any reasoning. The court of appeals has thus created a hurdle to Supreme Court review of the underlying merits issue. During oral argument, several Justices worried that the underlying merits issue might persistently evade higher review.

The point came up most pointedly when Justice Kagan suggested that, in dismissing Dart, the Court might give the circuit judges a kind of helpful hint: “[I]f and to the extent that the Tenth Circuit wants in the next case to make a decision on the merits, and if and to the extent that the Tenth Circuit wants in the next case to make a decision on the merits when it denies an appeal, it should say so, so as not to insulate that decision from review.” The emphasis in that last sentence is of course mine, but Justice Kagan herself soon underlined the point: “That seems like a fair thing to say to the Tenth Circuit. Don't insulate your merits decisions from review.” In other words, circuit courts should err on the side of creating a clean vehicle for cert. This purported responsibility to facilitate review would cut against “cert proofing"--that is, efforts by some (not all) lower courts to insulate their rulings from higher-court review, such as by obscuring the legal basis of decision or adding alternative grounds.

Facilitated review seems like an idea that any Justice should love, as it would allow the Court to waste less time DIG’ing cases (as might happen in Dart) and waiting for clean vehicles. As a result, the Court could establish nationwide rules more often and more quickly. Even the quality of the Court’s decisions might improve. With the benefit of lower-court facilitation, the Justices would have more resources to focus on the merits, a clearer idea of just what was decided below, and more thorough reasoning to consider. This way of thinking may help explain the Court's occasional practice, prominently opposed by Justice Scalia, of GVR'ing simply for purposes of clarification, without finding a merits error: if there is a general duty to facilitate review, then an obscure decision could in itself be viewed as a kind of error warranting reversal.

In other contexts, Court has responded to the threat of cert-proofing by adopting doctrines that arguably assume a duty of facilitated review. Perhaps the most salient example is Michigan v. Long, which adopted a plain statement rule: only clear reliance on an adequate and independent state-law ground can insulate a state-court decision from Supreme Court review of a federal question. If applied in Dart, similar reasoning might support a presumption that the court of appeals relied on the district court's statutory grounds, rather than its own discretionary choices. Alternatively, the Court could look to qualified immunity doctrine and Camreta v. Greene, where the Court (per Justice Kagan) heard an appeal from a party who both disputed the circuit court's merits ruling and prevailed in the circuit court. In the Camreta Court's view, the normal rule against hearing prevailing parties had to be altered in the qualified immunity context, for otherwise the day for merits review "may never come."

Still, there’s cause to think twice about facilitated review. Things that prevent or greatly delay the Court’s consideration of recurring issues tend to be systemic, not idiosyncratic—and systemic factors are curbed in many ways. In the Dart argument, Justice Kagan herself made a similar point. It was "a little extreme to say" that the district court's merits ruling "may never be corrected," Justice Kagan suggested. The relevant circuit has new judges beyond the eight who denied review, and "[m]aybe even those eight will think twice about it the next time around.” That line of reasoning suggests that the circuit court in Dart actually had good reason to rule summarily: taking the long view, not much would be lost by frustrating Supreme Court review in this one case. What's more, the summary decision in Dart arguably showcases the virtue of minimalism, as the circuit court was able to act quickly without making new law. If the circuit court had had to explain itself, it would have made more law, which (to avoid error) would have called for the expenditure of additional resources. So at least some vaunted principles of judicial decision-making actually counsel in favor of precisely what the circuit court did.

Perhaps the duty of facilitated review is just another example of the recurring tension between the Supreme Court's role as a traditional court deciding one case at a time and its more modern role as the operational manager of a vast judicial system crying out for guidance. Yet the duty of facilitated review is noteworthy in at least this way: it would be an example of the Supreme Court not only changing the way that it decides cases for itself, but also asking lower courts to change the way they conduct their own affairs.

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

Posted by Richard M. Re on October 17, 2014 at 02:42 AM | Permalink | Comments (1)

Thursday, October 16, 2014

Number of Schools at AALS FRC Over Time

Schools at FRC.20141016


In 2012, there were 142 AALS member or approved schools at the FRC.

In 2013, 94 schools.

In 2014, 81 schools.

(Say +/- 2 for each year due to vagaries of counting.)

Posted by Sarah Lawsky on October 16, 2014 at 10:49 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (4)

In praise of being a white belt

My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.

1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?

Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.

Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in.  In beginner-ness is there is no shame, and only potential.  

2. Practice makes you better, and practice involves failure.

As a beginner, your job is to try something you never have before or do something in a new way. You will fail in some way. But you will learn from the way that you failed and will try something different the next time. And that time, you will fail in a new way. And the process will continue.

Performance of some skill can really only be learned this way, through demonstration, attempts, failures, analysis of the failures, and new attempts. Learning how to be a lawyer is learning to perform a set of skills. Because many people come to law school thinking that they will be only gaining knowledge, i.e. memorizing rules, they aren't prepared for this reality. They don't always realize that they are learning how to perform or how to show they are engaging in the right process. And we are not always clear that the process is what we are teaching them.

3. Perseverence. Being successful means continuing to try and learning from those failures. It sucks to fail in new and exotic ways. But working through that is necessary not just to succeed in law school but to succeed in practice, too. As we are frequently reminded Grit Trumps Talent and IQ when it comes to success.

4. Perspective. In school and in practice, unlike tae kwon do, people aren't always trying to kick you in the head, at least not literally. But even when they are, you've got your equipment and learned how to evade and block those kicks. In addition, you can learn to live with a little bit of anxiety, learn to accept that for what it is and not let it paralyze you. Finally, I have lots of bruises from all of those kicks, bruises that I cover up with long sleeves and pants, so people can't see them. This helps me remember that everybody has bruises that don't show. Some of them are literal, and some are emotional. I have to be careful to recognize the potential of these bruises in my interactions with students, dealing with difficult topics in the law or aspects of their performance in school.

5. It is awesome to kick stuff and break things when you read, talk, and think for a living. Need I say more?

Posted by Marcia L. McCormick on October 16, 2014 at 11:42 AM in Life of Law Schools, Sports, Teaching Law | Permalink | Comments (2)

Does Teaching Torts Warp Your Brain?

Maybe something just happens after 10+ years of teaching Torts.  Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.

Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps).  There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?  

Or consider a simple object encountered in daily life - say, a pencil.  The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).

The three D's for a Torts Teacher are certainly not Discipline, Dedication, and Determination.  They are Death, Dismemberment, and (Permanent) Disability.

Maybe this isn't unique to my favorite first-year subject.  Maybe Evidence teachers reject new science stories not adequately supported by peer review.  Maybe labor law professors like Joe Slater Al Snow spend their days pondering whether, were they only in a union, they could file a grievance over some joke lobbed in their direction at the water cooler (bugged or otherwise).

Personally, the biggest effect of teaching Torts on my thinking arose after I became a parent.  Baby walkers?  Absolutely not.  Keeping toddler in a carseat after exceeding its recommended weight? Misuse!  Preschooler riding inside the shopping cart?  Not on my watch. Product recalls?  Reasonably, nay - vigilently!, monitored.  In fact, this laptop just got recalled so I need to sign off right now.


Posted by Geoffrey Rapp on October 16, 2014 at 10:04 AM in Blogging, Current Affairs, Life of Law Schools, Torts | Permalink | Comments (2)