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Monday, August 31, 2015

Serving two masters in Rowan County, KY? (Further Updates)

I am not a fan of Slate's Mark Joseph Stern, who I think has been both wrong and shrill about the procedure in the marriage-equality litigation. But I wonder if he is onto something with this piece about the connection between Kim Davis, the Rowan (Ky) Clerk of Court who is ignoring a federal injunction (and no, even under the view of departmentalism I have been pushing, you can't do that), and her attorneys from the Liberty Counsel, a religious-conservative advocacy group.

Stern posits that the lawyers are taking her for a ride, using her to push their legal-ideological agenda without regard to her best legal interests, recalling Derrick Bell's famous discussion of attorney-client conflicts in desegregation litigation. One commenter on Stern's post posited that she was offered a ride and willingly accepted. And I have suggested that Davis would be perfectly happy to become a martyr to this cause--although who knows if this is her lawyers or her. Either way, if Stern is right that the lawyers advised Davis to ignore the injunction and be held in contempt, that is troubling, since it raises the possibility that she will be unable to challenge any contempt sanctions later on.

Stern reports that Davis has moved for a stay of the injunction from SCOTUS, in a petition that attempts to minimize the effect of Obergefell and to treat the dissents as binding authority. No way four justices sign-off on that. So now we see what happens when the whole thing is back in the district court.

Update: Justice Kagan (the Sixth Circuit Justice) referred the petition to the full Court, which denied it without comment or published dissent. So now we see whether Davis is really willing to go to jail (or pay hefty fines) over this.

Further Update: Davis continued refusing to issue licenses, this time on video. The irony (which no one is going to catch) is that the couple in the video--David Moore and David Ermold--are not among the eight (four couples) named plaintiffs. So Davis actually is not in contempt in denying them the license.

Posted by Howard Wasserman on August 31, 2015 at 03:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (11)

Gabilondo on the Cuba embargo

My FIU colleague Jose Gabilondo explores how the Obama Administration might unilaterally end the Cuba embargo, or at least set it up to be challenged by a private party. It is an elegant solution, tied to the connections between legislation and administrative rulemaking.

The standing question he mentions is interesting, but seemingly manageable. If the sole basis for the embargo is regulations enacted solely pursuant to a constitutionally defective statute with no inherent executive discretion and that statute is the only thing legally prohibiting a company from doing business in Cuba, then standing to challenge the statute seems plain. And after Zivotofsky and Bond (interestingly, both Kennedy opinions), it is clear that a private plaintiff can raise pure separation-of-power and federalism arguments in challenging the validity of federal statutes.

Posted by Howard Wasserman on August 31, 2015 at 02:46 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Big Mountain Jesus update

Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus."  Here's a picture I took, during my own trip to enjoy the great Montana snow:   

BMG picture 

Just as a reminder:  The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division.  As this news story reports:

The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.

The FFRF lost in the District Court.  Judge Dana Christensen wrote:

"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."

Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again.  (The opinion is here:  Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.)  Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this:  "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"

Judge Pregerson dissented.

Posted by Rick Garnett on August 31, 2015 at 01:08 PM in Religion | Permalink | Comments (4)

Hiring Season Posts - Reminder

The hiring committee thread is here. It includes a spreadsheet that lists, among other items, names of the members of hiring committees as well as particular areas of interests a school might have. If your school and its committee is not yet listed, please consider either emailing me or posting the information in the comments to that post, and I will make sure it gets on the spreadsheet.

At the Clearinghouse for Questions, available here, people may post general questions and information about the job market.

The informational thread is here. People may choose to share information about interview requests they have received or issued.


Posted by Sarah Lawsky on August 31, 2015 at 12:15 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Rotations (Updated)

Happy, September, everyone.

Thanks to all of our August guests, who may be sticking around for a few final days. And please welcome our September guests--Garrick Pursley (FSU), Mark Drumbl (Washington & Lee), Tamra Rice Lave (Miami), and Beth Thornburg (SMU). And Ari Waldman (New York Law School) will be staying for another month.

Posted by Howard Wasserman on August 31, 2015 at 09:31 AM in Blogging | Permalink | Comments (0)

Friday, August 28, 2015

Do Drugs Cause Violence?

The U.S. Sentencing Commission voted to reduce sentences for most federal drug offenders retroactively, potentially allowing 46,000 inmates to obtain slightly shorter sentences by the end of this year.  Given that there are over 6 million Americans under supervision in state and federal prisons and jails, this is a positive step, but it certainly is not going to be the end of U.S. mass incarceration. And yet, even this small step forward has received opposition.  The National Association of Assistant U.S. Attorneys opposes this change, calling it a “grave danger to public safety.”   And current pending legislation like the Smarter Sentencing Act, which aims to reduce draconian drug sentences by half, face serious opposition.  In recent testimony before Congress, the DEA asserted that drug trafficking poses serious threats due to the violence that accompanies it, and another commentator testified that simply releasing 1% of federal prisoners would lead to over 32,000 more murders, rapes, and other violent crimes.  The problems with these arguments are that they are flat out wrong.  The evidence simply does not support that drug defendants are violent people. 

The argument that drug defendants are violent conflicts with studies, like my work with economist Frank McIntyre, that shows that drug defendants are the safest defendants to release before trial.  Our study of over 100,000 felony defendants over fifteen years showed that of all of the felons released before trial, those charged with selling or possessing drugs were the least likely to commit a violent crime.  In fact, they were as safe to release as those brought in on driving related crimes.

Our study is not the only one that shows that most drug defendants are not violent. There is no proof that illegal drugs pharmacologically cause violence. Though certainly drug addicts commit more crimes than nondrug users, they commit them at low rates, and the connection between drugs and violent crime is complex and inconclusive.  In fact, no researchers have been able to prove that drugs have a direct influence on violence, and one study actually shows that drug users are more likely to reduce violent behavior after using drugs. Indeed, studies have pointed out that forces of violence are not caused by drugs but may come from economic hardship, poor intellectual capacity, an aggressive temperament, or other personality disorders. Interestingly, a link between alcohol and violence has much more support in data than a link between drugs and violence. And tobacco is even more significantly linked to crime than alcohol or drugs. A 1997 survey of prisoners also indicated only 12% of federal drug offenders were ever convicted of a violent crime. And against common perception, prisoners incarcerated for violent offences do not generally commit violent crimes for drug money. In 2002, only 5% of violent and public order offenders claimed to have committed their crimes for drug money. Even without protection of the state, illegal drug markets generally run without violence. For instance, Mexico has trafficked drugs for a century but has only seen an extreme rise in violence within the last decade.

So if there is not much evidence that drugs create violence, why do we all believe it?  Simply blame it on the War on Drugs.  In 1986, drug use was viewed as the most important problem facing the nation by only 3% of the population, but that number climbed to 64% in 1989. And during this same period drug use actually declined in America.  What happened though is that U.S. Presidents “got tough” and blamed drug use for America’s problems. With this rhetoric and legislative backing, prison rates climbed quickly and between 1981 and 1990, drug defendants went from 6% to nearly 25% of the state prison population, and from 25% to 60% of the overall federal inmate population.

  Though the drug-violence link lacks proper support, it is rarely challenged and forms the backbone of U.S. drug policy.  Countless cases and statutes continue to rely on this link to justify trumped up sentences. Courts have asserted, without support, that drug addicts need to commit crimes of violence to satisfy their demand for drugs; that drug use and trade inevitably involves violence, and individuals involved in drugs are more likely to be involved with violence, even if the defendant has never exhibited any violent behavior. What is more, the current drug laws make no difference between violent and nonviolent offenses, and an addict with a record of drug convictions often faces a longer sentence than a murderer. Instead of actually focusing on violent crime, drug crime penalty schemes (state and federal), include sentencing enhancements based upon the quantity of drug you have, assuming that the more drugs you possess, the more violent you are, even though there is little evidence to back this claim.

The overwhelming result of connecting drugs to violence is mass incarceration. Strict drug laws have punished individuals harshly for small roles in drug operations due to the fear of violence. The drug confiscation “success rate” of state and federal drug enforcement agencies has consistently hovered around 10% since the 1960s regardless of how many people are incarcerated and how much additional funding is allocated. By 2011, more than half of federal prisoners were serving time for a drug offense, while only 11% had committed a violent offense.

Recent U.S. Sentencing Commission changes—while positive—are not enough to make a dent in prison growth from the War on Drugs. Even with this change, a defendant convicted with just 10 grams of LSD, with one prior felony drug offense, receives at least 20 years in prison. But rather, these changes demonstrate that the time may be ripe to reconsider this flawed link between drugs and violence. Indeed, the entire framework of federal and state drug statutes and cases must abandon the myth that drugs cause violence.


Posted by Shima Baradaran Baughman on August 28, 2015 at 12:10 PM | Permalink | Comments (11)

Thursday, August 27, 2015

Get "PRACTICE READY." Get set. Go!

The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship).  This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.”  The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.” 

Creating experiential learning opportunities for students is a great idea.  But mandates that law schools produce “practice ready” graduates seem incompletely thought out.  Fundamental questions about “practice ready” graduates remain and will continue to plague the system:

  • What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?  
  • What sorts of skills, efforts, and methods are required to make a law student “practice ready”?  Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
  • Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
  • Epistemically, how can you judge anyone’s “practice readiness” to begin with?
  • Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training!  For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
  • Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
  • And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness? 

Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.

These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, “Practice Ready Graduates”: A Millenialist Fantasy”

First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. Condlin characterizes practice readiness as today’s fad – as something without true substance or understanding. Lawyers, after all, must not just be “ready” to practice upon admission to the bar, but must be prepared for “a lifetime of professional growth and service under conditions of challenge and uncertainties.” Are we better off focusing on the long-term rather than the short-term “readiness” of our graduates? Maybe teaching students how to teach themselves in whatever varied area of law they practice now and in the future is more worthwhile than teaching any specialty-specific skill set.

Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified.  Every hour spent teaching a student how to ask a question in a client interview is an hour that the student does not spend pondering the underlying values related to personal autonomy in our contract law, for example. Condlin admits that “skills instruction” is not in itself impoverishing, but points out that law schools and law students have limited time, money, and resources. There are thus significant opportunity costs from a shift in focus that prioritizes lawyering “motor skills” over thinking skills. 

Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. Socializiation and disposition take longer than a semester (or two) to develop.  Even a law school clinic class, which is something Condlin says comes the closest to preparing students for the reality of practice, is of limited efficacy, principally because of its short window (13 weeks, usually).  Furthermore, because practice readiness depends on the type of practice, and it is simply impossible to prepare all students for all types of practice, efforts spent could be misapplied in a context where some or all students will not know in law school precisely what sort of law job they’ll eventually have.  Even if you could come up with a list of the required “practice readiness” skills for all possible legal jobs, Condin asserts, that list would be too long to be achievable.

Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job.  The loss of legal jobs in 2008 and beyond was not a function of lack of graduates’ practice-readiness. In spite of its implicit promise, in reality, it isn’t lack of skills training that is leaving new graduates unemployed.  Condlin explains: The legal job market shifted in the early part of this century because of forces outside of it. At its core, the legal system, like many other sectors of our society, is now struggling under the twin problems of shrinking demand for labor and growing student debt.  Legal jobs in particular were hit hard with the post 2007 economic downturn, client demands for lower fees, increased competition from non-law-firm service providers, and technology changes. None of these problems were caused by law school graduates’ level of skills preparedness or by law schools’ pre-2008 curricular focus.  Furthermore, Condlin asserts that “[p]lacing students in jobs is principally a function of a school’s academic reputation, not its curriculum.”  He points out the unfortunate reality that the massive overhaul in Washington & Lee’s third year curriculum, to emphasize practical skills over study of doctrine led to a decrease rather than an increase of their graduates’ rate of employment. (See story on this here.) Perhaps the reason a “practice ready” focus doesn’t necessarily translate into better employment is because it doesn’t really work. An ABA study recently found that although 71% of new graduates believe they have “sufficient practice skills,” only 21% of lawyers who work with them believe that this is true.

Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”

Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have.  I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools.  Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.”  Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).

For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, “The New Normal” . Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2nd year associate or an unsupervised solo practicioner.  It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way.  Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads).  Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.

I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools.  But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice.  I find it natural and effective to integrate the practice context into teaching. In a 1L Contracts class, for example, I do believe that students should read actual contracts, struggle with actual interpretation disputes, and try their hand at drafting clauses or even entire documents. In upper division courses (such as Real Estate Transactions), there are still more opportunities to use glimpses into practice as ways to give context and meaning to legal doctrines. But of course in a mere 39 hours of a law school course, there is insufficient time and no client reality – so these experiences may firm up a students foundation for practice, but that doesn’t necessarily make him or her “practice ready” (again, this all comes back to what this phrase means to begin with!). 

Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice.  But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.

It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice. 

Posted by Andrea Boyack on August 27, 2015 at 11:29 AM in Life of Law Schools, Tamanaha, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (14)

A Clearinghouse for Questions, 2015-2016

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

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

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

You may want to take a look at the many questions and answers in the threads from 2013-2014 and 2014-2015

Here is a link to the last page of comments.

Originally posted August 27, 2015.

Posted by Sarah Lawsky on August 27, 2015 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (262)

Law School Hiring, 2015-2016, Thread One

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

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

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

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

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

Four miscellaneous things:

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

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

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

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

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

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

The aggregator will update the spreadsheet approximately once a week.

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

Originally posted August 27, 2015; aggregator and spreadsheet added 9/3/15.

Posted by Sarah Lawsky on August 27, 2015 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (111)

Decision time

The Sixth Circuit has declined to stay the injunction against the County Clerk of Rowan County, Ky; her office is refusing to issue any marriage licenses, citing religious liberty, to avoid having to issue licenses to same-sex couples. The court was emphatic that there was "little or no likelihood" that the clerk would prevail on her appeal. Because the injunction runs against the clerk in her official capacity and thus against the clerk's office, "it cannot be defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."*

[*] I would have put this point slightly differently, although the basic idea--the clerk is going to lose--is right.

So we now are set for the clerk to be held in contempt, which, as I said before, is what she and many others in this post-Obergefell crusade probably have wanted all along. Look for her to be featured in a new Ted Cruz video very soon.

Posted by Howard Wasserman on August 27, 2015 at 12:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, August 26, 2015

Do not go gentle into that Nebraska night

Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.

I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here  that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.

One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.

Posted by Howard Wasserman on August 26, 2015 at 06:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Rentboy.com and the Internet's Role in Sex Work

On Tuesday, New York police officers and agents of the Department of Homeland Security raided the Manhattan offices of Rentboy.com (link is to the Wikipedia page). The company's chief executive and other members of the leadership and employment team were also arrested at their homes. According to the Complaint, rentboy.com, a social networking website that connects male sex workers to clients, has been the hub of a multimillion dollar criminal enterprise. 

