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Monday, November 16, 2015

Watching "Paint Drying" (2015)

For better or worse, United States law currently imposes vanishingly few legal restrictions on the subject matter of motion pictures. Other than child pornography, almost anything goes, even though Miller v. California, 413 U.S. 15 (1973), at least purports to leave some room for "censorship" or "content regulation" (depending on your normative views). Of course, that wasn't always the case. Throughout the 20th century, there was a smorgasbord of state and local censorship boards, most famously the Motion Picture Producers and Distributors of America's "Hays Code." It wasn't until Roth vs. United States (1957) that content regulation began to wane, and until the Motion Picture Association of America adopted a voluntary ratings system in 1968 that censorship boards began to disappear.

Anyway, I was surprised to learn today that the British Board of Film Certification, established in 1912, continues to review motion pictures released in the UK, and that movies effectively cannot be shown in British theaters without a certificate, which costs about £1000 for a feature film. Now, that's a typically drop in the bucket for even the lowest-budget feature film or documentary, but many artists make films and videos with a total production budget lower than the cost of certification. And then of course, there is the principle of the thing. 

In response to continued certification/censorship in the UK, British artist Charlie Lyne has created a Kickstarter campaign to raise the funds to obtain certification for his new movie, "Paint Drying." The cost of certification depends on the length of film, so the length of the film that Lyne submits for certification will depend on how much money he raises. He shot fourteen hours of footage, but promises to reshoot if he raises enough money to submit an even longer film. The British Board of Film Certification's censors are legally obligated to watch every film submitted for certification, in it's entirety, in a theater-like setting. So, why not chip in a few quid to ensure that the censors have to spend as much time as humanly possible watching "Paint Drying"?

I submit that Andy Warhol would have approved of this project, although I imagine that he would have advised Lyne to ask for more money.


Posted by Brian Frye on November 16, 2015 at 06:58 PM | Permalink | Comments (0)

In the words of Seth and Amy, "Really, Bloomingdale's? Really?!?"

Bloomingdale’s is catching some flak for an ad in its current catalog (those still exist?) that shows a woman looking to her right, smiling and laughing, while a man is on her left, apparently without her noticing him.  He is staring at her, and the caption says, “Spike your best friend’s eggnog when they’re not looking.”  Really.  Because nothing quite gets you in the mood for the holidays like alcohol-facilitated sexual assault.

I'm hanging on to this one to help explain to my students one of the common models that jurisdictions have adopted to deal with intoxication and consent.  In many modern statutes, if the offender spikes someone else’s drink, then we cut the victim a little break.  Even if the offender doesn't use any other force, the offender can still be culpable if the victim's capacity to consent or ability to control her conduct was substantially impaired by those spiked drinks.  We shift the moral blameworthiness for the victim's drunkenness from the woman to the man.  That offense is generally graded with the most serious types of sexual assaults. 

However, if the offender sits in the background, watches the victim get herself intoxicated, and then commits an assault (again, no other force used), the offender is only culpable if the victim is incapable of consenting.  This is basically the same level of intoxication that would be required if an offender tried to use the voluntary intoxication defense.  The victim has to be so drunk that she couldn't form the specific intent to have sex.  Here, the law places the moral blameworthiness for the victim's drunkenness on the woman.  (Maybe Bloomingdale’s creepy advice to offenders should have been, “Don't spike her drink.  Just hang around in the background until she gets really drunk and then make your move.")

If she had the capacity to consent, then the prosecutor can't use this provision and needs to look elsewhere.  In cases like this, prosecutors often look to other potential applications of force, like his hands on her shoulders or hips.  They then explain that that force is enough under the statute's force provisions because the victim was so drunk, and also explain that the offender targeted her because of her intoxicated state.  (This clip does a pretty good job of illustrating the last point).


Posted by Eric Carpenter on November 16, 2015 at 04:02 PM | Permalink | Comments (0)

Office Space explains tenure requirements

(Based on a conversation with my colleague, and current Prawfs guest, Eric Carpenter)


Posted by Howard Wasserman on November 16, 2015 at 12:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

JOTWELL: Erbsen on Trammell and Bambauer on personal jurisdiction

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Trammell & Bambauer, Personal Jurisdiction and the "Interwebs" (Cornell L. Rev.).

Posted by Howard Wasserman on November 16, 2015 at 11:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Let’s Give Them Somethin’ To Talk About—A Tax Fix

Presidential candidates are now talking about how to get rid of the unpopular marriage penalty that stems from the lack of federal income tax brackets that are double for married couples. Thus, married couples with 2 income earners are more quickly pushed into higher tax brackets than if they had remained single. Meanwhile, 1-income households benefit from marriage because their lone income gets the larger brackets intended for 2 incomes.

Take a woman who earns $75,000 in 2015. Her marginal taxation rate is 25%. Once she marries a man earning $80,000 and becomes the secondary income earner in the marriage, her marginal taxation rate jumps to 28% by virtue of the marriage alone, even if both of their incomes stay the same. This reach of this marriage penalty keeps expanding, most recently with the U.S. Supreme Court’s decision recognizing same-sex marriage, which often has 2 income earners.

Different solutions have been offered to neutralize the tax marriage penalty, but they are difficult to implement. For example, it would be hard to stop taxing people based on their marital status because married couples are treated as one economic unit in other legal contexts. And, doubling the tax brackets for all married people would maximize the marriage bonus for one-income marriage households who do not need double tax brackets, perhaps why this solution has been adopted only at the lower income tax rates.

My proposed solution is to create a fifth tax filing status for 2-income married couples, whose tax brackets are double those of single filers. Currently, the only options are for 1) single filers, 2) married people filing jointly, 3) married people filing separately, and 4) head of households. A fifth filing status for married two-income earners—with double brackets—would allow continued treatment of families as a single unit under the tax code, without creating a marriage penalty or a marriage bonus for couples who do not have two incomes.

To prevent one spouse from working a nominal job to trigger the double brackets to accommodate a spouse’s significant income, spouses might have to earn some percentage of each other to qualify for the double brackets. This targets the marriage penalty without creating an expensive marriage bonus.  

You can read the law review article version of my proposal here.

Posted by Margaret Ryznar on November 16, 2015 at 11:35 AM | Permalink | Comments (12)

How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years--issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem--the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain. Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions. Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari--and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler. Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling.

I.  AEDPA and Tyler v. Cain

Of all of AEDPA's restrictions on post-conviction relief, perhaps none are more sweeping than the limits on "second-or-successive" petitions filed in federal courts by state or federal prisoners. As relevant here, AEDPA requires petitioners in such cases to first get permission to file such a claim from the Court of Appeals, which may only "certify" the claim if, as relevant here, it relies upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

In other words, unless the claim is based upon newly discovered evidence, second-or-successive petitions can only go forward when they rest upon new Supreme Court decisions that, under Teague v. Lane, may be enforced retroactively. (Under Teague, new "substantive" rules may be retroactively enforced, whereas new "procedural" rules may not, unless they are "watershed" rules of criminal procedure). That part is clear (or, at least, well understood). What's less clear is the meaning of the word "made" in the emphasized language above: Must the Supreme Court expressly state that the particular new rule in question is retroactive, or is it enough that the retroactivity of the rule obviously follows from--and is effectively settled by--other existing Supreme Court retroactivity precedents? 

In Tyler v. Cain, the Justices considered this very question, and ruled, 5-4, that "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." But Justice O'Connor, whose vote was necessary to the result, opened the door to a slightly broader interpretation in her concurrence. As she wrote,

a single case that expressly holds a rule to be retroactive is not a sine qua non for the satisfaction of this statutory provision. This Court instead may “ma[k]e” a new rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule. . . . [I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have “made” the given rule retroactive to cases on collateral review.

In the 14 years since Tyler, the lower courts have generally followed Justice O'Connor's concurrence, rather than Justice Thomas's majority opinion. The debate, instead, has focused on whether particular rulings qualify as a "Case Two." The latest battleground on this question involves the Court's June decision in Johnson.

II.  Johnson and the Circuit Split

In Johnson, as noted above, an 8-1 Court struck down the so-called "residual clause" of the ACCA on the ground that it is impermissibly vague. As a result, not only are sentences based upon the residual clause no longer valid, but individuals who have already served what would otherwise be the statutory maximum (10 years) are presumably entitled to release, since there is no longer any positive authority for their continuing incarceration. Although there's therefore little question that Johnson falls on the "substantive" side of the Teague line, there's also nothing in Justice Scalia's opinion for the Court that says as much--and that therefore clarifies, per Justice O'Connor's Tyler concurrence, that Johnson's new rule is "of that particular type." In other words, Johnson may or may not be a "Case Two," depending upon whether the Court has to expressly say that it's a substantive rule, or whether it's enough that, based upon prior decisions, it's clear that its rule is substantive.

That's the issue on which lower courts have divided. As of this writing, five circuits (the First, Second, Seventh, Eighth, and Ninth) have authorized second-or-successive claims based upon Johnson, with the First, and Seventh providing detailed opinions explaining that, in their view, it's sufficiently clear from existing Supreme Court precedent that Johnson's rule is substantive, and is therefore an example of Justice O'Connor's "Case Two." Three circuits (the Fifth, Tenth, and Eleventh--over a dissent) have held to the contrary--reading Justice O'Connor's concurrence to require some explicit recognition by the Court that a new rule is "of that particular type," i.e., substantive for purposes of retroactive enforcement.

This circuit split is deeply problematic in two respects: First, it creates massive inequities as between federal prisoners convicted under ACCA's residual clause in the five circuits that have allowed second-or-successive Johnson claims and the three that haven't--with those in the latter category now in prison pursuant to convictions that, at the very least, should trigger resentencing, if not (for those who have served 10 years) outright release. Second, because AEPDA imposes a rigid one-year statute of limitations on second-or-successive claims, those serving potentially unlawful sentences have a closing window within which to obtain relief based upon Johnson. Under AEDPA, such claims must be filed by June 26, 2016--the one-year anniversary of Johnson itself. Thus, the circuit split needs to be resolved by the end of this Supreme Court Term--if not sooner.

Usually, of course, there's an easy way to resolve a circuit split like this one; the Court just grants certiorari to review one (or more) of the circuit-level decisions. Here, however, that's not possible: AEDPA itself takes away the Court's certiorari jurisdiction in cases in which the Court of Appeals denies certification (which insulates the Fifth, Tenth, and Eleventh Circuit decisions from review), and the party that lost in the other five circuits that granted certificates--the federal government--hasn't sought certiorari, ostensibly because it agrees that Johnson can be enforced retroactively in second-or-successive cases. 

Thus, AEDPA, TylerJohnson, and the government's litigating position have produced something of a perfect storm--where there's a major circuit split, and no immediately obvious way for the Supreme Court to resolve it. Enter In re Butler, a petition for an "original" writ of habeas corpus from the Supreme Court.

III.  The Supreme Court's "Original" Habeas Jurisdiction

There are few topics in Federal Courts in which there's a bigger disconnect between academic interest and real-world significance than the Supreme Court's so-called "original" habeas jurisdiction -- "'original' in the sense of being filed in the first instance in [the Supreme] Court, but nonetheless for constitutional purposes an exercise of [the] Court's appellate (rather than original) jurisdiction." Ever since Ex parte McCardle, the Court has alluded to "original" habeas writs as a crucial constitutional backstop -- "an unorthodox but sometimes necessary means of exercising review in situations where other avenues for relief are either practically or formally unavailable." Thus, the theoretical availability of original habeas has allowed the Court to sidestep the grave constitutional questions that would otherwise have arisen from various efforts to strip the Court's appellate jurisdiction in habeas cases, including in McCardle itself, and, more recently, Felker v. Turpin.

In Felker itself, the Court was also dealing with AEDPA's limits on its certiorari jurisdiction over second-or-successive petitions, and had no trouble recognizing its power to issue "original" writs of habeas corpus, which AEDPA left untouched, as an available remedy in appropriate cases--and one that obviated constitutional objections to AEDPA under the Exceptions Clause of Article III. As Justice Souter warned in his concurrence, though, "if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress's Exceptions Clause power would be open." And, in an eerily prescient coda, he added, "The question could arise if the courts of appeals adopted divergent interpretations of the gatekeeper standard," i.e., exactly what has happened after Johnson.

Justice Souter's warning has proven prophetic; although the Court has received a number of serious, significant original habeas applications in the 19 years since Felker, it has yet to grant a single one, even in a 1999 retroactivity case in which the federal government agreed that original habeas was warranted on remarkably similar facts [the issue in that case was eventually resolved--against retroactivity--in Tyler]. Some of these petitions have come in high-profile capital cases, such as those of Troy Davis and Warren Lee Hill, where original habeas was the only way to prevent potentially unconstitutional executions. But whereas those cases may present more emotionally stirring narratives, the Johnson retroactivity issue is, in some ways, a cleaner vehicle for an original writ, since (1) the question before the Court isn't a "merits" question, but a simple retroactivivty question; and (2) the relevant statutes specifically contemplate that the Supreme Court, and not the lower courts (or state courts), will provide the definitive answer to that question. At the very least, if the Court wasn't going to grant in cases like Davis and Hill, and if it's not going to use original habeas to resolve disputes like the Johnson retroactivity issue, then original habeas really is a historical relic--and the constitutional questions Justice Souter worried about might finally have to be confronted.

IV.  Using Original Habeas to Solve the Problem

If you're still reading, hopefully I've convinced you by now that the Court should grant an original writ of habeas corpus to resolve the Johnson retroactivity issue (or, at the very least, should set the matter for full briefing and argument). There's at least one other pending original application raising the same question, but what makes Butler so attractive is the sentencing issue--because he has already served 10 years, he's entitled to outright release if Johnson is enforceable through a second-or-successive petition, meaning that the Court could simply grant habeas relief and be done. But should the Court do more than just grant the writ? Briefly, let me sketch out two further steps the Court can take--and then explain why, in my view, one is clearly better than the other:

A.  Hold that Johnson is Retroactive

Beyond simply granting the writ in Butler's case (which would leave other cases unsettled), the easiest way out, which would take about a paragraph, would be to expressly hold that Johnson is a "substantive" rule under Teague, and to therefore "ma[k]e" it retroactively enforceable in second-or-successive petitions under AEDPA. Such a ruling would then allow prisoners in the Fifth, Tenth, and Eleventh Circuits to obtain relief--including resentencing and, in cases like Butler, outright release. That wouldn't resolve the circuit split; it would simply moot it, since there would no longer be any question over whether the Supreme Court had "made" Johnson retroactive.

