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Thursday, April 30, 2015

The Perceived Value of a Law Degree

One of the topics for the mini-symposia is what the future holds for law schools. This led me to think about how law schools communicate to the public that a law degree is still useful

There has been a lot of discussion about the changing nature of legal education. Responding to studies, like the Carnegie Report on legal education in the United States and Canada, law schools have been under pressure to make law school more “practical.” Coupled with the economic crisis that affected the legal industry and the media’s critique of legal education, we have all read that law school applications are down and that some schools are shrinking class sizes. 

One can predict doom and gloom for law schools. However, it seems to me that higher education is under attack in general. One doesn’t have to look far to find articles and books advising students to skip college to start a business instead, or documentaries critiquing the business model for higher education in the United States.

Law degrees may not offer the security of the days of old, but what non-STEM (Science, Technology, Engineering, Math) field does? Perhaps the general response from law schools has been too narrow. Maybe it is partly driven by the US News & World Report Rankings methodology, to the extent that the post-graduation employment statistics are affected by whether the position requires a law degree.

The future of law schools probably depends, in part, on the perceived value of legal training. I do not mean to suggest that law schools should not be responsive to the changing times. Yet, I wonder whether the defense of legal education could not be more robust. A law degree is essential if you want practice law. However, as we all know, legal education can be valuable even if you do not plan to practice law. The flexibility of the law degree is, arguably, one of its advantages.  Unlike surgical training, for instance, legal training gives you skills that are transferable to other fields. Maybe (like some of the students I have encountered) one intends to run a business, to go into politics, or to have a career in diplomacy. If so, having a law degree may be highly useful, even if it isn’t essential.  Isn’t that a good enough reason to go to law school? 


Posted by Jan OseiTutu on April 30, 2015 at 03:09 PM | Permalink | Comments (17)

Upon further review . . .

I am rethinking my two posts on what happens in the lower courts outside the Sixth Circuit if the Court rejects marriage equality in Obergefell. I stand by my earlier suggestion that state officials will go back to the district court to dissolve the injunction.

But on further consideration, I am not sure this is significant or even necessary. And the reason goes back to the limited scope of the actual injunctions. None of the cases involved class actions; all were individual plaintiffs (generally 3-4 couples). Thus, when SCOTUS denied cert., state officials were obligated by the injunction only to issue licenses to the named plaintiffs, which they did. They were not obligated by the injunction to issue licenses to anyone else and no one else was entitled by the injunction to a license. So it is not the injunction that obligates state officials in California, Illinois, Utah, etc., to issue licenses to same-sex couples--it is the circuit precedent and the knowledge that they will be sued, enjoined, and made to pay attorneys' fees if they do not issue the licenses to new couples.

So there is no pressing reason for Scott Walker to get the Wisconsin injunction dissolved after Obergefell, at least in avoiding issuing new marriage licenses, although he will do it anyway. The injunction is not imposing any current obligations on him.

Posted by Howard Wasserman on April 30, 2015 at 11:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Shutting down the forum

When government opens a traditional or designated public forum, viewpoint-based restrictions are virtually per se unconstitutional and content-based restrictions must survive strict scrutiny. The risk is that, faced with having to permit objectionable speech in the forum, government will shut down the forum altogether for all speakers or redefine the designated forum to remove the objectionable speech from the forum's scope. These restrictions receive less (at times no) constitutional scrutiny. And the result is a dramatic decrease in the overall amount and level of expression.

The latest example comes from New York and the ads on its trains and buses. Last week, Judge Koeltl of the Southern District of New York held that MTA violated the First Amendment in rejecting a billboard from the American Freedom Defense Initiative, a pro-Israel/anti-Islam group that engages in highly provocative rhetoric in ads on public transit facilities (the latest ad featured a purported quotation from Hamas-connected media saying "Killing Jews is Worship that draws us close to Allah"). Judge Koeltl held, correctly, that MTA's ad spaces constitute a public forum, the ad was neither fighting words nor incitement, and rejecting the ad did not survive strict scrutiny.

On Wednesday, MTA responded by voting 9-2 to no longer allow "viewpoint advertising" in MTA spaces. In other words, the government shut down the forum rather than allow some objectionable speech in. The Board ignored the urging of the head of the New York Civil Liberties Union, who argued in part that "The New York City transit system is our public square. It is where virtually all of us pass through day in and day out. And because of that, it is a central part of our free speech in New York City." He was joined by AFDI head Pamela Geller, who apparently used the same provocative rhetoric as in her ads.

One Board member countered by identifying the problems with "hateful speech" and the right of transit riders to reach their destinations in "safety and serenity." Both propositions are inconsistent with the prevailing vision of the First Amendment--hateful speech is constitutionally protected and members of the public do not have a right to avoid unwanted speech in the name of their "serenity." More importantly, these comments reflect the viewpoint discrimination underlying a nominally content-neutral regulation. Although all political speech is excluded from the forum, the move is justified and motivated entirely by the government's desire to prohibit only one side of that content. But because we generally do not get into the motive underlying a facially content-neutral restriction, none of that matters.

Of course, this is the paradox of the First Amendment's content distinction--the government is on safer footing the more speech it restricts. The MTA cannot restrict only AFDI's offensive political ads, so it restricts all political ads. In doing so, however, it removes a substantial amount of speech from the public space, deprives the public of a substantial amount of information and ideas, and deprives speakers of an important way to reach an audience. So long as we ignore even blatantly viewpoint-based motivations, this always will be the result.

Posted by Howard Wasserman on April 30, 2015 at 09:41 AM in First Amendment, Howard Wasserman | Permalink | Comments (5)

I’ve seen the future, and…

The following contribution to the Mini Symposium# 4 is by Margaret Ryznar (IU McKinney).

I’ve enjoyed reading the anniversary posts and planned to contribute.  However, by the time I completed article submission season, end-of-semester tasks, and my tax filing, I noticed that we were up to a difficult question—what does the future hold? 

It’s a question with many aspects to it, but in a way, we have already seen the future, and it’s increasingly heavy on technology.  Technology assists us in every way, from the way that legal services are delivered, the way law teaching is done (powerpoints in the classroom, entirely online course programming, etc.), and the way legal research is disseminated (Westlaw, SSRN, online journals).

I’ll skip the normative discussion of these technologies because so much has already been said on it.  I’ll just say that most of the technological tools I’ve used, I liked.  And, it’s tough to go back.  On the other hand, I did recently purchase a typewriter, and I like that too.  The best use of technology, we’re often told in tech talks, is as a supplement—and that aligns with my experience.

Will technology make things cheaper?  Sometimes.  But, as an example, Scholastica is slightly more expensive than the older ExpressO (although Scholastica does offer more services to editors).  So, maybe technology does not always make things cheaper, just better—and we’ll take that too.  

The exact future of our use of technology depends on the evolution of technology, which has a frenetic pace.  The initial IBM PC’s had only a 640KB usable RAM limit (Bill Gates allegedly had said that “640K ought to be enough for anybody,” but later convincingly denied it).  Ten years ago, this blog was highly innovative, and now—only ten years later—the question is pondered—is blogging passé? 

My answer is no, and it’s not sentimentalism talking.  Just as I got great information from the blog when I was on the meat market, so it is true now.  Just as I got ideas for my research and teaching from the blog, so is true now.  Ultimately, this blog is just an additional technological tool to connect and learn, but it continues to be a highly useful one—which is a huge testament to its founder, Dan.


Posted by Howard Wasserman on April 30, 2015 at 09:31 AM | Permalink | Comments (0)

Wednesday, April 29, 2015

A new wrinkle on now-invalid injunctions

A colleague at an Oregon-based school offers a different twist on what happens to Article III-final injunctions if the petitioners lose in Obergefell: What happens if the relevant state actors (the Governor or the AG) favor same-sex marriage and decline to file the motion to dissolve the injunction? This would be most likely in Oregon and California, where state officials declined to defend the ban or appeal the district court's decision invalidating it. This, my colleague suggested, might offer state officials a "weird way" to get around their own state's laws.

I can see four possibilities, although I would like to hear more (or hear why my three are wrong).

First, the district court might raise the issue sua sponte and issue an order to show cause why the injunction should not be dissolved; the state officials will have to respond and either distinguish Obergefell (or the state laws at issue there) or acknowledge that changed legal circumstances require the injunction be dissolved. Judges are not obligated to raise merits issue in this way (contra subject matter jurisdiction). But they often will do so, especially when it means getting cases off their dockets. And the judge has incentive to do this, precisely to prevent state officials from not enforcing laws they do not like.

Second, someone might intervene in the district court and file the motion to dissolve. It might be a county clerk arguing that the injunction is compelling him to act in a way contrary to controlling Supreme Court precedent. Or it might be one of the sponsors of the voter initiative that produced the constitutional amendment (a Rule 24 intervenor need not have Article III standing).

This involves a couple of tricky FRCP 24 issues. First, it is not clear who would be able to intervene as of right under FRCP 24(a)--would a clerk or the initiative sponsor claim an "interest" relating to the case that will be impaired or impeded and is not adequately represented? If not, then intervention could only be permissive under 24(b) and subject to the court's discretion. In the initial Oregon litigation, the district court denied permissive intervention by the National Organization for Marriage, even on behalf of an anonymous county clerk who claimed a religious objection to having to issue licenses to same-sex couples. The question is whether the intervention analysis changes if the dispute is over the continuing validity of an injunction that is inconsistent with new Supreme Court precedent, as opposed to the validity of the underlying law. Certainly the district judge may be more willing to permit 24(b) intervention in this situation than in the underlying action.

Third, someone--again, probably a county clerk or the initiative proponents--goes to state court, themselves or on behalf of the state, seeking a mandamus ordering the Governor or AG to do their duty and file the motion to dissolve the federal injunction. Whether this option is available and depends on specifics of Oregon law.

Fourth, state processes in Oregon (another voter initiative or some other process to amend the state constitution) repeals the 2004 constitutional amendment, perhaps moving very quickly to do so. As my colleague argues, the political culture has so changed in Oregon in just a decade that no one wants to defend the ban or to reinstate it by taking steps to dissolve the federal injunction.

Thoughts? My original post assumed that state officials would be anxious to dissolve the injunctions. This example shows that there may be a few states where that will not be true.

Posted by Howard Wasserman on April 29, 2015 at 08:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Some Results from the Law Review Submission Practices Survey

Several drafts of my final exam ago, at the beginning of the month, I sent around a survey of law review submission practices.  Our response rate was lousy, and we have no way of knowing how representative the responses thus far are.  (Editors: still want to fill out the survey?  You can go here, and I'll post updates at the Law & Economics Prof Blog).   But, for they're worth, here's what we learned.  

First, there will be a fall season.


6. When do you expect to begin reading submissions for the fall cycle?

a. Before Aug. 1 6 42.9%
b. Aug. 1 - Aug. 15 7 50%
c. Aug 16 - Aug. 30 1 7.1%
d. Sept. 1 - Sept. 15 0 0%
e. After Sept. 15 0 0%

7. What portion of your available slots remain open for summer and fall placements?

a. None 0 0%
b. 1 or 2 slots 3 20%
c. Less than a third 3 20%
d. Between one-third and two-thirds 6 40%
e. More than two-thirds 3 20%

Next, the spring season at reporting journals starts & ends earlier than I thought.

1. When did you begin reading submissions for this spring cycle?

a. before Feb. 15 10 66.7%
b. Feb 15 - Feb. 28 2 13.3%
c. Mar. 1-Mar. 15 2 13.3%
d. Mar. 16- Mar. 31 0 0%
e. After Mar. 31 1 6.7%

2. When did you / will you finish reading submissions for this spring cycle?

a. Mar. 1-Mar. 15 0 0%
b. Mar. 16- Mar. 31 4 26.7%
c. Mar. 31- Apr. 15 7 46.7%
d. After Apr. 15 4 26.7%

Journal communications with authors are under stress, and not really what we would choose as our first-best:

4. How, if at all, do you indicate to authors that your journal is open for submissions?

a.  Post to our home page 1 6.7%
b. E-mail to our mailing list 0 0%
c. Change status to “accepting submissions” on bepress or scholastic 9 60%
d. Another way 0 0%
e. No particular way 5



9. When your journal makes no response to an expedite request, is it usually because:

a. You considered and rejected the piece 3 20%
b. You were aware of the piece but did not have time to consider it 8 53.3%
c. another reason. 4 26.7%

Posted by BDG on April 29, 2015 at 04:55 PM in Law Review Review | Permalink | Comments (10)

A few more thoughts about Johnson and vagueness

As my previous post indicates, I’ve been closely watching this Term’s void for vagueness case, Johnson v. United States.  I’m interested in the case because I am working on a larger project about the void for vagueness doctrine.  As part of that larger project, I’ve been reading some older scholarship on the topic.  As those of you who follow this area of the law probably know, one important law review article on the vagueness doctrine is Anthony Amsterdam’s 1960 student note in the U Penn Law Review.  In that note, Amsterdam demonstrates that the Supreme Court’s vagueness doctrine is an inconsistent mess.  He provides a number of examples showing that the Court is inconsistent in its decisions whether a statute is so imprecise that it violates due process.

There is an observation in the Amsterdam article that has me wondering about how the Court will rule in Johnson

In particular, Amsterdam claims that a defense attorney is far more likely to succeed in a vagueness challenge if “his client’s conduct is not particularly evil as viewed by the prevailing moral temper of the Court.”  In support of this claim, Amsterdam notes that those defendants who have succeeded in their vagueness challenges have largely been either white collar regulatory offenders or offenders who have run afoul of prohibitions on speech.  Indeed, the white collar offenders tended to succeed in the pre-New Deal era, when the Court was more protective of economic liberty, and the speech defendants have been successful more recently as the Court has become more protective of speech.

Amsterdam’s historical observation has me wondering the extent to which the Justices’ views of gun control and the Second Amendment may affect their vagueness analysis in Johnson.  Samuel Johnson is not a particularly sympathetic criminal defendant.  New accounts report that he is a white supremacist who came to the attention of the FBI during a domestic terrorism investigation. (Johnson allegedly planned to attack the Mexican consulate in Minneapolis.)  But the legal issue before the Supreme Court is whether possessing a sawed-off shotgun constitutes a crime of violence.  To the extent that Amsterdam’s observation continues to hold true, the Justices’ appetite for striking down a clause of ACCA as unconstitutionally vague may turn on how protective they wish to be of Second Amendment rights.