This episode, on the heels of another sex-related internet story at Ashley Madison, raises several questions. The broadest: Should prostitution be criminalized? Reasonable people disagree. The narrowest: Did rentboy.com commit a crime? At this stage, which just requires the government to offer facts that make the case viable, there is factual and legal sufficiency to move forward. I have additional questions: Why is this website a priority for the government? Has the internet made the problem of sexual exploitation worse?

For better or for worse, prostitution is illegal in New York and rentboy.com, the Complaint alleges, fostered, promoted, and facilitated prostitution. A brief read of the redacted Complaint shows the not-so-subtle advertisements individuals posted looking for clients: all of them were thinly veiled posts that included sexual preferences and costs. The website, which charged significant sums for sex workers to advertise, promoted the practice of prostitution by hosting events, giving out awards, and cutting out the middle man in the off-line sex work arrangement. Therefore, it is hard to argue that there is insufficient evidence to move forward.

Should prostitution be a crime and should city and federal law enforcement be spending time and money on investigating and prosecuting this particular website is another question.

Scholars far smarter than I have debated the merits of criminalization of sex work for decades. For some, the decision to commercialize one's body is empowering and the right of free, autonomous individuals in a democratic society. For others, prostitution is not a free and voluntary choice: it is either forced labor or someone's last hope for survival. In many cases, sex workers are victims of abuse and legitimizing prostitution promotes the very real harms some young people face when they are caught in the world of sex trafficking.

The victimization problem may be particularly acute for LGBT youth, though we don't have enough research to make an airtight case. There is a disproportionate number of LGBT youth in the commercially sexually exploited population. One study suggested that within 48 hours of running away from home, something LGBT youth are much more likely to do than their heterosexual peers, 1 in 3 homeless LGBT youth will be approached with offers or invitations to sell their bodies for sex. A Canadian study found that LGBT youth are three times as likely to engage in survival sex than their heterosexual peers. And survival sex -- exchanging sexual favors for food, shelter, clothing -- is a gateway to the sexual exploitation marketplace.

Not all men advertising their services on rentboy.com are victims. Indeed, there is no allegation in the Complaint that any advertisement for sex-for-pay was nonconsensual (although evidence of that may turn up). But that misses the point. Prostitution is illegal. The question of should prostitution be illegal is really a societal choice about whether we are willing to restrict one group's freedom -- that of willing sex workers -- to protect another's -- that of victims, of abuse and sex traffickers, who have no choice but to commercialize their bodies. New York has made the choice to protect the victims.

The internet law implications of this case are worth mentioning even though they are taking a back seat to the broader debate over sex work. With respect to jurisdiction: The website's offices are in Manhattan, under the jurisdiction of the Southern District. The Eastern District (Brooklyn) is leading this case because many of Rentboy.com's sex workers live and work in Brooklyn. DHS is involved because many of the transactions involved interstate commerce. The internet's reach, therefore, has not only given various different jurisdictions potential control over anti-prostitution litigation; it has also federalized it. But that is not the result of overzealous law enforcement eager to score an anti-gay victory. That is the nature of the internet and jurisdiction over it. 

With respect to commerce: Rentboy.com has done one thing that anti-prostitution advocates have wanted for decades, and it has used the internet to do so. The website has arguably helped sex workers by eliminating the middle man, the "pimp", in a commercial sex transaction. Pimps, the evidence suggests, perpetrate much of the abuse inherent in the world of prostitution, so taking them out of the equation should be liberating to sex workers. But the website has also made a commercial sex transaction easier, which further perpetuates prostitution's culture of abuse and victimization.

Setting aside the broader discussion over (de)criminalizing prostitution, this story is another example of how we have to accept that internet life is part of "real" life, subject to the same laws as offline transactions and the cause of very real harms to real people. Rentboy.com cannot escape liability simply because it tossed up a disclaimer saying none of its advertisements are for sex-for-pay. Websites that facilitate prostitution still promote the same culture of victimization that New York has decided is bad enough to merit restricting the freedom of voluntary sex workers.

Posted by Ari Ezra Waldman on August 26, 2015 at 01:35 PM in Information and Technology, Web/Tech | Permalink | Comments (5)

Possible Reasons for Ambivalence to a Large Increase in AALS Dues for "Public Outreach"

On Monday Professor Michael Simkovic proposed a substantial redistribution of AALS resources to "public outreach efforts" aimed at better "explaining [legal education's] value to the press and the public," including such things as feeding individual journalists with "personally tailored content that each journalist is particularly likely to find relevant and interesting based on [his or her] past coverage and the stories they are currently researching." He also proposed that such "efforts could be funded by a 50% to 100% increase in annual [AALS] dues (roughly $5,000 to $10,000 for the smallest law schools and $15,000 to $30,000 for the largest) for the next 3 years."

Someone else will have to speak to how likely the latter proposal is to actually occur. I would have thought "not very," but I could be wrong and I don't have any special information about this. I wish the post had provided some evaluation of the proposal's likelihood of moving forward, since it might be inefficient for me to allocate my time to pondering the issue if it has little chance of happening. But perhaps no basis for an estimate is available.

My assumption based on general experience is that, at least in terms of the legal blogosphere, views of such a proposal will be heavily and perhaps excessively influenced by one's priors concerning law schools and the costs, benefits, and value of legal education. But I suspect that many law professors might be ambivalent about or opposed to such a proposal, even if they share (or are agnostic about) Simkovic's conclusions about those issues. 

Here are a few reasons why, even if they agree generally with Simkovic's other arguments about legal education, they might nevertheless hesitate to support his latest proposal or even oppose it. I have made an effort throughout to impose an important constraint on this post: I have avoided any reasons that require one to take issue with Simkovic's prior conclusions about the benefits of legal education and the state of the legal/legal education economy. I will relax that constraint a little at the end of the post, and we will see that once we do so, professors may have many other reasons to disagree with the proposal to have the AALS launch an expanded "public outreach program." That is true even if they agree with the basics of his conclusions elsewhere but take issue with particular aspects of his argument and its implications. At least initially, however, I want to remove the possibility (given what I see in the legal blogosphere, the certainty) of motivated reasoning based on readers' thoughts about whether legal education is worth it for prospective law students. The list follows after the jump.      

  • Simkovic argues that the AALS is a suitable body to carry out the "public outreach" effort, and to receive the extra funds to support it, because the AALS is "the closest thing in the law school world" to a "trade association." Some law professors might reach a different conclusion. They might believe that the analogy is mistake: The AALS is or should be a learned society, not a trade association. They might further believe that the proper role of a learned society is inconsistent with the more aggressive lobbying and image improvement (or laundering) efforts that a trade association might undertake.
  • Relaxing the last point a little, some professors might believe that even a learned society can disseminate information about its branch of the academy, or about the related profession it serves, as well as serving as a more intellectual and disciplinary forum. Moreover, they might believe that a public outreach effort that consists of correcting errors in stories and suggesting true and meaningful new stories is consistent with the AALS's role. But they might believe that a much-expanded PR staff would not act in anything like that modest and restrained fashion. They might be concerned that eventually and inevitably--and perhaps even right off the bat--the PR staff would view its job as offering uniformly sunny stories, reflexively criticizing or soft-soaping any negative stories about legal education, attempting to convince reporters that minor errors in negative stories are more egregious than they are while minimizing or waving away errors in positive stories, and so on--doing, in short, what PR professionals often do. They might even fear that in some cases the PR staff would end up propagating messages that are false or misleading--in a general sense, and against a background of academic allegiance to truth-seeking values, if not as a technical legal matter. They might believe that any such tendencies, or indeed the mere risk of such conduct occurring, is inconsistent with the values that a learned society should exemplify. In short, they might worry that even if an outreach project started modestly and carefully, it could end up as an aggressive sales job or an act of whitewashing, in a way that would depart from or corrupt the AALS's proper role as a learned society.
  • Some professors might simply dislike the AALS. That's not me, I should add; I am a member of some administrative committees, have served as an officer of various sections, and despite some reservations I generally think well of the annual meeting (although I wish it were held elsewhere). But clearly my view is not shared universally within the legal academy. One regularly hears very negative views of the AALS expressed by law professors--and that's just the ones who actually attend the annual meeting. One assumes that many such professors would hardly welcome assigning an enhanced role to the AALS or significantly increasing dues to that group, even temporarily. Some of them may think, specifically, that the AALS is not sufficiently competent, or competent in this area, to justify the significant increase in fees. (I am describing the potential, and indeed likely, view of others, not my views.) 
  • Some professors might simply distrust the AALS. Distrust is different from dislike or hostility. Even a professed admirer of the AALS, its mission, and its history and accomplishments might nonetheless be distrustful of a proposal to increase annual dues by 50 to 100 percent. Simkovic proposes that this be a short-term increase, but they might fear that the increase would be extended or slide into a permanent one. Simkovic notes in his post the likelihood of collective action problems for law schools. Similarly, some law professors might fear agency problems with his proposal. They might fear that some of the funds would end up going to other uses, being used to favor particular schools or messages, being used to give undue positive publicity to the AALS itself and thus enhance its own position, and so on. Leaving aside those kinds of concerns, they might, as I noted above, distrust that the AALS would run its public outreach program in a modest way, or fear that it would end up "messaging" in a false or misleading positive direction in a way that,in their view, would or should be inconsistent with the integrity of a learned society. In addition, while the AALS staff is fairly stable, its top leadership changes regularly, and they might be unwilling to support increased dues for such a program given that fact and their fear that a future AALS head might be less trustworthy than the current leadership.   
  • Some professors might have problems with efforts undertaken to provide positive outreach on behalf of the AALS as a whole. They might be concerned or convinced that some law schools should not exist or do not properly serve the interests of their students, and thus prefer not to double the dues paid to the AALS so that such schools can receive 1/200th of the benefit of positive publicity that they do not deserve. Those professors may believe, at least as a moral matter, that there are limits to the phrase "we're all in this together."

As I noted at the start, these possible reasons do not require anyone to disagree with Simkovic's prior conclusions about legal education, or indeed with most of what he says in his post on Tuesday. We can thus, I hope, see that people might well question or oppose his proposal without being motivated, knowingly or not, by hostility to his conclusions on that subject. But there is a middle case too. It is possible that some of his readers share his general conclusions about the value of legal education but disagree or quibble with specific details of those conclusions, or of the conclusions he reaches over the course of Monday's post itself. That is hardly an outrageous or law-school-hostile position to be in. For those professors, there would be further possible concerns:

  • Without questioning his general conclusions or even the general proposal, they might be skeptical about some of his conclusions, and thus about whether the proposed outreach program would be worth the significant increase in dues. They might, for instance, wonder whether it is clearly or demonstrably true that "newspapers will on average have cost each prospective law students tens of thousands, or even hundreds of thousands of dollars. The total economic harm across all prospective law students could easily be in the low billions of dollars." Or they might doubt the suggestion (as I read it) in Simkovic's posts that critics of legal education were effective or successful in driving down law school enrollments. (Those groups may have claimed otherwise, but as he notes, they are potentially self-interested too, and claims on their own behalf may be disbelieved or taken with a grain of salt.) By the same token, they might doubt the likelihood that an AALS public relations program would be all that effective. Or they might conclude that those deans and others who spoke out on behalf of legal education--even if some of them were questionable standard-bearers and not all the criticism and public notoriety some of them faced was mere "retaliation" or lightning-roditude--did not get much of a positive result for their efforts. Any or all of this might lead them to conclude that an expanded AALS effort is not demonstrably necessary, that it is likely to be ineffective, or if effective is not sufficiently likely to be effective enough to justify a substantial increase in AALS dues.
  • Professors might share Simkovic's general conclusions but believe that the costs and benefits of a legal education are not distributed in an equal fashion across the board. They might believe as a normative matter that their primary responsibility is to ensure that those prospective students who might suffer harms as a result of choosing to attend law school are discouraged from doing so, and that encouraging attendance by those students who might benefit over the long term from law school to attend is only a secondary duty. Similarly, even if they believe that some or many students might benefit financially from law school over the long run despite working at jobs other than as practicing lawyers ("JD advantage" jobs, etc.) and that there is nothing wrong with an individual's "choosing" to do such work rather than practicing law, they might believe that the legal academy's primary responsibility is to the legal profession. As a result, they might hesitate to support an expanded public outreach program that would spend some or much of its time pointing to the financial benefits accruing to students who do not become practicing lawyers, or to support a PR program that would not make an adequate effort to moderate its message or name those schools or circumstances, if any, in which a student might be worse off as a result of choosing to attend law school.  

More broadly, and in conclusion, is a point that has been at least implicit throughout this post. Regardless of whether one agrees with Simkovic's general conclusions about legal education or not, or agrees with it in large measure but not entirely, or agrees or disagrees with his reasoning in Monday's post about the logic of and need for a public outreach program and major increase in AALS dues, many professors' conclusions--I would think all professors' conclusions--will not turn on the data or logical reasoning from those data alone. (In any event, they might believe that while some of the logical reasoning is solid, other aspects of that reasoning involve too much overconfident speculation from too little data--for instance, speculation about the dollar cost of "bad" newspaper stories.) Much will turn on their normative views. And some--or many--law professors may have normative reasons to be concerned about such a proposal, or to oppose it outright. Whether such a program is a good idea turns in large part on what thinks about the role and responsibility of law professors; the role and responsibility of legal education (to train lawyers? to train anyone who wants a law degree no matter what they do with it? to teach the law for its own sake regardless of employment outcomes?); the role and function of the AALS; how to weigh long-term financial gains against short-term joblessness or positive aggregate outcomes against particular negative outcomes; whether the US needs more lawyers or not and, perhaps more important, whether too great a number of law students may involve admitting too many students who should not be turned loose on clients at all; the morality of public relations generally or of particular kinds of public relations techniques; the morality of "quick-response teams" and the moral risks involved in introducing a David Brock mentality into the heart of our learned society; the possible tension between PR operations and the more straitened academic virtue of truth-seeking and of candor and integrity in addressing disputed public matters; and so on.