B.  Resolve the Circuit Split Over the Meaning of Tyler

The shortcoming of that approach is that, while it would moot the circuit split over Johnson, it wouldn't resolve the cause of the circuit split--i.e., lingering disagreement over the meaning of Justice O'Connor's Tyler concurrence. Thus, to avoid this exact scenario from arising again, the Court could use an original writ in a case like Butler to clarify who has the better of Tyler--the circuits that interpret it liberally to allow retroactive enforcement whenever it is sufficiently clear that a new rule is substantive, or the circuits that interpret it narrowly to require the Supreme Court to specifically say that a new rule is substantive. I have my own views on how the Justices should answer that question (both on the merits and to spare them from having to take pointless follow-on cases after each new rule is announced). But however this question is resolved, it should be clear that settling it in the context of Johnson will have a salutary effect for future litigation. 

*                              *                              *

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction--and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives. But there's a difference between elusive remedies and illusory ones. For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve. If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions. Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority--and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

Posted by Steve Vladeck on November 16, 2015 at 10:54 AM in Civil Procedure, Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (16)

Your Turn, Retributivists

In recent posts, I argued that retributivists have not done enough to justify the foreseen but unintended side effects of punishment. I commend to you Alec Walen’s thoughtful reply to my last post. My reaction: What a gentleman!  I appreciate his conciliatory approach and his willingness to question his own preferred theory. So if I--and now I can add Walen--are correct, there is indeed more work for retributivists to do. Let me add some further thoughts in light of his reply:

To my suggestion that there is a high burden to justify the side effects of confinement, Walen suggests that the burden might not be so high if we decide that offenders partially forfeit their rights to be free from side-effect harms. This is an interesting suggestion, though it does raise several questions. If retributive desert justifies purposeful inflictions and partially justifies side-effect harms, doesn't it seem clearer now why one might call those side-effects punishment? Not that we need to get hung up on terminology, but if side-effect harms are justified (in part) by desert and they take a form similar to those of familiar punishment practices, I think it's understandable why we might consider them a form of punishment, broadly construed, at least when assessing punishment severity.

Also, on the standard retributivist view, as each day in prison passes, a prisoner deserves one fewer day in prison. Intentional inflictions reduce remaining sentences. Shouldn't the same principle apply to side-effect harms? Wouldn't that create obligations to monitor prisoner side-effect harms in case adjustments are necessary? In Walen's reply, he states that we may already calculate prison sentences in ways that recognize that a certain amount of side-effect harm is to be expected. But even if we do or should, we'd have to make adjustments for variation in prisoner side-effect harm. Walen recognizes the point; he claims that doing so would be extraordinarily difficult and risk exploitation. Surely that's true. But many retributivists say that we can never knowingly overpunish (see, e.g. Alexander and Ferzan, p. 102 n.33). Wouldn't failing to individualize (or correct) punishment amounts violate this retributivist rule? If not, is that because the rule only applies to purposeful inflictions? If the rule only applies to purposeful inflictions, then I think retributivists lose their distinctive answer to the old "should-the-sheriff-hang-an-innocent-person" hypothetical. And if the rule only applies to purposeful inflictions, why is that? It strikes me as odd that the retributivist framework may hinge on treating purposeful and knowing inflictions differently, even though we consider these mental states largely equivalent in most areas of the substantive criminal law. (P.S. Thanks to Orin Kerr for his helpful comments encouraging me to clarify what I meant by punishment severity in my first post last week.)

Posted by Adam Kolber on November 16, 2015 at 05:02 AM | Permalink | Comments (0)

Sunday, November 15, 2015

Rothman's Roadmap to the Right of Publicity

Intellectual property comes in many different flavors, some better defined than others. One of the most peculiar is the so-called "right of publicity," which typically provides celebrities certain exclusive rights to use their name and likeness. As James H. Schnare II of the Nicklaus Companies observed at the Nova Law Review symposium New Media and Old Metaphors earlier this year, a great deal has been written about the right of publicity, almost none of it positive. Law students and non-IP professors typically encounter the right of publicity in the context of cases like the much-criticized White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), in which a split-panel of the 9th Circuit held that Vanna White's right of publicity enabled her to prevent Samsung from making a commercial featuring a letter-turning robot without permission.

In any case, the right of publicity grew out of the "right of privacy," something like a mirror images. It is a state law right, which can be based on statute, common law, or both, and can vary dramatically from state. As a consequence, it can be frustratingly difficult to determine which state's right of publicity law to apply, and even what the right of publicity law of many states actually provides. Thankfully, Professor Jennifer E. Rothman of Loyola Law School of Los Angeles has created Rothman's Roadmap to the Right of Publicity, an exceptionally useful (and well-designed!) website that provides accessible and detailed information about the right of publicity laws of all 50 states, as well as helpful information about the right of publicity in general. Whatever you think of the right of publicity on the merits, at least its now at least a little easier to figure out what it actually provides.


Posted by Brian Frye on November 15, 2015 at 03:50 PM | Permalink | Comments (2)

Painting the Grass Red

On Wednesday, November 11, an Artnet News article observed that the Netflix-produced motion picture Beasts of No Nation (2015), directed by Cary Fukunaga, resembles films and photographs created by Irish artist Richard Mosse in certain ways. Specifically, in 2013, Mosse created The Enclave, an installation work featuring images of child soldiers in Eastern Congo, in which the foliage is tinted an otherworldly fuchsia, and Beasts of No Nation includes a scene in which child soldiers take a hallucinogenic drug called “gun juice" that causes the landscape to turn a similar color. Mosse has stated that he does not intend to sue - presumably for copyright infringement? - but did produce a series of images comparing his work to Beasts of No Nation, and released the following statement:

Imagery that I have been making in Congo since 2010 has been used in a derivative scene from the new film Beasts of No Nation. The film's director, Cary Fukunaga, emailed me during production to—as he explained—“pick your brain" because “some of your work has struck our aesthetic appetite." However, he has never cited my work as an influence and even gone out of his way to conceal his sources. I feel it is important to restore the correct authorship to this imagery. Neither myself nor any my collaborators were involved in this film, and we would like to draw a clear boundary between Fukanaga's Beasts of No Nation and what we were trying to achieve with The Enclave. I'd also like to say thank you to the many supporters who have contacted me about this, and hope this clears up any confusion.

But that raises the question of whether Mosse has a viable copyright infringement claim in the first place. According to the Supreme Court, the IP Clause of the Constitution provides that copyright can only protect the original elements of a work of authorship, which do not include facts or ideas. Essentially, the complaint is that Fukunaga copied Mosse's idea of tinting the foliage red in order to metaphorically emphasize the violence of the circumstances. But of course, ideas are not and cannot be protected by copyright. In other words, Mosse is really alleging a plagiarism claim: Fukunaga copied his idea without attribution. But there is no cause of action for non-infringing plagiarism. United States laws permits copying ideas, with or without attribution, even though the artists - and academics - often object.

I was tickled to see that Artnet cited an excellent short essay by Andrew Gilden and Timothy Greene, Fair Use for the Rich and Fabulous?, 80 U. Chi. L. Rev. Dialogue 88 (2013). Unfortunately, Artnet seems to have missed their point, implying that they decry the availability of fair use to the "rich and fabulous," when in fact they argue that it should be equally available to everyone. Not to mention that Fukunaga probably wouldn't need to rely on fair use anyway, given that "make it red" almost certainly cannot be protected by copyright in the first place. But as Gilden observed in correspondence, many courts are unfortunately sympathetic to plagiarism claims that do not state a cause of action under copyright doctrine. So in practice, Mosse might have been able to pursue a claim, even if copyright doctrine appears to say otherwise. (H/T Donn Zaretsky's The Art Law Blog, one of my favorites!)


Posted by Brian Frye on November 15, 2015 at 12:26 AM | Permalink | Comments (1)

Saturday, November 14, 2015

Guess we like France now

CTzOnyRU8AEip-BLeading the charge onto the field at the start of today's Army-Tulane football game.

A nice gesture. Of course, it was not so long ago that Congress was banning the word "French" from its cafeteria.


Update: Mike Dorf explains and elaborates on what I had in mind.

Posted by Howard Wasserman on November 14, 2015 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (11)

Are you kidding me, ABA-LSD Moot Court edition

I just read the record for the next National Appellate Advocacy Competition, sponsored by the ABA's Law Student Division. The case involves prosecution of a police officer under the federal hate crimes statute, arising out of a racially charged shooting during a traffic stop; the issues involve Fourth Amendment protections for an employee's work locker and the proper causation standard under the statute. In the "case," the district court denied a motion to suppress and convicted the officer in a bench trial and the court of appeals reversed.

Buried in the "opinion" of the appellate court is this: "We fear that Judge Marshall allowed his personal feelings as a black man to color his view of the evidence."

Are you kidding me? This is the worst kind of cable-news-legal-argument crap that we try really hard (often unsuccessfully) to get our students past. Did students put the problem together? Are there any adults keeping an eye on them?

Do they really believe courts are these overtly craven? Are they really lending credence to the offensive-on-its-face notion that a black judge would let his race cloud his judgment in some way that any other person would not (which of course necessarily means that a black judge could never hear a hate-crimes case with a black victim)? And even if you accept the offensive-on-its-face notion, do they really believe that a court of appeals judge would ever say this in writing in the opinion for the court? Do they really want students making this argument (or having to address questions about this from the bench) during the competition--after all, anything appearing in the court of appeals opinion should be a basis for arguing for affirmance? At the very least, they have forced the advocates into the corner of having to deal with something totally disconnected from reality. It is difficult enough to keep moot court competitions grounded in something that looks remotely like real life--adding this bit of Fox News fantasy does not help.

The great Judge Leon Higginbotham addressed, and destroyed, the argument that an African-American with a history of involvement in civil rights could not hear a race-discrimination case. He was forced to do that in response to a motion by a party--in 1974, the Dark Ages, relatively speaking. By contrast, when supporters of California's Proposition 8 argued that Judge Vaughn Walker (who is gay) should have recused himself, they went out of their way "to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case." Now the creators of an advocacy competition, sponsored by what is supposed to be the professional association for lawyers and judges, have a federal judge saying just that, in a published judicial opinion. [Update: A reader emailed to remind me that the imaginary court of appeals judge would have had to convince two imaginary colleagues to join him in accusing a lower-court judge of misunderstanding the case because he is black]

I should say that all of this is especially unfortunate, because the problem they came up with a is pretty good, especially the hate crimes part. It has become increasingly difficult to convict police officers of civil rights violations, given § 242's specific-intent requirement--so much so that the federal government does not try very often. Going through § 249 might offer a new strategy in certain cases.

Posted by Howard Wasserman on November 14, 2015 at 12:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Marriage vs. Sex

This summer, there were two major family law events: the landmark Obergefell same-sex marriage case and the hack on cheating site Ashley Madison. Between the two, I got far more media interest in Ashley Madison. This is so even though the family law implications of the same-sex case were far more dramatic. In fact, the entire landscape of family law has been changed by the case, and I have been working hard to incorporate all of the changes in this semester’s family law course.

By comparison, Ashley Madison is no big deal in the family law. We have moved beyond fault in virtually every aspect of matrimonial law. New York became the last state to adopt no-fault divorce in 2010. The most common fault ground driving property division in many states is economic fault, when one spouse dissipates the marital assets. When it comes to the children, fault is not an explicit factor in the child’s best interest standard. Yes, Ashley Madison has revealed millions of cheaters publicly, but that’s about it.

Yet, we seem to be more interested in the Ashley Madison scandal—even today, daily articles about it are written. I guess that’s the power of sex.

Posted by Margaret Ryznar on November 14, 2015 at 11:00 AM | Permalink | Comments (3)

Friday, November 13, 2015

Anne Frank's Copyright

Anne Frank's diary is iconic and indelible, capturing the horror of the Holocaust and humankind's potential for evil in a uniquely powerful way. It is a fixture on school reading lists and one of the most widely read books ever published. Today, the New York Times reported that Anne Frank Fonds, the Swiss foundation that owns the copyright in the diary, has claimed that Anne Frank's father Otto Frank is not only the editor, but also a co-author of the diary. As the Times observes, "When Otto Frank first published his daughter’s red-checked diary and notebooks, he wrote a prologue assuring readers that the book mostly contained her words, written while hiding from the Nazis in a secret annex of a factory in Amsterdam." But now the foundation claims that "Otto 'created a new work' because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into 'kind of a collage' meriting its own copyright." To make matters worse, a "second editor, Mirjam Pressler, revised, edited and added 25 percent more material from Anne Frank’s diary for what was called a 'definitive edition' in 1991," and transferred any copyright she owned to the foundation, potentially extending the copyright term even further.

This new take on the authorship of the diaries is rather ... convenient. Under the copyright laws of most European countries, the copyright term is the life of the author plus 70 years. So if Anne Frank is the sole author, the copyright term will expire on January 1, 2016. But Otto Frank died in 1980, so if he is a co-author, the copyright term will last until 2050. By contrast, under US copyright law, the copyright term in works first published abroad by foreign citizens is 95 years after the date of publication. So, if the foundation's claim is valid the copyright in the diaries will last until at least 2050 in Europe, and until 2047 in the United States.