Of course, as with all claims about what is really driving the Court, Amsterdam’s claim about the vagueness doctrine will seem correct only if it continues to be consistent with future cases.  And frankly, I haven’t yet looked at all of the vagueness cases that post-date his 1960 note to see whether they are consistent with the claim.  But I have seen the claim echoed in more recent scholarship on vagueness (look at page 1188 of this paper, for example).  So I suppose this gives us one more reason to follow the Johnson case.

Posted by Carissa Byrne Hessick on April 29, 2015 at 12:44 PM in Criminal Law | Permalink | Comments (2)

"Slogging Through the Likes of Alabama"

In his hopeful post on the oral argument yesterday in Obergefell v. Hodges, Dale Carpenter writes, in an early passage in the post: 

At first, I took Justice Kennedy’s observations to reflect a general methodological Burkeanism that should hang over all of constitutional law. That’s the way Judge Sutton used it. If that’s how Kennedy is using it–if he really means that we should wait-and-see for some indeterminate percentage of millennia before enforcing a principle as constitutional law against vestigial democratic resistance–then it’s time for the gay-marriage movement to put the corks back in the champagne bottles and fire up for a generation or more of legislative slogging through the likes of Alabama.

As I live and teach in the likes of Alabama, I thought I'd add a comment on this. This is another long, below-the-fold post, so I'll offer a summary, which breaks down into three propositions. 1) He's right, of course, in general terms. 2) Nevertheless, there are both generational changes at work here and, especially, a strong streak of libertarian thought among some conservative Alabamans  that, if advocates of LGBT equality spoke to it, would certainly help speed things along in moving toward changes here as elsewhere. 3) So far, regrettably, to the extent that well-funded national-elite LGBT groups have started directing their money and efforts at states in the Deep South, their approach has not been especially tailored to the state; it's just been a local version of the national campaign. One doesn't expect a lot of flexibility and responsiveness from well-heeled DC-centric juggernauts. But it's still too bad. By really listening and adapting their campaigns to those local views that might give them some leverage, they might shorten the "slog." [EDIT: A colleague reminds me that the preferred demonym (a new word for me, I confess) is "Alabamian," not Alabaman; I had some recollection as I was writing that there had been a dispute over which to use and just chose one--the wrong one, alas. I am leaving the error in here and through the rest of the post, partly for the sake of time and partly so that my error, despite my living here for some nine years, can be held against the rest of my analysis if people choose.]

In general terms, of course, Dale is right to think that if the Court does not find a constitutional right to same-sex marriage--I believe it should, and probably will, although it would be nice if the opinion doing so were clean, clear, and legible this time--efforts to arrive at such a right in places like Alabama will be very difficult. The contretemps with the Alabama Supreme Court and the clownish general public statements of Chief Justice Moore demonstrate that clearly. (I distinguish the general public statements, and the language at the end of his initial memo on the scope of the district court's order, from some of the substance of that memo, which, like Howard, I think was probably substantially legally correct, like it or not. Generalized references to the Supremacy Clause or Cooper v. Aaron are not really sufficient here, and I think some of those arguments have been more strategic than analytically sound.)

I assume that Chief Justice Moore is motivated substantially by sincerely held views, but also in part by his knowledge of the fundraising possibilities that his position presents, and in part by a desire for elected office. And if the Court rules in favor of same-sex marriage, I assume he will continue in this vein, at least in his public statements if not in resisting the applicability of the Court's decision, and possibly both. He could stay on the Court and continue in this course; or he could make a show of resigning as a result of the decision and the law it would force him to apply, and then run for governor again.

Either way, there's no doubt that there is a receptive audience here for his actions and outbursts. It's not an Alabama establishment view, I think, or even a Republican establishment view; the conservative Alabama establishment, whatever its views on LGBT rights, tends to disdain Moore. But this is a populist state with a substantial population of religious conservatives, and his election shows that those views can succeed in getting votes here, no matter what the conservative establishment itself would prefer. (Populism is quite popular on the left these days, I must observe parenthetically. I don't share that affection. Living in Alabama is not the reason why; I have never been much of a populist. But it sure helps.)

Public views on gay rights and gay marriage have, of course, shifted incredibly in this country in the past few years. That has been to my great satisfaction, even if I have mixed feelings about those Democratic politicians who have now found it convenient to talk about the "evolution" of views that they once offered publicly, simply because winning office was more important to them at the time than publicly and forcefully championing the equal dignity of gays and lesbians. But Dale is right that those changed views don't yet represent the majority view in a number of states in the Deep South, including Alabama. If, as someone who makes his home here and knows a little about its nuances and complexities, I bridle at talk of "the likes of Alabama," I certainly cannot say he is wrong, and I can hardly blame him for feeling that way. As with the struggle to recognize basic civil rights in the wake of Brown, this will be an uphill battle, especially if the Court does not recognize a right to same-sex marriage but probably in any event.

But I would like to say a word about the Alabamans I have encountered in my constitutional law classes. There is some danger in characterizing their views based on statements in class, especially because a) I urge students to focus on the legal issues first and foremost, not the politics or their general policy views and b) knowing that many students here shy away from talking about hot-button issues, I certainly encourage them to explore different views or take a devil's advocate position, whatever their own views are. Nevertheless, I've been at it a while and can say something about prevalent lines of thought among my students.

What I would say is that there is a strong libertarian streak in their views. It expresses itself in various ways; in some cases directly, in some cases indirectly through their views on federalism. They do not, by and large, care for a case like Wickard v. Filburn, or for the Court's later decision in Gonzales v. Raich. They do not categorically disdain federal power, but they think it has real and judicially enforceable limits. And, consistent with libertarian views, they think Raich came out as it did in part because of a regrettable attachment to the war on drugs. But their libertarian views, as well as simple generational changes in view about LGBT people and rights, are also reflected more directly in their views on individual rights. That most certainly includes the issue of same-sex marriage. In addition to general generational views about the fundamental equal dignity of gays and lesbians, they also think of marriage essentially as no one else's business but that of the couple in question. If the Court rules as many of us would like, they will be delighted, any federalism issues notwithstanding.

I make no extravagant claims and should offer appropriate caveats. Many of my students come from outside Alabama or are Alabamans who have lived elsewhere before returning for law school. The Alabaman students are not all conservative, and not all the conservative law students are religious conservatives. Simply by virtue of the fact that they are seeking post-graduate degrees, they are (as in most states) not a representative sample of the population. And those students who are religious conservatives are less likely to speak out in class about social issues.

Nevertheless, I think the libertarian streak I have suggested here is genuine. It does not represent all Alabaman views or all views of Alabaman conservatives. But it does represent a real and substantial view. If I were seeking to alter views here, or just to splinter conservative views and find avenues to push along receptiveness to same-sex marriage and LGBT rights in a conservative state like this one, that's where I would aim my efforts. It would not capture the majority. But it would find a receptive audience within that majority. Fewer people might be convinced that marriage is no one else's business but the couple's; but more of them, given their views of government, would be convinced that it's more the couple's business than the state's.

As I noted at the top of the post, national LGBT groups have in the last couple of years begun moving their efforts slowly into the Deep South and other such states. I certainly encourage more people here to learn about and get involved with groups like Equality Alabama, which are often staffed by people who were born and raised here, even if they then moved elsewhere. But there is a difference between national groups moving into states in the Deep South and having those groups actually tailor their efforts to the views and circumstances of those states. Based on what I've seen of ads and similar efforts funded by national groups and aired here (or, really, aired on the Internet but ostensibly aimed at these states), there has been relatively little effort to do so. The ads still have a substantially national flavor, not a local one. They feature local people, but they don't tailor the message much, other than being more assiduous about sprinkling in references to God. This may be a religious state, but I doubt that a religious message would get as much traction here as a libertarian one would.

If I were working for those groups, I would aim my efforts at finding and exploiting the seam between different conservative orientations in this state, and emphasizing the dangers of allowing the state to control individual lives and decisions. Again, I don't think this represents a majority view in Alabama. But I think it would help some Alabama conservatives to frame their own arguments, and reassure some Alabama conservative politicians that there might be more than one way to appeal to local sentiment, or at least to quietly take a less restrictive or punitive view without suffering as much political harm. It would not be the key to immediate change. But it might make that "slog" shorter and easier. Unfortunately, national groups, which have, and jealously maintain, a lock on massive sources of cash, tend to think more in terms of their own worldviews than in terms of the ones they find and face on the ground far from the capital. Their own views are not especially libertarian in nature.

I'm not sure just how interested those national groups really are in achieving headway in states like this; they say they are and they have devoted some resources to that effort, but not a huge amount and not with much evidence of real sensitivity and adaptability. God knows we could use the help. Despite the very different picture I get here in a university town, which is much more optimistic, stories of young LGBT individuals in the state and their individual experiences can be harrowing. It would therefore be nice if that help were aimed at finding and making use of views on the ground, which here are less likely to be voiced in high-blown dignitarian terms and more likely to have to do with libertarianism and distrust of government interference in personal lives. If they are serious about helping, and about reducing the length and difficulty of the slog, I hope those groups will put a little more emphasis on this approach.      

[One further editorial note, since I have closed comments. A colleague has responded that he or she thinks that "strong" libertarian streak is not that strong, and certainly less so than in other states. I appreciate the response and certainly am happy to make note of it. I would say to that: 1) I think it's right that using the word "strong" was an error here. I certainly agree that there are states with much stronger libertarian sentiments. 2) That said, I have certainly seen and been struck by this strain here, and among my conservative students. (It is because it is striking to me, and voiced more often than, say, social conservative views, that I used the word "strong.") As I said in the post, I don't think it represents the majority view among Alabamian conservatives. But I think that making use of it would be more useful--would have more chance of reaching some Alabamian conservatives and creating at least a bit of a wedge--than just transplanting the national campaign here. If the comparator state is Nevada or Alaska, then yes, Alabama isn't much of a comparison in terms of libertarian sentiment. But it does OK compared to the amount of libertarianism in the places where I went to law school or practiced law, and it is those places whose worldviews inform the national campaigns, not Alabama or Alaska. At a minimum, a state-level campaign in such a state should be focused on reaching conservatives, not talking to other blue dots.   

Posted by Paul Horwitz on April 29, 2015 at 11:43 AM in Paul Horwitz | Permalink | Comments (0)

Robin West on "The Freedom of the Church" and the social contract

Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights:  Exiting the Social Contract."  She is responding to, inter alia, this paper of mine and this paper by Steve Smith and dealing with issues that Paul Horwitz and many others have addressed in recent years.   Here is the abstract of Prof. West's paper:

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.

All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders.  In my own contribution, responding specifically to West, I write:

In Robin West’s bracing and eloquent chapter, she expresses serious concern by the asserted “right of churches and church-affiliated institutions . . . to be exempt, on grounds of institutional religious liberty, from some otherwise binding legal obligations, including the obligations to comply with the antidiscrimination mandate of our various Civil Rights Acts when hiring, promoting, or firing those of their employees who quality as ‘ministers.’”   These obligations, she emphasizes, “are no small thing. . . . [They] collectively constitute, rhetorically, our shared societal commitment to rid our workforce and our schools, and therefore our larger social world as well, of discriminatory animus and the effects of that animus; they are a public declaration of our collective promise to become a less insulting, less hurtful, more inclusive, more fully participatory, more generous, and fairer society.”   To violate these obligations is not only to harm an individual; “[i]t is also to break faith with and to undermine the shared national project of creating a world of equal opportunity and full participation[.]”   In her view, “it is not at all clear why our nations ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public . . . , no less than are our nation’s public and private school teachers, police forces, firefighters, professors, health-care professionals, service providers, and retail, factory and construction forces.”   The ministerial exception, in her view – and, more generally, the proposed “freedom of the church” – is an example of a “newly emerging and deeply troubling family” of “exit rights . . . , the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society, and to thereby create, in effect, separate spheres of individual or group sovereignty, into which otherwise binding legal norms and obligations do not hold.”

West’s indictment of my (and others’) position regarding the religious-freedom rights of religious institutions and the implications for government regulations of some of those institutions’ internal, doctrinal, educational, liturgical, ministerial, and expressive affairs is clearly and forcefully set out.  Her negative evaluation of the position rests, though, on assumptions that I reject and that I also regard as not well supported in our history and traditions.

Notwithstanding her repeated invocation of “our” commitments, declarations, obligations, projects, and aspirations, West’s social contract—insofar as it is asserted to include terms that commit religious communities to submit internal decisions regarding doctrine and polity for approval by political majorities—is a contract of adhesion.  The issue in, say, Hosanna-Tabor is framed in terms of efforts by would-be “miniature sub-cultural worlds” to “exit civil society, and the complex of laws, tradeoffs, and reciprocal rights and obligations that in turn constitute some aspect of our society’s legally constructed social contract.”   As I see it, though, the question under consideration is precisely whether or not this “complex” and this “contract” can justifiably, and consistently with our Constitution, history, and traditions, be said to extent to the relationship between a minister and a church.  When West says that “it is not at all clear why our nation’s ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public,” part of the answer is that the “ministers, rabbis, and imams” are not “our nation’s”; they are their respective communities’ and it is up to those communities to decide how and from where they should be drawn.  The “freedom of the church” claim is not that these institutions should escape from an obligation that expresses “our” commitment to equal opportunity or “communitarian ideals of inclusiveness, participation and integration” but that they cannot justifiably be said to be under an obligation to select their ministers, teachers, doctrines, and beliefs in accord with commitments other than their own. 

In West’s chapter, she acknowledges that some exit rights, sometimes, “empower individuals to buck the dictates of an oppressive majority or an intrusive state.”  “At least some of these rights,” she states – the right of the pregnant woman over body, for example – “may seem wise, at least to some of us, and at least some of the time:  the parts of the social contract from which exit is sought and sometimes granted often appear to be, and may in fact be, foolish, draconian, or just witlessly intrusive.”   Still, she insists, exit rights have costs—they can undermine equality and “splinter civil society”—and these costs should be but, she charges, are not acknowledged by those who explore and defend the “freedom of the church.”

As I tried to establish earlier in this chapter, though, it seems to me that the “freedom of the church,” reasonably understood and operationalized, does (or at least can) serve to “empower individuals to buck the dictates of an oppressive majority or an intrusive state.”  It does (or at least can) serve, contrary to West’s claim, to “enhance individual liberty within civil society by expanding or deepening the rights of individuals to participate in that society.”  It is true that seeing and respecting the just limits on the political authority’s ability to define, and enforce compliance with, “our” commitments and obligations does have, sometimes, costs, in that some projects that a majority, or maybe just a vanguard, would like to pursue cannot be accomplished efficiently or completely.  West sees this fact as, sometimes, “tragic” and I agree that sometimes it is.  Still, these just limits are morally necessary and attractive, and they include, in my view, limits on the regulatory power of governments over the “freedom of the church,” rightly understood.   