Posted by Paul Horwitz on August 26, 2015 at 11:41 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, August 25, 2015

Rankings Rancor, a contribution from Scofflaw

I've decided to give an opportunity for a couple of my students to speak to Prawfs and any others listening.  They chose to talk about rankings. As many of you know, as far as employment numbers for law schools, a JD-required job receives more points than a non-JD required job.  So, in turn, law schools often push their students to accept JD-required jobs.  My students make an insightful point about the rankings value of a JD required job versus a non-JD required job.  I understand that we don't want to equate a job at a prosecutor's office with a job at Applebee's, but surely there are great jobs in the corporate, nonprofit, or public policy world that we would be proud that our students are able to get after obtaining a JD.  There are plenty of business jobs or policy and think tank jobs that lawyers can do just as well as MBAs or MPAs or other generally smart people.  Why do we (through the U.S. news rankings) disincentivize law schools in helping students get non-JD required jobs?  Particularly as the legal market has not fully recovered as compared to other fields. I would be interested to hear from others on this topic.  (Obviously there is more than just this to criticize as far as U.S. News goes...)


By Steven Young and Trent Lowe, Utah Law School (S.J. Quinney College of Law) Class of 2016

The U.S. News & World Report has firmly entrenched itself as the czar of all law school ranking determinations. Those rankings provide a [somewhat] useful reference on where you ought to want to go to school. Those rankings, like many things in law school, seem to tell you what you ought to want. And the methodology of determining those rankings does not seem to take into account the desired end-state of the students themselves. It seems that many law schools follow the Milford School [of Law] methodology that “students shall be neither seen nor heard.” See Arrested Development: Public Relations (FOX Television Broadcast Jan. 25, 2004).

Most of us law students and future attorneys prefer to be told what to do, which classes to take, and which career to follow. It is true that the greatest route to happiness is a life of service devoted to following in the footsteps of the Harvey Specters or Harvey Birdmans of the world, but some among my law school class have different goals. I won’t name those individuals here to protect the innocent from the State Bar.

Not every school is a liberal paradise that allows the student body to flaunt convention as much as mine, but there might still be some students out there who don’t want to spend their days sitting at a desk Bluebooking, Shepardizing, or billing every six minutes of work to ACME Incorporated (Incorporated in, you guessed it, Delaware). The methodology of law school rankings does not take those people, or their misguided dreams, into account.

The scores are based on several factors, one of which is placement success. This is the sticking point for the scofflaws in my law school and in the legal community. According the U.S. News and World Report,

            “Full weight was given for graduates who had a full-time job not funded by the law school or the university that lasted at least a year and for which bar passage was required or a J.D. degree was an advantage….  Less weight went to full-time, long-term jobs that were professional or nonprofessional and did not require bar passage; to pursuit of an additional advanced degree; and to positions whose start dates were deferred.”

            Surely a J.D. is supposed to, but in very few ways does, prepare you for a job that requires you to pass the bar. But, what if we don’t want “real law job[s]” (as the experts call them) and would prefer something that law school has prepared us for in other ways, or want to stay in academia, isn’t that really the dream of all of us?

Maybe it’s not at a big firm, or being a hard-on-crime prosecutor, but if law school helps students get the job they want, then they should get credit for that, no matter the job. Understandably, some jobs are more legal than others, and maybe there should be a weighting system instead.

Regardless of the overall job-type that U.S. News feels they know is best, there should at least be an additional rubric of “I got where I wanted law school to take me and I love it.” Thanks to the current ranking system my law school could get fewer points for helping someone get the job that truly makes them happy.

Posted by Shima Baradaran Baughman on August 25, 2015 at 02:21 PM | Permalink | Comments (7)

Harper, "Too Many Law Students, Too Few Legal Jobs"

In this NYT piece ("Too Many Law Students, Too Few Legal Jobs"), Steven Harper (author of The Lawyer Bubble:  A Profession in Crisis) contends (among other things) that:

The crisis in legal education is real. Magical thinking and superficial rhetoric about declining enrollments, better debt counseling for students, and law schools’ experimenting with curriculum changes will not create more jobs. . . .Until student loans bear a rational relationship to individual law school outcomes, law schools will exploit their lack of accountability, the legal education market will remain dysfunctional, and equilibrium between supply and demand will remain elusive.

I'm not sure -- to put it mildly -- what "the answer" is or "the answers" are to concerns and questions about the cost of legal education, the debt-loads incurred by law students, and, for that matter, the future of higher education generally.  But, I do know (I think!) this (channeling Phil Hartman):  Harper is right that "curricular changes" do not "create more jobs" (although it certainly could be that some - not all - well-conceived and carefully thought out changes would help prepare some students better for the jobs that do exist and that are being created).  I continue to think that law schools actually do what they purport to do, and are able to do, pretty well.  This is not standpattism, but a sense -- as I wrote in response to another New York Times piece, about five years ago -- that many (not all!) of the media complaints about legal education are off-base.      

Posted by Rick Garnett on August 25, 2015 at 02:15 PM | Permalink | Comments (0)

Poor Lives Matter Too

Implicit within the rallying cry "Black Lives Matter" is the word "too."  In the debate about the slogan, that sometimes gets lost.  Some politicians and public figures seeking to be inclusive about the value of lives have responded "All lives matter" sometimes missing the implicit "too".  And perhaps the movement seeking to provoke has intentionally obscured the "too" in order to elicit a reaction that feels tone deaf when you understand the implicit "too" is there.  For me, the rallying cry is much more powerful with the "too" explicit.   The perception that we need reminding that those lives historically treated as having lesser value through the Constitution, slavery, and Jim Crow should matter too in our supposedly "post racial" world is a damning critique of where we are as a society.  The Black Lives Matter movement is critical for keeping the light brightly shining on racial injustice as the news media and the public mind shifts its attention away from Ferguson, Staten Island, and North Charleston.  

But I am also frustrated with the movement as it seems to have revived the unfortunate class versus race competition.  Its almost as if some of the movement's actors have forgotten the implicit "too" in their calls for the prioritization of race over other forms of inequality like class.  And maybe that's right given America's original sin of racism and racial subordination.  But for me, race and class are fundamentally intertwined.  Michael Brown, Eric Garner, and Walter Scott obviously had in common the color of their skin, but they also were among the most economically vulnerable.  Perhaps it is a coincidence that they shared this class characteristic, but I suspect it is not.  I suspect that we have forgotten or perhaps never learned that poor lives matter too.  

In the competition between race and class, it is hard for that message to come through.  My first substantive blog post asked why class is so little examined in legal scholarship.  I suspect that part of the answer lies in the pressure to prioritize race over class.  Some scholars, particularly scholars of color, might be concerned that a focus on class will be perceived as a betrayal of the prioritization of race.  Other scholars, particularly white scholars, might be concerned that a focus on class will be perceived as a devaluation of the importance of race.  After all, nearly a majority of poor people in the United States are white and there are privileges that come with whiteness.  We therefore seem to tip toe around issues of class (if we discuss them at all) for fear of being perceived as tone deaf about the racial injustices all around us.

But I just don't think we will ever resolve racial injustices without bringing into focus the class injustices that are just beneath the surface.  Our forgetting that poor lives matter too has contributed not only to the reckless police behavior that we see on the television screens, but also to decisions of some states not to expand Medicaid, to underfund public schools (particularly those that serve poor minority communities), to warehouse mostly poor black and Latino men in prison, to segregate the poor through decisions not to provide affordable housing in wealthier neighborhoods, to maintain substandard minimum wages.  These are as much issues of class as they are of race.  And while the latter policies do not result in the same instant and tragic death as a bullet from a gun, the slow death from economic, social, and political marginalization and subordination should not be ignored.    

I am not only frustrated with the Black Lives Matter movement, but also with the current talk of "economic inequality."  This talk of economic inequality seems to mirror the occupy movement in that the message conveyed still seems blind to the fact that poor lives matter too.  Our renewed focus on economic inequality seems different from that of the 1960s War on Poverty in that it leaves the very worst off, the poor, on the sidelines.  Many of the issues advanced by Occupy Wall Street such as student loan debt forgiveness, quality jobs, bank reform, and protection from housing foreclosures are mostly issues that do not concern the 15% that live below the poverty line.  These issues certainly matter, but they seem to matter more to a middle class (or the 99%) made vulnerable by the Great Recession.  The fact is that many of the poor lack jobs, let alone quality jobs, student loan debt to forgive, or a house to foreclose.  

While it might seem paradoxical for the poor to be marginalized from an agenda focused on economic inequality, the fact is that it simply reflects their broader marginalization in politics and their limited influence on social movement actors and elected officials.   The black lives matter movement has been able to get the attention of presidential candidates and engaged them in conversations about racial justice because the movement is able to cross class lines.  Members of the movement and their allies (actual and perceived) are not only members of the mostly poor communities of color afflicted by the tragedies, but also middle class, college educated, social justice activists who have taken on leadership roles.  The poor seem to lack these cross-class coalitions and the political power necessary to get a seat at political table.  The only hope right now is that whatever policy gains achieved by the Black Lives Matter movement will have a spillover effect on the poor (at least, the poor communities of color). 

I think that until we recognize that its about more than race, until we recognize that poor lives matter too, until we find a way to empower the poor to protect themselves through social movements or through representation in politics, the crucial injustices that are an important source of the racial fault line will remain. Just my two cents about the world as I see it.          


Posted by Bertrall Ross on August 25, 2015 at 12:35 PM | Permalink | Comments (6)

Autonomy Rhetoric in Supreme Court Opinions

Obergefell has spawned an interesting discussion about the use and abuse of rhetoric in Supreme Court opinions. (E.g., here, here, and here.) One especially salient charge is that the Court’s opinions in Casey, Lawrence, and now Obergefell all rely on “showy profundities,” as Justice Scalia has put it. But the rhetoric at issue may simply reflect a certain kind of philosophical writing, as evidenced by a forthcoming paper by Vincent Phillip Muñoz. (By way of disclaimer, I clerked for Justice Kennedy several years ago.)

To begin at the beginning, the Court’s opinion in Planned Parenthood v. Casey famously and prominently relied on claims about “dignity and autonomy.” Here’s a key passage:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Years later, Lawrence v. Texas quoted the above, prompting Justice Scalia to ridicule it as the “famed sweet-mystery-of-life passage.” Obergefell featured a similar exchange. For instance, the Court asserted that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In dissent, Scalia wrote that “[i]f, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” that way, “I would hide my head in a bag.” He elaborated: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

That brings me to Muñoz’s paper, “Two Conceptions of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which is forthcoming in the American Political Science Review and well worth a read. (While the paper isn’t public yet, this post is with Muñoz’s permission.) In addition to discussing founding-era thought on religious accommodation, Muñoz explores a more modern approach to the issue grounded in “autonomy.” When describing autonomy, Muñoz draws on noted philosophers, including thinkers who refer to the search for the  “ultimate meaning of life.” And Muñoz goes on to note that the “Supreme Court articulated this conception of freedom with brilliant clarity in Planned Parenthood v. Casey.” He then quotes Casey’s “mystery of human life” sentence.

So Scalia and Muñoz have pretty different takes on the Court’s autonomy rhetoric. What to make of this? One possibility is that Scalia’s purportedly rhetorical criticisms may be dependent on his substantive views of the law. In other words, Scalia’s hostility to the “mystery of life” trope may rest on the view that philosophy isn’t the proper stuff of federal-court opinions, even when it’s done well. Another possibility is that Scalia’s rhetorical jabs might reflect his own preferred philosophical method. For instance, it seems plausible that Scalia favors a philosophical approach that’s less open to fuzzy, abstract concepts and more insistent on strict formal reasoning. In any event, it’s worth remembering that Scalia’s talent at labeling and branding doesn’t mean that his views are representative. If so thoughtful a scholar as Muñoz views Casey’s sentence as reflecting the thought of leading scholars in contemporary philosophy, then Scalia’s critical view should be taken with a grain of salt.

Posted by Richard M. Re on August 25, 2015 at 11:59 AM | Permalink | Comments (9)

Monday, August 24, 2015

Clerkship hiring and changing clerkships

Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.

I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.

But I believe this is an unfortunate trend.

First, as one of my colleagues pointed out, it puts the clerk in a bad spot in a number of ways. She must choose between a clerkship and continuing at a firm where she already has put in time and effort towards advancing. The firm may not be happy about losing a person into whom it has sunk time and money, even if only for a couple of years. Although the clerkship is a theoretical positive for the firm when the person returns (especially if it is a prestigious appellate clerkship), the partners are likely to be dubious that the person is going to come back. And the benefits of having a former clerk still might not be worth the costs of being down an associate in a very different legal economy. And even if she does return to the firm, there remains a risk that some will doubt her commitment.

This interaction has several effects. First, it may affect employment at the start--perhaps the firm will avoid even hiring someone knowing there is a chance she will be applying for--and taking--a clerkship within a year or two. There also is a financial disincentive for the person--it is easier to make (relatively low) law-clerk wages for a year right out of school than to make those wages after a year or two of higher law-firm wages. It also may have a disparate effect on women, as Nielson points out. Many women know that they may be taking time off at some point (perhaps soon) for one or more parental leaves, which has already been shown to negatively affect chances for partnership. That same person is going to be less willing to take additional time away from the firm to clerk, which would further damage partnership and advancement chances.

Second, and relatedly, there is a geographical constraint. It is a lot harder to look nationally for a clerskship once you have been ensconced in the professional world of one city for two or three years and potentially put down some roots. Looking everywhere in the country made sense when the clerkship was an extension of the already-itinerant experience of law school. This is more of a concern for students at top-tier law schools, but it remains an issue. And this again has disparate gender effects--women may be less able to pick up and move to a new city for a year, having already settled some place for a place for a couple of years.

Third, using experienced clerks changes the nature of the job. A clerkship is (was?) like a post-graduate fellowship--an extension of the legal education. It was an opportunity for a newly minted lawyer to spend a short period studying at the feet of an accomplished figure in the legal world--an extraordinary research assistantship--and gaining a particular perspective on the law. She then carried that extra education into a more-permanent job (which made her more attractive to those employers).* And the longstanding practice of stacking clerkships was more of the same--it was multiple fellowships. But that changes when the judge is hiring someone with genuine practice experience and knowledge. Such a clerk, who knows more than a recent graduate, may be of greater help to the judge in chambers. But she also becomes less of a mentee or student-trainee. So the question, I guess, is what do we (systemically or institutionally) want a clerkship to be.

* I recall a Prawfs post years ago--I cannot remember who wrote it--comparing working for Dr. Gregory House to clerking for a particularly nighmarish judge.

There always have been some judges who preferred (even insisted) on hiring someone out of a prior clerkship. But as more judges move to wanting that experience in their own clerks, that initial (no-experience-required) clerkship becomes harder to come by. That is why more clerks have to go to law firms first, triggering the concerns I mentioned above.