But I wonder whether their argument might be a little too clever. If it is true that Otto Frank changed Anne Frank's diary enough to make him a co-author, under US law that would make the published work a derivative work of the original work. And by extension, it would mean that the original work remains unpublished. But under US copyright law, the copyright term in an unpublished work is the life of the author plus 70 years. In other words, if the foundation's claim is true, the actual text of Anne Frank's diary may fall into the public domain on January 1 after all, in both the United States and Europe. (H/T Ann Bartow)


Posted by Brian Frye on November 13, 2015 at 10:32 PM | Permalink | Comments (5)

Should 16- and 17-Year-Olds Be Allowed to Vote?

There is a great storyline in an episode of the The West Wing where Cody, a teenaged boy, convinces White House Communications Director Toby Ziegler that children should be allowed to vote.  As Toby says, "I'd go for lowering the age in increments, and I wouldn't start at the federal level."  

Toby is right.  I have been thinking about this scene a lot during my initial research for a new project, tentatively titled "The Right to Vote Under Local Law," which will look at municipal laws around the country that grant the franchise to various constituencies.  This debate was re-ignited, including on the election law list serv, in the past day after Professor Glenn Reynolds (of Instapundit fame) published an Op-Ed suggesting that the voting age should be increased to 25.  

Below, I explain my initial thinking on this project.  Here is the punchline: local jurisdictions should enact franchise-expanding ordinances, including lowering the voting age.

Two Maryland cities, Takoma Park and Hyattsville, have recently granted the right to vote to 16- and 17-year-olds in city elections.  Initial reports from Takoma Park suggest that it worked quite well, with turnout among young people increasing significantly.  Moreover, these voters tended to educate themselves about the issues and candidates before heading to the polls, taking away the argument that young voters are not mature or educated enough to select their leaders.  Several larger jurisdictions, such as San Francisco and Washington, D.C., are debating similar proposals.  The idea in D.C. is to allow 16-year-olds to vote in presidential elections.  Some cities in Massachusetts have explored lowering the voting age, but they must secure state legislative approval under Massachusetts law.  Moreover, the voting age in about half of the states is 17 for presidential primaries if the voter will be 18 by the time of the general election.  Sixteen and 17-year-olds were also allowed to vote in the recent election over Scottish independence.

There are plenty of good reasons to extend voting to 16- and 17-year olds, as recounted in this FairVote overview.  Among other arguments, it is only fair to allow 16- and 17-year olds to vote given that they can obtain a driver's license and must pay taxes on their wages.  Moreover, turnout among young people is abysmally low, and it is best to create a habit of voting as early as possible (once our society believes that individuals are able to take on these societal responsibilities).

In addition to lowering the voting age, several local jurisdictions have extended voting rights in local elections to non-citizens, and New York City is still debating the idea.  There is also the possibility of restoring voting rights for felons in local elections or adopting other reforms at the local level to improve elections.

The power of using local law to reform our democratic processes is that it can have a positive ripple effect throughout the country.  Indeed, the history of expanding the franchise has often come through local reforms.  As just one example, the women's suffrage movement had some early successes in achieving the right to vote in municipal and school board elections in places like East Cleveland and some cities in Kansas before the adoption of the 19th Amendment.  Similarly, property qualifications for voting were dismantled first at the local level.

Therefore, although a federal constitutional amendment granting the right to vote might be beneficial, and although state courts should construe their state constitutional provisions conferring voting rights more robustly, it might make sense to "go small" if we want to secure broader protection for the right to vote.  

I'll have more to say on this project as the research progresses, and I should note that my current thinking is very preliminary.  Nevertheless, I welcome comments both on the general idea and the initial thesis: localism is perhaps the best path for broader change on voting rights, given that historically, expansion of the right to vote has come through piecemeal, local rules.  Therefore, municipalities should enact local laws expanding the franchise, which will have a significant effect in the long run in both securing voting rights for more people and making our democracy stronger nationwide.

Posted by Josh Douglas on November 13, 2015 at 12:18 AM | Permalink | Comments (9)

Thursday, November 12, 2015

A monkey, an animal rights organization and a primatologist walk into a federal court

Thus begins the argument section of the motion to dismiss in the copyright infringement lawsuit filed on behalf of a crested macaque whose "selfies" (the macaque pressed the shutter of a camera he pulled away from a photographer) were published by the camera owner. The motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in my prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim.

I confess that, while I typically don't like this type of jokey writing move, it somehow works here.

Posted by Howard Wasserman on November 12, 2015 at 03:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Throwback Thursday: Gretchen Craft Rubin & Jamie G. Heller's "Restatement of Love (Tentative Draft)"

The "law and norms" movement has seen increasing interest in recent years, with excellent papers on extra-legal social norms surrounding phenomena like "joke stealing" among comedians, roller derby nicknames, and the ownership of tattoo designs, among other things. And I hope to contribute to the literature a study of dispute resolution procedures among pre-war American hobos. So, I thought I would recognize the excellent and very amusing law review article that got me thinking about law and social norms, Gretchen Craft Rubin & Jamie G. Heller's "Restatement of Love (Tentative Draft)," 104 Yale L.J. 707 (1994). The article purports to provide a description of the social norms governing romantic relationships, in the form of a restatement, with tongue planted firmly in cheek. But on the serious side, it got me thinking about the relationship between laws and social norms, and how the analytic tools provided by the law can help illuminate other areas of social action. Unsurprisingly, the Restatement of Love has been cited several times in other law review articles (14, according to Westlaw), but I'm proud to claim (partial) responsibility for its only citation in a judicial opinion, Pierce Cnty. v. State, 159 Wash. 2d 16, 64, 148 P.3d 1002, 1028 (2006) (Sanders, J., dissenting).

Posted by Brian Frye on November 12, 2015 at 12:06 PM | Permalink | Comments (0)

He must have asked for it

I teach a seminar on sexual violence and I give the standard scope instructions -- this class will be about men assaulting women.  Yes, men are also victims, usually by a male offender.  Sometimes men are victims when women are offenders, but that is pretty rare and the woman is often acting in concert with another man.  Also uncommon, the woman is an adult and the victim is a teenager, and when that happens the societal response has a weird Van Halen "Hot for Teacher" undertone to it.

One of my students just sent me this link to a story about a female-on-male third-degree sexual abuse case out of Washington, D.C.(using force, non-penetrative sexual act).  Looks like a great case to use when teaching students about the gender beliefs that are central to rape myths.

Maybe he was asking for it (he did show off his muscles with that tight shirt, after all), and he really must have wanted it deep down inside because he didn't fight back.  Maybe the women got so excited by his sexuality that they couldn't turn themselves off.  Or maybe they were mistaken about his consent because he sent mixed signals or didn't resist enough.

Posted by Eric Carpenter on November 12, 2015 at 11:06 AM | Permalink | Comments (2)

RIP Betamax

Betamax was Sony's ultimately unsuccessful alternative to JVC's dominant consumer videotape format, VHS. Copyright scholars are unusually familiar with Betamax, due to Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the “Betamax case," in which the Supreme Court held that Sony was not liable for secondary infringement for selling videotape recorders, because they had substantial non-infringing uses, like "time-shifting" or recording a television program in order to watch it later. Surprisingly, even though Betamax lost the format war to VHS, and videotape was superseded by the Internet, Sony kept on making blank Betamax tapes. Until now. On Tuesday, November 10, Sony announced that it will stop making Betamax tapes in March 2016. It's the end of an era. Which most people assumed ended about 30 years ago.


Posted by Brian Frye on November 12, 2015 at 01:52 AM | Permalink | Comments (2)

Wednesday, November 11, 2015

A Good Week for Civil Liberties and (Maybe) Old-Fashioned Liberalism

It is now a commonplace assertion that in various ways, our social dialogue, especially on college campuses, is echoing or repeating the debates over "political correctness" that gained great prominence in the late 1980s through the mid-1990s. Although an article by Jonathan Chait helped lend a lot of attention to the "we're reliving the 90s, give or take Kurt Cobain" thesis, it was on many people's minds for some time before that. Initial critical responses to Chait's argument were interesting. Many were primarily ad hominem, while studiously avoiding the thesis itself; others agreed with the thesis and deplored some excesses while describing it as an "internal problem"; nothing to see here, folks! While there was certainly some skepticism about the general claim, few denied it outright. (I have no problem with the skepticism as such, incidentally. How to characterize the mass of people's views, when to conclude that anecdotes are indicative of a social trend and when they are not, and what weight to give it are standard problems of recent history and subject to standard contests. It is fair, however, to note that it is a common problem. We have long since accepted, more or less, a standard narrative of the 1960s in America that makes sweeping characterizations about the wider culture based on the complex, mixed actions of a relative few, and that asserts a connection between the hippies and protesters of the United States and more revolutionary movements in Europe, rather than seeing them as incidental or exceptional, or finding more kinship between these American individuals and 50s liberals, or hedonists of any age, although the long-term arc of that generation was at least as much careerist, self-serving, and establishment-oriented as revolutionary. Moreover, contemporary progressives also rely on anecdotes to make sweeping and optimistic, albeit different, arguments about the narrative of our own time. Such is the ineluctable nature of contemporary historical argument.)

The events of the last week--at Yale, especially, and the incident involving a reporter at Missouri--have shifted that narrative rather quickly, although perhaps no more justly. Anecdotes are still anecdotes. Still, Chait (sorry to focus so much on him; it's not a matter of strong identification or agreement, so much as that he nicely represents and records the shifts I'm discussing here) is probably right to observe, with a certain amount of earned satisfaction after the personally directed drubbing he took, that it is okay for more people, including supporters of the movement, to talk about "political correctness" now. We needn't and shouldn't make much of the label itself. The point is that more people are now willing to accept as an actual trend an impassioned movement stressing identitarian issues, strongly privileging a forceful form of egalitarianism over potential competing liberty interests, arguing for a radical departure from traditional interpretations of free speech rights, and insisting that, both as a matter of initial description and in those cases where they must be balanced against other interests, free speech rights conventionally understood should be subordinated to equality interests. That is, indeed, the 90s debate redux. Of course there are differences--in controversies, language, institutions, and so on. There are also differences between mallards and blue-winged teals. But the kinship is clear and more people, on both sides of the debate, now accept it with less caviling or outright resistance. 

What was missing was the ability to foretell where things would go next. In the 90s, ultimately many lessons were learned from the movement, but its more non-liberal edges, particularly in the area of free speech, were smoothed over. Ultimately, there was significant pushback from liberal institutions and individuals, on and off campus, who reasserted their views and authority--or hegemony, if you prefer.

My sense is that the events of the last week have gone a long way to complete that half of the 90s-analogy equation. The critical--or reactionary, if you prefer--response has been swift and pretty widespread. Civil libertarians, rather thin on the ground this past decade, have been more vocal. Most important, perhaps, and this was true and essential in the 90s as well, many of the critical voices have come from within the liberal, and even the progressive, fold (if one thinks of the two terms as involving more than propaganda strategies and sees an actual difference between them, as I do). We always and necessarily see through a glass darkly. But my sense is that, precisely because of and not despite these high-profile incidents, this has been a very good and encouraging week for traditional civil libertarian views of free speech. 

Two notes are worth making here. The first is that, although my preferences are perhaps plain, this is intended mostly as descriptive, and whatever agreements or disagreements I may have with particular movements and arguments, my description does not depend on any conclusion that the current campus movement has no legitimate grievances or insights to offer. It has both, in my view--although, of course, that hardly requires unquestioning acquiescence on characterizations, goals, or remedies. Nor, although I tend to have fairly traditional liberal and civil libertarian views on free speech and related matters, does the increased likelihood as of this week that those traditional views will reassert themselves, on the ground and in public dialogue, immunize them from ongoing criticism and revision. Differing views about broad, fundamental, and incommensurable goods and values are always on the table. It is no more illegitimate for progressives of a strongly egalitarian cast to push for a recalculation of the balance between liberty, equality, dignity, and so on than it is for religious conservatives to argue for a readjustment of the balance between private conscience and public legal obligations. These things are always up for debate and renegotiation, and arguments about who is on the "wrong side of history" have little intellectual value on this side of the Eschaton. I suspect the recent incidents will lead to a reassertion of the hegemony of more conventional and less radically egalitarian liberal views on free speech; but I will be perfectly content if this is not accepted uncritically as a good thing. 

The second and, to my mind, more interesting question is whether, if I'm right about the general prediction that this was a good week for traditional civil libertarian and conventional liberal views, much or any of that good will end up credited to the account of what used to be a fairly substantial social force: liberals and liberal institutions. If the 90s debate ended up with a reassertion of intellectual or institutional authority by liberals, as against more radical views on campus, that depended on the existence and power of both establishment liberals and liberal establishments. It made a difference that there was a Henry Louis Gates to write "Let Them Talk," a New Republic to publish it, and a White House to stock the magazine as its in-flight reading (as TNR's publicity department never tired of reminding people back then). Are the same institutions there today, or as likely to assert the same views? The New Republic has changed owners and philosophies, demonstrated an eagerness to disavow virtually the entire magazine's past in response to criticisms of its current status as a vertically integrated thingamajig, and was silent on all these issues for a week (despite running countless other items on transient matters) until it ran a piece today--and that piece was largely about validating and appealing (in the sense of appealing for their readership) to student activists, while mostly studiously avoiding any discussion or position on civil liberties questions. The Missouri ACLU spoke out about matters of press access. But the ACLU as a whole, given issues on which it has switched positions or avoided much vocal activity altogether, is less strongly associated with liberalism or even conventional civil libertarianism today than it was 20 or 50 years ago. Its public prominence on these issues has largely been claimed by groups solely concerned with campus civil liberties, or by groups more closely associated with conservatism. (Often, rightly or wrongly, the former groups are categorized by many as members of the latter set of interest groups, just as the ACLU was traditionally lumped together with liberal interest groups by many despite asserting that it had no political valence.) The center of liberalism, or progressivism, has shifted considerably, a matter on which I again take no normative position here. Having shifted, it's not clear that there will be as many liberal groups or thinkers ready, willing, or able to take on the role, or acquire the credit, that ultimately accrued to conventional liberal figures and institutions 20 years ago.