Posted by Rick Garnett on April 29, 2015 at 11:23 AM in Rick Garnett | Permalink | Comments (0)

Fontana and Braman empirically test the countermajoritarian difficulty

David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.

Posted by Howard Wasserman on April 29, 2015 at 10:58 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Anniversary Topic #4: What does the future hold? Prawfs and Other Blogs

I suppose that if I didn't believe that there was a future for Prawfs, I wouldn't be blogging here. I'd be off somewhere not reading this.  I think that Twitter, Facebook, and blogs have their strengths.  None of them is a replacement for the other. 

In the broadest sense, I wonder if our vocabulary needs different words for "blogs,"the way that different Northern languages have hundreds of words for "snow." As a few examples, there are very high profile super-blogs, commercialized blogs, highly personal blogs, and blogs that are adjunct to major newspapers. After all, a blog is a platform. Any blog's authors, commenters and readers define its purpose, and re-define it continually. Perhaps prawfs will always need blogs as a centralized place to present and consider different ideas on their own pace, a place to try to make sense of things as they unfold. Where law schools are geographically distant, blogs are one way to find out what others are thinking about issues that many of us have in common. Mediums that limit discussion to the 140 character format, or in a format that folds in ads and odd timeline re-shifts, are less conducive to those types of discussions.

If blogs are quieter now (are they?), I suspect that being in law schools in a time of crisis is one plausible explanation. People are busier/in meetings/building programs/speaking to press/doing scholarship/at a recruitment event/etc. in ways that have taken precedence perhaps. Regardless, I think it's healthy to re-assess direction from time to time. That's part of building a future.

Posted by Amy Landers on April 29, 2015 at 10:28 AM in Blogging | Permalink | Comments (0)

What if SCOTUS rejects marriage equality?

I have not yet read/listened to the Obergefell arguments (I plan to get to it as soon as I finish writing this), although I have read some reports. I am fairly confident the Court will declare that SSM bans are invalid (and I am kind-of confident it will be a 6-3 vote).

But for now, suppose the Court goes the other way and holds that the Fourteenth Amendment does not guarantee marriage equality and does not require states to recognize out-of-state same-sex marriages. After the jump, I want to consider four procedural questions: 1) What do the states do where same-sex marriage has come via  federal court order that has become final (including all the cases in which SCOTUS denied cert. last fall, as well as California);  2) What do the states do where a district court judgment invalidating the state ban is pending on appeal but was not stayed? 3) What happens to the same-sex marriages that have been entered in those states where the federal decision has gone to final judgment? 4) What happens to the same-sex marriages that have been entered in those states in which the district court decision is on appeal but has not been stayed (e.g., Florida and the four couples in my beloved Alabama)?

1) The states return to the district court supervising the injunction with a motion to dissolve under FRCP 60(b)(5) or (b)(6). The argument is that there has been a "significant change" in the legal circumstances, in that the conduct the injunction prohibited (denying marriage licenses to same-sex couples) has become constitutionally permissible; the injunction thus is no longer equitable, as it is based on a judicial decision that is no longer valid in light of the prevailing understanding of the Fourteenth Amendment announced by SCOTUS. It seems pretty obvious that an injunction based on some extrapolation from Windsor, Lawrence, Romer, and general Equal Protection principles cannot survive a decision from SCOTUS expressly declaring that  same-sex marriage bans do not violate the Fourteenth Amendment. So the motion will be granted, the injunction will be dissolved, and the state law barring issuance of licenses to same-sex couples will again be enforceable.

2) This situation presents three paths to the same outcome. First, these states could simply present Obergefell to the court of appeals, which will apply it to reverse the district court judgments and to order final judgment entered in favor of the states on the constitutional issues. Alternatively, the court of appeals could shift the work back to the district court by summarily vacating and remanding for reconsideration in light of Obergefell, with the district court itself applying Obergefell to enter judgment in favor of the state. A third possibility is for these states to file the sameRule 60(b) motion in the district court. Under FRAP 12.1 and local rules in several Circuits (including the Eleventh, one of the places in which appeals are pending), a district court can make an "indicative ruling" on a motion (including a Rule 60(b) motion) that it otherwise lacks jurisdiction to resolve because the case is in the court of appeals; if the district court indicates its intent to grant the motion, the court of appeals can remand the case to allow the district court to grant the motion and to enter the revised judgment. Under any approach, the result is that the injunction will be dissolved and the state ban on same-sex marriage again becomes enforceable.

3) These marriages remain valid. The states granted licenses to these couples under a federal injunction that had been appealed and had become final. The state of the law in these states was that prohibitions on same-sex marriage were invalid and unenforceable, meaning these couples were legally entitled to those licenses and state officials were legally obligated to grant them. And that remained the state of the law until the district court dissolved the injunction.

4) I am not sure of the answer to this. Mike Dorf argued here that there is no basis in federal constitutional law to "grandfather" some marriages, which would effectively give permanent force to a judgment that has been subsequently reversed. The validity of these marriages ultimately would be a matter of state law, unhindered by the U.S. Constitution. That sounds right, but I welcome competing arguments.


Posted by Howard Wasserman on April 29, 2015 at 12:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (19)

Tuesday, April 28, 2015

Aesthetic sports rules

Slate's Hang Up and Listen devoted its first segment to the (problem?) of a Hack-a-[Blank], thr strategy of intentionally fouling a poor free throw shooter away from the ball throughout the game. They discuss whether it works, whether it spoils the game, and what, if anything, can or should be done about it. The best solution is probably to give the offense the option of getting the ball out of bounds instead of taking the free throws (there used to be a similar rule in international basketball). By not making the bad shooter take the free throws, the incentive to keep fouling goes away.

So if this (or some other rule change) came about, should we understand it as a limiting rule grounded in cost-benefit disparity, a la the Infield Fly? As I wrote about soccer's offside rule, I don't think so. Instead, this would be a purely aesthetic rule, designed to make the game look better and be more enjoyable to watch. To be sure, there is an aesthetic component to the logic of the Infield Fly Rule; that rule disincentivizes teams from intentionally failing to catch easily playable balls, which is unappealing to watch. But the chief concern is the cost-benefit imbalance, of the defense getting two outs instead of one and the runner being unable to stop it. That is missing with Hack-a-[Blank], because the offense can overcome the strategy by making the free throws or rebounding the miss. Nevertheless, the game becomes unappealing when it involves nothing more than intentional fouls on DeAndre Jordan 25 feet from the basketball and a parade of missed free throws. So the rule change may seek to limit strategy solely in the name of the aesthetics of the sport.

Posted by Howard Wasserman on April 28, 2015 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)

CALL FOR PAPERS: The ADA at 25: Implications for People with Mental Disabilities

The AALS Section on Law and Mental Disability, along with the co-sponsoring Section on Disability Law, are looking for papers or abstracts of presentations for a panel on the ADA at the 2016 AALS Annual Meeting.  At author's choice, selected papers may appear in the Law & Psychology Review.  The Call for Papers appears below the fold.

AALS Sections on Law and Mental Disability
and Disability Law (co-sponsor)

Call for Papers/Presentations for 2016 Annual Meeting

Call for papers and presentations, up to 2 papers to be published:

The AALS Section on Law and Mental Disability hereby issues the following call for papers and presentations for the 2016 AALS Annual Meeting to be held in New York, New York, January 6-9, 2016. Up to two selected papers will be published in the Law and Psychology Review (if the author so desires).

Program title:

The ADA at 25: Implications for People with Mental Disabilities

Program Description:

The Americans with Disabilities Act of 1990 (the “ADA”) is now 25 years old. Its sweeping prohibitions and mandates have, both figuratively and literally, restructured American society. Some argue that it went too far; some not far enough. Still others advocate change in different directions. This panel focuses on one category of protected individuals: people with mental disabilities. Though there may be fewer physical barriers for this group, social barriers like stigma and tolerance for discrimination are generally more pronounced. We take stock of what the ADA and its amendments have accomplished for people with mental disabilities and what has been left undone.

Paper/Presentation Requirements and Submission Instructions:

Presentations and papers may explore any issue at the intersection of the ADA and mental disability, from, for example, discrimination and accommodation to least restrictive treatment modalities.

Up to two selected papers will be published in the Law and Psychology Review, a journal edited by students at the University of Alabama School of Law. Please indicate when submitting a paper whether you want it to be considered for publication in the Law and Psychology Review or whether you are submitting the paper for presentation only. Preference will be given to papers of 20,000 words or fewer and that have not been published or accepted for publication elsewhere.

Submitters may also choose to submit an abstract of presentation instead of a full paper. Such abstracts will be considered for presentation, but not for publication.

Proposed papers or abstracts of presentations should be submitted to Fred Vars, AALS Law and Mental Disability Section Program Chair, at [email protected] no later than Monday, August 17, 2015. A sub-committee of the Section Executive Committee will select up to 2 papers and/or presentations. Authors will be notified no later than September 7, 2015.

Posted by Fredrick Vars on April 28, 2015 at 03:18 PM | Permalink | Comments (0)

F. Gregory Lastowka

It is with deep regret that I write that law prawf Greg Lastowka is no longer with us. He passed away yesterday. His home institution, Rutgers, has published this announcement here.  He will be greatly missed by all who knew him and his extraordinary work. 

Posted by Amy Landers on April 28, 2015 at 01:31 PM in Intellectual Property | Permalink | Comments (2)

The Linguistics of Certiorari Dismissal

Like many colleges, my undergraduate institution did not offer a pre-law major.  So those of us who knew we wanted to go to law school had to find some other discipline as a major.  I chose linguistics.  I had lived abroad as a child, which made me interested in how other languages worked.  And I liked the introductory linguistics courses more than I liked the introductory English and history courses that I took.

Much to my surprise, I’ve found the little linguistics that I learned in college has been useful later in life.  The linguistics “school” that my thesis advisor belonged to sought to discern patterns in written and spoken language.  These patterns were not the grammatical rules we memorize in junior high, but instead a complex web of intuitive rules that sometimes carry with them various meanings.  For example, baseball aficionados say that a batter “flied out,” rather than saying that he “flew out.”  Linguists interpret this deviation as an indication that the terms “fly ball” and “to fly out” have taken on their own independent meanings aside from the constituent words that were used to form them originally.

So imagine, to my delight, when I recently had a conversation about how to create the past tense of the common Supreme Court term “DIG.”  The Supreme Court will sometimes, after granting certiorari in a case, decide that there is some reason that the Court should not decide the case after all.  The Justices will dismiss the case as improvidently granted --- hence the acronym “DIG.”  So how does someone use that acronym to indicate that a case had been dismissed on those grounds in the past?  Happily, there is a law review article which gives us the answer (look at footnote 4).  Rather than using the term “dug,” the Supreme Court Justices apparently use the term “digged” in spoke language, and scholars use the written form “DIGged.”  Made my day . . .

Posted by Carissa Byrne Hessick on April 28, 2015 at 12:26 PM | Permalink | Comments (6)

Monday, April 27, 2015

Natural Rights and the "Human Right" to Intellectual Property

I am picking up from where I left off in my prior post on human rights and intellectual property. My concern with embracing a human right to intellectual property arises from the possibility that it will lead to more expansive intellectual property protections. I would tend to agree, therefore, with the report by the United Nations Special Rapporteur in the field of cultural rights (mentioned by Lea Shaver in her comment), which characterizes copyright as distinct from the human right to authorship.

Human rights are generally understood to be natural rights. If one accepts this proposition, how does treating intellectual property protection as a human right relate to the natural rights intellectual property scholarship? The intellectual property and human rights conversation is primarily an international intellectual property conversation. However, the natural rights framing of intellectual property rights is primarily a domestic intellectual property conversation. Both of these frameworks are based on natural rights theories, yet they appear to reach opposite conclusions. With some exceptions, proponents of natural rights justifications for intellectual property tend to support more expansive intellectual property protections. On the other hand, proponents of a human right to intellectual property speak of “balance” and of using human rights frameworks to respond to excessive intellectual property rights.

One might be inclined to dismiss the theoretical foundations for intellectual property as irrelevant to the practical aspects of intellectual property law. However, the framing of intellectual property rights can impact the way private citizens, including judges and policy makers, view intellectual property protection and infringement. Gregory Mandel’s study on the public perception of intellectual property rights, for instance, found that individuals who view intellectual property rights as natural rights tend to support more expansive intellectual property protection. This is consistent with legal scholarship that takes a natural rights approach to intellectual property. My inclination, then,  is that distinguishing between copyright protection and the human right to the moral and material interests arising from one’s literary or artistic production is a step in the right direction.

Posted by Jan OseiTutu on April 27, 2015 at 03:03 PM in Culture, Intellectual Property, International Law, Legal Theory | Permalink | Comments (0)

Entry Level Hiring: The 2015 Report - Final (?) Call for Information

This is, I think, the final call for information for the 2015 Entry Level Hiring Report. I currently plan to close reporting on Friday, May 1. If, however, you know that there is ongoing hiring (last year, for example, I was told that some schools were working on hiring until mid-May), please let me know, and I will extend that date. Absent any such information, though, I will close the report on Friday, May 1.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 1, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 27, 2015 at 01:46 PM in Entry Level Hiring Report | Permalink | Comments (0)

Google Announces Patent Purchase Experiment


Google-logo-high-resToday, Google announced a patent purchase promotion, which is an open call for those who wish to sell their patents to the company. Some details are here, while others are here. The terms are remarkably simple--between May 8 and May 22, sellers must provide Google with the patent number and a proposed price. As part of the transaction, sellers obtain a non-exclusive license to practice the patent together with the purchase price if the offer is accepted.

In typical Google-style, the company states that this call is an experiment and an effort to eliminate the middle-man. In the company's words:

Unfortunately, the usual patent marketplace can sometimes be challenging, especially for smaller participants who sometimes end up working with patent trolls. Then bad things happen, like lawsuits, lots of wasted effort, and generally bad karma. Rarely does this provide any meaningful benefit to the original patent owner.

Of course, the looming question is what will Google do with any patents that it buys? Whatever it wants, of course. According to Google's FAQ on this issue:

Google maintains a large patent portfolio. Any patents purchased by Google through this program will join our portfolio and can be used by Google in all the normal ways that patents can be used (e​.g.​, we can license them to others, etc.) 

One interesting aspect of the program is the speed at which it is moving--sellers will be notified at the end of June, and the sales are expected to be closed by the end of August. 