Another change in the nature of the job is the loss of the two-year district court clerkship. These were somewhat in decline when I clerked in the late '90s/early 00s and, from what I can tell, have continued to disappear. Back then, it was becoming harder to attract people because the opportunity cost ($150k starting salary in some markets, plus a $10k-$20k clerkship bonus) was too high. Now, it would be harder to attract people because someone who is already two or three years into their time at a firm is not interested in stepping away for two years. Nor is the firm likely to allow her to leave for two years. So a district judge wanting to appeal to the broadest applicant pool is not going to require a two-year commitment. But I would not have wanted to have left my district-court clerkship after one year; I needed and wanted two to get everything I could out of the experience.**

[**] Judge Leonard Garth of the Third Circuit (who also had been a district judge) once said that the ideal clerkship length is 18 months, so the question for the judge is whether to structure her clerkships for less than the ideal or more than the ideal. Judge Garth argued that a district court should do more than the ideal, because there is enough variety to justify the extra time without too much boredom setting in. I am not sure about the ideal point, but I do believe two years on the district court were essential.

I should close by saying that all of the concerns I am raising as a professor hoping to place students might have worked against me when I was the student/new lawyer looking to clerk. I started my first clerkship (on the EDPa) after one year at a law firm in Chicago. (Although I interviewed and was hired for the clerkship while still in school--this was when  judges interviewed in winter/spring 18 months before the clerkship would begin--so the judge was interviewing a current student and likely was not  thinking specifically that I would be coming to chambers with a small bit of practice experience). I interviewed and was hired for my second clerkship (on the Third Circuit) while I was eight months into my first one and the judge especially liked (although did not require) that I would come to chambers from a prior clerkship.

The law firm I worked at during that pre-clerking gap year had given me the offer in the fall of my 3L year following a summer associateship. Partners were not pleased when I told them I was going to be leaving to clerk--for another city, no less--after a year and were convinced I was not coming back. Of course, I knew by that point that I wanted to teach, so I was not as rooted in Chicago or the life of practice in Chicago as other attorneys might be; moving around for a clerkshipswas just a step in what I expected would be more moving around for academia. Nor was I concerned with whether the firm would want me back when I finished clerking.*** But if my goal had been private practice in Chicago, taking that two-year clerkship (to say nothing of pursuing a second clerkship on top of it) in a different city would have made a lot less sense professionally and personally.

[***] The firm dissolved eleven months after I left, so there would have been nothing to go back to in any event.

Posted by Howard Wasserman on August 24, 2015 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Co-Deans Are All the Rage!

Congratulations to my colleagues Jessica Berg and Michael Scharf, whose interim co-deanship was just made permanent!

Apparently, at least a couple of other schools have jumped on the co-dean bandwagon--according to TaxProf, LSU and New Mexico have adopted this model, which was also utilized (pioneered?) at the University of Minnesota Law School. 

Having observed co-deans in action since November of 2013, most recently from my post as Associate Dean for Academic Affairs, I can say that it works, or can work, fabulously.

Of course, the two individuals leading a law school have to be the right two individuals, and they have to work well together. But if those two pieces are in place, it seems that two heads really are better than one in most instances. Deaning in today's world really is a two-person job. A co-deanship allows one person to be on the road and another to be present for urgent internal matters that arise. This makes a co-deanship better for the faculty, staff, and students, who can almost always be assured that someone is in the building with authority to handle high-level issues. It also helps to avoid (or at least minimize) the exhaustion that accompanies a bruising travel schedule.

But beyond all that, I think one of the greatest advantages of the co-deanship is that each dean can bounce ideas off the other and make sure they haven't missed some major problem or concern. I imagine it can sometimes be difficult to get honest feedback from those who report to you when you are dean, and it can be lonely making multiple dean-level decisions on one's own. There is enormous upside and very little downside (assuming a good working relationship) of having a second person sign off on every major decision.

Posted by Jessie Hill on August 24, 2015 at 08:54 AM | Permalink | Comments (10)

Saturday, August 22, 2015

The hole in Mireles v. Waco

One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).

That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.

Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.

[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.

By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.

Posted by Howard Wasserman on August 22, 2015 at 11:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Thursday, August 20, 2015

Infield Fly Double Play

On Wednesday night, the Royals turned a double play on an Infield Fly (video in link). With bases loaded and one out, a fly ball was hit near the first-base line, even with the mound; the rule was put in effect, the ball was not caught, and the runner on third made the instinctual move of running when the ball hit the ground and was tagged out at home. This is about the third or fourth time I have seen a double play on an I/F/R call in the six seasons I have been tracking.

Although the non-catch here was unintentional (the pitcher and first baseman had a miscommunication), a play such as this shows why the I/F/R does not entirely eliminate the perverse incentive for infielders to intentionally not catch the ball. There is always a chance an infielder could con the runner into taking off when the ball hits the ground and the runner's instinct takes over. And because not catching the ball is costless to the defense (since the batter is out anyway), it could be worth a shot. But this possibility does not undermine the I/F/R. The rule exists because base runners would be helpless if forced to run on a non-catch; it does not exist to save the runners from the consequences of running without thinking. And, of course, had the catcher forgotten to tag the runner (i.e., had the catcher been the one to have the brain cramp), the runner would have scored. In any event, I have only seen two instances of intentional non-catches in six seasons, so clearly the likelihood of success is not high enough to convince infielders to try this on a regular basis.

Posted by Howard Wasserman on August 20, 2015 at 10:00 PM in Howard Wasserman, Sports | Permalink | Comments (6)

What the Ashley Madison Hack Teaches Us About Digital Privacy Invasions

Hackers just published a massive amount of data about the roughly 36 million members of the website, Ashley Madison, a social network that markets itself to those in relationships who may want to explore, shall we say, "what else is out there." Along with the 36 million emails, 33 million first and last names, street addresses, and phone numbers, and 9.6 million documented credit card transactions were released. The data also tell us about subscribers' sexual preferences.

There has been some fanfare about a few of the names on the list: Josh Duggar, the conservative star of TLC's "19 Kids and Counting," had two accounts. The Associated Press notes that "subscribers included at least two assistant U.S. attorneys, an IT administrator in the Executive Office of the President, a division chief, an investigator and a trial attorney in the Justice Department, a government hacker at the Homeland Security Department and another DHS employee who indicated he worked on a U.S. counterterrorism response team."

Mr. Duggar, who molested his younger sisters years ago, has already conceded that he cheated on his wife. But being among those whose credit cards were used to create Ashley Madison accounts does not necessarily mean you made the same choices as Mr. Duggar. Nevertheless, every name, from the hypocrites to the innocent, is about to experience the very same shame, and it will be difficult to recover. Digital privacy invasions are cold and permanent: they remove necessary context and create a permanent truth. And, in this way, they cause untold harm.

We don't know the possibly myriad reasons why millions of people subscribed to Ashley Madison. A jilted ex or a prankster could have used your credit card. You may have been curious. You may have signed up accidentally, as Marge Simpson did (on the parody site, sassymadison.com) on "The Simpsons" episode, "Dangers on a Train." You may have wanted to have an affair and then decided not to. Perhaps you logged on, had an affair, but ultimately admitted it to your spouse and the two of you worked it out. Another possibility: you created an account to practice immersion sociology, much like the controversial sociologist Sudhir Venkatesh did with respect to gang culture. In fact, it's pretty easy to create an account on Ashley Madison using someone else's name and it's not that easy to erase it. In other words, the data is devoid of context. Now, all 33 million individuals whose first and last names were hacked are "cheaters" or, worse yet, "sluts."

And they will be branded as such forever. The internet stores information permanently because it can: it has essentially infinite storage capacity and a search platform that can find anything in 0.0000043 seconds. Even if the raw data were ever taken down, it has already been copied, recopied, told, and retold so often that it can never be scrubbed. And Google's ubiquitous search platform will ensure that anyone with an internet connection can find it. There is even a handy tool to determine if your email is included in the data dump. Furthermore, the United States does not have a European-style "right to be forgotten," which could help unlink data and reports on that data for persons innocently caught up in the breach.

As Glenn Greenwald suggested, the result is a modern scarlet letter: an invasion of privacy that gets wrapped up in a moral crusade against infidelity. This can result in long term negative effects: depression, social ostracism, loss of employment and employment opportunities, lower academic achievement, a receding from social life, and much worse.

Hackers that gleefully disseminate private personal information entrusted to a third party are causing significant harm. It may be easy to smirk and hard to find pity for victims of this particular hack, but consider some other invasions of privacy:

Victims of revenge porn similarly entrust private personal information -- an intimate "selfie" texted to a then-romantic partner -- to another only to have that data posted on websites that extort money, endanger lives, and ruin reputations. Danielle Keats Citron and Mary Anne Franks have spoken eloquently on the need for criminal revenge porn statutes as well as the very real emotional, physical, and professional damage caused by nonconsensual pornography.

Cyberbullying targets are ripped from private life and thrust into a very public humiliation when online aggressors, known or anonymous, take photos, harassing language, text messages, "I Hate" videos, or private encounters and post them online. This is particularly harmful to LGBTQ youth, who are unique in both their frequency of victimization and the importance of a safe internet.

A wry smile at Mr. Duggar's comeuppance is not the same as condoning privacy invasions, revenge porn, or cyberbullying of LGBT youth. His hypocritical moral crusade against gays in the name of "family values" made him a public figure on the matter of values. But the same social norms that lump all Ashley Madison account holders into one class of "cheaters" are the same norms that slut shame revenge porn victims and tell victims of cyberharassment to just turn off their computers. More to the point, it is the nature of online invasions of privacy that foster these harmful over-generalizations: the internet erases context and hoards raw, decontextualized data, transforming it into a searchable gospel. 

The internet, the raw, decontextualized internet, can be a dangerous place. Ashley Madison is just one unique case study showing us how.

Posted by Ari Ezra Waldman on August 20, 2015 at 06:11 PM in Culture, Gender, Information and Technology | Permalink | Comments (1)

Number of FAR Forms in First Distribution Over Time - 2015

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

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

Far Forms Over Time

Posted by Sarah Lawsky on August 20, 2015 at 03:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (8)

The Poor: Twice the Victims of Lochner

The build up until now:  The poor are politically powerless and unable to defend themselves in politics against laws harmful to their interests that might be motivated by antipathy toward them.  Yet the Court does not consider the poor a discrete and insular minority entitled to special judicial protection from democratic politics.  What gives?  I think the explanation for this anomaly can be found in Lochner.  The case for which several tomes have been written involved a challenge to a regulation that limited the number of hours bakers could work.  The Supreme Court struck down the regulation explaining that it infringed on the Due Process liberty of contract.  An underlying assumption seemed to be that employees had the market power to negotiate contracts that protected their health and well-being thus rendering regulations of work conditions arbitrary and unnecessary.   Over the next thirty years, courts struck down many laws designed to protect mostly poor workers and other vulnerable participants in the capitalist market economy - these groups were the victims of the Lochner era. 

Then came the political reaction and judicial repudiation of the Due Process liberty of contract.  After the supposed "switch in time that saved nine," the Court in a series of opinions in the late 1930s and early 1940s determined that it was not consistent with the judicial role for it to intervene into economic and social welfare legislation.  Rather than closely scrutinizing such laws to see if they violated the Due Process Clause, the Court held that it would only apply rational basis review to such democratic actions.  Most of the focus has been on the Court's repudiation, at least for the moment, of the notion that the Due Process Clause protected a substantive right against arbitrary interference.  But another part of the Lochner repudiation was the Court's rejection of heavy handed judicial intervention into the democratic process through the close scrutiny and usual invalidation of democratically enacted laws.  More (including an Alanis Morisette shout out) below the fold ...

For democratic actions protective of the poor, the repudiation of heavy handed judicial intervention is perhaps a good thing.  But the reaction to Lochner has since been used as an excuse to not closely scrutinize economic and social welfare legislation harmful to the poor and other vulnerable participants in the market economy.  In a series of cases in the 1970s, the Court determined that deferential rational basis review was the appropriate level of scrutiny for economic and social welfare legislative actions, even if such actions were harmful to the poor and other vulnerable groups.  To closely scrutinize these legislative actions would require the heavy handed judicial intervention into democratic politics that led to the  crisis of judicial legitimacy during the Lochner era that the Court wanted to avoid. 

And there is something to that concern.  Say the Court determined that the poor were a suspect class because members of the group lacked the political power to defend themselves in democratic politics.  The Court would then have to closely scrutinize state actions imposing fees on the use of government goods and services, reducing government benefits such as welfare, food stamps, and Medicaid, and increasing taxes on lower income individuals.  The Court, with memories of Lochner floating in its head, doesn't want to be in the business of closely scrutinizing such laws. 

The poor and other vulnerable members in our capitalist market economy have thus been victimized a second time by Lochner, this time by the judicial reaction to Lochner.  As Alanis Morissette might question: Isn't it ironic, don't you think?  While I have lost all capacity of understanding what is truly ironic after that song,  might this be the irony of Lochner, don't you think?  What this reaction to Lochner suggests is that the Court is unwilling to provide special judicial protection to the poor not because they have the capacity to defend themselves in democratic politics.  But rather because there are too many laws that negatively impact the group.   

Surely this is unsatisfying, at least for some of us.  Even if we are concerned about too much judicial intervention into democratic politics, it certainly does not seem to be consistent with American republican values to simply leave a vulnerable minority group unprotected, subject to the vagaries of ideological winds.  But if we accept the Court's preferences as legitimate, is there a way to provide judicial protection to the politically powerless and vulnerable poor while avoiding such extreme judicial intervention into democratic politics?          

Posted by Bertrall Ross on August 20, 2015 at 12:21 PM in Constitutional thoughts | Permalink | Comments (5)

Wednesday, August 19, 2015

Some Law and Religion Book Recommendations

As promised, and despite the slight detour. I'll start with a few. For the most part, these are descriptions, relying heavily on the usual sources (introductions, jacket copy, etc.), not reviews, although I'll have occasional observations. Nor, of course, should I be taken to agree with all these books' premises and arguments.   

The first is one I'm delighted to commend to all readers. It doesn't meet all the criteria I mentioned that lead to the risk of neglect, and I very much hope it will be widely read and discussed. The book comes from Kathleen Brady, a fellow at Emory's Center for the Study of Law and Religion and a wonderful friend to many in the law and religion community. Her new book, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, has been some time in the making, and I have been anticipating it with enthusiasm and impatience. It is well worth the wait, and has benefited from the extra time by being able to include recent developments, including extensive discussion of the Hobby Lobby decision. As Brady observes, the past two decades or so have seen "[t]he rapid ascent of equality as a central norm in religion clause jurisprudence." "In this view, the central value served by the religion clauses is equality, not only among different religious denominations, ... but also and most significantly between religion and nonreligion." She continues, "[W]e have been unable to move beyond our preoccupation with equality because we have been unable to articulate a convincing account of why religion should be treated differently than nonreligion under the First Amendment." That is the project of her book: "to provide a convincing account of religion's distinctiveness" and examine its implications for Religion Clause jurisprudence. I look forward to reading the whole thing and hope many others will take a look.