My sense, and prediction, is that this will have turned out to be a good week for the reassertion of more conventional, old-fashioned, liberal and/or civil libertarian views on matters of campus speech, free speech more generally, and the eternally difficult balance between liberty and equality. But I am much less confident that any benefits or acclaim for this will accrue to liberal groups or institutions, as opposed to groups and individuals that identify as conservative. If I'm right about that, I will tend to think of it as cause for regret, although I don't think my feelings about it are terribly important.  

Posted by Paul Horwitz on November 11, 2015 at 01:46 PM in Paul Horwitz | Permalink | Comments (0)

The Fungibility of Intentional and Unintentional Punishment

In my prior post, I argued that punishment theorists often speak of punishment in a narrow sense that only applies to intentional inflictions while people more generally tend to think of punishment in a broader sense that includes not only intentional inflictions but others that are foreseen (and maybe even just foreseeable). Much is at stake here because if retributivists only attempts to justify intentional inflictions, they will fail to justify anything like our actual punishment practices which include lots of harm that are foreseen but are arguably not intended as punishment (e.g., the harms to offenders and their families from being deprived of each other; the reduction of First Amendment rights when imprisoned, the emotional distress of confinement, etc.).

Alec Walen, in his helpful and interesting entry on retributivism in the Stanford Encyclopedia of Philosophy, tries to fill the gap. He offers what I think of as a non-punishment shadow theory to justify aspects of our punishment practices not directly addressed by the retributivist justification of punishment. To my claim that retributivists fail to justify punishment to the extent that they fail to justify the varied emotional suffering prisoners experience, Walen writes:

[E]ven unintended differences in suffering are morally significant. But they can justifiably be caused if (a) the punishment that leads to them is itself deserved, (b) the importance of giving wrongdoers what they deserve is sufficiently high, and (c) the problems with eliminating the unintended differences in experienced suffering are too great to be overcome.

Kudos to Walen for acknowledging that (non-accidental) unintended inflictions of harm require justification. That's a point I've been emphasizing for a while. Some retributivists (see p. 24 here) would like to say that they simply need not justify side effects of punishment because these side effects are not punishment. But all of our actual punishment practices involve both intentional and unintentional harms. Carving off intentional inflictions of punishment from the broad notion of punishment leaves retributivist discussion cut-off from real-world punishment practices.

I'm afraid, though, that Walen says too little to defend his three-part test. He simply asserts it (perhaps confident in its double-effect style reasoning). His (a) and (b) essentially say that if the value of retributive punishment is high enough, then it justifies punishment side effects. But this is exactly the claim I've been calling on retributivists to justify and explain in more detail. Here it's just an assertion and not clear that the condition is ever satisfied. Moreover, it provides no affirmative reason to inflict side effect harms. On Walen's view, retributivism offers no justification for side-effect harms except to the extent that they are needed to inflict intentional harms. And these are serious harms. Imagine if we put school children in an environment with a high risk of sexual assault. Outrageous! Yet that's what we do with prisoners. So the justification of the side-effect harm has to be quite strong. It can't be "used up" by the fact that we've already relied on desert to justify delivering proportional punishment. Moreover, can we not imagine non-incarcerative methods of punishment with fewer side effect harms? (To the extent retributivists support incarceration, it's awfully convenient for them that this method of giving people what they deserve also happens to incapacitate the dangerous.) 

Two further points: First, Walen's view seems to accord with my own claims that we need to measure the subjective experience of punishment, at least in some respects. How can we be confident that the value of retributive punishment exceeds the side effect harms if we don't measure those harms?

Second, Walen is saying that we have affirmative reasons to impose the intentional inflictions of punishment and permission to impose side effects. I wonder, however, why we don't have to adjust the purposeful inflictions to accommodate the side effects. If A and B are equally blameworthy but A will experience his confinement much more severely, why incarcerate A and B for the same period of time if there is an easy method of making their total harm more equal?

My point is easiest to understand when the units of intentional infliction of harm are the same as the units of side-effect harms. Imagine a futuristic method of punishment. Rather than incarcerating offenders, we spray them with "gravitons" that limit their liberty by slowing them down. Future retributivists have solved problems of proportionality and simply look up an offense, say 100 units of crime seriousness, and then set their guns to 100 gravitons so that the intentional infliction of punishment precisely matches offense seriousness.

There is a catch, however. Graviton guns fire 15 extra units 98% of the time. So setting the gun for 100 units will typically spray 115 units. If the value of retribution is significantly high in some case, Walen seems committed to the view that you can set the gun to 100 and fire away, almost certainly leading to someone receiving 115 gravitons total. I think most of us would say, and perhaps Walen would agree, that you have to set the gun to 85 units to achieve the ultimate 100 units. But notice that doing so falls short of the goal of intentionally inflicting 100 units of punishment. (One might quibble about what your intentions really are if you set the gun to 100, given that it fires in excess so frequently. But note this is not an unrealistic assumption. We sentence people to deprivations of liberty in prison knowing that they will suffer side effect harms with probability greater than 98%.)

In any event, if you agree that it would be better to set the gun to 85 units, then don't we have to shorten prison sentences to accommodate harms that we inflict as side effects? This is where standard double-effect reasoning may break down. The intentional portion of sentences can be titrated up and down to make up for foreseen side effects. So the crux of the debate may turn on how fungible the intentional and unintentional harms of punishment are and how strong the obligation is to avoid side-effect harms. Walen offers some comments in his piece suggesting that side-effect harms are not fungible with intentional inflictions, a topic I'll discuss in an upcoming post.

I should add that one cannot fault Walen for his brief discussion of how he would justify the side-effect harms of punishment. He's writing, after all, in an encyclopedia entry. But to the extent he claims to cite a flaw in my reasoning, I see insufficient discussion to backup his claim. (Adapted from work in progress.)

Posted by Adam Kolber on November 11, 2015 at 12:56 PM in Criminal Law, Legal Theory | Permalink | Comments (1)

Tuesday, November 10, 2015

Our student veterans

As we head into Veterans Day and reflect generally on the public service that veterans have provided to our country, I wanted to shift attention to some veterans that we see every day: our student veterans.  About 7% of the American population has served at some point, and it may be surprising how many of our students are veterans.  At FIU, for example, we have a student body of about 500 and we generally have fifteen student veterans. 

These students are great people with great skills. They have a genuine sense of public service.  They are leaders, team players, disciplined, selfless, and brave.  They have lived demanding, challenging lives.  Many have served in Afghanistan and Iraq, and among FIU’s student (and alumni) veterans, we have several with Purple Hearts and one has a Bronze Star for Valor.  I expect people like that are walking the hallways of all of our law schools. 

One of the challenges they face is the transition from active duty to law school. They leave behind a tight social structure where everyone around them has shared the same experiences and where everyone has been pursuing common goals – goals that provide meaning to their lives.  They then join a loose social structure where almost no one around them has shared those experiences and where there is no immediate public-service goal. 

Throughout the history of warfare, that tight social structure has served a therapeutic purpose. Before combat became a 24/7 experience, soldiers would gather around the campfire at night and talk through the day’s trauma with others in their unit.  After our experience in Vietnam, where service members cycled in and out of theater as individuals and the unit social structure disappeared, we saw an increase in adjustment problems.  (See Achilles in Vietnam by Jonathan Shay and On Combat by Dave Grossman).  The military has since returned to unit rotations to reconstitute that structure.  Now, the model is for service members to train as a unit, fight as a unit, and recover as a unit.

When service members leave active duty, though, that structure disappears. And for some, the transition can be difficult.

One step we can take is to help rebuild that structure for our student veterans. When they walk in our doors, they have no idea who the other veterans might be.  We do, and we can organize them and put them in touch with others who have similar experiences.   

Last year, we started a veterans student group at FIU (several other law schools also have them) and it has worked out really well. The students make each other aware of the Post-9/11 GI Bill traps and pitfalls.  They have learned that under the GI Bill, they can pursue some joint-degree programs (like picking up an MBA) that will help develop their current leadership and problem solving skills, and ultimately make them more valuable to wide variety of potential employers.  This year, the students have organized the first Veterans Day events here in the school.  And, we have expanded the network by reaching out to our alums who are also veterans.  That's not a campfire, but it is a start.

Posted by Eric Carpenter on November 10, 2015 at 05:54 PM | Permalink | Comments (1)

Edison Cylinder Recordings & State Law Copyright

The scope of copyright protection is notoriously indeterminate, at least in part because copyright doctrine relies so heavily on questionable metaphors and typically punts the ultimate question of "substantial similarity" to the jury. But the scope of copyright protection of sound recordings created before February 15, 1972 - if any! - is especially unclear. Every recorded song consists of (at least) two copyrighted works: a "musical work" or composition and a "sound recording" or particular performance of that composition. Under the Copyright Act of 1909, federal copyright law protected musical works, but not sound recordings. The Sound Recording Act of 1971 extended copyright protection to sound recordings created after February 15, 1972, but did not provide a "public performance" right, although in 1998, Congress created a limited "digital performance" right. As a consequence, copyright owners of sound recordings created after February 15, 1972 have the exclusive right to reproduce, adapt, distribute, and "digitally" perform the work, but not to perform it live or over the radio.

However, Congress did not address copyright in sound recordings created before February 15, 1972, which are protected - if at all - only under state law. As Kevin Goldberg has explained in a series of helpful posts, pre-1972 sound recordings are protected only by state law. (I also recommend posts by Tyler Ochoa and David Post on this subject). Most states (with the exception of Vermont), have created state law copyright protection for pre-1972 sound recordings, but typically (with the exception of Tennessee) explicitly do not grant a public performance right to broadcast sound recordings. But those state laws typically do not address "digital" performance. And that recently became an issue when Flo & Eddie (originally of the Turtles) filed a series of class actions against digital broadcasters like Sirius XM and Pandora, which they have now expanded to broadcasters as well, several of which they have won or settled. (Full disclosure, I joined amicus briefs filed in some of these actions by Tyler Ochoa and Eugene Volokh.)

Obviously, extending the public performance right to pre-1972 sound recordings would reduce access to "oldies" by provide a disincentive to digitally perform or broadcast them. But the effect would be even broader than commonly realized. For example, the earliest form of commercial sound recording was the wax cylinder, produced between 1877 and 1929. The University of California at Santa Barbara has created the UCSB Audio Cylinder Archive, which provides digital access to more than 10,000 cylinder recordings. But as Zvi Rosen pointed out yesterday on Facebook, UCSB may be violating California Civil Code §980, which states that "The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047." In other words, CA law explicitly provides that all pre-1972 sound recordings are protected by state copyright, even sound recordings produced before 1923, which would be in the public domain under federal copyright law. Of course, the Cylinder Archive infringes the reproduction and distribution rights in the sound recordings it houses, but if state copyright protection is found to include a digital performance right in pre-1972 sound recordings, UCSB couldn't even stream those cylinder recordings, let alone make and distribute copies. The Cylinder Archive is an immensely valuable resource, and it is hard to see any public interest that would be served by extending copyright protection to those cylinders, which have no meaningful commercial value. 

As a side note, while I am very pleased that UCSB has created the Cylinder Archive and made the recordings available to the public (in fact, Katrina Dixon & I have often included UCSB cylinder recordings in "The Bindle," the radio show we present every Monday from 10am to noon ET on wrfl.fm), I am concerned by UCSB's own copyright overreach. Specifically, the "copyright and licensing" page of the Cylinder Archives website claims, "MP3 files of the cylinders available for download are ©2005-2015 by the Regents of the University of California. They are licensed for non-commercial use under a Creative Commons Attribution-Noncommercial 2.5 License. Acknowledgments for reuse of the transfers should read 'University of California, Santa Barbara Library.'" But this copyright claim is almost certainly false, given the pretty well universally accepted principle acknowledged in Bridgeman Art Library v. Corel Corp. that exact reproductions of an existing work cannot be protected by a new copyright. UCSB does not purport to change the cylinder recordings in any way, it just produces the highest possible quality reproduction. As such, UCSB does not and cannot own copyrights in any of the recordings and cannot impose restrictions on their use, except by contract.


The Right of the People to Rule / Teddy Roosevelt. Edison Blue Amberol: 3707. 1919.

Posted by Brian Frye on November 10, 2015 at 05:10 PM | Permalink | Comments (2)

Sabotaging Productivity—CIA Style

During the Second World War, the CIA’s predecessor had a secret handbook for those people living in Axis countries who were sympathetic to the Allies. The handbook intended to reduce productivity in enemy countries. However, perhaps you might recognize some of these practices in the modern American workplace:

  • Managers should be pleasant to inefficient workers and give them undeserved promotions.
  • Whenever possible, refer all matters to committees, for “further study and consideration.”
  • Have disputes over precise wordings of communications, minutes, and resolutions.
  • Make speeches and speak as frequently as possible and at great length.
  • Insist on perfect work in relatively unimportant products.

Read the full Business Insider UK story here.

Posted by Margaret Ryznar on November 10, 2015 at 11:45 AM | Permalink | Comments (0)

Legal arguments and public perceptions

Beth Thornburg of SMU coined the term "pleading as press release"--plaintiffs drafting pleadings with an intentional eye towards how the most dramatic allegations will be reported in the press and how the case will be framed and understood by the public. And they do this even where occasionally over-the-top allegations have nothing to do with the needs or requirements of pleading and even as the allegations may have the unintended effect of turning the judge off.

The flip side is playing out in the Washington Professional Football Team trademark litigation, now before the Fourth Circuit. The team's opening brief devoted a great deal of space identifying dozens of other trademarks--many containing offensive words and epithets--that have been registered without incident. (See, especially, p.4 and p.24 & n.4).  These examples support the sensible First Amendment arguments that 1) the government does not endorse all such marks so as to make them government speech and 2) the Washington Professional Football Team's trademark should not and cannot be singled out from the many other, offensive marks that have been registered.