Posted by Amy Landers on April 27, 2015 at 12:20 PM in Information and Technology, Intellectual Property | Permalink | Comments (0)

Advice on Biglaw

Recently, I have been approached by several students who are at the beginning of careers in large law firms.  Apart from talking to them about the actual work, I find myself offering (sometimes unsolicited) more general career and even life advice.  This is no doubt colored by my experience, which was a really positive one.  I was fortunate to spend several years at Munger Tolles & Olson, a firm in Los Angeles (along with Tung Yin, a fellow Prawfsblawg guest blogger).  It was a pretty unique place, where at the time I started, I believe no associate had ever left for another law firm.  That changed pretty quickly after I started, but it was (and I believe still is) a place where associates were valued as professionals and the expectation was that they would succeed.  Most of what I suggest is gleaned from keeping up with my fellow associates, classmates, and former students.

The following has become my standard pitch.  I am a realist - none of these are things that can or should happen immediately, and all require work and even sacrifice.  

  • Find Mentors – it is really, really important to develop relationships with senior people in the firm who care about your career and about you as a person.  This isn’t necessarily easy, and no doubt some firm cultures foster this more than others, but these people will be incredibly important not just to your advancement in the firm, but also career opportunities down the line.  Our profession is one that has centers of power and influence, and people that are willing to spend their political capital in the legal profession on you will be invaluable. 
  • Try to develop a reputation for something outside of your core work area.  Get involved in your community, or any community.  For many young lawyers, this can be in the pro bono area.  That has the benefit of usually being enjoyable and something you can and should feel good about.  But even if not, becoming known as someone with an interest in something outside of the core work you do makes you more interesting and even valued within the firm, and creates opportunities should you decide to leave. If you do look to leave the firm to transition into something else, it helps if you have a larger story to tell than being associate # 17, even at an elite law firm.
  • At first, try to live like a law student – more or less.  Even amongst those lucky enough to start with large law firm salaries, heavy student loans will remain a factor for a not insignificant chunk of their legal careers.  Too many junior lawyers spend up to their salary levels, and before long, find themselves in a lifestyle that even if they want to leave, becomes difficult.  More career options are available if they do not need a big firm salary year in and year out.  But by all means, go out to a really nice dinner every once in a while.  Just not every night. 
  • Keep mental space to think about what is next.  The day in and day out will be hard, especially at first.  I spent the better part of my first few years constantly worried I was making some major mistake (and occasionally, I did).  This can be exhausting.  But especially after the first year or two, you do need to create time and space to evaluate if you are feeling like this is what you want to be doing for the next few years.  And if not, you need to invest precious time and energy in figuring out what the next thing is.  If you don’t prioritize this, it will never make it to the top of the list.
  • Leave when you can.  Not the firm, and not necessarily for good – just leaving the office on any given day.  As a litigator, there are peaks and valleys.  When preliminary injunctions loom, or big motions, or trial, you will be working really hard.  But there should be times that are not quite as busy.  (My transactional friends tell me the same applies to their practices).  When that happens, you should look for ways to leave.  Get out.  Enjoy the day.  Exercise.  Do laundry.  Whatever.  If the firm culture is such that you need to be there just to be perceived as being there, that is a red flag.
  • If you ever find yourself really unhappy for a significant period of time, it is time to find something else.  This seems obvious, but people do not always listen to that inner voice in their head.  You may not be happy every minute of every day, but sustained unhappiness is something different and no way to live.  Conversely, if you are happy, that is great.  I always admired, and was probably somewhat envious of, law firm partners I worked with who were very satisfied with what they were doing.  They get to be happy and incredibly well compensated. 

What comes before any of this is trying to be grateful - graduates going into Biglaw have an opportunity other students would kill for.  Anyway, just my thoughts.  I am curious what others would add to the list.

Posted by Michael Waterstone on April 27, 2015 at 11:52 AM | Permalink | Comments (2)

Anniversary Topic # 4: What does the future hold?

We come to the final week of April  and the final week of our Tenth Anniversary celebration with the obvious question: What does the future hold?
Topics can include the future for:
• The legal profession
• Legal scholarship
• Legal education and law schools, including predictions of closures, mergers, etc.
• Prawfs and other blogs. This could include the question whether blogs themselves are obsolete in light of other online media like Twitter and FB, what function they ought to continue to serve if any, whether routes of access to those blogs are changing and how blogs should respond to this, the role of commenters, etc. 
Along those lines, we also would like to hear from readers and commenters about what we might change (or not change) on Prawfs, in terms of form, content, design, etc.
As always, guests can email posts to Paul or to me.

Posted by Howard Wasserman on April 27, 2015 at 08:01 AM in Howard Wasserman | Permalink | Comments (0)

Sunday, April 26, 2015

Ohio is Not New York. Or Even Texas.

The Times today has a write-up of the recent Deborah Jones Merritt study of employment outcomes for the JD Class of '10 in Ohio.  As I described in more detail at the law & econ prof blog a few weeks ago, Prof. Merritt's study has, ahem, merits.  It's a great snapshot of struggling graduates in Ohio, people who deserve our attention and support.  The trouble is that the Times story reports these findings as though they told us something about the national law job market.  Merritt's new data are all in Ohio, which may be a systematically different legal market than many others.  Nonetheless, the Times story reports Merritt's findings as though they were representative of the whole country (and also describes the study as "published," when in fact it's an ssrn working paper).  Most troublingly, the Times reports Prof. Merritt's conclusion that "the 2010 class had not recovered in the ensuing years" without any caveats.  

Yet there are several serious caveats that ought to have been offered.  For example, as I read the paper, Merritt 's claim depends entirely on a trend line she draws between 2010 national NALP data (which are based on self-reported survey results but supplemented with some web follow-up) and 2014 Ohio data (which Merritt hand-collected on the web).   That is not likely to be a persuasive method of measuring employment trends for anyone, whether in Ohio or anywhere else.  It's like comparing 2014 scoring in the NBA against 2010 scoring in college basketball.  Unless you can show a really convincing case for why these groups are actually very similar to each other, the trend line is likely to be just random noise.  

Deborah and I had an exchange about these issues on my blog.  She convinced me that the method NALP used for supplementing some of the 2010 data was similar to her method (although that leaves the question whether it makes any sense to compare her results to the bulk of the NALP numbers, which used a quite different method).  But she did not address the issue that the 2010 NALP data were for the whole country, not Ohio, and there is no a priori reason to think that Ohio was similar to the U.S. in 2010 or that its trend since has been similar.  I left our exchange believing she would return to her project and revise it to reflect its serious limitations as a window into national trends.  If that has happened, it is not reflected in the Times story.  

Posted by BDG on April 26, 2015 at 06:41 PM in Current Affairs | Permalink | Comments (72)

Baseball reaches historic milestone


Posted by Howard Wasserman on April 26, 2015 at 04:23 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Changes in the Legal Professoriate and in the Market for Law Schools

I am not surprised that my hope of doing a whole series of posts on how things have changed in legal education has been dashed. It's likely that the two points I made in my previous post on the subject are the ones I wanted to make anyway--that (1) they haven't changed as much as I might have figured, or as much as circumstances demand, and that (2) although the story of law schools in the past seven years has been one of responding (or failing to respond) to changing circumstances in light of the economy and possible longer-term changes in the legal profession, it's also important to note that student views and attitudes about this have changed more than once since the first generation of law students, the one that applied before the economic downturn and suddenly found itself brutalized by it, came and went. Before moving to the last week's topic, however--and perhaps one more post about our friend Dan--let me add two slighter observations.

First, there have of course been changes in the professors themselves. Others--especially our co-blogger Sarah Lawsky, who has done such great and time-consuming work on this, and others elsewhere in the legal blogosphere--have done much more serious and empirically grounded work than anything I'll add here. I want to make one impressionistic point having to do with the rise of VAPs as one of the main conduits for entry into law teaching.


One of the benefits of VAPs, fellowships, and similar programs is that people entering into law teaching this way have far greater access to excellent mentoring from the faculty of the law schools hosting them. (The faculty can benefit too, of course, from the new ideas and the energy of the fellows.) I'm sure individual experiences vary greatly and that some individual fellows find they are much more on their own than they expected. Still, it is clear that some schools really do provide substantial mentoring, especially about succeeding on the job market.

But I want to suggest that this benefit is not without its costs. I have read some truly excellent "job talk" papers in the past few years and seen some terrific talks, skillfully presented and carefully defended. But I have also noticed an increasing degree of standardization in those papers and talks. The papers and talks are, I think, to some degree products of advice from senior colleagues that certainly will help those fellows succeed in getting good entry-level jobs. But some of this advice may be better at teaching successful job-getting techniques than at imparting the best possible lessons for future scholars. The fellows may be getting better advice on picking issues that have not already been done to death or that are too big and broad for an early effort. But I am seeing a dramatic increase in the number of novelty claims from these candidates--few job talks today lack the claim that "this is the first paper to [whatever]"--and I think the number of claims certainly outstrips the actual amount of novelty in the papers.

And one can sense other words of wisdom behind these papers. Be political, but not too political. Be just counter-intuitive enough, but not on anything that challenges the strongly held priors of your audience. Make sweeping and potentially radical claims up front, but make sure your "fix" or "prescription" section at the end is narrow, and avoids offering legal reform suggestions that are as radical as the logic of the opening section suggests. Follow up on this advice by walking back such claims in the Q-and-A section of the job talk; and so on. In short, aim to intrigue and impress, but avoid provoking strong opposition and try to please or at least reassure every potential faction. Walk on water if you can, but never step on anyone's toes.

Of course this is impressionistic. But my sense is that all the VAPs at all the best schools are getting roughly the same advice, and that it is all tactical advice aimed at success on the job market. As tactical advice, it is probably sound. Certainly many of these hopefuls succeed magnificently on the job market, although it's hard to tell how much of this to attribute to the advice, and how much to attribute to the fact that those schools give fellowships to those most likely to succeed in the first place.

Nevertheless, I worry that while some of this advice is good, some of it may teach more about tactics--tactics for placement and for pleasing audiences--than it teaches about the best and highest academic values. It may encourage more standardization than is good for the scholarly enterprise. And I worry about what it will do by way of forming the long-term standards of judgment of those receiving such advice.

One often hears junior folks saying that they will follow certain advice of this sort just long enough to succeed--in getting a job, and then tenure--and then they will be able to do what they really want to do, say what they really want to say. More likely than that, I think, is that those values will simply be internalized and entrenched over the long run, and that today's applicants, as they enter the academy and gain seniority, will in turn apply them to the generation of applicants that comes after them. The overall effect may be to encourage a kind of orthodoxy and a fairly relentlessly tactical orientation, rather than instilling some appreciation for other academic values--modesty about novelty claims, not to mention writing about issues that are important and deserve further treatment but that aren't "novel" as such; idiosyncrasy and even audacity; refusing to offer "reform" recommendations at all, in a paper that does not require them or in which such recommendations would just be silly; writing unconventionally; unapologetically taking politically unorthodox stands; and so on.

Again, I appreciate that this advice has value, and I'm sure it is not the only advice the fellows receive. Still, I hope those giving the advice--who may themselves have had an opportunity to strike out on their own in various ways, to deviate from the norm, to be bold, and to be scholarly idealists and innocents rather than moving immediately to "experience" and cynicism--will give some thought to the possible downsides of this advice.

Second, another change for law schools is that they are moving substantially to recruit and serve different "audiences"--or markets--than the one they have conventionally served. As one recent blog post suggests, law schools may--many have already begun to--attempt to create more "non-JD" classes and programs. In the past that has included a proliferation of LL.M. programs. But now we are also seeing increasing interest in offering programs that (unlike the LL.M.) will teach non-JD students but not confer JDs on them at the end. Rather, they will offer "certificates" in a variety of legal areas in which some non-lawyers may wish to gain expertise, such as regulatory compliance. 

I worry greatly about such programs. In principle, I do not think they are unjustifiable. It is possible that they can indeed teach relevant skills to individuals who might learn from and make use of such programs in an area of growing concern to the professional and corporate world. At the same time, it is obvious that the rise in interest in these programs has to do substantially with the desire to find new revenue streams for law schools as the numbers of JD applicants decrease.

While I don't think that motive is illegitimate per se--if a financial motive results in something socially beneficial, I'm all for it--it does create the obvious concern that the tail will wag the dog. Not all such programs will be of equal quality or value. Some schools might simply jam non-JD students into ostensibly relevant JD courses without giving enough careful thought to the goals and substance of the program. Others may push marketing materials that make sweeping, overly optimistic claims about the value of such certificates. And there is also a risk that far too many such programs will be created, that there will be a race to enter the market and then a rush by everyone to enter it, and a corresponding glut of programs, many of questionable quality and many resulting in little professional gain to the individual enrolled in the program and little gain to the educational value and focus of the law school itself.

It would, in short, be a shame if law schools bought themselves some extra time and revenue, but ended up recreating with these programs the very problems that they faced, and in many cases created, with the JD programs themselves. But I would much rather see far too "few" of those programs than even one too many. 

Posted by Paul Horwitz on April 26, 2015 at 01:36 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, April 25, 2015

If I've lost the media . . .

I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with  Orin Kerr and with me.

But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.

Posted by Howard Wasserman on April 25, 2015 at 11:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, April 24, 2015

On Anonymous Speech

When I drive into the BC parking lot, I'm always wary of the dad drivers with out-of-state plates.  Not just because they're lost, texting their kid to find the right dorm, and pushing the family dog into the back seat with the other arm (although also that).  It's because they're way more aggressive.  And heck, if I'm honest, I am probably way more courteous -- stopping for pedestrians, waiving ahead left-turners -- in that parking lot than I am when I'm away from home.  They know me, and who wants to face someone in the hall after you've just been rude to them on the road?  

Anonymity, in short, is a shield for our worst impulses.  We have a trove of data on this now.  Probably I could just say, at this point, Cf. The Internet.  But we have scientific studies, too.  Putting your name on a blog post or a letter to the editor is like the hand-drawn eyes in the office kitchen (reported by Thaler & Sunstein in Nudge, if you don't remember): it's a prompt to imagine how other people would respond if they observed us acting unkindly or unethically.  

I don't want to live in a community where everyone behaves like total strangers to one another, where moral obligations, norms of kindness and generosity of spirit and respect for disagreement can be shucked off.  I don't want to blog in a place like that.  And I don't want to vote in a place like that.  For that reason, I've argued against the use of charitable organizations as shields for the anonymity of political contributors.  And I have been very aggressively removing anonymous, spiteful comments from my threads during my time at prawfs.