Recent events are also at the center of another new-ish book, The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought, released in late December. Edited by Stephen M. Krason, it comprises a series of essays reflecting on "significant challenges to the freedom of religious conscience and expression in the United States today." The chapters "explore the nature and basis of religious freedom in terms of Catholic social thought"; I found particularly interesting Gerard Bradley's discussion of Dignitatis Humanae, Vatican II's Declaration on Religious Liberty, which marks its half-century anniversary this year. Other contributors include Robert George, Randy Lee, Robert Destro, and Kenneth Grasso. Not that it matters, but despite my great affinity for Catholic legal scholars, this doesn't happen to be my tradition or, in the case of many arguments in the book, my own perspective. (Nor, of course, would every Catholic agree with everything here.) But so what? I found much of the discussion interesting, enlightening, informative, and provocative, and given the sweeping claims that are often made about Catholic doctrine and/or authority elsewhere, it's good to turn to these thoughtful CST-centered accounts. Agree with it or not, this book has received too little attention. It deserves more.

I mentioned the 50th anniversary of the Declaration of Religious Liberty, which will be the subject of much discussion this year, if for no other reason than that it offers a dignity-centered account of religious liberty and dignity talk is all the rage these days. Those interested in the topic might want to turn to a new book written and edited by David L. Schindler and Nicholas J. Healy Jr., Freedom, Truth, and Human Dignity: The Second Vatican Council's Declaration on Religious Freedom: A New Translation, Redaction History, and Interpretation of Dignitatis Humanae. I suppose I can't describe its contents any more succinctly than that second subtitle. In addition to the official text, in side-by-side Latin and English and a lengthy appendix providing the conciliar interventions of Karol Wojtyla, later Pope John Paul II, the book also features an extensive interpretive essay by Schindler on the Declaration and the right to religious freedom.

Finally for now, I was intrigued the other day to discover a new collection titled Religion as a Category of Governance and Sovereignty. Edited by Trevor Stack, Naomi R. Goldenberg, and Timothy Fitzgerald, it is challenging but fascinating. The book jacket summarizes: "Religious-secular distinctions have been crucial to the way in which modern governments have rationalised their governance and marked out their sovereignty--as crucial as the territorial boundaries that they have drawn around nations. The authors of this volume provide a multi-dimensional picture of how the category of religion has served the ends of modern government. They draw on perspectives from history, anthropology, moral philosophy, theology and religious studies, as well as empirical analysis" from a number of countries. An essay by Tisa Wenger, for instance, uses a history of Pueblo Indian groups to discuss the ways in which "[g]overnment reserves the right to police what goes on in the 'religious' sphere, but also what is considered 'religion' in the first place and by extension who can claim 'religious freedom,' as well as what precisely they are 'free' to do with it." 

This is a wonderful book for those of us in the field who are interested in thinking about the nature and limits of state sovereignty in relation to religion. Of course it cannot and does not tell a simple story about any of these concepts: "religion," sovereignty, the state. And that is its attraction. The book relies heavily on critical theory, and (if it matters) much of the politics in the book is what one might expect from scholars drawing on that toolkit. As I've observed elsewhere, however, in the United States at this moment, critical theory may be particularly useful for those advancing positions outside of the mainstream liberal consensus on contemporary American church-state disputes such as the contraceptive mandate litigation, and in any event it can lead in surprising and unusual directions. It's striking to me that so much recent public discussion has focused on arguing that something or other is or isn't "religious freedom" or "religious liberty" and rejecting any competing definition by putting scare quotes around the phrase, as if punctuation is enough to settle such a question. Meanwhile, a raft of other concepts and assumptions--about the state, state power, state sovereignty, third-party "costs" or "harms," the "rule of law," what constitutes an exception, and so on--have been used by many mainstream authors without serious discussion or interrogation at all. In law, at least, you can tell a great deal about an argument based on what the author chooses to see as a complex or contestable term, one that raises "baseline questions," and so on--and what the author chooses to treat as clear, simple, and uncontestable, all evidence to the contrary. This book can help enrich and complicate all such discussions.


Posted by Paul Horwitz on August 19, 2015 at 12:30 PM in Paul Horwitz | Permalink | Comments (0)

U.S. Supreme Court’s Latest On Police Conduct During Traffic Stops: It's Complicated

Despite numerous cases in which the U.S. Supreme Court initially analogized Terry v. Ohio (1968) to traffic stops (as explained earlier), which contributed to numerous state courts imposing search and seizure restrictions upon police during traffic stops, in 2009 the Court appeared to dramatically back off the implications of that analogy in favor of protecting police discretion rather than constraining it. However, just last term the Court somewhat incoherently embraced half of the Terry analogy. As a consequence, currently the Fourth Amendment does technically constrain police discretion during traffic stops, though how meaningful that constraint is remains unclear and disputed.

The first signal of this retrenchment came in Arizona v. Johnson (2009), in which the Court seemed to go out of its way to include dicta declaring that “[a]n officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” The only authority the Court cited as having made this matter “plain” was its decision in Muehler v. Mena (2005), but that case did not make this proposition “plain” at all. Mena was not a traffic stop case, did not so much as cite Terry, did not involve a brief encounter between the police and public, and involved a suspicionless seizure rather than the type of suspicion-based seizure at issue in Terry stops and in traffic stops. (Though there was no basis for suspicion against her, Mena was handcuffed and detained in a converted garage for two to three hours after she was found inside a private home when police executed a gang-related search warrant for “dangerous weapons,” during which police interrogated her about her immigration status.) All of these distinctions between Mena on the one hand, and Terry and traffic stop contexts on the other, had left it far from clear whether, after Mena, the Fourth Amendment imposed any durational or topical constraints on police during traffic stops. The Court would have done better to cite Illinois v. Caballes (2005), in which the Court approved of a suspicionless dog sniff that did not prolong a traffic stop's duration, refusing to impose a topical constraint during the stop.

In any case, it turned out that Johnson’s dicta, combined with Caballes's possible concern for durational limits, was a bit of a prognostication for where the Court was heading.

Last term, in Rodriguez v. United States (2015), the Court wrote that “[l]ike a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns.” It then held that police “may conduct certain unrelated checks during an otherwise lawful traffic stop” so long as they do “not lengthen the roadside detention” or "prolong[] the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." These "unrelated checks" are limited to routine, ordinary inquiries incident to traffic stops, such as “checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Unrelated dog sniffs, however, are excluded (Rodriguez invokes the Government's concession that unrelated dog sniffs are "not an ordinary incident of a traffic stop") and thus are not allowed absent independent individualized suspicion if they prolong the traffic stop.

Rodriguez was subject to good coverage already (e.g., here, here) so check it out for more analysis.

Here are a couple more of my own reactions. As an initial matter, this paradigm is internally inconsistent in several crucial ways. It cannot be true in most if not all cases that police “may conduct certain unrelated checks during an otherwise lawful traffic stop” only so long as they do “not lengthen the roadside detention” for the simple reason that these unrelated checks would be expected to lengthen the traffic stop. Thus, linking ordinary and routine but unrelated checks to a durational constraint is a mistake. This mistake is not obviated by Rodriguez's invocation of Johnson's language about "measurably" extending a stop's duration. These unrelated checks will often "measurably" extend a traffic stop, at least if "measurably" is to have any real meaning. (The Court would have better described its regime by explaining that unrelated checks are allowed even when they measurably prolong a stop if they are routine, ordinary inquiries incident to traffic stops, but otherwise cannot measurably prolong a stop, such as other searches like unrelated inquires about weapons or drugs, as Johnson indicates, or unrelated dog sniffs, as Caballes implies.)

Rodriguez further confuses matters by linking this misguided durational invocation to its emphasis that unrelated dog sniffs are not part of the routine, ordinary inquiries incident to a traffic stop. This combination suggests that absent separate individualized suspicion unrelated dog sniffs cannot be conducted during a traffic stop even when they do not prolong the stop because they are not part of the allowed routine, ordinary inquires. But that cannot be right because otherwise the Court would have had to overrule Cabelles, which it did not do (recall that Caballes approved of an unrelated, suspicionless dog sniff that did not prolong the stop). Additionally, the Court already instructed us in Johnson that unrelated topical inquiries are allowed so long as they do not measurably extend the stop.

In any event, where we are left is that Caballes remains good law but controls only until the "tasks tied to the traffic infraction are—or reasonably should have been—completed." Once that moment occurs, anything else prolongs the stop and then Rodgriguez kicks in. Caballes allows unrelated dog sniffs during a traffic stop so long as the stop's duration is not prolonged (or at least not "measurably" prolonged). But Rodriguez disallows unrelated dog sniffs that prolong a traffic stop.

This outcome leaves us with a "hard" Fourth Amendment durational constraint on traffic stops but with only a conditional topical constraint. So long as the durational constraint is respected--meaning the stop is not measurably prolonged--there is no topical constraint on police:  police are free to explore any topic they wish (e.g., ask potentially incriminatory questions unrelated to most traffic stops, such as about weapons or drugs or other contraband), as well as engage in suspicionless dog sniffs. It is only when the durational constraint is not respected--meaning the stop is unreasonably prolonged--that topical constraints come into play:  then police are no longer free to ask unrelated questions or conduct unrelated dog sniffs because doing so would violate the Fourth Amendment absent separate individualized suspicion.

This outcome results from Rodriguez somewhat incoherently embracing only half of Terry, as I mentioned above. Terry imposed both durational and topic constraints during stop-and-frisk encounters. As I alluded to in an earlier postTerry deemed both of these constraints necessary to compensate for the governmental authorization to seize and search based upon a lower level of suspicion (reasonable suspicion) than had previously been required (probable cause). Rodriguez accepts only one of these constraints (duration) while rejecting the other (topic) despite that traffic stops can be based upon nothing more than reasonable suspicion, as in Alabama v. White (1990). The Court has not provided a rationale for why this distinction is warranted. But this direction does perpetuate a newly emphasized trend in which the Court is setting up and tightening a special set of Fourth Amendment rules that apply to traffic stops and vehicles, as it did with search incident to arrest resulting from a traffic stop in Arizona v. Gant (2009) and with GPS tracking of vehicles in the blockbuster United States v. Jones (2012). Even the Court's major recent decision in Riley v. California (2014) is arguably part of this trend. Riley disallowed searches of mobile phones under the search incident to arrest doctrine. Though this holding was not limited to the traffic stop and vehicle context it is very important to that context, as is evident from Riley's own case (he was arrested, and his mobile phone searched incident to that arrest, after being subjected to a traffic stop for expired tags, which resulted in police discovering that his license was suspended). Given that traffic stops comprise the most common reason for police-public encounters this is an important and justifiable trend.

A significant issue will be how the reasonable duration of the stop will be measured. Imagine a sole officer making a traffic stop, as occurred in Rodriguez itself. Wouldn't any unrelated inquiry extend the duration of the stop? The time the officer spends making unrelated inquires is time the officer could otherwise be using to complete the stop. The only way this would not occur is if the officer is able to multitask (indeed, in Rodriguez Justice Alito's dissent claims this could have occurred had the officer conducted a dog sniff while awaiting the results of his record check of the passenger). Lower courts will now have to struggle with such questions. Wise defense counsel will work hard to establish the precise chronology in traffic stops, and these courts will be left to grapple with how to measure the reasonable duration of a stop based upon intensively fact-specific scenarios.

Posted by Fabio Arcila on August 19, 2015 at 09:00 AM | Permalink | Comments (10)

Religious institutions and the "implied consent" theory

I have recently posted "Change, Dissent, and the Problem of Consent in Religious Organizations" on SSRN. The link is here. It's set to appear in the forthcoming book The Rise of Corporate Religious Liberty (Chad Flanders, Zoë Robinson, and Micah Schwartzman eds., 2015).

Here's the abstract:

According autonomy to religious institutions sometimes means granting them sovereignty over religious insiders. Specifically, religious institutions often claim, and are granted, the right to be shielded from antidiscrimination or other norms that apply in the broader society. Proponents of church autonomy largely justify the trumping of individuals’ rights by claiming that the individuals consented to the jurisdiction of the religious institution, and that they can always choose to exit their religious affiliation if they are unhappy with the decisions or beliefs of the institution. The consent justification is thus an important one, because it mediates individual rights claims and claims of church sovereignty.

However, the consent justification is not a sufficient foundation for the wide scope of sovereignty that religious organizations often claim under the doctrine of church autonomy. Either the implied consent rationale is a fiction, which is based on a misconception about the nature of religious communities, or it is a broad, talismanic invocation that allows religious institutions to assert authority over any matter that they wish to designate as “internal” or as involving religious insiders. Rather than allowing religious organizations to determine the scope of their own jurisdiction, courts should recognize that they cannot help taking sides in religious disputes, and they should play a role in delimiting the boundaries of church sovereignty.

Posted by Jessie Hill on August 19, 2015 at 07:46 AM | Permalink | Comments (0)

Tuesday, August 18, 2015

Reminder: Hiring Committees 2015-2016

The post listing hiring committees for 2015-2016 is available here. If your school and its committee is not yet listed, please consider either emailing me or posting information the comments at that post.

Posted by Sarah Lawsky on August 18, 2015 at 04:44 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Coming: A "Tilted" List of Recommended New Titles in Law and Religion [WITH UPDATE]

I've been laid up for a good deal of the summer and it's been a good time to read in my field---or browse, anyway, although some of my reading gets done properly. There is no question that law and religion scholarship has exploded in quantity and interest lately, for obvious reasons. I may not agree with all the directions that the literature has taken, but these have certainly been interesting times for it, with a lot of new writers whose primary interests have come to overlap with law and religion. Over the next few months I'll be mentioning some new titles of particular interest. They will primarily be books, not articles. The recent profusion of published monographs and collections in and around the field has been just as impressive as that of journal articles, and with the usual gains in thoughtfulness and expertise--particularly on religion itself, whose treatment in the new legal literature is weaker--that books bring compared to law journal articles. [NOTE: A slight update is offered at the bottom of the post.]

Although I certainly welcome and have been reading "all comers," my list of notices and recommendations will be tilted. In this post, I wanted to say something about how and why. The list will have something of a religious and/or conservative tilt. (The "and/or" definitely applies here.) This has little or nothing to do with my own religious views or politics, and a lot to do with academic diversity and pluralism. 