Of course, that is not how the media has covered or discussed the argument. Instead, the team has been ridiculed for, essentially, arguing that it is no worse than SLUTSEEKERS dating service, TAKE YO PANTIES OFF clothing, or CAPITALISM SUCKS DONKEY BALLS. There is an obvious incoherence between the team defending the nickname as "honoring" Native Americans while also insisting that it receive the legal treatment of SHANK THE [email protected] board game. Whatever the legal merit of the argument, the press and the public cannot help but mock it and turn it into a criticism of the team--and no one mocks well as HBO's John Oliver, after the jump.

All of which is to say that legal argument in a high-profile case can be a two-edged sword, especially as it relates to sports and may draw in a new media and public audience. Sometimes the legal argument you need to make is one that will be viewed in a very different light by the public. Of course, the reality is that opposition to the nickname is so deep and so strong in some public and media segments that any legal position other than changing the name and surrendering the trademark, will be criticized and mocked.


Posted by Howard Wasserman on November 10, 2015 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Broad and Narrow Punishment

H.L.A. Hart famously claimed that a central feature of punishment is that it is "intentionally administered” to an “offender for his offence.” Many punishment theorists share Hart's view that punishment essentially concerns an intentional infliction. I will emphasize, however, how extraordinarily narrow this view of punishment is:

(1) Credit for time served inconsistent with the narrow view: When people are detained before trial, we typically don't say they are being punished. After all, they haven't been convicted of any crime. So, consistent with Hart so far, we are not intentionally administering painful or unpleasant consequences on pretrial detainees for an offense. However, when pretrial detainees are subsequently convicted, they almost always receive credit against their punishments for each day they were detained. We reduce the punishment they must serve by the supposed non-punishment of detention. We do the reduction, I believe, because we think the harms of detention (even though not intended as punishment) are essentially the same as punishment, such that we reduce punishment day-for-day with detention. Hence, contra Hart, amounts of punishment depend on more than just those inflictions that are intentionally administered as punishment.  (See here for more.)

 (2) Our intuitions of punishment severity extend beyond the narrow view: Suppose Judge A in State A sentences a defendant to four years in prison for a particular crime. The judge, and if you'd like, the citizens and legislators in his state have a very vivid idea of what goes on in prison and it is the purpose of the judge (and the citizens and legislators) that the defendant undergo many hardships in prison (worse food; separation from family; loss of sex life, etc.). By contrast, Judge B in State B sentences a different defendant to four years in prison for a crime of equal seriousness. Both defendants, let us assume, are equally worthy of blame. In State B, however, the judge and the citizens and legislators have only vague notions of prison life. It's their purpose that B be deprived of liberty for four years, but they don't think about the side effects, such as the food being bad or the harms of separating from one's relatives. We could say that the judge et al. know about these things, but it's not their purpose that the defendant undergo these hardships.

So A and B are otherwise alike in all pertinent respects; they are incarcerated in identical conditions for four years and they experience confinement in exactly the same way. Wouldn't we say that their punishment severity is the same? That is, even though A and B differ dramatically in the amount of "narrow" punishment they receive, when asked whether their punishment severity is the same, we're inclined to say yes. That is, we are inclined to focus on punishment in the broad sense. We probably don't care precisely which hardships of prison are purposeful and which are merely foreseen when assessing amounts of punishment. (See here for more.)

Why does all of this matter? Those punishment theorists who only purport to justify intentional inflictions (see p. 24 here) cannot justify real-world punishments (or must offer a non-punishment, shadow theory to justify these other aspects of punishment) for all punishments include unintended side effects. I'll also use the distinction between broad and narrow punishment in my next post to reply to Alec Walen's comments on my work in his entry on retributivism in the Stanford Encyclopedia of Philosophy .

Posted by Adam Kolber on November 10, 2015 at 04:47 AM in Criminal Law, Legal Theory | Permalink | Comments (5)

Parental Leave

At the beginning of the baseball season this year the New York Mets' second baseman, Daniel Murphy, missed the first two games of the season for the birth of his son, invoking the league's "parental leave" policy.  He and his wife faced some absurd criticism from closed-minded people who suggested that his wife should have had a c-section before the season began.  Murphy in many ways had the last laugh, helping the Mets reach the World Series through some torrid hitting during the playoffs; as reporter Wendy Thurm tweeted during the playoffs, "Daniel Murphy proudly took paternity leave & now look how well he's performing at work."

I can't hit a baseball very far, but I, too, am taking advantage of my employer's parental leave policy.  (So I'm kind of like a major league baseball player, right!?  Childhood dream fulfilled!)  My wife and I welcomed the birth of our son, Harrison, last April, and this semester I am not teaching any classes so that I can enjoy flexible scheduling while caring for him.  I'm still required to provide "100% work" through research and service (hence my midnight post to Prawfs), but this scheduling allows for a wonderful amount of bonding and family time during these precious first few months of his life -- especially because my wife, as an elementary school teacher, had to go back to work in August.  (Insert your own comment here criticizing the paltry amount of leave most women in this country receive after giving birth.  It is absurd.  And unlike many other people, we were fortunate in that my wife was off during the summer right after he was born.)

At first I was not sure I was even going to invoke my school's new parental leave policy.  I thought, "I love being in the classroom, and plus, I had the summer to spend with him."  But a wise colleague convinced me otherwise.  She pointed out that, if I were at a law firm, I would have hardly any opportunity to take much leave.  In some ways, the flexible scheduling of my job as a professor is a form of compensation.  And I'll never have these first months back with him.  Plus, it is important to set a precedent for this new policy to create a culture that accepts and understands the importance of this time and encourages others to take advantage of it.

So my son and I have had a blast spending time together.  In September we caught a ballgame in Cincinnati.  Most Tuesdays find us at the library for story time.  We go on long walks.  I've read him a good smattering of both law review articles and Go Dog Go!  (For some reason law review articles seem to put him to sleep!  He much prefers books written by Mo Willems, our favorite children's book author.)

What's the point of this post?  To demonstrate that it is -- or at least should be -- admirable for someone like Daniel Murphy (or me!) to take parental leave.  To advocate for more law schools to offer broader parental leave policies if they do not already do so.  And to suggest that more professors (including fathers) should take advantage of those policies.

To be sure, I am excited to g0 back to the classroom in January, and I'm confident that my time away has made me even more refreshed to teach.  These breaks help to make us better teachers and scholars -- and allow us to live a fulfilling life where family comes first.  It is also important to model to our students that it is possible to have a meaningful work-life balance, and that sometimes major events -- the birth and care of a child -- take precedence over everything else.

It's been a really great experience....mostly.  What's that sound?  Oh, it's time to go change a diaper! 

Posted by Josh Douglas on November 10, 2015 at 12:09 AM in Life of Law Schools, Sports, Teaching Law | Permalink | Comments (2)

Monday, November 09, 2015

Is Justice Breyer trying to be Judge Posner?

Justice Breyer has developed a distinctive style of asking questions in oral argument--declarative statements summing up the case, often interrupted by asides and tangents, rhetorical questions, and clipped questions demanding "yes or no" answers and often allowing for little explanation. And he asks them in a demanding, sometimes angry, sometimes confrontational tone. In the domineering tone and insistence on one-word answers (although not the rambling asides), it calls to mind Judge Posner at his most-authoritarian (think of the marriage-equality arguments).

Is this deliberate? And has it gotten more noticeable on Breyer's part in recent years?

Posted by Howard Wasserman on November 9, 2015 at 05:28 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Doctor v. esquire and the impact on students' internal motivation

Thanks to the Prawfs gang for inviting me back.  I'm the ex-Army guy that tends to post about professionalism and teaching but I hope to branch out a little more this month.  Present post excluded, of course.

I hired my last two RAs from the FIU Psychology Department and both of them would routinely call me “Dr. Carpenter,” even after I explained that legal academics use “Professor” instead of “Doctor.”  One of them asked me why and I gave her my best Jeff Spicoli, “I don’t know.”

Turns out that we don’t call ourselves doctors because of old (and some still existing) ethics opinions that say that using the title “doctor” or even referring to the degree of Juris Doctor in letterhead, business cards, or advertising would constitute self-laudation  that “tends to lower the tone of the profession.”  Those uses could also be misleading, particularly for those lawyers working in medical malpractice.

The history of the JD helps explain how we ended up this way.  Continental lawyers received doctorate degrees as early as the twelfth century (two centuries before medical doctorates), but instead of doing that, our common law ancestor started granting bachelor’s degrees and we followed in that model.  Much of the initial angst against the use of the term arose when American legal education became more standardized and, in the 1960s, schools started to uniformly award JDs.

A profession that grew up with lesser degrees was now, apparently to the members of that profession, over representing itself with these new degrees. The ABA initially prohibited the use of “doctor” because it tended “to emphasize the important of the lawyer’s position” but encouraged the use of “esquire.”  (Look up the definition of “esquire” – it isn’t so flattering and doesn’t reflect professional status.)  After much complaining (the ABA has “denied ‘the title to its original owner’”), the ABA changed its position.  The trend is to allow the use of “doctor” but the general ethos in the profession remains: don’t use the term.

So I scratched that itch (“Aloha, Mr. Hand.”) but left wondering, would students take law school more seriously if they were aspiring to become “doctors” rather than “esquires”?

Adult learning theory has coalesced around the idea that intrinsic motivation is associated with deep approaches to learning while extrinsic motivation is associate with anxiety and superficial approaches to learning.  Intrinsic motivation increases when people believe that the goal they are pursuing is important and has meaning.  (See Raymond Wlodkowski, Enhancing Adult Motivation to Learn).

During student orientation, I expect that most law schools have a block that is devoted to the ideals of the profession, which is more or less an internal motivation session.  But by telling students that they aren’t worthy of the title “doctor” (and are only worthy of a lower, non-professional status of “esquire”) are we undercutting the value of the profession and taking away an internal motivator?

I blogged earlier about the definition of a profession: a high-status occupation whose members apply abstract knowledge to solve problems in a particular field of endeavor.  Using the term “doctor” is consistent with the first prong (high status, or the legitimacy given to the occupation because the occupation meets an important social need).  And it is consistent with the second prong (abstract knowledge or expertise).  The term "esquire" is not consistent with either prong.

Translating this for our students, acting professionally means mastering the material, and mastering it to the level that society expects of its most trusted professionals.  They wouldn't want to see a medical doctor that relaxed in the last two years of medical school.  Their clients don't want to see a lawyer that relaxed in the last two years of law school. 

I ran this by students in a couple of my classes and my sense is that we are leaving some motivational money on the table.

Posted by Eric Carpenter on November 9, 2015 at 11:54 AM in Teaching Law | Permalink | Comments (3)

The Job Market Didn't Work Out This Year. What Now?

On the Clearinghouse for Questions thread, someone posted: "here is a request: a blog post discussing what to do after you have struck out on the market. What do you do next? Especially if you're committed to legal academia? After all, most of candidates will be facing this question."

Please share your thoughts about this question in the comments to this post.

Originally posted November 9, 2015.

Posted by Sarah Lawsky on November 9, 2015 at 10:25 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (13)

VAPs and Fellowships: Open Thread, 2015-2016

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

(If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.)

Originally posted November 9, 2015.

Posted by Sarah Lawsky on November 9, 2015 at 10:07 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (27)

First Amendment activity all over the place

A quick shout-out on a bunch of recent events and issues, unified by being about free speech.

1) Approximately 30 African-American members of the University of Missouri football team have announced that they are suspending participation in all football activities--in other words, they are going on strike--until Mizzou President Tim Wolfe is resigned or fired. Student are angered over his non-response to a recent series of racially charged incidents on campus, most recently the display of a swastika made of feces. Although the entire team is not on strike, Head Coach Gary Pinkel and the non-African-American team members are supporting the strike and standing behind their teammates. There is a long history of athletes as political advocates. There also is a current hypocrisy--fans wondering why athletes aren't more political like in the old days, then lambasting those who don't "stick to the game." So it will be interesting to see how this plays out. [Update: Wolfe has resigned.]

2) Yale University is up in arms in a week-long back-and-forth over the conflict between cultural sensitivity in Halloween costumes and free speech. The gist is that the university sent a campus-wide email asking students to be sensitive in their choice of Halloween costumes, which prompted two (married) administrators to question whether the university should be dictating choices of Halloween costumes. That triggered an overwhelming response, with more than 700 students signing an open letter calling the administrators' comments "offensive" and having the effect of "invalidat[ing]" the existence of historically disadvantaged groups on campus. There have multiple protests, including several directed at the two administrators, calling for an apology and/or their resignations. The common theme, as always, is that this defense of free speech has rendered Yale an "unsafe space."

3) I finally got around to reading Bible Believers v. Wayne County (which I wrote about briefly). The majority opinion is a wonderful read, a tour de force on free speech, the problem of the heckler's veto, and the obligations of police in keeping the peace when conflicting groups collide. Unfortunately, I am not sure either the qualified immunity analysis (finding that the rights were clearly established) or the municipal liability analysis (finding that the county corporation counsel was a final policymaking in advising the police officers on the scene, triggering liability for the county). [Update: In light of this, the reversal on qualified immunity seems more likely, as does the Court not even giving the question a full merits hearing.]

4) The primary dissent in Bible Believers is also interesting for the way it explores the problem of minority and majority speech, with the assumption the Bible Believers were a majority group who had succeeded not only in shouting down a minority group, but in getting money from the government to allow them to do it. Here is the dissent's encapsulation of the case:

Yes, you can get the police to help you attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so. Tell the police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary chants, slogans, insults, and symbols—the more offensive the better. The object is to stir up some physical response. Then, when things get rough (your goal), insist that the police protect you, and (ironically) your First Amendment rights, by serving as a protective guard. The peace officers cannot at that point tell you to leave, even to avoid injury to you, because if the peace officers do that, they will have to pay you damages. Faced with the choice of allowing you to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose the latter and become your phalanx. It's a win-win situation for you, and a lose-lose situation for the minority group putting on the fair.

The court's opinion insists that minority/majority should have nothing to do with the First Amendment analysis. But the dissent framing does relate to Mark Tushnet's concerns about competing hecklers. The answer, in part, is to recall that "heckling" is protected speech--that is, assuming time and place is appropriate, the First Amendment protects me in trying to shout down a competing speaker. It only becomes a heckler's veto--and a First Amendment violation--when the state steps in to formally support one heckler by shutting down the other through legal sanction or force.