There's of course a strong historical tradition of anonymous pamphleteering in America.  My view is that too much is made of that history.  Yes, anonymity was a shelter for colonial resistance to the British authorities.  But the First Amendment does that now.  Anonymity, of course, also shelters speech from responses by private actors.  Maybe, as a con law tyro, I'm missing something.  But where is that in the First Amendment, exactly (aside from, perhaps, an obligation of the government to protect us from overwhelming efforts to interfere with fundamental participation rights)?  I thought that was how the marketplace of ideas was supposed to work.  We also have some good data that the sources of speech are really important to how citizens evaluate the truth of claims.  At best, anonymity protects speech by undermining its value.  

Is this all a bit rich, coming from someone who blogs under their initials?  Maybe.  I will say that my name is right there in the right-hand column, so it ain't exactly a Will Shortz puzzle to figure out who I am.   In the rare instances where I comment using my initials and someone doesn't seem to know who I am, generally I will e-mail them.  To me this is different than the "anon123" or "erstwhile T100" noms de guerre: most of the people whose opinions matter to me will know who I am.  My rationale is that I prefer not to have a thousand blog posts be the first search results for me, which would otherwise happen (especially at prawfs, which gets a good google score).  But maybe, if I'm honest, I also value the possibility of anonymity from the one-time commenters, those who (as in a now-deleted comment on my recent thread) confess to having mental health issues and say "my grievance is with you."   I hope that wearing that half-mask doesn't change the way I blog.  But maybe it does.  I have to think about it some more.  

Posted by BDG on April 24, 2015 at 11:39 AM | Permalink | Comments (6)

Congratulations to Rick Garnett

The dean of Notre Dame Law School announced this week that our good friend and co-blogger Rick Garnett has been approved by the university administration as the law school's newest endowed professor. Rick will be the Schierl/Fort Howard professor at the Law School. I know Rick will be particularly pleased because the chair's previous occupants were two giants at Notre Dame: the great legal ethics scholar Tom Shaffer and the late Bob Rodes, who wrote lasting works in jurisprudence and many other areas. Both were friends and mentors to Rick, and I'm sure that it means the world to him to follow in their footsteps. Rick is a prolific scholar and public commentator, a much-loved teacher, and a total mensch--and, last but least, an active blogger, both here and at Mirror of Justice. The honor is well deserved. Mazel tov, buddy!

Posted by Paul Horwitz on April 24, 2015 at 11:35 AM in Paul Horwitz | Permalink | Comments (0)

Repost: First Annual Civil Procedure Workshop

The first annual Civil Procedure Workshop will be held at Seattle University School of Law on July 16-17, 2015.

Scholars have been selected to present their work in small panel sessions, with distinguished faculty providing commentary. Panels proceeding on Thursday, July 16 will cover a wide range of topics. On Friday, July 17, the Workshop will focus on the class action. In the morning, junior scholars will present work focused on aggregate litigation, and Judith Resnik will provide a keynote address over lunch. In the afternoon, scholars and members of the Class Action Rules Subcommittee of the Federal Civil Rules Advisory Committee will participate in a roundtable discussion of proposed amendments to Rule 23. Confirmed commentators include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, and Tobias Barrington Wolff.

We welcome all civil procedure scholars to attend this Workshop. The Workshop will provide meals for registrants, but registrants must cover their own travel and lodging costs. We have reserved a block of hotel rooms near the workshop at a discounted rate. Please contact Brooke Coleman ([email protected]) if you would like information about reserving these rooms. Finally, if you are planning to attend, please register here.

Please feel free to contact us with any questions. Thank you and best of luck as the semester winds down.

Brooke Coleman (Seattle), [email protected]

Liz Porter (UW), [email protected]

Dave Marcus (Arizona), [email protected]

Posted by Howard Wasserman on April 24, 2015 at 10:28 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, April 23, 2015

Forum selection, upside-down

The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.

It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?

Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.

The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.

Posted by Howard Wasserman on April 23, 2015 at 03:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (23)

How Things Have Changed

Dunce that I am, I set too big a topic for our anniversary posts this week: how law teaching, and law schools, have changed since PrawfsBlawg got started ten years ago. That's a book, not a blog post.

And yet...Although one could say a lot about this topic, on second thought I wonder if things have really changed that much. The environment in which law schools operate has changed dramatically, to be sure. And there have been interesting innovations in plenty of places--some for the good, others perhaps not so much. There have been important changes in how one becomes a law professor, but I'm not sure that who becomes a law professor has really changed: it's more a case of same cohort, different route. And if one asks the fundamental, global question--have law schools, taken as a whole, changed significantly in the last decade?--I find myself more inclined to answer "no" or "not much" than "yes." In one sense this is not a surprise. One can always count on institutional inertia. At the same time, given all the changes that are arguably necessary, and all the incentives to change, I find myself struck, if not actually surprised, at how little transformation there has been on the whole. 

I can't or at least won't try to justify that conclusion in any detail. Instead, let me offer a few bite-sized observations about interesting changes I have seen. I hope to have the energy and diligence to discuss several changes over several posts, but I'll start with just one. Perhaps the most interesting change, from my perspective as a teacher, is the backward-and-forward shifts in the student body that I have seen, especially since 2008. I taught Legal Profession, aka legal ethics, throughout this period. Unsurprisingly, it turned out to be the best of my classes for learning something about students' attitudes toward law school and legal practice, in a way that distinctly altered my approach to the course.


That class involves a "problem"-based approach. Around 2010 or 2011, I had a class that resisted the exercises all semester. It took a while for this sense to hit home for me. Still, being a highly responsive and sensitive teacher, I asked the students (somewhere around the last week of classes) why this was. Their answer was that, given the difficulty they were having finding jobs at all (they did, but the number of people graduating with jobs in hand was definitely way smaller than in other years), they just couldn't put themselves imaginatively in the shoes of a practicing lawyer, even for purposes of a classroom exercise. It is, of course, entirely relevant not only that they were finding jobs hard to come by, but that these were the students who by and large had applied to law school before or at the outset of the economic downturn, before the full extent of its effect on the legal profession was clear. The difference between what they had expected to reap as a result of going to law school and what they were actually getting was substantial, painful, and embittering. Without wanting to bad-mouth or single out my own institution, doubtless they also found our own recognition of and response to these changes wanting, and this was further cause for bitterness. 

I have always included some discussion of law schools and legal education in the ethics course, but that response was certainly a wake-up call that more was needed (outside of class too, of course, but that's not my focus here). I began opening the course with a couple of classes dedicated to law schools, the "law school crisis," and changes in the legal profession. At least once, I assigned Brian Tamanaha's book. I tried to learn more about their expectations and how they had been met or dashed so far in their law school experience. I devoted a solid class to soliciting all their complaints about our law school in particular, and made them a deal--I would share the list of complaints with the administration, urge it to address these things, and work directly on some of the issues, and they would commit to the exercises. 

I have kept doing that, and I find it useful, both for the students and for me. It's a very long list of complaints (and, again, I'm not trying to single out or embarrass my own institution; the list would be similar at other schools, and I was asking for criticisms, not praise). Some of the items change, with new and different problems emerging as the front-runners. And I learn a lot about my institution that I might not otherwise know. Professors have a duty to understand their institution and attempt to reform it as needed, and this process certainly brought that home to me. The students handsomely keep their end of the bargain and, I think, get more out of the class as a result.

But it wasn't until the last year or two that I began to realize that the student body had changed yet again. My students now come in much more cognizant of changes in the profession, narrowed opportunities, and so on--thanks, in some measure, to all the blogs focusing on the "law school crisis." Their plans for after graduation are generally far more specific, more closely related to their pre-law school jobs (if any), and more realistic. They are not cockeyed optimists, but neither, on the whole, are they either deeply pessimistic or particularly bitter. They are, I think, more committed to the process of legal education itself, more willing to participate, and less likely to think of themselves purely as purchasers or consumers of a service. That doesn't mean they are wholly content with the curriculum as it is, I hasten to add, and certainly the list of complaints is still long. But the gulf between their expectations and reality is much smaller.

These students remind me much more of my father's generation of law students and lawyers than mine. I graduated from school in an era when law schools were still very much way stations for twentysomethings who weren't sure what they wanted to do with their lives (a venerable tradition: read Learned Hand's description, in Gerald Gunther's biography, of why he went to law school). We expected that we would graduate with good job offers in hand; although there was a definite dip in the legal economy around the time I graduated, and it did have an effect, virtually all of us did. (I should add that I snuck into highly ranked law schools, and of course that made a difference too.) We were, on the whole, a distinctly risk-averse cohort; that's why we went to law school. Compare that to my father's generation--specifically, his fellow cohort of Jewish lawyers, at a time when Jews were still largely excluded from the big firms. They were a much more practical, entrepreneurial bunch. They were, in fact, the generation that cracked open the law firms and changed legal practice from without and within the old firms, changing some, killing some off, and doing much to get rid of assumptions about the gentility of the profession altogether. My students today are certainly not the same as that group in all respects. But their attitudes, expectations, and energy are far closer to it than my classmates and I were. 

To be clear, I don't intend any of this as a good-news story. As I said up front, I think law schools have changed less than one might expect given changes in the profession, and less than they should. I think this group of students is more realistic in its expectations than students were around 2010, but I don't know whether this is because the law schools are being clearer and more candid in their discussions with prospective students or because other, better sources of information are now out there. I do think this cohort is less likely to be bitter and angry with the law schools, less likely to be a fertile source for a new generation of angry online commenters, and I find that interesting and worth pointing out. But I draw no conclusions on that basis about whether they have cause to be angrier than they are. They certainly still have a long list of changes they would like to see; it's just more likely not to be expressed as if it were a bill of particulars. What I have found most interesting and educational from a personal perspective, I think, is the simple experience not only of having the student body change, and realizing that my teaching materials and my approach to the job inside and outside the classroom have to change along with it--but of then realizing that the changes I found most striking five or six years ago have transformed yet again, and will keep on doing so.

The lesson, really, has been one of those that simply comes with enough time on the same job. It may be possible to keep doing the same thing year after year, keeping the same old lecture notes with a few occasional changes penciled in to the margins, and the substitution of a somewhat outdated cultural reference (Taylor Swift, say) for a seriously outdated cultural reference (I've thrown out all my Christopher Cross references). But I don't see how. The students--their motivations, their expectations, their likes and dislikes and complaints--change, and then change again just as you've adjusted yourself to the first change. It's not enough to think in terms of adapting in light of the "law school crisis," as if it represents a single end-state with a uniform reaction to it. Within that general rubric, there have already been a couple of distinct generations of students with very different responses to it. If you want to reach the students where they are, you have to adjust to the fact that that location will change every few years. Of course that seems obvious; doubtless it is obvious to most people, and I'm just unusually oblivious. But actually experiencing it over the course of a decade has been instructive. 

Posted by Paul Horwitz on April 23, 2015 at 01:50 PM in Paul Horwitz | Permalink | Comments (0)

Law School Sustainability 2015

In late 2012, I put up a post entitled "Law School Sustainability."  I argued that law schools had to think seriously about making legal education sustainable by making it a worthwhile endeavor for graduates.  Two and a half years later, sustainability has become even more of an imperative than a choice.  It is not an exaggeration to say that some schools are struggling to stay in existence, and that most schools have had serious challenges to their operations.  This December 2014 NYT article provided not only an overview of this situation -- it also provided a source for law school deans in convincing university administrations (or, for stand-alones, their boards) that the problems at their particular law school were not unique.  "See?  Even Northwestern is having these issues!"

There are two blunt forces that are channeling the deluge of changes on law schools today: money and the U.S. News rankings.  Money is pretty straightforward: a school needs enough students to pay enough in tuition to cover the costs of operating the school.  Schools will have various abilities to cover shortfalls.  But a school at least needs to pay for itself to be sustainable.  So money is pushing schools to take more students at higher tuition rates -- or, to cut costs to make up the shortfall.  U.S. News, however, pushes in almost the opposite direction.  It puts pressure on schools to take fewer students, to pay more money per student in educational expenses, and to cut tuition to get better credentialed students.  (Ted Seto made this point yesterday, in discussing tuition sustainability.)  So schools have played the game of ping-ponging back and forth between these two forces, depending on their finances.

Many schools have gotten to the point where the U.S. News goals has become a luxury they cannot afford.  But as much as we want to disparage the crude and whimsical nature of the rankings, they do include measurements of important information: incoming credentials, bar passage rates, and employment statistics.  Schools that allow these benchmarks to degrade are hurting themselves in the long run.  Just as with finances, schools will have differing abilities to suffer through worse LSAT scores or lower bar passage rates in the short term.  However, a school whose graduates cannot pass the bar in significant percentages and do not find jobs that can cover their loans is not a sustainable endeavor.

So this is a small cheer for U.S. News, in that it provides an additional incentive for schools to keep up their incoming credentials, get their students to pass the bar, and then find them employment.  Word would get out eventually about schools that fail to mind these things.  But U.S. News gets the info out nationally, more quickly, and more systematically (if more crudely, and in ways more open to gaming).

One more quick point, to echo what Ted Seto said: U.S. News may incentivize lower costs, but it does so only for higher-credentialed incoming students.  Changes to the federal loan program may soon provide very strong incentives to keep tuition lower for everyone.  If that happens, then the ping-pong game will turn into this, and the sustainability window for law schools will get significantly narrower.

Posted by Matt Bodie on April 23, 2015 at 11:26 AM in Life of Law Schools | Permalink | Comments (2)

Additional thoughts on Wong and June and the FTCA

I have a SCOTUSBlog opinion analysis on Wednesday's decision in U.S. v. Wong (along with U.S. v. June). A  divided Court (Kagan writing the majority, for Kennedy, Ginsburg, Breyer, and Sotomayor) held that the statute of limitations in the Federal Tort Claims Act is not jurisdictional and is subject to equitable tolling.

This is the right conclusion--both that the statute is not jurisdictional and that it is subject to equitable tolling. But I have some additional thoughts after the jump.

The problem is that the Court continues to erroneously conflate the concepts of jurisdictionality and mandatoriness--using "jurisdictional" as inaccurate shorthand for "mandatory" (or "non-tollable," to the extent that is word). Properly understood, a statute of limitations should never be jurisdictional, because it has nothing to do with vesting a court with authority to hear and resolve the issues in a case. Timeliness goes to whether the pleader can bring and move forward with the claim in a court of proper jurisdiction. But that leaves unresolved whether the statute of limitations is or should be mandatory--understood and applied as "brooking no exceptions," to use language from Justice Alito's dissent. And the Court's inaccuracy on this spawns inaccuracy in Congress, which continues to legislate with the jurisdictional/non-jurisdictional divided in mind, rather than thinking expressly and explicitly about mandatory/less-than-mandatory. Or better, thinking expressly and explicitly about a rule (timely filing) and exceptions to the rule.