Successful academics in the fields I read in most tend to be heavily networked, and fairly conventionalist in their views. They do a good job of discussing and promoting decent books in their field that come from roughly within their circles and are not too heterodox for that circle, including political heterodoxy of a generally liberal or left-of-center kind. At least in my academic/cultural milieu, if a book meets those qualifications I can rest assured that I will see discussions of the book, generally positive and supportive, everywhere--if one defines "everywhere" in the way that Pauline Kael once defined the universe of anti-Nixon voters. They will be noted on my Facebook feed, given substantial attention on the blogs I read, and, despite being academic books, will receive a number of reviews in those mainstream liberal publications that still review books. Amazon's algorithms will recommend a dozen other books of roughly similar views--and their authors, I notice, are often the same ones conducting the favorable discussions online.

To take an example, I'm currently working on a review (for a print magazine reaching a sub-sector of the same liberal audience, thus underscoring my point above) of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars. Since I'm still reading it, I won't comment on its merits. But it's fair to say that it's within the political mainstream of the academic milieu I'm talking about--my milieu--and that, for an academic title, it has gotten an enviable amount of attention from the usual academic and journalistic sources; it picked up another review, for an intellectual but general audience, just yesterday. It's not especially surprising that I read the U.S. Intellectual History Blog, or that it has gotten plenty of discussion there, or that Hartman writes on that blog, or that, from my perspective, the blog's community largely shares the same priors. Given that they share some basic assumptions, it's also unsurprising that the reviewers have generally been positive and supportive, despite some disagreements on particulars.

All that is to be expected. It's the way things--our limited attention spans, online algorithms, the current politically polarized culture, the culture and politics of the mainstream academy, elites, and/or the "symbolic analyst" class--work. As Miss Brodie said, "For those who like that sort of thing, that is the sort of thing they like." Although I'm happy to acknowledge it's natural, however, I won't say it's fine, especially for academics. It's lazy, contrary to academic values, and perpetuates an unhealthy form of elitism. It hides from view large numbers of ideas, arguments, and information that ought to be a part of the "standard" conversation and are not--are, indeed, in some sense treated as both beneath notice and below the salt.

Not all of this is ideological, by any means. There are both conservatives and traditionalist religious believers who are given attention within the conventional milieu, although they are exceptional, and these individuals are usually well-networked members of the elite who share some of its conventions. But it is certainly true that given the academy's conventionalism and given the politics of my sector of the academy, a lot of conservative and/or religious writers and books end up hidden from notice, out of the loop, out of the algorithms, not part of "the discussion." (There is an additional and, I think, related problem. A lot of good books that fall within mainstream liberal or progressive thought, or that are more radically leftist or "critical," and that do receive reviews and attention from conventional academics, have potential payoffs and benefits for conservative or religiously traditionalist arguments and groups. Those possibilities are generally neglected. I suspect that wouldn't be as likely if the reviewers gave more thought to books, ideas, and groups outside their usual political and intellectual milieu.)  

Doubtless these authors, neglected within what I would consider the mainstream academic milieu, have milieux of their own, although I doubt they have an equal tendency to ignore conventional academic works in their field. But whether they do or not does not excuse anyone else from the general duty to read more widely and give appropriate attention and publicity to a wider range of books and views. Of course, many of the books and articles I read fall within the mainstream of what "everyone" else is reading, and my recommendations will often reflect that. But it seems to me that many heavily discussed books that fit the usual, not-to-be-spoken of qualifications receive too much attention, while many other books get none at all, and for the wrong reasons. I hope to even out the balance a bit, and to tilt a lance or two in doing so.

UPDATE: Elsewhere, a friend writes in with this observation: "I'm not sure whether the category is politically or theologically conservative, or both -- and how these relate to 'traditionalist.' One may be theologically conservative, traditionalist, and yet also quite left on critical issues, in a narrow-political sense." Fair point. I was assuming two categories: politically conservative, especially on social issues--at least in the legal academy, fiscal conservatism does not necessarily lead to one being ejected from the club or ignored by the conversation--and religious in a traditionalist way, since it's obviously possible to belong to the milieu I'm discussing here while privately holding religious beliefs, or to be religious in a milquetoast mainline way, or to be religious in a way that affects one's desire for justice but still make arguments in essentially a secular or secularist way. Deep attachment to a traditionalist religious community with thick beliefs and practices and the desire to witness those commitments in one's arguments, on the other hand, is I suspect not going to be characteristic of most people who make it into the conversation. I suspect that is even true for some whose views are left but still deeply traditionalist--I am guessing, to borrow a Catholic term, that it depends on how much of your seamless garment you let show--but admittedly I had traditionalist religious conservatives primarily in mind. Although this may help clarify--a little--what I meant by the terms I used, I agree that the terms raise a number of questions, and I'm not sure I chose the best descriptors.    



Posted by Paul Horwitz on August 18, 2015 at 02:27 PM in Books, Paul Horwitz | Permalink | Comments (0)

How Should the Supreme Court Determine Whether a Group Has Political Power?

The starting point for this post is my view (not original to me) that the Supreme Court should step in to provide special protection from democratic politics to groups that lack political power.  These politically powerless groups are the discrete and insular minorities that the Court in Carolene Products footnote four expressed concern about being the target of harmful laws animated by antipathy.  These groups are unable to protect themselves from such laws because they cannot vote, they are unable to build coalitions with other groups, or they otherwise lack representation in the democratic process.  The familiar mode of judicial protection for such groups is the application of strict scrutiny to laws that classify on the basis of the group's status and are harmful to the group.  

A key for the Court in determining which groups are eligible for such special judicial protection is whether the group has political power to defend itself in politics.  As I suggested in the last post, one of the Court's primary measures of political power is whether that group has been the beneficiary of favorable democratic actions.  For the Court, such favorable democratic actions suggest the group is able to attract the attention of lawmakers.  If the Court applied this measure to the poor, it might determine that the group has political power because it has been the beneficiary of favorable democratic actions in the past.  But this determination would be in tension with social science findings that legislators and legislatures are not at all responsive to the preferences of the poor; findings that suggest the poor lack political power.

In a forthcoming article, Su Li and I sought to resolve this puzzle by testing the reliability of the Supreme Court's measure of political power as favorable democratic actions and the results were somewhat surprising. Details below the fold ...

We tested the relationship between congressional roll call votes on favorable democratic actions and the demographic makeup of the congressional district.  Our assumption is that for groups that have political power, the greater the proportion of a group in a district the more likely that the representative of that district will support legislation favorable to that group.  The theory behind the assumption is that congressmembers typically do not know the specific preferences of their constituents on most legislative matters.  Legislators therefore rely on heuristics such as the demographic makeup of the district.  Assuming the group has political power, the greater the proportion of the group in a district then the more likely the representative of that district will be concerned that an opponent might be able to mobilize that group to defeat her in the next election.  

We therefore expected that if the group had political power, there would be a positive correlation between the size of the group in the congressional district and support for legislation favorable to the group.  A lack of a statistically significant correlation between the size of the group in a congressional district and favorable roll call votes would suggest legislators did not support the favorable democratic actions in response to the political influence of the group.

We tested this hypothesis on three groups: union members, farmers, and the poor.  In the test we held constant factors that might bias the results such as the party, race, and gender of the representative, the region of the district (South/non-South), and the percent black and percent urban of the congressional districts. 

The results:  For union members and farmers, there was the expected positive correlation.  A ten percent increase in the percentage of union members in a congressional district was associated with a ten percent increase in the likelihood the representative would vote favorably to union members on union-related legislative actions.  Similarly, a ten percent increase of farmers in a congressional district was associated with a 14 percent increase in the likelihood the representative would vote favorably to farmers on farm-related legislative actions.  These findings suggest that past favorable legislative actions were, at least, in part responsive to the political power of these two groups. 

But then a surprising result for the poor.  For the poor there was a negative correlation between the percent poor in the district and the likelihood of a favorable roll call vote.  A ten percent increase in the percentage poor in a congressional district was associated with an 11 percent decrease in the likelihood that the representative would vote favorably to the poor on poverty-related legislative actions.  All of these results (for union, farmers, and the poor) were statistically significant at a .001 level.

What this suggests is that favorable democratic actions might be a reliable indicator of the political power for some groups (union members and farmers), but not for others (the poor).  Instead, it is likely that legislators support bills for reasons other than a group's political power, such as for reasons of ideology or morality.  One question that this raises is whether the source of favorable legislative actions matters.  So long as a group is a beneficiary of some favorable legislative actions, why does it matter that ideology motivated such legislative actions?  One concern is that groups who are beneficiaries of ideologically-based favorable democratic action will often have little control over what protections they will receive and when. 

The winds of ideology can shift in unexpected ways as they have with the poor.   The War on Poverty in the 1960s was followed by what some scholars have described as War on the Poor in the 1980s-1990s.  And this War on the Poor has been followed by a renewed concern about Economic Inequality in which the poor are sometimes mentioned.  The vagaries of the ideological winds might suggest that the Supreme Court should still provide special protection to groups unable to defend themselves in politics even if they have been the beneficiaries of favorable democratic actions. 

If not according to favorable democratic actions, then how should the Court determine whether a group has political power?   And does it even matter for the poor?  In the next post, I address a reason why the Court might not be willing to extend special judicial protection to the poor even if the Court considered this class suspect.         


Posted by Bertrall Ross on August 18, 2015 at 01:46 PM | Permalink | Comments (5)

Settlement in Hood County, TX

A couple initially denied a marriage license by the County Clerk of Hood County, TX, has settled the lawsuit, recovering more than $ 44,000 in attorney's fees.

On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.

Posted by Howard Wasserman on August 18, 2015 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Sorry I'm late....

I'm delighted to be invited back to Prawfs and sorry to be arriving halfway through the month. I am planning to somehow cram lots of excellent posts into the precious little time that remains, which is basically also a metaphor for how my entire summer has gone. Anyone else feeling, to quote this absolutely spot-on essay from last weekend's NYT, "regret roll[ing] in like a pea soup fog" at this point in the summer?

Posted by Jessie Hill on August 18, 2015 at 07:46 AM | Permalink | Comments (0)

Monday, August 17, 2015

Baby Mama Esq.

By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children. 

Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm).  One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.

Reality here truly does bite: most women who take advantage of generous maternity leave policies and flex-time policies end up sliding off the partner track and settling into the mommy track. A study published by Working Mother magazine found that although flex-hours were offered and widely accepted work arrangements for women with children at top 50 firms, none of the top 50 firms had promoted a flex-time attorney to partner in 2014. And among the 50 top law firms, only 19% of the equity partners are women.

The ABA Journal column noted that some firms (like Minneapolis-based Nilan Johnson Lewis) have bucked the trend and have promoted women to partner shortly after taking maternity leave. But this remains the exception to the general rule that partnership and motherhood are challenging to balance. As a mother of 4 who practiced law for a decade and a half before making the jump to academia, I'm keenly aware of this challenge.  And today's female law students - who constantly approach me as a "role model" of a mother who continually practiced law while having multiple children - are very concerned about this too.  They need to be aware, however, that reality in firms doesn't always match optics.  I've spoken to big-firm interviewers after their on-campus interviewing and heard expressed concern about 2L candidates who mention that one reason that they were attracted to the firm was because of its touted flex time options. This  seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours. (I think that the fact this point was raised in a first interview also suggests that these 1Ls are both more honest and more naive than one might expect.)

The impact of paternal leave on tenure and promotion in legal academia is unproven. (There was an interesting post in this blog 3 years ago on the topic of delaying going up for tenure because of paternal leave - here, and the AAUP has a paper regarding parental leave for university professors here.) My sense (devoid of any empirical study) is that policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave.  When I was at the new law professor AALS summer program, discussants in the women in law group shared a wide variety of experiences with respect to pregnancy and childbirth and maternity leave on a law school faculty. Policies with respect to paternity leave, I believe, vary even more.

Gentle reader (to borrow the phrase), what are your experiences with parental leave at your law practice and law teaching workplaces? Should the legal profession develop norms and expectations regarding paid leave as a way to increase gender diversity in partnership (and tenured professorship) ranks? Have you seen a generous leave policy backfire into mommy-tracking competent, ambitious female lawyers? And, if so, what is the right solution?

Approximately 50% of law school graduates today are female.  It is likely that a large number of these will at some point in their career have one or more children.  I believe it is time that the legal profession confront this reality and ensure that women in law are not forced to choose one of these three unsatisfactory options:

(a) dropping out of practice,

(b) going into a mommy track limbo, or

(c) sacrificing an unreasonable amount of time with their newborn.  

Yes, this is an issue that faces both mommies and daddies in law, but the biological reality remains that although an uber-dedicated father-to-be big law associate might even miss his child's birth, that option is frankly never possible for even the most overly dedicated expectant lawyer mom.


Posted by Andrea Boyack on August 17, 2015 at 10:19 PM in Culture, Gender, Life of Law Schools, Workplace Law | Permalink | Comments (9)

Snowden Revelations: Another Major Disclosure, This Time Against AT&T

The Edward Snowden revelations have shaken the United States and the world, having an impact domestically such as with the passage of the 2015 USA Freedom Act, in foreign affairs, and influencing other nation's laws both through their reaction to U.S. surveillance (such as Germany) and their own surveillance efforts (read about France here and here). The first revelation in The Guardian socked it to Verizon. Yesterday's revelation in the New York Times socked it to AT&T and provides further important information about how the surveillance operated and the degree of private cooperation with governmental surveillance efforts.

It is not widely understood that Snowden leaked his trove to select journalists, entrusting them with judgments about the scope of disclosures and their timing. So stay tuned. There is every reason to believe that more and similarly important disclosures will occur.

Posted by Fabio Arcila on August 17, 2015 at 03:59 PM | Permalink | Comments (0)

NLRB declines jurisdiction in Northwestern football case

The  National Labor Relations Board finally ruled on the efforts of Northwestern football players to unionize, declining to exercise jurisdiction without deciding whether college athletes are statutory employees. The Board determined that "it would not promote stability in labor relations" for it to get involved. It emphasized the unique circumstances of the case and the problem of ruling on union efforts by players in one sport at one school. Professional athlete-unions were sport- or league-wide, not team-wide. FBS schools, including all other Big Ten schools, are public and thus not subject to Board jurisdiction, meaning Northwestern (and 16 other FBS schools) might be able to unionize but not any of its competitors. This also would undermine the NCAA and the Big Ten Conference, which member schools formed to create the uniformity and level playing field that a Northwestern-only union would undermine.