Posted by Howard Wasserman on November 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Sunday, November 08, 2015

1 Child or 2?

This has become the question for many couples in China given the end of the 1-child policy last month to deal with the aging population.  Although academic work had suggested demand for two children would be great if the law were to allow it, the response on the ground has apparently been more mixed.   

Of course, so much has changed in the world in the 35 years since the introduction of the 1-child policy.  These changes include more hands-on approaches to parenting, increasing costs of raising a child, and—as a result—a decreasing fertility rate in many countries around the world.  You can add a decreasing marriage rate to that, too, although the reasons for that are harder to pinpoint.  As a result, Japan, for example, has been flirting with getting into the match making business to boost its family numbers.

Might more drastic public policy changes come if China finds it has to incentivize 2-child families—not just allow them.?

Posted by Margaret Ryznar on November 8, 2015 at 11:30 AM | Permalink | Comments (2)

Friday, November 06, 2015

Nathan For You: Legal Edition

Those of you who teach consumer law, class action law, and mental health law may be interested in this episode of a completely-down-to earth, informative, you-can-trust-me semi-reality show. (In truth, and I say this having watched several episodes,the legal department for this series really must have its work cut out for itself to make sure the show stays on the right side of the law. You may recall some controversy surrounding "Dumb Starbucks," but that's just the tip of the iceberg.)

Posted by Adam Kolber on November 6, 2015 at 12:57 PM | Permalink | Comments (0)

Injury as Alpha and Omega

This week, the Supreme Court heard oral arguments in Spokeo v. Robins, a putative class-action lawsuit against Spokeo, an Internet people-search engine, for allegedly publishing inaccurate information on its website in violation of the Fair Credit Reporting Act. Spokeo asserts that standing to sue does not lie for technical violation of a statutory right without proof a tangible, monetary harm. Yet, as reported in the New York Times, Justice Kagan stated that if a company disseminated misinformation about her, she “would feel harmed.” Robins alleges that Spokeo violated the accuracy requirement of federal consumer laws. If true, this constitutes a wrong, a violation of federal law (assuming Spokeo constitutes a covered entity under the Act). Further, the Act establishes a statutory remedy for willful violations where plaintiff cannot prove actual damages: “damages of not less than $100 and not more than $1,000.” The Act also opens the door to a court award of punitive damages and attorney’s fees to a successful plaintiff. Is Robins bringing a constitutionally prohibited generalized grievance? No, Robins argues, because Spokeo published misinformation about Robins. Though Robins has no wallet or physical injury, Robins has a direct stake in the litigation as one of the people about whom Spokeo allegedly posted incorrect data. Robins has suffered the loss of his legally protected right under the Act.

Put simply, the Fair Credit Report Act created the legal right: a right to accurate reporting of personal information (The Right). Spokeo posted incorrect information (The Wrong) about Robins and others. Robins asserts, on behalf of a class of similarly situated individuals, that Spokeo has violated Robins’s legal rights under the federal law, though Robins has not suffered any financial loss or consequential damages. The Act also creates a statutory remedy (The Remedy) for willful violations even in the absence of pecuniary harm. Should Robins be able to sue in federal court? Should the Supreme Court respect Congress’s determination to create a right to a remedy for such legal violations? Yes to both, and here’s why.

What we view as harm defines who we are. It informs how we conceive justice.

The intersection between Federal Courts and Remedies is procedural and substantive; it instructs the beginning and the end. The constitutional standing requirement for the legal right to sue is procedural, yet views on the merits of the cause of action affect the analysis of this threshold requirement for federal court jurisdiction. Standing rulings have substantive consequences: dismissal for lack of standing denies access to potential remedies, which may constrict the right—or our conception of it—further.

Injury, impending or actual, begins the need for recourse, informally then formally. Unremedied it raises the need pursue legal recourse, and it seeks resolution: remedy. To proceed in federal court, the Court interprets Article III “actual case or controversy” to require “actual injury” or “injury in fact.” But whatever that means; it isn’t constant, and it isn’t predictable. It is also especially thorny where the cause of action arises under a federal statute and the injury amounts to a violation of the statute but renders no tangible monetary or physical loss to the plaintiff. Such is the predicament in which the Court, once again, finds itself in Spokeo.

Though the Court may well deny standing as part of its trend of heightening hurdles for entry into federal courts as well as signaling disfavor of actions, especially class actions, that border on frivolous grounds, discovery expeditions, or harassment devices. See, e.g., Bell Atlantic v. Twombly; Ashcroft v. Iqbal; Dura Pharmaceuticals v. Broudo; Federal Aviation Admin. v. Cooper. Such a decision would be a blow for statutory causes of action. An added, perhaps unintended consequence, would be restitution and unjust enrichment claims that, by history and conception, arise from defendant’s gain, not plaintiff’s loss. In other words, a restitutionary recovery seeks to undo the defendant’s unjust gain rather than compensate plaintiff’s loss. More on this later, but for now see the Amicus Brief of Remedies and Restitution Scholars in Spokeo.

Defendant’s violation of a plaintiff’s legal rights is an injury in that the plaintiff has lost her legal entitlement. Yet, only Justices Sotomayor’s and Ginsburg’s questions gave any credence to that argument, according to SCOTUSblog Editor Amy Howe. To rule otherwise, however, would undo not just remedies for plaintiffs who suffer loss of a legal right, but also would constrict rights for which plaintiffs have historically possessed standing. The wrong suffered is individualized; it is concrete; it is real; it is injury-in-fact.

Further, a ruling against standing would exert needless friction on the separation-of-powers tension between the federal courts and the legislative branch. Congress has the power to create legal rights and paths to redress, while the Court has authority to articulate and apply and constitutional standing doctrine. To deny Congress the ability to create an avenue for legal relief based upon a willful violation of the statute is a dramatic maneuver. Perhaps the Court would be better served to signal its broader concerns about the perceived conundrum of actions without proven pecuniary harms and express any link to the Court’s frustration, if not hostility, to certain types of litigation that it views Congress as fostering. 

Any attack on the proliferation of rights should be handled through the political process. If one doesn’t like rights that Congress has created—such as a right that protects Robins—redirect those frustrations to the congressional branch for the creation of a right to a remedy without financial “real world” loss. The Court can signal its distaste for the creation of rights and remedies, and voters can pressure their representatives. The Court should not deny plaintiffs who have demonstrable, statutory interests at stake that have been violated.

Posted by Caprice Roberts on November 6, 2015 at 08:01 AM | Permalink | Comments (4)

A Con Law Weekend

Today is the kickoff of Loyola University Chicago's 6th Annual Constitutional Law Colloquium.  As always, the participant list looks wonderful, headlined by Dean Minow and with an appearance by Judge Posner.  Professor Michael Zimmer is remembered--one of the conveners of the Colloquium, an exemplary colleague, and a friend to so many.

I will be using my Saturday morning time slot to explore the question of why the U.S. Supreme Court has not yet established strict scrutiny for the articulated fundamental right of parental autonomy (the parent’s right to the care, custody, and control of a child), which is the topic of an upcoming paper of mine. 

For over a year now, I have been sitting on a lot of research on the concept of both fundamental rights and parental autonomy, but was unsure on what to say about it all.  It’s been said that not all so-called fundamental rights receive strict scrutiny.  But why is this true in the case of parental autonomy?  Why has the Court not followed the approach Justice Thomas proposed in his concurrence in Troxel v. Granville—just call a spade a spade and give strict scrutiny to the fundamental parental right.  Isn’t it important enough?

At least, that’s what I thought until a chat with one of my students last month about the lack of the child’s voice in family law matters.  While there are many good reasons for this, like the vulnerability of the child to be influenced by one of the parents, or the lack of full mental & emotional development of the child, we do protect the child using our (society's) own judgment of what’s in the best interests for that child.   And so, perhaps that’s why we don’t arm the parents with rights receiving strict scrutiny.  It’s just another example of the flexibility in the family law regarding the child, like that provided by the child’s best interests standard.  But then again, if we are so concerned about children, why not just give them full-blown constitutional rights in family law?  I suppose that’s for another paper.

I welcome thoughts about this at the Colloquium and, of course, in the comments below.

Posted by Margaret Ryznar on November 6, 2015 at 06:30 AM | Permalink | Comments (0)

Thursday, November 05, 2015

The Atlantic Op-Ed on State Constitutions and Voting Rights

Today The Atlantic posted an Op-Ed I wrote on the power of state courts to use state constitutions to protect the right to vote.  I have written two law review articles on the topic, and I find it useful and fulfilling to put the idea before the popular press and general public.  Here is a snippet of the Op-Ed:

In recent years, as the U.S. Supreme Court has limited its protections of the right to vote, some state courts have stepped in to fill the void. State judges have looked to their state constitutions—which are more explicit in conferring the right to vote—to provide relief from onerous election laws. And, in doing so, they have shown how these documents can be powerful tools to improve America’s democracy.

Forty-nine of the 50 state constitutions explicitly grant the right to vote to their citizens (Arizona is the only outlier), and just over half of them also provide further protection to the democratic process by requiring elections to be “free and equal” or “free and open.” Some state courts, such as in Missouri, Pennsylvania, Arkansas—and most recently Delaware—have analyzed their state constitutions in an increasingly expansive way, going beyond federal law to protect voting rights.

Yet other state courts—such as in Tennessee, Georgia, Wisconsin, and Indiana—have ruled that their constitutions are merely coextensive with the U.S. Constitution, leading them to apply the more limited federal protection with equal force to the state constitution. That is, these courts have simply followed the current restrictive voting-rights rulings of the U.S. Supreme Court, even though their state constitutions textually and explicitly provide more protection. This “lockstep” methodology strips the state constitutions of any independent meaning—and it allows courts to uphold election rules that negatively impact voters.

Might this be an idea that both liberals and conservatives would support? After all, liberals should agree with broader judicial enforcement of voting rights, while conservatives should like the federalism aspect of relying on state-level sources for rights protection. Alas, it's probably too naive to think a simple law review article or Op-Ed could bridge existing ideological views on election law rules in today's highly-partisan environment...right?

Posted by Josh Douglas on November 5, 2015 at 02:58 PM | Permalink | Comments (0)

Shapiro argument and the future of Bell v. Hood

Josh gave his thoughts having watched the argument in Shapiro v. McManus. My SCOTUSBlog recap--alas, based only on the transcript--has now posted. (Obviously, I agree with Josh that video (or at least audio) should be made available immediately). I am especially looking forward to hearing Justice Scalia say "Wow" and "It's extraterrestrial."

Let me add one additional point. There was some discussion in the case about Bell v. Hood, which stands for the proposition that a federal claim that is "wholly insubstantial" does not arise under federal law. Bell is an anomaly, an unwarranted and rarely used exception to the general (and correct) rule that failure to state a claim does not deprive a court of jurisdiction. It remains as an unfortunate barrier to a clean merits-jurisdiction line. SCOTUS had held in several cases pre-1976 (the date of enactment of the current three-judge court statute) that a single judge can dismiss an insubstantial claim. Several questions and comments from the bench suggested that those cases incorporated Bell, making the single-judge insubstantiality dismissal a jurisdictional one.

At the same time, Justice Scalia raised the possibility during the argument that those pre-1976 cases should be overruled, narrowing the situations in which the single judge can refuse to refer the case for appointment of the three-judge court (presumably to the non-satisfaction of § 2284(a)). If so, is there any chance that the Court would take Bell with it? I hope so, but it does not appear likely. The Court has largely ignored or minimized Bell in most of its recent merits-not-jurisdiction cases, without taking the time to overrule it. On the other hand, Justice Kagan offered several comments/questions indicating that she is very comfortable with Bell and the idea that some "completely ridiculous" claims can be dismissed on jurisdictional grounds, even if the analysis looks "kind of mertis-y."

Posted by Howard Wasserman on November 5, 2015 at 01:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Throwback Thursday: Christopher Fairman's "Fuck"

Over the summer, Christopher Fairman invited me to present my work in progress "IP as Charity" at the Ohio State University Moritz College of Law. I was very much looking forward to meeting him, but sadly, the day before the presentation, he died of cardiac arrest.

By way of tribute, I was pleased to be able to include his excellent (& controversial!) article "Fuck" among the readings in my Law & Popular Culture seminar. My students very much enjoyed discussing the article, in the context of Michel Foucault and Howard Becker, and the following week, one of them sent me a link to this NPR story reporting that the pedigree of the word "fuck" may be even older than previously realized, dating back to the 14th century. I'm sure Fairman would have been pleased.

Posted by Brian Frye on November 5, 2015 at 12:05 PM | Permalink | Comments (1)

Wednesday, November 04, 2015

Top Ten Thoughts on Visiting the U.S. Supreme Court Today to Hear Shapiro v. McManus (and One Bonus Prediction On Its Outcome!)

I had the good fortune and privilege of attending oral arguments this morning at the U.S. Supreme Court.  I was there in particular to listen to the argument in Shapiro v. McManus, an election law dispute that asks whether a single district judge can dismiss a redistricting case instead of referring it to a three-judge district court. (Howard previewed the case here). 

I co-authored (with Michael Solimine of U. of Cincinnati) an amicus brief in the case, which stemmed from two of my articles on election law and procedure.  It was fun to sit in on the oral argument given that I knew so much about the case. 

 The last time I visited the Court, I was in law school, so I had a much different experience this time as a lawyer and law professor.  Here are some observations:

1.  I was glad someone had told me to bring a quarter!  Cell phones and other electronic devices are not allowed in the courtroom, and there are lockers down the hallway for such items.  But the lockers cost 25 cents.  Thankfully I was prepared! 

2.  The formalities of visiting the Court did not seem as…formal as the first time I went.  I expected the decorum, nobility, and seriousness of the Court’s proceedings.  Maybe this is simply because I now have much more experience going to courtrooms!