The Justices at least recognized this gap in Wong and the possible need to shift the analysis away from jurisdictionality language and to a direct focus on mandatoriness. Justice Kagan dropped a footnote agreeing that Congress could preclude equitable tolling of a nonjurisdictional limitations period, but punted on the issue by insisting that the government had made no arguments for non-tolling independent of arguments about jurisdictionality. Justice Alito's dissent sought to separate the issues, at least in part. Acknowledging that the Court might want to avoid the jurisdictional label given everything it entails, he insisted that § 2401 is nonetheless not subject to tolling. As I explain in the review, Alito argued that "'Forever barred' must mean something. It is 'no weak-kneed command,' nor is it 'qualified or aspirational.' These words are absolute and 'brook[] no exceptions.'” While the right approach, Alito's textual argument does not support the conclusion. All statutes of limitations offer a textual command--the claim is barred if not filed withing X period. If the statute offered a textual basis for tolling (through less-emphatic language or through enumerated exceptions), then a court would not be utilizing equitable tolling, it would be applying statutory tolling provisions. Congress still needed to do something more than it did in § 2401 to foreclose a court from wielding its inherent equitable discretion to toll.

Posted by Howard Wasserman on April 23, 2015 at 09:53 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit

The following post is by Christine Haight Farley and Robert L. Tsai  (both of American); it is their second guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.

On Tuesday, the Federal Circuit issued a unanimous decision (In re Tam) holding that the mark THE SLANTS was properly refused registration because it is disparaging to people of Asian descent.  Since 2010, Simon Shiao Tam, the front man for the Asian-American rock band “The Slants,” has been trying to obtain trademark recognition for the name of his band.  The record shows that the band picked the name by thinking of “things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes.”  The record of the case confirmed that “slants,” used in the way proposed, would likely be received as a racial slur.

The fact that the registrant wished to re-appropriate an ethnic slur and try to create a positive connotation did not alter the outcome. Nor was the Court troubled that the user’s own race formed part of the background for assessing the objective meaning of the mark in commerce. Both of these jurisprudential choices are consistent with the Federal Circuit’s approach to statutory interpretation, which strives for an objective meaning of trademarks in actual use.  In our view, the private cooptation of illiberal ideas can generate terrific art and might very well help to change social meaning in the long run.  But you don’t need trademark protection to engage in such projects of appropriation; indeed, granting one user legal protection might even stifle others who would like to experiment further with taboo ideas.

In re Tam now makes it two cases on trademark disparagement that the Federal Circuit has ever decided—both have been in the past year and both affirmed the TTAB’s finding of disparagement.  The court obviously felt bound by precedent.  Nevertheless, Judge Moore, the author of the 11-page majority opinion, offered 24 pages of what was styled “additional views," but which read more like a petition for rehearing en banc on the constitutionality of § 2(a) of the Lanham Act.

Though not binding, this last bit by Judge Moore may prove most interesting of all.  The judge offered many reasons for wanting to revisit the Federal Circuit’s position on the constitutionality of § 2(a): its 1981 decision In re McGinley did not cite any authority, its analysis consists of only a few sentences, the decision has been criticized in the intervening years, jurisprudence on the unconstitutional conditions doctrine and the protection accorded commercial speech has since evolved, and the source of the PTO’s funding has shifted from tax payers to user fees.

The judge contends that In re Tam presents an unusually strong case for considering trademarks as protected speech since the applicant intended to use the mark to reclaim Asian stereotypes and to participate in a political and cultural discourse about race as a musical artist.  At oral argument, the judge tried to distinguish this feature of the case from the Redskins case.

But the main thrust of Judge Moore's constitutional challenge to § 2(a) is based on the unconstitutional conditions doctrine, which holds that the government cannot deny access to a government benefit on the basis of the recipients exercise of constitutionally protected speech.

In claiming that the benefits of registration are not just procedural, but are also substantive, Judge Moore states that a disparaging mark “cannot be protected by its owner by virtue of a § 43(a) unfair competition claim” because “§ 43(a) protection is only available for unregistered trademarks that could have qualified for federal registration.” (emphasis in original).  This is a bold claim not exactly supported by the cases she cites.  The Supreme Court’s Taco Cabana decision simply says that “the general principles” under § 2 are “for the most part applicable” in determining whether an unregistered mark is protectable.  That’s right because for the most part, these general principles are common law doctrine codified in the Lanham Act.  No case yet holds that the owner of a disparaging mark would not be able to assert common law rights against an infringer, but in a 2013 decision the Federal Circuit did suggest that an unregistrable common law mark may receive protection under § 43.  As we argued in a previous post, variations in the availability of legal remedies are better understood as procedural changes rather than subsidies of private speech.

By focusing on the benefits of registration, Judge Moore loses sight of the significance of registration.  Although in civil law countries trademark registration generally confers rights, in the US trademark rights are created by using a mark in commerce and developing good will.  Registration is “essentially a recognition of a right already acquired by use.”  At the same time registration is encouraged because it provides notice of rights—hence the benefits that flow from registration.  These benefits, however, are distinguishable from benefits conferred by the government in other unconstitutional conditions cases, which typically involve direct subsidies of speech.  In the case of trademark registration, the government is literally approving of certain trademarks; the symbol of trademark registration—the “R” in a circle—is a statement by the trademark owner that the government has approved, not its business or its goods, but the mark itself.  Such approved trademarks are included in the government’s registry, or list of marks certified by the government.  No other unconstitutional conditions case involves such symbolic acts of endorsement by the government, but instead involve unseen deeds such as exemptions from taxes or import duties.

The limited nature of the denial of registration seems to be lost on Judge Moore.  The PTO’s refusal to register disparaging trademarks does not force the owner of a disparaging mark to relinquish a constitutional right.  The owner can continue to use the mark.  In cases where the Supreme Court has found an unconstitutional condition, the speaker has few realistic options other than to cease engaging in a particular form of speech in order to avail itself of a valuable government benefit.  No such forced choice results from § 2(a).  Because the registration system parallels common law trademark protection, some of which is enshrined in the Lanham Act, the owner of a disparaging mark can continue to engage in its chosen speech and endeavor to have it protected as a common law trademark.

Perhaps worst of all, Judge Moore's application of the presumption against content-based regulations to § 2(a) has no limit.  If all trademarks are constitutionally protected speech and the act of registration is the conferral of a substantive benefit, then when may the PTO make a content-based determination that affects registration without violating the First Amendment?  The Lanham Act also requires the PTO to refuse registration to marks that consists of simulations of state insignia and marks that include the name of a president.  There’s no doubt that these determinations involve trademark owners as speakers and the denial of benefits.  They also require the PTO to evaluate the content of the mark.  Should the constitutionality of these provisions also be revisited?  And what about the denial of registration to merely descriptive marks, deceptive marks, and marks that falsely suggest connections?  Under Judge Moore’s logic, these determinations are as unconstitutional as direct content-based regulations of speech.  Moreover, it is worth noting that none of these kinds of marks would fall within traditionally unprotected categories of speech (e.g., libel, incitement, obscenity).  So applying the First Amendment full bore as Judge Moore proposes would also disable the PTO from barring the registration of these marks as well.

The broader point is that all trademark registration determinations under § 2 are content-based because they all involve an evaluation of the meaning of the mark in the context of its use and analysis of whether it is disparaging, descriptive, deceptive, etc.  Thus, if strict scrutiny is applied to the ban on disparaging or scandalous marks, it is also required in evaluating the constitutionality of all the other trademark restrictions contained in § 2.  If a court were truly serious about apply this presumption, there would be little left of trademark law.

Finally, Judge Moore asserts that trademarks are private speech, not government speech. Judge Moore asserts that when “the government publishes registered trademarks in the Trademark Principal Register, it does so not to communicate a particular message or select a particular viewpoint.”  But it is hard to get around the fact that the Register is a list of marks that the government has approved and that when a trademark owner uses the registered “R” symbol along with its mark, it is using that symbol precisely as a certification that the government has approved its mark.  It is only when the PTO rejects the registration of a mark that its use is purely private.  There are a host of reasons why the government should have the power to distance itself from odious speech and illiberal business practices.  As we argued in a recent Slate article, all of these are compelling features of the federal government’s power to regulate interstate commerce. 

Posted by Howard Wasserman on April 23, 2015 at 09:01 AM in Constitutional thoughts, First Amendment, Intellectual Property | Permalink | Comments (0)

Wednesday, April 22, 2015

More IP Prawf Lateral Moves...

In addition to the four additions to Texas A&M discussed here, Scott Hemphill (Columbia) will be joining NYU Law (the announcement is here). In addition, Ann Bartow (Pace) will be joining the University of New Hampshire School of Law as the Director of the Franklin Pierce Center for Intellectual Property (this announcement is here). Congratulations!

Posted by Amy Landers on April 22, 2015 at 10:01 AM in Intellectual Property | Permalink | Comments (0)

A (very) brief note on law employment statistics

You, reader, are in the wrong place for the debate over how law schools should present employment data.  Mike Simkovic has a long series of posts (I link here just to the latest, which in turn includes links to the earlier work), and Bernie Burk has weighed in here and here.  To digest, Mike says that it is reasonable for law schools to report "unemployment" figures using standard BLS definitions, which include part-time workers and workers employed outside law as employed.  Bernie says this is potentially misleading, since applicants probably also would like to know what share of the employed are full-time or in JD-required jobs.  Mike notes that the definition of unemployment can be googled (probably by an 8th-grader, but he says "by a college graduate") pretty easily -- a step, I might add, that might reasonably be expected of someone who is relying on data to decide how to spend 3 years of their life.  

I write this post, though, because for whatever reason Mike hides his best response to Bernie's point at the bottom of a long post: "There is a distinction between the potential for additional information to be useful and the stronger claim that summary information is inherently misleading."

Posted by BDG on April 22, 2015 at 09:41 AM in Current Affairs | Permalink | Comments (75)

CFP: Eighth Junior Faculty Federal Courts Workshop

The University of California, Irvine School of Law will host the Eighth Annual Junior Faculty Federal Courts Workshop on September 11-12, 2015.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Erwin Chemerinsky (UCI Law), Evan Lee (UC-Hastings), Thomas Lee (Fordham), Carrie Menkel-Meadow (UCI Law), James Pfander (Northwestern), and Joan Steinman (IIT Chicago-Kent College of Law).

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2015 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 19, 2015. Papers will be selected by a committee of past participants, and presenters will be notified by the middle of July. Those planning to attend must register by August 14, 2015. 

Please send abstracts to [email protected]. Please contact Seth Davis with questions.

Posted by Howard Wasserman on April 22, 2015 at 09:31 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Tuesday, April 21, 2015


In the marketplace of ideas, Twitter has decided that online trolls are bad for business. Back in February, it was reported that Twitter's CEO Dick Costolo told staff "We lose core user after core user by not addressing simple trolling issues that they face every day." This statement suggested that keeping Twitter safer from abusers had become a corporate goal.

Recently, Twitter began to roll out changes that puts meaning behind Costolo's statement. Rather than asking the victim to track down an abuser, Twitter has flipped the script to test a new a feature to lock the abuser's account for a period of time. The account can be reactivated if the user provides a phone number verification, and then deletes all of the tweets that are in violation of terms of service. A screen shot of the procedure is below (and a text explanation is here on Ars Technica).


Additionally, Twitter's guidelines have been amended to broaden the definition of prohibited conduct to include "threats of violence against others or promot[ing] violence against others" (expanded from the “direct, specific threats of violence against others” in the former policy). In addition, the company is implementing measures to limit distribution of certain tweets that exhibit "a wide range of signals and context that frequently correlates with abuse including the age of the account itself, and the similarity of a Tweet to other content that our safety team has in the past independently determined to be abusive."

The sheer size and volume of Twitter's platform, and the types of distinctions that will have be made, make implementation of these standards a challenge. Of course, the platform is in the private sector, and these guidelines are a form a type of private governance. I wonder where this direction will take the company, what the impact will be on public discourse, and whether it will affect the behavior of other online platforms.

Posted by Amy Landers on April 21, 2015 at 08:32 PM in Blogging, Culture, Current Affairs, Information and Technology | Permalink | Comments (0)

A Human Right to Intellectual Property?

The merger between trade and intellectual property, referred to as “strange bedfellows” in the 1990’s, has become the norm as a result of the WTO Agreement on Trade-related Intellectual Property Rights, and subsequent agreements. Intellectual property and human rights may seem like strange bedfellows as well. However, there is a greater connection between these two areas of law than one might imagine.

Article 27(2) of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The International Covenant on Economic, Social, and Cultural Rights contains similar language. A number of scholars have considered the relationship between human rights instruments and intellectual property rights (i.e. Helfer, Yu, Shaver, Land, Chapman, Carpenter, and others). Some (Chapman, for instance) have suggested that this UDHR provision provides a basis for a human right to copyright or patent protection.

Writing on corporations and the possible human right to intellectual property, I found myself reluctant to accept the notion of a right to intellectual property as a human right. I like the idea of considering the impact of intellectual property rights on human rights, as has been done in the access to medicines debate, for instance. However, I am generally uncomfortable with the notion of a human right to intellectual property. Equating the UDHR human right to a right to copyright or patent protection raises a number of issues, and I doubt that it is ultimately a good idea. However, I am willing to be convinced otherwise. 

Posted by Jan OseiTutu on April 21, 2015 at 01:16 PM in Corporate, Culture, Intellectual Property, International Law | Permalink | Comments (2)

All is Vanity.

I’ve enjoyed the set of recent reflections on Prawfs’ astonishing ten-year run.  Orin's great insights about blogging’s lack of internal credit & Paul’s characteristically wise post about the aging medium both hit points I would’ve written if I were faster on the draw, and smarter.  Or perhaps not. Like Paul, I’m increasingly averse to writing about the medium, or about legal education itself.  So these recap posts scratch an itch that perhaps ought to be  left alone. Indeed, it feels far too often that most law blogging by professors is a less rigorous version of the Journal of Legal Education, or worse (?) an unending and unedifying list of law professor dean searches.

Why, I wondered, has the energy left the building? 