At Workplace Prof, Jeff Hirsch briefly discusses the opinion, arguing that the NLRB's conclusion about instability is understandable, but ignores the way that unionization might have pressured the NCAA to make needed changes. I would make that point even more specifically--unionization is the only way to ensure student-athletes have real power in creating new policies for the NCAA, as opposed to being given a voice that can be easily overridden or ignored by other interests. For example, under the proposed revised governance structure for Division I athletics, student-athletes would hold one vote on a 21-person Board of Directors and two votes on a 38-person Council (the legislative body), a body on which 60 % of the Council must be athletics directors. The NLRB identified some changes that have been made since the filing of the petition, perhaps suggesting its  view that things are improving for student-athletes and even a small number of unions is unnecessary to further NLRA policies.

Matt and I have been waiting for this decision for a year-and-a-half and had planned on writing a short essay on the decision and the underlying normative issues. Given this resolution, I doubt there is much to say.

Posted by Howard Wasserman on August 17, 2015 at 03:13 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Call for Papers: CSLSA Annual Conference Oct 9 & 10

Posting for friends and colleagues in the Central States Law Schools Association. Personal Plug: I've participated in this scholarship conference and it is excellent. It includes small group discussions and fantastic feedback on works in progress. I encourage all who can to participate (and I hope to see you there!)
The Central States Law Schools Association 2015 Scholarship Conference will be held on Friday, October 9 and Saturday, October 10 at The University of Toledo College of Law in Toledo, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress.

Conference registration is open now at http://www.cslsa.us/register/. 
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 
Conference registration is open now at http://www.cslsa.us/register/. 

Posted by Andrea Boyack on August 17, 2015 at 01:33 PM in Life of Law Schools, Teaching Law | Permalink | Comments (0)

Show Me a Hero

If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.

Based on the first two hours, this is definitely worth the viewing time.

Posted by Howard Wasserman on August 17, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sunday, August 16, 2015

On a lonely island with my two spaces

My perception, based on anecdotal but wide-ranging instances over the last few years, is that most folks use one space after a sentence.  Moreover, those who speak on the subject dismiss the two-space crowd as fuddy-duddies with little or no aesthetic sense.  I must confess--or, I guess it's obvious from this post--that I am a two-spacer, and I really do not want to change.  I *like* the two spaces -- it signals a break, a pause in the action appropriate to the end of the sentence.  Do sentences not matter?  Why should they just get one space like every other word?

Anyway, my questions are these: are there any other two-spacers out there?  If so, why are you still a two-spacer?  And if you are a one-spacer, do you view us two-spacers as relics of some ancient world?  More pragmatically, do law review editors hold two-spacing in poor regard?  Or is it just something they sigh about when they have to do a "find and replace?"

Posted by Matt Bodie on August 16, 2015 at 11:36 AM in Law Review Review | Permalink | Comments (20)

Submission angsting: Fall 2015

Here is the Fall 2015 "Submission angsting" post (and comments).

Posted by Rick Garnett on August 16, 2015 at 10:57 AM in Rick Garnett | Permalink | Comments (0)

Friday, August 14, 2015

Lien Priority Rules!

Property law luminaries R. Wilson Freyermuth and Dale A. Whitman have published a concise and powerful article in the July/August edition of the ABA’s Probate & Property magazine that is both clarifying and compelling with respect to the continuingly contentious issue of residential real estate lien priority.

The priority contest between first mortgage lenders and homeowner’s associations was a dormant (or even non-existent) issue until the Foreclosure Crisis of 2008. But the Foreclosure Crisis changed the context of residential real estate lien priority questions in two ways:

  • First, home values plummeted and for the first time, a significant number of homes were “underwater” – meaning that the value of the home was less than the amount of loans secured by liens thereon. When an asset’s value covers the full face amount of all liens, lien priority doesn’t much matter in terms of whether or not a lienholder will be paid (even though, of course, it still significantly governs procedure and effect of foreclosure of liens).  When an asset’s value fails to cover the amount of its liens, however, the question of priority becomes crucial. In this environment of scarcity, the first in line gets paid, and the later in line may not. 
  • Second, the sheer volume of mortgage loan defaults increased ten-fold, overwhelming the judicial system and the foreclosure departments of banks and servicers. The massive increase in number of defaulted loans (together with the widespread confusion that resulted from over-zealous loan securitization and avoidance of traditional mortgage assignment through the use of MERS – which is a topic for another day) led to previously unimagined delays in foreclosure and a huge increase in the number of homes facing foreclosure, particularly in certain states and communities where the mortgage defaults clustered.  When lienholders delay foreclosure, priority very much matters because liens with higher priority can foreclose and wipe out junior liens.

These two significant context changes arising from the Financial Crisis have not fully abated, even seven years later.  And so, today, priority rules very much matter to any holders of residential real estate liens.

Homeowner Associations are one type of lienholder that is unfairly harmed by this combination of underwater mortgages and high quantity of loan default/foreclosure delay.  In approximately 30 states, a mortgage lien has complete priority over HOA liens, and foreclosure delay coupled with failure to pay association dues can lead to community financial disaster.  Sometimes HOAs are vilified in the media and in popular parlance, but it remains true that even if you hate the concept of an HOA, it is supremely unfair to have financially responsible people living in a neighborhood end up paying their defaulting neighbors’ “fair share” of community common costs.

In approximately 20 other states, statutes (including the state’s version of the Uniform Condominium Act or the Uniform Common Interest Ownership Act) have granted a limited priority to association liens, typically in the amount of six months of association dues.  When mortgage foreclosures were relatively rare and occurred relatively promptly, HOAs merely waited for a mortgage lender to foreclose and then took the 6-months worth of unpaid assessments off the top of the lender’s foreclosure recovery.  When the Foreclosure Crisis hit, it was unclear how this priority would work in cases where a 1st mortgage lender had delayed foreclosure. Could an association independently foreclose its limited priority lien and obtain 6-months worth of back assessments?  If so, what would be the effect of that foreclosure if the 1st mortgage lender failed to redeem its interest by paying off that super-priority portion of the association lien? (See Community Collateral Damages: A Question of Priorities discussing a description of the problem circa 2010).

In 2012, a Washington Court of Appeals held that the limited priority HOA lien acted like any other lien with a higher priority, meaning that the HOA could foreclose its lien with property notice to junior lienholders (including the holder of the first mortgage), and this foreclosure would operate to extinguish the first mortgage lien. Summerhill Village Homeowners Ass’n v. Roughly, 270 P.3d 639 (Wash Ct. App. 2012). Two years later, the DC Court of Appeals and the Nevada Supreme Court agreed with this interpretation. Chase Plaza Condo. Ass’n, Inc. v. J.P. Morgan Chase Bank, N.A., 98 A.3d 166 (D.C. Ct. App. 2014); SFR Investments Pool 1, LLC v. U.S. Bank, N.A. 334 P.3d 408 (Nev. 2014).  The Joint Editorial Board for Uniform Real Property Acts also endorsed this view, stressing that treating the limited priority portion of a HOA’s lien as a lien with “true” priority was essential to strike “an equitable balance between the need to enforce collection of unpaid assessments and the obvious necessity for protecting the priority of the security interests of lenders.” 

Enter yet a THIRD context change resulting from the Financial Crisis: The conservatorship of Fannie Mae and Freddie Mac. On September 6, 2008, the Federal Housing Finance Authority (FHFA) placed Fannie Mae and Freddie Mac (which are Government Sponsored Enterprises or GSEs) into federal conservatorship.  This unprecedented move likely saved residential mortgage lending as we know it, but has fundamentally changed the players involved in the residential mortgage market.  Back in 2008 and 2009, it appeared that FHFA conservatorship was some form of bankruptcy and possibly even a federal wind-down of Fannie Mae and Freddie Mac, but the GSEs have bounced back into the black and today are even turning a profit (now for the government).  The FHFA shows no sign of turning the reins back over to shareholders or otherwise ending the now seven-year-old conservatorship of the GSEs.

What does the FHFA conservatorship of Fannie Mae and Freddie Mac have to do with the association-mortgage lender lien priority question? Well, in cases where Fannie and Freddie are the secondary mortgage lender for a first mortgage lien, the FHFA now claims it has the power to stop or invalidate foreclosures of liens that are above GSE first mortgages in priority according to state law. That means, for example, that even though Nevada has held that the limited priority portion of a HOA’s lien is a true super-priority lien that extinguishes a first mortgage lien if that lienholder fails to redeem its interest in foreclosure (meaning: if the first mortgage holder doesn’t pay off the nine months of unpaid association dues before the HOA forecloses), that Fannie and Freddie can simply opt out of Nevada’s laws regarding lien priority and enforcement. 

FHFA’s argument that a lien with higher priority than a Fannie/Freddie interest cannot be foreclosed without its consent arises from the language of 12 U.S.C. §4617(j)(3):

No property of the Agency shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Agency, nor shall any involuntary lien attach to the property of the Agency. 

Similar language in the FDIC statute has been held to preclude foreclosure of super-priority state tax liens on property of banks put into FDIC receivership. FHFA reasons, therefore, that liens prior to Fannie Mae or Freddie Mac mortgages can only be validly foreclosed with FHFA consent.

Freyermuth and Wilson do a masterful job dissecting and destroying this argument. I would encourage everyone to read their thorough and compelling analysis. The “Readers Digest” version of their argument is as follows: 

  1. FDIC receivership is a qualitatively different context than FHFA conservatorship of the GSEs because FDIC receivership is short-term. FDIC receivership is a form of bank bankruptcy, and thus the consent provision operates as a merely temporary stay.  The FHFA conservatorship, on the other hand, has gone on the better part of a decade now, and it shows no sign of stopping. In Matagorda County v. Russell Law, the case that interpreted the FDIC statute as establishing FDIC consent as a prerequisite to effective foreclosure of a priority lien, the court carefully explained that a temporary delay in the ability to foreclose did not impact 5th Amendment rights of the lienholder, but the court did note that “unmitigated delay, coupled with diminishment of distinct investment-backed expectations may, at some point” amount to an uncompensated taking. 19 F.3d 215, 224-25 (5th Cir. 1994)(emphasis in original).
  2. Stays such as the automatic stay in bankruptcy are also qualitatively different than the stay in the FHFA context because FHFA decisions with respect to GSE conservatorship are non-reviewable. The FHFA has long claimed that its actions as a conservator of the GSEs are not subject to judicial review, and the Second Circuit confirmed this in Town of Babylon v. Federal Housing Finance Agency, 699 F.3d. 221 (2d Cir. 2012). Other circuits have followed suit. Thus, whereas a lienholder hamstrung by bankruptcy’s automatic stay can seek relief under the Code (for example, under §363 or through appellate review), there is no avenue to contest the FHFA’s failure to consent to a foreclosure of an HOA lien on property burdened by a Fannie or Freddie mortgage. FHFA consent, therefore, can be given or withheld in FHFA’s sole and absolute discretion.
  3. During the past several years, FHFA has evidenced its intent and consent to be bound to state lien priority law in multiple ways and contexts. For example, Fannie and Freddie servicing guidelines specifically instruct its servicers to pay off priority liens and a promise to reimburse the servicers for doing so. As Freyermuth and Wilson aptly point out, there would be no need for or purpose to this instruction if the priority liens could not be foreclosed without FHFA consent.  FHFA has also consistently operated as if it were bound by state law lien priority and enforcement rules in making arguments in various lawsuits wherein priority contests were decided.
  4. Finally, Freyermuth and Wilson point out that it is not at all clear that even the FDIC consent provision applies to private parties. The 5th Circuit, for one, has specifically ruled that the provision requiring consent to foreclosure of prior liens is specific and limited to tax liens held by local governments and does not extend to private entities. FDIC v. McFarland, 243 F.3d 876 (5th Cir. 2001). Because HOAs are private entities, their liens would thus be unaffected by the cited statutory provision requiring prior FHFA consent to foreclose, even if that provision were interpreted the same way.

Freyermuth and Wilson conclude:

The notion that FHFA and the GSEs can thumb their noses at time-honored state law priority rules is deeply offensive. The GSEs themselves have, in the past, consistently acted as though they were fully bound by those rules. From the inception of the uniform Fannie Mae-Freddie Mac 1-4 family mortgage and note instruments, for example, the GSEs have always been careful to obtain reviews by local counsel to ensure that the documents conformed to the varying laws of the individual states. They have asserted no federally preemptive right to disregard state law. Their claim to the power to ignore state priority law under HERA is unexpected. It is not justified by any emergency because—whatever the exigencies of the mortgage crisis—the procedure that allows an otherwise-first mortgage lender to protect its lien from destruction by the foreclosure of a prior owners’ association lien is perfectly clear and simple to employ. Any such destruction is a consequence of nothing more than Fannie’s or Freddie’s servicer being asleep at the switch. There is no reason the homeowners’ association should be punished for the servicer’s carelessness; rather, Fannie or Freddie should seek reimbursement from the servicer for such losses. The authors hope and believe the courts will understand this and will continue to hold the GSEs to the normal standards of state priority law.

I couldn’t agree more.


Posted by Andrea Boyack on August 14, 2015 at 12:17 PM in Article Spotlight, Property | Permalink | Comments (0)

Why marriage licenses?

A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:

What is so special about issuing marriage licenses?

All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:

• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)

• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)

• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse

• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name

• Processing a joint tax return for a same-sex couple

I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.

Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?

Posted by Howard Wasserman on August 14, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, August 13, 2015

But the Poor ARE Politically Powerful ...

For this blog post, I am going to take Supreme Court doctrine seriously.  I know, I know ... naive, laughable, but bear with me.  In the prior post, I described the four criteria for determining which classes are suspect and thus entitled to special judicial protection through the heightened scrutiny of state actions that classify on the basis of the group's status.  The four are: (1) whether members of the class "exhibit obvious, immutable, or distinguishable characteristics that define them as a discrete group;" (the Court adopted this standard in the 1986 case of Lyng v. Castillo) (2) whether members of the class has suffered a history of discrimination; (3) whether the defining characteristic is relevant to an individual's ability to contribute to society; and (4) whether the class has sufficient political power to command the attention of lawmakers.  A quick aside - lower courts and litigants have relied on this standard in determining and litigating whether gays and lesbians are a suspect class.  So the standard does seem to be relevant in actual judicial controversies.     

I am going to take for granted that the poor meet the second and third criteria.  And while some might dispute whether being poor is an obvious or distinguishable characteristic, I'm also going to assume that to be true.  The key criteria that has emerged in judicial suspect class determinations is whether members of the class have political power.  In prior comments, some noted that it has been a long time since the Court has declared a class suspect.  In fact, the Court has never declared a class suspect under the above standard.  Non-citizens were the last class to be declared suspect back in 1971 with the Court merely reasoning that "[a]liens as a class are a prime example of a 'discrete and insular' minority ... for whom such heightened judicial solicitude is appropriate."  In other words, non-citizens were declared a suspect class by judicial fiat.  Two years later in Frontiero v. Richardson, a plurality of the Court determined that women were a suspect class on the basis of the four criteria described above, but the plurality could not secure a fifth vote.  In a later case, a majority ultimately settled on gender being a quasi-suspect classification instead of women being a suspect class.  