3.  Once the justices take the bench, the Chief Justice admits new members to the Supreme Court bar.  I had looked into doing this, but as my bar license is currently inactive, I am not eligible.  Still, this process, with the Chief Justice formally admitting each person, is surely a nice highlight of these lawyers’ careers, and if I ever go back to active status it is something I would like to do. 

4.  The written transcript of oral argument really does not do justice, in my opinion, to the dynamics of the courtroom.  In my view, virtually all of the justices seemed to agree with the petitioner and were quite skeptical of the state’s argument in Shapiro, yet I do not think the cold transcript adequately reflects this reality.  Facial expressions, the tone of the questioning, and the nonverbal reactions all paint a much different picture of what was going on in the courtroom. 

5.  My last point makes me an even bigger proponent of allowing video recording of the Court’s oral arguments.  There is no justifiable reason to shroud the Court in secrecy by allowing only written transcripts and audio recordings of the proceedings.  When Justice Alito visited the University of Kentucky a few weeks ago, he remarked that allowing cameras in the courtroom would lead lawyers to perform for the cameras and not the justices, and that late-night TV would make a mockery of the arguments.  This is wholly unpersuasive.  The lawyers want to win their case, not play to a TV audience, and in any event they can make their pitch to the media afterward if they want to; late-night TV already spoofs oral argument.  Being there in person – or seeing the video of the proceeding – would help Americans understand this branch of government.  The Court champions transparency (through disclosure) as the best cure for the problems of campaign financing – why won’t it apply that same standard of transparency to itself?  In an era in which only 30% of Americans vote, shouldn’t we do all we can to encourage civic education?

6.  Recognizing when to end your argument and sit down – when you have more time left – is probably one of the hardest things a lawyer must do.  Michael Kimberly, arguing for the petitioner, did this beautifully.  It was clear from the tenor of the argument that most of the justices agreed with his points.  In fact, several, like Justice Scalia, seemed to want to go further and rule that a single judge may never dismiss a redistricting case without sending it to a three-judge court, a position Mr. Kimberly did not advocate (he agreed that he would win if the Court went that route but noted that it did not have to reach that far in this case, as he was advocating for a “wholly insubstantial” standard instead, meaning that a single judge may dismiss the case only if the claim is "wholly insubstantial").  When, after about 19 minutes of mostly-friendly questioning, it seemed clear that he had answered the justices questions to their satisfaction, he chose to cede the remainder of his time.   At that point, there was nothing left to say, and going further could have only done damage to his case.  Yet many lawyers would not be able to resist the temptation to press further points or try to shore up the argument even more.  Sitting down is often the better strategy, difficult as that might be. 

7.  It is never a good idea to make new arguments at oral argument that were not addressed in the briefs. Justice Scalia questioned Mr. Sullivan, Maryland’s lawyer, about why he did not make an argument about certain prior cases in his brief, and Mr. Sullivan first stammered before retorting “Well, you know, I’m trying to provide value now in addition to what we had in the brief.” (Mr. Sullivan’s stammering is not reflected in the oral argument transcript.)  Some observers suggested that Mr. Sullivan gamely parried the question.  I disagree.  With all due respect, I think Mr. Sullivan hurt his case with a comment that seemed almost glib.  Again, this was my initial impression while sitting in the courtroom.  And perhaps there was no better way for Mr. Sullivan to respond.  Still, this exchange shows the immense importance of strong briefing.  It’s also probably a bad idea to bring up “extraterrestrials” unless you are sure that all justices know to what you are referring—this reference by Mr. Sullivan ate up several minutes as Justice Scalia questioned what he meant.

8.  It is always better to make your best argument up front and not rely on the justices to do it for you – something I try to teach our moot court students.  About midway through Maryland’s argument, Justice Breyer finally highlighted what should have been the state’s key point: requiring a three-judge court will increase the Supreme Court’s mandatory review docket, as these decisions skip the court of appeals stage and are directly appealable to the Court.  Chief Justice Roberts then picked up on this point.  It would have been much better for Mr. Sullivan to lead off with this idea from the outset. 

9.  All lawyers should go visit the Court at some point.  It truly is an invaluable experience.

10.  I love D.C.  You just never know what – or who – you are going to see.  As I left the Court and walked by the U.S. Capitol, I happened to run into a press conference featuring Senator (and presidential candidate) Bernie Sanders.  I then stumbled upon a monument to Senator Robert Taft (William Howard Taft’s son), which I did not know existed.  And I had about 30 minutes to kill, so I went to Ford’s Theater, something I never did during my 9 years living in D.C. but something I have wanted to do even more  after recently reading the book Manhunt.  Next time you are in D.C. try to carve out a little bit of time to do something interesting – the city is a great place to explore! 

11.  And here is a bonus thought: although it is never a good idea to read the tea leaves, I predict a reversal in Shapiro, quite likely 9-0.

Posted by Josh Douglas on November 4, 2015 at 05:40 PM in Civil Procedure, Law and Politics | Permalink | Comments (2)

“Free the Law”

We might all be aiming to “free the law” in our own teaching and research, but the Harvard Law Library is performing a small miracle by making available to the public all of its case law online, in searchable format for free.  A recent New York Times article noted the positive impact this project will have on government lawyers, solo practitioners, and pro-bono lawyers, but given the time of year, one other category of beneficiaries immediately came to my mind—aspiring academics. 

I remember worrying about my research sources before joining a university with Westlaw/Lexis.  I wonder if this Harvard project thus eliminates one of the big reasons to take on a temporary university affiliation, such as a VAP or fellowship, for future academic candidates, given that they can research more easily without a university Westlaw/Lexis account.  Still, there are other reasons to do a VAP or fellowship, but this new resource might turn out to be a bit of an equalizer among candidates when it comes to research.

Posted by Margaret Ryznar on November 4, 2015 at 12:00 PM | Permalink | Comments (2)

Epps on Feiner

Garrett Epps writes in The Atlantic about the continued effect of Feiner v. New York and the hecklers' veto in the First Amendment, especially as it affects minority groups whose speech may be subject to greater audience abuse and more concerted efforts by protesters to interfere. Epps' jumping-off point is the divided en banc Sixth Circuit decision in Bible Believers v. Wayne County, which held that police should have protected a Christian group protesting at the Arab International Festival in Dearborn, MI.

Update: Mark Tushnet discusses the Epps piece and describes what Tushnet calls a "puzzle" about hecklers vetos in this case. We actually had competing hecklers--1) the Bible Believers were heckling the Festival and its participants (themselves engaged in expressive activity) and 2) the festival participants tried to shout down the Bible Believers--each trying to veto the speech of the other. And there has not been another Arab International Festival since the one in 2012, meaning heckler # 1 was successful in its efforts, while also being found by the Sixth Circuit to have been subject to a hecklers' veto by heckler # 2. In other words, Tushnet argues, "the people protected against a heckler's veto used their First Amendment rights to induce others not to exercise their First Amendment right."

Posted by Howard Wasserman on November 4, 2015 at 11:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Other Data I Would Like on Bar Passage--and Some Questions Not Entirely Susceptible to Data Analysis

I have learned a lot from both the serious and the casual work of Michael Simkovic. This is not entirely a matter of normative agreement, or at least I hope it's not, since the "greatest new scholar ever"/"worst villain since Stalin" dichotomy that tends to follow in the wake of work of his posts does seem normatively driven and rather silly. And I think it's both fine, and correct, to say that failure to pass the bar exam on the first try is not the end of a potential lawyer's career. That said, I would like to know more than he provides in this post.

In particular, I would like to know first-time and subsequent bar passage rates by school. It is true, as Simkovic writes, that the failure to pass the driving test on the first time is not generally viewed as precluding an opportunity to take it a second or third time. (Although perhaps we should be stricter with driving tests, and in any event my intuition about driving tests seems different from my intuition about, say, failing the medical boards multiple times. Driving and practicing medicine are both privileges, and both are dangerous activities. But no one thinks in terms of a right to be a doctor, and while driving helps in all sorts of primary activities, medical school is a long hard slog for the specific purpose of engaging in the practice of medicine and "MD-advantage" jobs.)

But if a driving school has a record of sending off its students to fail the driving test on the first attempt, and particularly if it consistently has a worse record than competitor schools with a similar client base, surely that suggests that there are problems with that driving school--even, in some cases, that the school is taking undue advantage of its students. Moreover, the worse the driving school's record is, the more likely I am to suspect that subsequent passage has much to do with the driving student's own efforts to study for and retake the test, perhaps more than once, and that the driving school itself did not contribute significantly to that ultimate success. In such circumstances, it would be fair to conclude that if other schools achieve better results with something like the same cohort, students may be made worse off by having gone to the lower-passage driving school rather than another school. Turning to law and speaking more generally, perhaps the ability to pass the test on subsequent tries, possibly despite rather than because of the education provided by that particular school, indicates either problems with using the bar exam as a barrier to entry at all, or with insisting on an ABA-accredited law school degree as a prerequisite to taking the exam, or some combination of the two.      

I would also like to know more about subsequent careers. Simkovic focuses mostly on future earnings for those lawyers, asserting that first-time bar exam failure is probably correlated with lower earnings ability but arguing that this matters less than the value-added to those eventual lawyers of having attended law school. That may well be true--for the lawyers. But I'm also--perhaps primarily--interested in the clients, beside whose needs, problems, and disadvantages the current or future well-being and state of relative disadvantage of law students seems to pale in both magnitude and importance.

What is the disciplinary profile of lawyers who failed the bar exam the first time, or second or subsequent times, compared to that of lawyers who passed on the first round? This LSAC report on a study of lawyers admitted to the Connecticut bar between 1989 and 1992 found that "approximately 6.7% of the never disciplined group failed the Connecticut bar examination on at least one occasion prior to admission, as compared to a nonsignificant difference of 10.7% of the severely disciplined group (see Table 6), and 16.9% of the less severely disciplined group (p < .05, Table 5)." But the study has appropriate caveats about its limits and about problems obtaining some data, especially about discipline in other jurisdictions. And I would want to know more about whether lawyers taking the bar exam in Connecticut fit a similar profile with lawyers taking the exam in other states (like Florida or California) and attending a different array of schools. I also would want to know something about the number of complaints filed, not just discipline imposed. It's a problematic number, not only because complaints are not proof of wrongdoing but because some clients may be more likely to complain with or without reason. On the other hand, lots of grievances stemming from genuine problems of poor management or low competence or unfairness to clients are disposed of without proceeding to final disciplinary decisions.  

I don't know whether there are other studies out there. I do note this report based on an examination (by reporters, not professional social scientists) of a much larger number of people taking the qualifying exam for stockbrokers, which suggests that those who failed the test repeatedly had worse disciplinary records than those who passed the first time. I would similarly want to know, regarding the bar exam, whether the likelihood of disciplinary problems went up with multiple failures. After all, few people, if anyone, think that people have a right to take the bar exam an indefinite number of times. So we might be interested, for clients' sake, in setting a cap on the number of times one can take the bar exam. Fail me once, shame on you; fail me eight times, shame on us.  

 The story also notes that one response contemplated by the Financial Industry Regulatory Authority was to disclose to investors the prior failure or failures of the stockbroker. Perhaps we could balance the interest in allowing lawyers to take the bar exam multiple times against the need to protect clients and provide them with relevant information by requiring lawyers to disclose to clients their prior failure on the bar exam. Just as law students should be treated as adult agents and allowed to make their own decisions whether to attend law school, as long as the schools are providing accurate information, so clients might be given that information and permitted to decide for themselves.     

Most of these questions are just that--questions. I'm not criticizing what Simkovic does provide, or strongly disagreeing with the conclusions he offers; to the contrary, I'm grateful for the post. I simply would like to know more before signing on to particular conclusions or recommendations too whole-heartedly. I would especially want to know more about the welfare of clients as well as the future success of lawyers. And I take it Simkovic would agree that none of what he does say precludes a number of possible concerns and conclusions or normative views.

Taking it as a given that first-time failure does not say enough about subsequent success or competence as a lawyer to justify stringent rules barring subsequent retaking of the test, and that the first-time bar passage rate does not tell us everything about a law school that we would want to know, I take it one might still conclude, depending on additional data but also on some reasonable normative views, that: 1) a high first-time failure rate might indicate problems at that school; 2) high subsequent failure rates would also be cause for concern about that law school; 3) if first-time or, perhaps more likely, repeated failure of the bar exam correlates to a greater likelihood of subsequent complaints or discipline, that should be cause for greater concern, given that the primary concern of state bars and accrediting agencies, if not the law schools themselves, should be the welfare of clients; 4) other measures, like disclosure of failures to pass the bar exam, might help address concerns for client welfare and are not out of the question; 5) given the relevant information, we might be able to think productively about setting a cap on the number of times one can sit for the bar exam; and 7) none of this is dispositive on the question whether barriers to entry into the legal guild should depend on one or both of a degree from an ABA-accredited law school and/or passage of the bar exam as presently constituted. 

Finally, a few words on this passage:      

It would be strange if newspapers claimed that those who fail a road test on the first try are doomed to never obtain a drivers license, will never be able to hold down a job, and should never have enrolled in high school in the first place.  But in the world of legal education, members of the press too often make comparably misinformed claims about law students and the bar exam.