  1. Because there are fewer fans.  This is most of it.  Prawfs started in the seven years of hiring plenty, and we’re now deep in the middle of the seven years of drought.  There are many fewer young law professors than there were in 2005, and those few that remain are well-advised to keep their heads down and do what’s necessary to survive increasingly difficult internal climbs to tenure. Prawfs' and like blogs' rise  had many parents, but a hiring glut has to take place of pride.
  2. Because of status and everything that comes with it.  When Prawfs began it looked possible that academics from elite institutions would join the fray. That’s – by and large – not what happened. True, there are some faculty blogs at Chicago and elsewhere, and some subject-matter-specific  blogs where elite academics occasionally deign to write.  But very few academics from top ten schools blog regularly. That means: (1) blogs are still largely written by those who’ve not yet “arrived”; (2) bloggers generally work at schools with worse employment numbers, which makes them embarrassed to noodle in public; (3) it’s harder to move the needle on public conversations (excepting, as always, the VC, which is sui generis); (4) institutional support for blogging is resource-constrained. (See #5.)
  3. Because the party is elsewhere.  You may have noticed that Concurring Opinions, my home, has been relatively quiet of late.  But have you read Frank Pasquale’s twitter feed (7000+ followers).  Or, better yet, followed Dan Solove’s LinkedIn privacy forum (~900,000 followers!!)?  LinkedIn, Facebook and Twitter, etc. are where the action is. People read law professor blogs, by-and-large, to learn who has died, who is moving to what schools, and to guesstimate if their article will be accepted.  Also, there are recipes.
  4. Because of preemption.  Everything has been written before, including this sentence. Law professors care more than most about preemption. The weight of past posts is starting to press on our heads, no?
  5. Because we didn’t innovate.  Again, generalizing, blogs have remained stagnant in form.  That wasn’t inevitable. But even blogs about cutting edge topics are conventionally organized. Economy plays a large role here – as do law schools’ IT support, which has other fish to fry. Just a for-instance: compare Stanford Law’s fantastic landing page to a blog they’ve nested inside. Get the sense that the money for the renovation started to run out at some point?  Being stuck in a reverse-chron, wordpress, format has meant that symposia can “disorienting” and unwelcoming to outsiders. At Temple, I’ve been pushing hard against the trend, and we’ve started a business law newspaper using Hive, a nice wordpress-based platform that at least looks fresh. But if law professors wanted to be unconventional, technologically-savvy, innovators, they wouldn’t have become law professors.

All of this makes me feel wistful, because I remember when Prawfs (and Co-Op) started and the medium felt both transformative and exciting.  Blogging has been amazing for me professionally.  A post – and Dan Kahan’s generosity in response to it -  got me involved with the cultural cognition project. Many other articles started as half-baked pieces of dreck at various blog homes. It’s also been great personally, as I met many of my better friends in the academy through Prawfs or CoOp or the Conglomerate, making conferences less overwhelming, and knocking down disciplinary and subject-matter barriers.

But all things change. I am optimistic about the future of law, the legal academy, and public conversations about both – I just don’t think the future will be blogged.

Dan Markel could be an exhausting friend, and I didn’t always have the energy to talk with him. In the weeks before his death, I’d put off a conversation long overdue.  On July 17, 2014, I texted him to prompt that phone call, asking “what’s new with you.”  Later that day, he texted back, writing, “Lots. Will call shortly.”  I’m sorry we didn’t get to have that call. I’m sorry that he’s not around to celebrate this anniversary. He would’ve found my pessimism about professor blogging silly, and would have, I think, expressed enthusiasm and optimism I don’t currently feel about the future of Prawfs and law blogging more generally. Even if I'm right - and the glory of blogging is behind us - it's still worth recognizing that Prawfs has chugged along for a decade, adding tremendous value in the academy, largely because of his initiative and spirit.  

Posted by Dave Hoffman on April 21, 2015 at 11:33 AM in Blogging | Permalink | Comments (8)

Monday, April 20, 2015

Johnson Argument on Vagueness—and Plea Bargaining?

Today the Supreme Court held argument on whether the residual clause of the Armed Career Criminal Act is vague, not vague, or subject to a saving construction. Early on, Justice Alito asked a question that I think is at the heart of the case--namely, “whether the statute is unconstitutionally vague or whether this Court’s interpretations of the statute create the basis for a vagueness argument?” Or, as I’ve put it before, Who made a vague law vague? (For his part, Justice Alito seemed skeptical that "a statute [can] be vague simply because this Court messes it up.")

In this post, I will set aside the main vagueness debate to highlight a surprising aspect of the argument: the Chief Justice’s concern about prosecutorial overreaching during plea bargaining. This issue is becoming a theme for the Chief—and could have important implications.

1. Yates. Earlier in the term, the Court heard Yates v. United States, a much-discussed case about over-criminalization. (My take is here.) For present purposes, the important thing about Yates is that the government was prosecuting a fisherman for destroying evidence—namely, illegally caught fish—and the government seemed to explain that decision by invoking a surprising policy.

Here’s the key statement from the Solicitor General’s attorney:

[M]y understanding of the U.S. Attorney's Manual is that the general guidance that's given is that the prosecutor should charge -- once the decision is made to bring a criminal prosecution, the prosecutor should charge the – the offense that's the most severe under the law. That's not a hard and fast rule, but that's kind of the default principle.

This led to a series of skeptical questions, including the following thoughts on plea-bargaining from the Chief Justice:

CHIEF JUSTICE ROBERTS: But according -- if I understand your answer to Justice Scalia, according to the Justice Department manual, any case in which someone destroys a tangible object, you – you should prosecute them under this statute, because I assume 20 years is the maximum available penalty?

[UNITED STATES]: Your Honor, we would not – we do not prosecute every fish disposal case, and we do not. So I think if you --

CHIEF JUSTICE ROBERTS: But the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you you're facing 20 years, so why don't you plead to a year, or something like that. It's an extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.

Set aside the remarkable line about how the government “do[es] not prosecute every fish disposal case.” The real action here is that the Chief Justice is so concerned about the dynamics between prosecutors and defendants. Practitioners and scholars have been exploring these dynamics for a long time, but the Supreme Court has generally been indifferent to them. And in the main exceptions to that pattern—the Court’s major 2012 decisions on plea-bargaining and ineffective assistance in Lafler and Frye—the Chief Justice dissented. Yet the Chief made plea-bargaining a salient part of the Yates argument and ultimately ruled against the government in that case.

2. Johnson. In today’s Johnson oral argument, the Court was hearing about a different federal statute that posed an almost totally different set of legal questions. Yet Chief found it appropriate to draw on the same plea-bargaining reasoning that he advanced in Yates.

Here’s the Chief in dialogue with the Solicitor General’s attorney:

CHIEF JUSTICE ROBERTS: … [T]he problem is -- the problem is not what the government argues when it gets into court. The problem is what the prosecutor threatens when he's entered into plea bargain negotiations. This is the point that Justice Ginsburg touched on. You are putting the defense counsel in a position where they have to interpret the vagueness in making the decision when whether they want to plead to five years or risk the mandatory minimum of – of 15.

And your guidelines say a lot, but I thought one of the things your guidelines say is that you should prosecute the — the maximum extent that you can, right? Isn't it you should charge the maximum if you if you charge and then the prosecutors go in and say, look, I could charge you this much and or I could or I could -- I mean, I could add this charge to what I've got and then you'd face 15 years. And defense counsel said, well, all right. Let me see if we're guilty of that. And he's going to read that and have no idea whether they're covered by it or not.

And again:

CHIEF JUSTICE ROBERTS: … I disagree with the statement you made. You said if there's -- because there are so many years involved, people will litigate hard. I think because there are so many years involved, people won't litigate at all. I mean, if – if they're facing when if they go to trial such a large enhancement, I think they're going to be compelled -- it gives so much more power to the prosecutor in the plea negotiations which is, of course, where almost all of the cases are disposed of.

This is really something. For one thing, the Chief is still hung up on the government’s “guidelines” from Yates, which apparently “say … that you should prosecute … the maximum” once a charging decision has been made. For another thing, the Chief ends by focusing on the criminal trial’s decline and the related rise of arguably coercive plea-bargains—which, again, is precisely what drove the majority decisions in Lafler and Frye.

3. Let me make two admittedly speculative points about all this.

First, I think it is plausible that the Chief is becoming attuned to problems of coercion in a way that is uncommon in the federal courts. In the healthcare case, the Chief found unconstitutional coercion of states resulting from a federal spending program. It seems like the Chief's solicitude toward state coercion has spread to consideration of individual coercion in the criminal context.

Second, if the dynamics of plea-bargaining continue to play such an important role in the Chief’s thinking, then we may see a significant new pro-defendant vote in criminal justice cases. Indeed, the outcome in Yates and the argument in Johnson suggest that that might already have happened.

Posted by Richard M. Re on April 20, 2015 at 03:03 PM | Permalink | Comments (4)

Chanel and Mrs. Jones

Last fall, fashion house Chanel filed a trademark action against hairstylist Chanel Jones (discussed here at The Fashion Law), to prevent Jones from using her first name in connection with her business. The case was notable given the relative size of the parties and the distance between their markets--Jones' hair salon is in Merrillville, Indiana, which seems more than a stone's throw from the Rue Cambon in Paris which Chanel calls home. Why bother? 

Moreover, the press' attention was undoubtedly caught by the fact that the company filed suit against an owner using her first name for her business, which is a common practice for personal service concerns. As Gene Quinn remarked in a different context, "How crazy would it be if you couldn’t even use your own name on your store front?" Well, as this survey of the case law by Christopher Bussert points out, in the past courts have enjoined companies from using their founder's name on their products and/or services when a senior (read: prior) user has established rights to the same name. 

As background, since the 1960's, Chanel (or alternatively Shanelle) has become an increasingly popular first name.

Chanel name popularity

Since Gabrielle Chanel started her brand in the earlier part of the 20th century, the fashion house has grown in size and repute. Today, Chanel primarily sells clothing, accessories and beauty items. Although Chanel does not currently offer hair salons, the line does sells some hair accessories and a shower wash that can be used for hair. Further, Chanel's complaint asserts that its name is a "famous mark," which in trademark parlance means that the company asserts strong rights that allow the prohibition of non-competing uses that are likely to dilute its fame. Moreover, the law requires mark holders to police unauthorized uses of their marks lest they become generic (and consequently unenforceable).

I did some digging into the disposition of Chanel's case on Lex Machina, a great resource for those looking into pleadings and analytics of IP cases to find out more. According to Chanel's complaint, the brand sent five letters to Chanel Jones before filing suit but obtained no response. It did not seek damages. It does not appear from the docket that Chanel Jones secured representation. Indeed, the Court sua sponte struck the answer filed on behalf of Chanel Jones' business because LLCs cannot appear pro se. The matter settled with a consent judgment in which Chanel Jones agreed not to use the term "Chanel" in connection with her business. According to the minutes of a status conference before the court, Chanel indicated its willingness to help with any costs associated with the change, although the record does not disclose whether this occurred in fact. So ends that one. 

More broadly, trademark law is designed for a one-winner-take-all approach rather than a bargained solution that permits peaceful co-existence. Is this area of the law is well designed for creative industries? It seems as those Chanel could be using resources to do whatever it does best, rather than using them to defend its mark (for more on this point, see Devin Desai and Sandra Pierson's Confronting the Genericism Condundrum). At the same time, I can imagine that these disputes create significant wear and tear on those who must respond. As Chanel Jones stated in her answer, "I am just trying to make an honest living for my family and myself." As I argue here, design houses like Chanel contribute a fair share of positive externalities in the creative ecosphere, and fine-tuning rewards for those efforts appears to be more in line with the public interest.

Posted by Amy Landers on April 20, 2015 at 12:05 PM in Intellectual Property | Permalink | Comments (0)

A Few Thoughts on Johnson v. United States and the Void for Vagueness Doctrine

While most Court watchers are gearing up for the same sex marriage cases, I’ve been eagerly awaiting this morning’s argument in Johnson v. United StatesJohnson is an odd case.  The Supreme Court originally granted cert on the narrow issue whether possessing a short-barreled shotgun qualifies as a violent felony under the Armed Career Criminal Act.  The parties briefed that issue and argued it before the Court.  But then, rather than deciding the case, the Justices set the case for re-argument and asked the parties to brief whether a portion of the ACCA is unconstitutionally vague.

Over at SCOTUSBlog, Rory Little has a very good overview of the case. He also summarizes the Solicitor General’s brief on the vagueness issue, calling it a “tour de force.”  I agree with Little that the government’s brief is quite good.  But I wanted to take a quick minute to articulate what I see as a relatively significant oversight in the Solicitor General’s analysis.

The government’s brief, which can be found here, argues that, because the relevant clause of the ACCA involves a non-capital sentencing issue, the defendant’s burden to demonstrate vagueness is higher than it would otherwise be.  In particular, the government says “the standard to invalidate a sentencing provision as vague is, at a minimum, much more demanding than the standard that applies to a statute defining criminal conduct,” and it cites Chapman v. United States, 500 U.S. 453 (1991), for this point (p. 17).  I think that this government argument fails to appreciate how much the Court’s Apprendi line of cases have changed the constitutional landscape surrounding sentencing provisions.

Chapman involved a statutory mandatory minimum sentence for distributing LSD.  The question presented in that case was whether the weight of the pure LSD or the weight of the LSD plus the blotter paper on which the petitioners sold their LSD was the legally relevant weight that triggered the mandatory minimum.  One of the arguments that the petitioners raised was that failing to use the pure weight of LSD was arbitrary, that there is a fundamental due process right to be free from deprivations of liberty based on arbitrary determinations, and that the government therefore had to demonstrate that its decision to use the weight of the blotter paper furthered a compelling governmental interest.  The Chapman Court rejected this argument, stating that it was sufficient that the government had a rational basis for its sentencing classification.  Since Chapman, many lower courts have cited the decision for the proposition that legislative sentencing decisions are subject only to rational basis review.

I have little doubt that Chapman is still good law.  As I have written elsewhere, the courts generally do not subject sentencing factors to much constitutional scrutiny.  But Chapman was decided prior to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).  And since it decided Apprendi, the Supreme Court has tended to treat sentencing provisions, such as the one at issue in Johnson, more like new substantive crimes.  To be precise, the relevant portion of the ACCA imposes a mandatory minimum sentence for those defendants who have three previous convictions for violent felonies and serious drug offenses.  One of the most recent decisions in the Apprendi line of cases, Alleyene v. United States, 113 S. Ct. 2151 (2013), held that any fact that increases the mandatory minimum sentence for a crime in an element of that crime, not a sentencing factor.  In treating facts that trigger mandatory minimums as elements, the Alleyne Court held that they must be submitted to a jury and proven beyond a reasonable doubt.