So why hasn't a single class been declared suspect under the standard?  Why haven't the poor been declared a suspect class?  The answer can be found in one of the measures of political power that the Court uses.  According to that measure, nearly every group I can think of would be considered sufficiently politically powerful to attract the attention of lawmakers.  Yes, even the poor!

The Court developed this measure of political power in a mid-1980s case Cleburne v. Cleburne Living Center.  In that case, the Court declined to extend suspect class status to the mentally disabled for two reasons.  First, it determined that mental disability is a status relevant to the person's ability to contribute to society.  This was also used as a basis for denying suspect class status to the aged in the late 1970s.  Second, and more importantly, the Court determined that the disabled had political power.  The Court noted that the disabled had benefited from federal and state anti-discrimination laws protecting them and executive actions facilitating the hiring of the mentally disabled into the federal civil service.  Those favorable democratic actions "negate[d] any claim that [members of the class] are politically powerless in the sense that they have no ability to attract the attention of the lawmakers." 

If the measure of political power is whether members of the class have been the beneficiary of past favorable democratic actions, then it is really hard to imagine any class as politically powerless.  Democratic actions have been made in favor of felons, non-citizens, LGBT individuals, the poor ...  Heck, we fought an entire war on behalf of the poor in the 1960s so surely surely they can't be considered politically powerless.  And even if you want to focus more on the present, Congress recently expanded Medicaid in the Affordable Care Act and re-authorized food stamp legislation, presumably in response to the lobbying efforts and desire to be responsive to the politically influential poor. 

Of course, the results of this judicial measure of political power completely contradict social science evidence  cited in my first post suggesting that legislators and legislatures are not at all responsive to the preferences of the poor.  So what gives?  Who has it right?  

This is crucial because political powerlessness is the principal justifiable basis for finding a class suspect and subjecting laws the close judicial scrutiny and usual invalidation.  In my John Hart Ely process theory understanding of the world, the principal judicial role under the Equal Protection Clause is to provide special protection for those groups unable to defend themselves and their interests in democratic politics; to protect the perpetual losers in politics.  The close scrutiny of laws harmful to a politically powerless group provides courts with the tools to assess whether the laws are animated by antipathy or even indifference toward the group.  If the group is politically powerful, then the case for special judicial protection is substantially weaker (although it might still be appropriate in a narrow set of contexts).  Such groups with political power might lose sometimes in democratic politics, but they can presumably protect their interests without judicial intervention. 

There is thus some intuitive appeal to measuring political power according to past favorable democratic actions as it suggests the beneficiaries of those actions are not a perpetual loser in politics, that they are able to attract the attention of lawmakers.  But is that right?  What if these state actions were less in response to the group's political power, and more the product of ideology, morality, or paternalism?  Should that change the judicial calculation?  In the next post, I describe an empirical paper my co-author Su Li and I wrote suggesting that democratic actions favorable to the poor over the past 50 years were not in response to the political power of the poor.  In subsequent posts I will then turn to the reasons some of you have suggested for why the poor should not be treated as a suspect class even if they are politically powerless.      

Posted by Bertrall Ross on August 13, 2015 at 12:43 PM | Permalink | Comments (0)

A first take on recalcitrant county clerks

Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.

Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).

Thoughts after the jump.

1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her  name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.

2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.

3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.

[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.

Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.

Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.

Posted by Howard Wasserman on August 13, 2015 at 09:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, August 12, 2015

Benforado on cameras and perspective

Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.

Posted by Howard Wasserman on August 12, 2015 at 03:15 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Process of Marriage Equality

The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.

The abstract is after the jump.

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions. 

Posted by Howard Wasserman on August 12, 2015 at 01:49 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Introduction and Dedication

Hello Prawfs! It is already August 12, and I am posting my first post to Prawfs this month. For that, I apologize. But I will make up for it in the coming weeks.

First, some introductions. My name is Ari Ezra Waldman. I'm on the faculty at New York Law School, where, in addition to teaching intellectual property, internet law, privacy, and torts, I run our academic center focused on law, technology, and society. My research and writing focus on privacy, the bridge between privacy and intellectual property, and cyberharassment. You can find some of my publications on SSRN, although I have a handful in the works or under submission at the moment. More on that later. My partner and I are the human parents to a wonderful dog named Scholar. She's a dachshund-beagle mix.

Second, I would like to dedicate all my posts this month to Dan. I didn't know Dan as well as some others, but in the short time I knew him, he was a friend and mentor.

Now on to substance. In my short time at Prawfs, I would like to use several posts to talk about teaching and some other posts to tell one story, hoping to flesh out ideas about an ongoing project about information diffusion, privacy, and intellectual property. I start with identifying a theoretical problem.

In an important and oft-cited essay, Professor Jonathan Zittrain came to the profound conclusion that intellectual property owners and personal data owners want the same thing: “control over information.” That control was being eroded by the early internet: “perfect, cheap, anonymous, and quick copying of data” endangered copyright owners’ ability to control dissemination of their content and threatened to make private personal data a market commodity. Using the illustrative case studies of copyrighted music and patient health data, Zittrain suggested that privacy advocates could learn from content owners’ use technological systems that prevented the unlawful mass distribution of copyrighted data.

Professor Zittrain’s view that copyright owners and patients both shared the same fear of loss of control over data makes a great deal of sense: it appeals to an intuitive and dominant understanding of privacy as control over information and reflects centuries of legal thought, from British common law to Samuel Warren’s and Louis Brandeis’s groundbreaking article, The Right to Privacy, that saw the overlap between privacy and intellectual property. But recognizing that the fields share the same “deep problem” of loss of control is only a first step. We all want to maintain control over the dissemination of our data, whether it’s Taylor Swift removing her music from Spotify or internet users opting out of the use of cookies. But musicians also want many people to buy and listen to their songs, and individuals need at least some other people to have access to their data. Loss of control and, thus, loss of legal protection, has to happen sometime later, after some other publicity trigger. This suggests that the word “control” does not fully capture the problem; rather, it is about the social process that transforms information from under control to out of control.

This correlative inquiry is important. Control is an empty concept without knowing what it means to lose it, and the conceptual vacuum has contributed to haphazard and, at times, harsh, unjust results. Often, courts conclude that personal information and intellectual property is out of an individual’s control if even just a few other people know or have access to it. At other times, decisions are more nuanced. But they all ask the same question: When is information, already known by some, sufficiently out of the owner’s control such that it can be deemed public? Conceptualizing the problem of privacy and intellectual property merely as loss of control does not give us the tools to answer this question.

In subsequent posts, I will lay out a proposed answer to this second inquiry. In short, I argue that loss/retention of control has everything to do with information diffusion, social networks, and trust. 


Posted by Ari Ezra Waldman on August 12, 2015 at 01:07 PM in Dan Markel, Information and Technology, Intellectual Property, Legal Theory | Permalink | Comments (1)

Tuesday, August 11, 2015

Following Obergefell in the lower courts

Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.

* Which is not located in the Eighth Circuit.

Some comments after the jump.

First, Judge Crabtree nails the connection between Obergefell and this case. The SCOTUS decision "considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages. The Court’s job now is to apply Obergefell to the Kansas law." Once he reached the merits, the judge necessarily concluded that Obergefell resolves the plaintiffs' constitutional claim and entitles them to judgment on their claims for relief. The Eighth Circuit similarly applied Obergefell to conclude that the challenged laws are unconstitutional.

Second, the courts rejected the arguments that Obergefell moots these challenges. They all recognized that, because Obergefell itself compelled no action by officials in these four states, their mootness arguments amount to promises of voluntary cessation, which typically is not enough to moot a case. The marriage bans remain on the books in every state. At best, officials in Kansas seemed to be moving towards compliance with Obergefell, but had not yet gotten there (for example, it still was not clear a same-sex married couple could file a joint tax return or change names on drivers' licenses), but had not necessarily gotten there. And the fact that officials in every state are issuing licenses to same-sex couples is not sufficient, since that was being done on the strength of a district court's original injunction.

Third, in what might be an interesting development (one I had not previously thought of), the court of appeals and district court both suggested that the states' efforts at voluntary compliance perhaps affected whether permanent injunctive relief is unnecessary or impermissible. Judge Crabtree ordered further briefing on the question and the Eighth Circuit left it to the district courts on remand. Compliance was not a question of constitutional mootness, but of the court's discretionary equity analysis. Importantly, however, this did not affect declaratory relief, which remained proper and which will be entered in every case. This is significant for purposes of plaintiffs recovering attorney's fees--a declaratory judgment, even unaccompanied by an injunction, is sufficient to make them prevailing parties.

Fourth, Kansas tried to argue that the injunction requiring the state-employee health plan administrator to include same-sex spouses in the plan violated the Eleventh Amendment because it required money from the state in the form of benefits. But the court rejected this argument quickly and correctly--this falls into the "prospective compliance" exception, under which a purely prospective injunction is not barred by the Eleventh Amendment, even if compliance costs the state money.

Update I: In response to Maureen's comment, I shorthanded the point too much. A declaratory judgment alone will not always merit attorney's fees. But in the marriage cases, it should be, as there has been a change in the defendants' behavior and in the relationship between the defendants and the plaintiffs.

Update II: An alert reader points me to Sam Bray's The Myth of the Mild Declaratory Judgment (reviewed by Marin Levy here). Sam's theory is that declaratory judgments and injunctions represent alternative remedies, each appropriate in a different type of case. Under that theory, a D/J without an injunction is the appropriate remedy in the marriage cases, which require a change of behavior but minimal judicial oversight or monitoring.

Posted by Howard Wasserman on August 11, 2015 at 05:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

A contribution from my students at Scofflaw

So the University of Utah (where I teach) has a group called Scofflaw and they take humor very seriously.  They distribute newsletters that roast the faculty and administration and do Onion-style articles that they distribute to lighten the mood around the law school.  I asked them to draft something just for you all at Prawfsblawg and here it is.  Hope you enjoy it (as a new textbook coauthor...I'm trying to not take it personally .  . . and hope none of you do either).



            Listen, we respect what you do. It’s certainly not an easy life amending six pages of your literary cash cow per year in order to bring doe-eyed law students the most cutting-edge legal information. But at what point does the insanity end?

            One of you, though I won’t name names, determined to put out a new edition of your textbook based on amendments of the hearsay chapter that reflected new information and theory regarding the Confrontation Clause. Riveting stuff, and necessary, too, because we aspiring lawyers don’t want to be left in the dark while everyone else perfectly understands hearsay and the Confrontation Clause. “I’m solid on hearsay, I know exactly what judges like,” said No One Ever. More aptly put by a senior partner at my firm, “I’ve been practicing law for 50 years and I still don’t know what in the hell hearsay is.”

Your inner voice whispered to you: “These students need to know this stuff, you’re doing a service.”

While my inner voice screamed at me: “ONE. HUNDRED. AND. SIXTY. FIVE. DOLLARS? Oh, but look, the previous edition is only $4.75. You wanna be a lawyer? Start making hard decisions now!”

I am $165 poorer.

Next, Mr. Chemerinsky, may I call you Erwin? No? Okay. Erwin, we’re big fans of your work. I mean, the way you edited Michael H. v. Gerald D., 491 U.S. 110 (1989), to be paired with Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977), while referencing Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977), in the post-text. Bro, the stuff of legend. However, though we bask in your editorial glow, we must plead with you to whittle it down. One. Thousand. Eight. Hundred. Twenty. Five. Pages. You, sir, are facilitating arborcide. While we appreciate only having to buy one Con Law text (see Rant No. 1 above), wrist injuries abound. It’s embarrassing to see 1Ls suffering because they just can’t even.


If we can successfully condense Leo Tolstoy’s War and Peace into this…

War and Peace

…then surely we can get your Con Law text under one thousand pages. We would appreciate you at least giving it the ol’ college try.

Now, we don’t mean to single out Erwin Professor Chemerinsky, it’s just that he was the poor sap who wrote the book that our professor recommended. This is truly an egalitarian rant. Shame on you all.

There is, however, a way to make us go quiet in our stinging criticism: offer us the opportunity to be a co-editor. If we’ve learned one thing in law school, it’s that you’ll never make it to the top without editing a book. Obama? Edited the Harvard Law Review. Hillary? Edited e-mails. Trump? Currently being edited by the GOP. Kim Kardashian? Edits her Instagram feed. So, you see, we need this.

Thank you, and please note the absence of any grammatical or spelling errors when considering our salaries as co-editors. For samples of what we’re truly capable of   for that which of what we are capable  that show that of which we are capable, there is plenty of fodder on www.thescofflaw.org. Thank you, again.


Trent Lowe & Steven Young

J.D. Candidates, Class of 2016

S.J. Quinney College of Law

University of Utah


Posted by Shima Baradaran Baughman on August 11, 2015 at 03:49 PM | Permalink | Comments (2)

JOTWELL: Malveaux on Porter on Rules interpretation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism  Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.

Posted by Howard Wasserman on August 11, 2015 at 02:31 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Kids Today (or "I don't know about you, but I'm feeling 22")

Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself.  In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month.  For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.

  • World/National Events Context:
    • Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV.  RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”).  RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7.  RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time.  Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
    • Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16.  Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
  • Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise).  Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24.  And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate.  (Discuss.)

With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.  

RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media.  She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”). 

  • Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.
  • Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).
  • Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.
  • Labor Law? For RLS, the only significant labor disputes have been professional sports-related.
  • International Law? In RLS’s experience and memory:
    • Prisoners have always been housed at Guantanamo Bay.
    • There has never been Apartheid in South Africa.
    • The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
    • Hong Kong has always been part of China.
    • It was Pres. George W. Bush (not his father) who sent troops to Iraq.
    • The currency in Europe has always been the euro.
  • Health Law? Cloning has always been a scientific reality.  AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least).  Adults have been debating the role that the government should have in providing public health insurance since her birth.
  • Pop Culture Context: For RLS,
    • It has never been a big deal to see women kissing women and men kissing men on television.
    • The term “wardrobe malfunction” has been widely understood since RLS was 10.
    • Ellen and Oprah have always been first-name-only TV talk show hosts. 
    • Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
    • The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18). 

RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!).  RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.

As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV.   If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school! 

Do you feel old yet?

Or are you “Feeling 22” too?

Posted by Andrea Boyack on August 11, 2015 at 01:36 PM in Culture, Current Affairs, Life of Law Schools, Teaching Law, Television, Things You Oughta Know if You Teach X | Permalink | Comments (7)