It's just an analogy, of course, and thus of limited probative value; lawyers over-rely on arguments by analogy, in any event. As it happens, I agree with some of what it suggests. But it's a little odd. The most serious concern with the analogy is that it links the driving test to education in general, not to driving schools in particular. We generally require every child to enroll in high school, treating it as a gateway to responsible work and citizenship in general; we do not treat a legal education as necessary for all. If a particular high school failed to graduate a substantial number of its children, we would of course want to know what external factors, such as poverty, contributed to that. But we would also worry that the school was failing in important respects, especially if similar schools with comparable cohorts were doing a better job of education, as reflected (imperfectly, perhaps) in graduation rates. It would be strange if someone claimed that someone who fails to pass a driving test on the first try is doomed never to be able to hold down any sort of job, driving-related or not, but I've never heard such a claim. Conversely, given appropriate data, one might reasonably be more concerned about whether those who fail a driving test two, three, or more times should be employed in a job whose primary activity is driving a fast, heavy, dangerous vehicle. Concern for the future earnings of that individual might be viewed as less important than the possibility of that individual inflicting harm on innocent third parties. Newspapers may well be wrong to say (if they have said it) that a first-time bar exam failure suggests that the individual will never be a competent practicing lawyer and should never be able to retake the test, and should not even have been able to enroll as an undergraduate. They might be on more solid ground if they suggested that schools that show a low bar passage rate as compared to similar other schools might be doing a disservice to their students and might have problems that need to be addressed. And they certainly ought to factor the well-being of clients, and not just lawyers and law students, into their reporting or opining. Again, however, it's merely an analogy and less important than the material provided in the rest of the post, for which I'm grateful.       


Posted by Paul Horwitz on November 4, 2015 at 10:35 AM in Paul Horwitz | Permalink | Comments (0)

Argument in Shapiro v. McManus

SCOTUS hears argument today in Shapiro v. McManus, considering when a single district judge can dismiss under FRCP 12(b)(6) a case that is supposed to be decided by a three-judge district court. My SCOTUSBlog preview posted two weeks ago; I will have comments on the argument later today or tomorrow.

Posted by Howard Wasserman on November 4, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, November 03, 2015

Leonard Matlovitch, 40 Years Later

The most important Supreme Court decision of 2015 was probably Obergefell v. Hodges, which held that the Fourteenth Amendment requires states to license and recognize same-sex marriages. But Obergefell is only one link in a chain of Supreme Court and lower court decisions addressing gay rights. And until recently, many - if not most - of those decisions cut against gay rights, instead of in their favor.

In any case, on October 30, NPR's Morning Edition aired a StoryCorps interview with Jeff Dupre and his husband David Phillips, in which Dupre discusses his friendship with Leonard Matlovitch, the plaintiff in one of those actions. Air Force Tech. Sgt. Matlovitch was a Vietnam veteran who received both a Bronze Star and a Purple Heart. Forty years ago, in March 1975, he delivered a letter to his commanding officer stating that he was gay, and the Air Force initiated discharge procedures. For five years, Matlovitch fought his dismissal in federal court, eventually gaining reinstatement and initiating a long process that led to the enactment and eventual repeal of "Don't Ask, Don't Tell."

Sadly, Matlovitch died of AIDS on June 22, 1988. His name is not on his tombstone, which reads, "A Gay Vietnam Veteran / When I was in the military they gave me a medal for killing two men and a discharge for loving one." Matlovitch's role in this civil rights struggle isn't remembered as well as it ought to be (I recommend this short biography, which I found very moving, or this website), and I think the StoryCorps interview provides a nice opportunity to reflect on his legacy.


Posted by Brian Frye on November 3, 2015 at 01:54 PM | Permalink | Comments (0)

Go to a Different Blog

It's great to be here!

For my first post this month, I'm going to do something odd -- tell you to go to *different* blog.  (Hopefully Howard and the Prawfs gang won't take away my keys!)  That's right: today is Election Day, and the students in the University of Kentucky's Election Law Society are running an election analysis blog.  They'll be posting about election law issues that will arise during the vote casting and counting process -- for Kentucky elections and nationwide.  Every post is vetted by me first, so (hopefully) they are substantively sound.

So go vote -- and then hop on over to http://www.uky.edu/electionlaw for a jolly-good Election Day time!

Posted by Josh Douglas on November 3, 2015 at 09:22 AM in Blogging, Current Affairs, Law and Politics | Permalink | Comments (2)

Monday, November 02, 2015

Art Forgery & Its Discontents

As the New York Times recently observed, forgery is a big problem in the art world. When a work of art can be worth millions of dollars, based entirely on its attribution to a particular artist, the incentive to create fakes is huge. And it is probably even more substantial for lower value works, which may receive less scrutiny. Until recently, foundations associated with the estates of various artists at least mitigated the forgery problem by creating authentication committees that opined on whether particular artworks were "authentic" works created by that artist.

But in the face of lawsuits from disgruntled collectors who were surprised to learn that they owned "inauthentic" works, most foundations shuttered their authentication committees. The demise of the institutional authentication committee is really no surprise, given the rather metaphysical aspect of asking whether an artwork attributed to Andy Warhol or Jeff Koons is "authentic." And it's especially troublesome in Warhol's case, given his laissez-faire attitude about attribution. Moreover, there were real concerns about potential conflicts of interest, given that the foundations operating the authentication committees often owned a substantial number of attributed works themselves.

However, ArtNews reports that well-known Warhol expert Richard Polsky has launched a new one-man Warhol authentication service. Only $2,500 per! While Polsky can probably avoid at least some of the conflict of interest allegations that hounded the Warhol Foundation's late Art Authentication Board, I anticipate other potential issues. For example, it seems that Polsky has a rather strong incentive to lean in favor of finding that works are authentic. Curiously, his authentication service only requires the submission of digital photos. Perhaps he plans to look at the actual works in question if he is uncertain? But then again, in the ArtNews interview, Polsky repeatedly claims a "sixth sense" as to whether putative Warhol's are authentic. With great power comes great responsibility? I'm not sure I trust Polsky's spider-sense as much as he does.


Posted by Brian Frye on November 2, 2015 at 05:42 PM | Permalink | Comments (2)

Hello, can you hear me? Hello from the other side. --Adele (& Me)

Thanks for having me back to blog again in November.  I enjoy this month’s slot because it is always a dynamic time, and this year it's no different--Adele has just released a new song in 3 years; the Midwest is most definitely changing seasons right now; meat market is in full swing; classes are barreling to an end; and every law review is headed to press, if my bunched deadlines are any indication.  So, to the extent I have a theme planned in this month’s posts, it will be the changes happening these days, generally in law and specifically in my areas of research & teaching (family law, trusts & estates, & tax).  Looking forward to it,


Posted by Margaret Ryznar on November 2, 2015 at 01:00 PM | Permalink | Comments (0)

JOTWELL: Pfander on Williams on Marks

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Ryan C. Williams, Questions Marks: Plurality Decisions and Precedential Constraint, which discusses lower courts' misuse of Marks v. United States in identifying controlling precedent from plurality opinions.

Posted by Howard Wasserman on November 2, 2015 at 11:11 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (9)

Vanderbilt Law Review Roundtable: Spokeo v. Robins

I had the pleasure of participating in the new Vanderbilt Law Review En Banc Supreme Court Roundtable on Spokeo, Inc. v. Robins (being argued today). My essay argues for William Fletcher's conception of standing-as-merits and why that approach is especially appropriate in this type of statutory case. The Roundtable features contributions from Heather Elliot (Alabama), Andy Hessick (Utah), Jonathan Siegel (George Washington), Max Stearns (Maryland), and Joan Steinman (Chicago-Kent).

Posted by Howard Wasserman on November 2, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Debating Determinacy in Constitutional Theory

Can constitutional theory be both persuasive and determinate? A recent, must-read exchange between Michael Dorf and Larry Solum implicitly raises this question. In the exchange, Dorf ultimately posits the “Brown test,” which demands that any constitutional theory must make possible the result in Brown v. Board, but need not require that result. The exchange (which Paul Horwitz has already collected and commented on here) illustrates that there are importantly different ways of assessing a constitutional theory’s determinacy. Below, I outline relevant features of the Dorf/Solum posts, explore the relationship between theory and determinacy, and suggest a reformulation of the Brown test. In short, I suggest that evaluations of constitutional theories should emphasize what the theories most encourage, as opposed to what is possible, necessary, or reasonable under those theories.


In a provocative post, Dorf proposed an initial formulation of the Brown test: “any interpretive approach that is acceptable must actually produce Brown.” On its face, this test seems attractive. Brown is probably the most canonical constitutional case of them all, so a constitutional theory that didn't “produce” Brown might seem alien and illegitimate. Of course, there are reasons to question this claim, as Michael Ramsey, Asher Steinberg, and others have recently noted. But I will assume that constitutional theory must accept some version of the Brown test.

In response, Solum questioned whether non-originalist theories could pass the Brown test as Dorf initially formulated it. In Solum’s words, “[I]t is quite clear that many of the major alternatives to originalism do not as a matter of necessity produce the outcome in Brown.” Solum offered examples from constitutional common law and multiple interpretive modalities.

Dorf’s reply post largely agreed with Solum (on this point) and so offered a revised formulation of the Brown test:

If a practitioner of some brand of originalism (or for that matter any other approach) cannot plausibly conclude that Brown is right, then that brand of originalism (or the other approach) fails the Brown test. To pass the Brown test, a theory need not guarantee the outcome in Brown.

This revised formulation raises interesting questions about the practical import of constitutional theory. Let’s accept the Brown test as Dorf has now formulated it. And let’s further assume that originalism and its major alternatives neither dictate nor preclude the result in Brown. Finally, let’s assume that no case is more central to modern constitutional law than Brown. (In light of the exchange between Dorf and Solum, each of these assumptions is at least plausible.)

Do those assumptions mean that constitutional theory is destined to be so indeterminate as to be otiose? I don’t think so.


Imagine that an unspecified Constitutional Theory X becomes the undisputed law of the land. (This is a simplifying assumption that we would often want to relax when evaluating constitutional theories.) To assess the implications of this event, we might ask:

  1. What can interpreters do via legal argument?
  2. What can interpreters do *and get away with it*?
  3. What can they get away with *in good conscience*?
  4. What can they get away with *and still pride themselves on adherence to the law*?

If we are asking only the first question, then no constitutional theory is likely to be particularly interesting. Constitutional practice is complicated, with many cross-cutting values, principles, and rules. Constitutional Theory X must reflect that complexity if it is to be persuasive as either an explanation or critique of constitutional practice. But that complexity necessarily creates a considerable degree of indeterminacy in the operation of constitutional theory. As a result, persuasive constitutional theories have a hard time preventing motivated interpreters from achieving whatever conclusions they might realistically desire to achieve.

So the problem of indeterminacy does not arise exclusively because of the Brown test discussed by Dorf and Solum. Rather, the Brown test illustrates that considerable and possibly unavoidable indeterminacy follows any persuasive constitutional theory. Adam Samaha made a similar point when he suggested that “there might be a negative correlation between a constitutional authority theory’s persuasiveness and its practical implications for interpretation.”

But the full implications of Constitutional Theory X can’t be measured based on question #1 alone. While leaving a great deal of discretion, Constitutional Theory X might influence the persuasiveness of various options and cast those options in a different light. In other words, even if all realistically desirable outcomes are available under any viable Constitutional Theory X, that wouldn’t mean that all such outcomes are equally persuasive.

Because Constitutional Theory X may very well change the relative strengths of various constitutional positions, its adoption may affect the answers to questions #2-4. For instance, the theory’s main result may be that interpreters discipline one another more effectively, implicating question #2. Or each interpreter might internalize the new constitutional theory and so choose not to make especially strained or unreasonable arguments, implicating question #3. Finally, the interpreters, either individually or collectively, might endorse the constitutional theory so completely that they joyfully employ the highest standards and exhibit great diligence in applying the theory, implicating question #4. So by the time we reach question #4, Constitutional Theory X seems much more likely to matter.

Of course, questions #1-4 aren’t the only relevant questions we might ask, and each might be further refined in various ways. But they make the point: a constitutional theory’s practical determinacy is a matter of degree.


The difference between question #1 and questions #2-4 suggests that debates over constitutional theory should not focus on what outcomes are merely available under any given constitutional theory. At times, the Dorf/Solum exchange could be read to involve these sorts of claims, such as when the authors discuss what is “necessary” under a theory or what a theory can “guarantee.”

Moreover, questions #2-4 suggest that constitutional theory might profitably make greater use of the familiar terms “best,” “reasonable,” and “unreasonable.” For instance, Dorf initially formulated the Brown test so as to require that any non-Brown outcome must be an unreasonable interpretation. His reformulation, by contrast, requires only that Brown be a reasonable constitutional interpretation. But there is a third salient option: perhaps we should demand a constitutional theory under which Brown is the best constitutional interpretation.

This new reformulation of the Brown test has the advantage of allowing it to do significant work in evaluating constitutional theories. Dorf’s original formulation had the power to rule out mainstream versions of originalism, but Solum correctly observed that few if any serious theories could pass that demanding test. Under Dorf’s revised formulation, by contrast, it is doubtful that the Brown test excludes any significant originalism, since there are various reasonable ways to square such theories with the conclusion reached in Brown. For instance, an original-expectations originalist might reasonably rely on Michael McConnell’s work, or an originalist who accomodated precedent might reasonably extend pre-Brown cases eroding Plessy. (Notably, Brown found historical sources "inconclusive" either way and rejected only certain "language" in Plessy, without overruling Plessy in its entirety.) So while Dorf initially suggested that "Brown is at least a prima facie problem for originalists," his revised formulation seems to leave originalists without any Brown problem at all. 

When reformulated in terms of the best interpretation, however, the Brown test can meaningfully discriminate between theories. For instance, there is a strong argument that Brown deviates from the best interpretation of the Constitution under significant forms of originalism, such as theories that focus on original expected applications. Thus, the best-interpretation formulation of the Brown test would seem to pose a genuine problem for at least some significant originalist theories. In his reply post, Dorf himself noted that while "pluralism of the sort championed by Philip Bobbitt (and Dick Fallon and others) could produce not-Brown, ... I think that in 1954 it would have been more likely to produce Brown." This focus on what is "more likely" to follow from an interpretive approach is akin to asking whether the approach is best understood to yield Brown. And Dorf also suggested that certain types of originalism could "comfortably" yield Brown, whereas that outcome would be "tougher sledding" for others. Again, this discussion suggests the value of the best-interpretation formulation.

*    *    *

In short, we shouldn’t just ask what a constitutional theory demands or allows. We should also ask what it most encourages.

Posted by Richard M. Re on November 2, 2015 at 08:00 AM | Permalink | Comments (3)