I don’t think that Alleyne dictates any particular result in Johnson.  But I do think that it forecloses the government’s argument about sentencing provisions not commanding the same sort of vagueness analysis as statutes defining criminal conduct.  That is because, after Alleyne, the Court treats this portion of the ACCA as if it is an element of a new statute – one that defines which criminal conduct is necessary for a new sentencing range with a minimum sentence of 15 years.

In any event, I am looking forward to reading the Johnson oral argument transcript as soon as it is available.

Posted by Carissa Byrne Hessick on April 20, 2015 at 11:47 AM in Criminal Law | Permalink | Comments (6)

ADA at 25, Chicago style

On Friday, I had the good fortune of attending the kick off event for ADA25Chicago.  There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different.  It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government.  These individuals did not just give speeches, but expressly set the stage for actual commitments.

The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities.   ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer?  Count me in!).  And there are specific plans in place to hold these groups publicly accountable for their commitments.

I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues.  ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap.  By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning.  I really look forward to watching how this all unfolds. 


Posted by Michael Waterstone on April 20, 2015 at 10:31 AM | Permalink | Comments (0)

Anniversary Topic # 3: How law teaching and law schools have changed

We now turn to our Third Anniversary Mini-Symposium: How has being a law professor, and law schools more generally, changed in the past ten years?

Topics might include:

• Changes in the profession.
• Trends in scholarship or teaching 
• The law school "crisis"
• More specifically, how were things different between the period before 2008, the economic period of crisis (including law school crisis) around 2008-2012, and the post-2012 era, in which there is still crisis but many or most students entering law school are well aware of it. I find a great difference between students who entered or graduated between 2009 and 2012 or so, who came to law school with one set of expectations and left them with very different expectations and often no job, and were embittered by it, and the newest students, who have a more pragmatic and much more chastened set of expectations and goals around law school. 
• How different these changes are from changes in the rest of the academy, or whether the law school exceptionalism about this is not actually so great. In this I'd be especially interested to hear from guests or permanent bloggers with PH.D.'s or connections to other disciplines and faculties, who can talk about their experience in both law and some other faculty or sector of the academy. 
• Changes in civility and in your dealings with students, commenters, and others.
• The rise of the VAP and other fellows.
Again, unsolicited posts can be sent to Paul or to me.

Posted by Howard Wasserman on April 20, 2015 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, April 19, 2015

Legal Academic Blogging and Influence vs. Credit

Back in 2005, I predicted the following future for academic law blogging:

A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers. Here's my thinking. Right now law blogs are pretty new, and the number of law bloggers is increasing. But it's much easier to start a blog than to keep it up. A typical post might take an hour or so to research, write, and edit. And the better and more thoughtful the post, the more time it takes. Only so many people are willing to put in those hours on a regular basis, and members of that twisted elite group presumably will change over time, too.

 Among law professor blogs, the big variable would seem to be whether blogs eventually will be taken more seriously in the scholarly community than they are now. Right now most lawprof bloggers do it for fun, but don't consider blogging "real work." If this changes, I think it will transform the nature of law blogs considerably. Whether that would be a good thing or a bad thing is an open question.

I think the prediction in my first paragraph mostly came true, and pretty quickly, although there has been somewhat less turnover than I expected.  

As for the "big variable" of the second paragraph, I think the answer depends on what it means for blogs to be "taken more seriously."  Over time, we have learned that lawprof blogs are great for influence but not for credit.  By "influence," I mean influence on debates both within legal academia and in the broader legal and judicial community.  A lot of people read blogs. Legal blogs can help shape how those communities think about particular legal problems.  We saw that possibility in 2005, and I think that potential has been often realized in the decade since.  In that sense, blogs are now taken seriously. 

On the other hand, it turned out that lawprof blogging doesn't generate much internal credit within the legal academic world.  

For the most part, blogging is still an extracurricular activity instead of something that is part of the core mission of legal academics.  To put it in crass terms, I doubt a law school Dean ever gave a professor an endowed chair, or a raise, or a research leave -- or whatever else Deans can sometimes give professors for top job performance --  in recognition of the professor's outstanding contributions to the blogosphere.  Maybe it has happened.  But I doubt it.

The result is that lawprof blogging today is taken seriously in some ways but not in other ways.  And I suspect that combination has something to do with the dynamic several Prawfs bloggers have noted recently about the blogosphere now seeming less fresh and perhaps a little stale.  Internal credit isn't everything, of course.  People blog for lots of different reasons.  And in some cases, influence can lead to attention that can help bring opportunities for credit.  

Still, the relatively low internal rewards for blogging, combined with the sense that posts should be serious, have limited its dynamic possibilities.   Fewer profs have a career incentive to join in, at least beyond short-lived guest-blogging.   Those who have blogged a lot before face no pushback internally if they slow down or stop.  And given how time-consuming serious blogging is, the number of folks who will do it regularly is not large. 

Posted by Orin Kerr on April 19, 2015 at 11:36 PM | Permalink | Comments (10)

Deferred Prosecution Agreements: Right Problem, Wrong Fix

Yglesias has a good write-up of the problems with regulating big financial firms, but he (and Elizabeth Warren) get to the wrong solutions. 

To paraphrase, the problem is that many regulated firms are effectively judgment proof.  We may threaten sanctions against accounting firms that commit fraud, or chemical firms that dump waste into the river, or banks that swindle their counter-parties.  The problem is that the typical criminal sanction is too big, since indictment triggers a run on the firm by its employees, trading partners, and (eventually) creditors.  Prosecutors have therefore basically stopped indicting, leading to the rise of deferred-prosecution agreements, as nicely chronicled by my law school classmate Brandon Garrett. 

For Yglesias, and to lesser degree Garrett, the deferred prosecution agreement is too wimpy.  Since firms know that the government won’t indict, they have no reason to cave, leading to quite defendant-friendly deals.  This leads to under-deterrence.  Yglesias endorses Sen. Warren’s proposed solution, which is to credibly put the threat of indictment back on the table.

But prosecutors are not wrong to avoid indictment, since that leads to over-deterrence.  Over-deterrence is bad not only for firms that sink too much money into compliance, but also for society.  It’s like the problem of medieval justice: if the sentence for every crime is hanging, bandits have no marginal incentive to avoid killing their victims.

My own view, as I sketch in this new draft, is that the problem is caused by the choice of ex post remedies.  When regulators are facing defendants who are, in effect, judgment proof, the better solution is to switch to other incentives.  So, for example, we might impose a tariff on chemicals that would be hazardous if dumped, or use anti-trust to keep banks too small to impose systemic risks.  Obviously, there’s a tradeoff: not all firms will dump the chemical.  A key part of my argument is that regulators can adjust their ex ante prices to account for expected variations in ex post behavior; firms that are at higher risk of dumping pay more for the chemical.  

(Cross-posted at the Law & Economics Prof Blog)

Posted by BDG on April 19, 2015 at 05:28 PM in Article Spotlight, Criminal Law | Permalink | Comments (7)

Lateral hires and PrawfsBlawg

Brian Leiter's updated list of tenured lateral moves features several from the Prawfs community. Steve is going to University of Texas in 2016 (where he and former GuestPrawf Bobby Chesney will have the national security market cornered).  Current guest Brian Galle is moving from BC to Georgetown. And another former GuestPrawf, Aaron Bruhl, is headed from Houston to William & Mary.

Congratulations and good luck to all.

Posted by Howard Wasserman on April 19, 2015 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

When blogging (and bloggers) get old

Let me try to pick up on some of the issues that Paul, Dave, Rick, and Kate raise in their symposium posts.

I explained in my first symposium entry how I have used blogging in my time here. Although I have not gone back to review  seven years of posts, I do not believe my writing here has changed all that much either in quantity or in content (law v. life, serious legal issues v. pop-culture asides).* This may be because I have not taken on as many administrative responsibilities as Rick and Paul have (I have never served as an associate dean, for example), so I have not lost the time to devote to writing here. And since I wrote less about legal education and law schools than Paul did, I probably became less disillusioned than he by the tenor of the discussion.

* Although to be frank, I have written so many posts here that I do not remember a lot of what I have written. I have on occasion reviewed old posts and thought, "Did I write this? And did I really mean that at the time?"

I am happy that blogging has developed into a "serious" forum and form of writing, both in terms of content and perception. That seriousness can be traced to the early waves of bloggers who started ten years ago as junior faculty. By doing a lot of good writing on a range of subjects on a lot of blogs that people were reading, it seems inevitable that some of it would come to be seen as somewhat serious and worth paying attention to. It also makes sense that law students and rising future and junior prawfs, raised on these fora, would view them as serious and also (hopefully) want to join in (exemplified by Richard's initial solo blogging and then his work here, as well as some of the junior and about-to-enter guests we have welcomed the past few years). And finally, in something of a feedback loop, as we have moved to the more senior ranks on our respective faculties, we are in position to both encourage and reward junior colleagues who take on blogging.

Perhaps Dave is right that what I just described also made it inevitable that posts on Tallahassee, pop culture, and Notre Dame football might fall by the wayside. After all, if I want a hiring or P&T committee to look on this as at least a somewhat worthwhile endeavor, I may not want to dilute the perception with too many frivolous posts about non-legal/non-serious subjects.

I am not on Facebook, although I probably should be. I think Rick gets the connection between blogs and Facebook about right--they are serving different roles, with Facebook somewhat taking over the light-short-and-fun posts as blog posts have gotten longer and more serious. Facebook is not necessarily the space for long posts or for working through scholarly ideas. Although perhaps the divide is not that sharp--when Dan was incubating the idea for what became Catalyzing Fans and this Atlantic essay, he initially went to Facebook rather than Prawfs.**

** When Dan called to pitch me on joining the project, he explained his idea and told me to read his initial musings. Since I was not on Facebook, my wife friended Dan, which then allowed me to read his initial discussions. Yeah, I probably should join already.

I will close with one question for consideration ten years in: Why haven't faculty blogs caught on or lasted? Dave mentioned the Chicago faculty blog, which I previously read regularly, but there has not been a post there for almost a year. Marquette and Loyola-LA both are thriving and Illinois just finished its first year. But that's basically it. Why hasn't that form of blogging worked as well as sites such as this one?

Posted by Howard Wasserman on April 19, 2015 at 09:59 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Saturday, April 18, 2015

Eleventh Circuit flunks Civ Pro

We just started Erie last week and one of my students found this Eleventh Circuit decision from March. The Erie analysis (at pp. 25-31) is so utterly ridiculous and facile as to make me wonder if any of the judges (or their clerks) ever took Civ Pro. (Note: The conclusion is right; it's the analysis that would warrant an F on an essay exam).

Posted by Howard Wasserman on April 18, 2015 at 06:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

An Appreciation of Legal Blogging (and Twitter!)

Last month, I had the pleasure of being a guest blogger here.  This month, I have read with interest and surprise the recent lamentations of legal blogging posted by some of the founders and earliest adopters of the medium.  I was particularly affected by Paul Horowitz’s post on PrawfsBlawg.  His comments on anonymous commenters seem particularly thoughtful and apt.  On the other hand, I felt myself defending (in my own head) blogging and Twitter culture while reading his criticisms.

 As a junior scholar, I have found the opportunity to read PrawfsBlawg immensely gratifying and educational.  I write and think about criminal justice. I am willing (if not happy) to admit that the volume of dense and rigorous scholarship I want to and must consume in order to write my own articles essentially prevents me from reading important, rigorous, and dense scholarship in other areas – first amendment law, education law, and international law, just to name a few.

But, while I can’t find the time to read 25,000 words about, say, the right to privacy versus the first amendment right to expression, I can certainly read and digest Amy Landers’ recent post about a New York Appellate court’s dismissal of a complaint against a photographer for invading the privacy of children when he shoots “from the shadows of [his] home into theirs.”  I might even click on the hyperlink she provided and read the decision. 

 And, I can read Rick Hills’ post about whether it is “legitimate for an academic institution or individual to compromise academic freedom in order to gain access to a population otherwise controlled by an authoritarian regime.”  He is writing from China! Where he is teaching as we speak.  His reflections may not have the rigour of his law review scholarship, but they have the contemporary feel of a scholar struggling with immediate and increasingly germane legal and pedagogical issues.  His blogging also helps me understand not only what it means to be an academic in a country that does not prize freedom of expression, but also what it might mean to be a Chinese student at an American law school.  It reminds me to be more tolerant and understanding of my own students’ cultural backgrounds:  how what I say may impact them or how the way I interpret their work or classroom behavior may be a result of my own cultural myopia.

 Twitter has proven to be even more powerful for me as a reader.  I follow dozens of law professors throughout the country.  These scholars are constantly thinking about and working on critical and complicated issues, some of which I am also trying to work through in my own head/scholarship.  Of course, 140 characters is not enough to begin to understand a complex legal issue, but these tweets are often short bursts of carefully thought out opinions by people whose work in longer-form I respect immensely.  And I can ingest hundreds of these thoughts a day.  I do maintain a healthy skepticism that these opinions are as clear or pat as they appear on Twitter, but I am confident in my own, and in any legal academic's, ability to read tweets and click on links with a grain (or maybe a shaker) of salt.

 Moreover, Twitter is a powerful research tool.  I am writing and thinking about policing and prosecuting the police.  I would have found my way to Harvard Law Review Forum’s issue on police reform regardless of Twitter.  But, thanks to Walter Katz (@walterwkatz), Elizabeth Joh (@Elizabeth_Joh), and Seth Stoughton (@PoliceLawProf), I got there faster, really fast. 

 I have no idea whether my own blogging is helpful, hurtful, or completely irrelevant to my desired career as legal academic. It’s hard to figure out what received wisdom about writing, self promotion, networking, etc... to follow because it is not (to say the least) uniform. This post is about being a consumer, not a creator of social media content. And, ironically, I wouldn’t have thought to write an appreciation of blogging were it not for the thoughtful critiques of the medium that have appeared on this site in the last few weeks.  

Dan Markel ran a colloquium in New York for criminal law theory scholars (that continues thanks to his co-director Mike Cahill).  He was immediately welcoming to me and to my colleagues, who were literally months out of practice when we first attended.  While those meetings terrified me, they also taught me so much about what it means to be a scholar, to think critically, and to accept criticism gracefully and appreciatively, not to mention exposing me to work by other terrific scholars.  His gracious acceptance of those just entering the academy is reflected in this blog, which provides access to the critical thoughts, musings, and serious work of both established legal scholars and those just starting their academic career.  I am really grateful that this site and other legal blogs (and Twitter!) exist.

Posted by Kate Levine on April 18, 2015 at 04:26 PM in Blogging | Permalink | Comments (0)