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Monday, February 29, 2016

Conflating Economic Competition with National Security

Rochelle Dreyfuss and I have posted our new article Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security. The article is forthcoming as part of a symposium on U.S. Trade Secrets Policy, competition and innovation. Red Hot Chili Peppers gave us the epigraph: "Psychic spies from China try to steal your mind's elation".

In the article, we argue that national security is conflated in a concerning way with economic competition to the detriment of knowledge creation and flow. here is the abstract:

In the last few years, the Economic Espionage Act (EEA), a 1996 statute that criminalizes trade secrecy misappropriation, was amended twice, once to increase the penalties and once to expand the definition of trade secrets and the types of behaviors that are illegal. Recent developments also reveal a pattern of expansion in investigation, indictments, and convictions under the EEA as well as the devotion of large resources by the FBI and other agencies to warn private industry against the global threats of trade secret theft. At the international level, the United States government has been advocating enhanced levels of trade secrecy protection in new regional trade agreements This article asks about the effects these developments on innovation. The article examines the rhetoric the government is using to promote its trade secrecy agenda, uncovering that the argument for greater protection appears to derive at least some of its power from xenophobia, and most importantly, from a conflation of private economic interests with national security concerns, interjecting a new dimension to the moral component of innovation policy debates. Analyzing recent empirical research about innovation policy, we ask about the effects of these recent trends on university research and on private market innovation, including entrepreneurship, information flows and job mobility. We argue that, paradoxically, the effort to protect valuable information and retain the United States’ leadership position could disrupt information flows, interfere with collaborative efforts, and ultimately undermine the inventive capacity of American innovators. The article offers suggestions for reconciling legitimate concerns about national security with the balance intellectual property law traditionally seeks to strike between incentivizing innovation and ensuring the vibrancy of the creative environment. We conclude that a legal regime aimed at protecting incumbency is not one that can also optimally foster innovation.

Download while hot! Thoughts most welcome!

Posted by Orly Lobel on February 29, 2016 at 10:31 PM | Permalink | Comments (1)


It seems as if it took a bit longer for March to come in like a lion this year.

Anyway, welcome to our March guests--Sam Brunson (Loyola), Brian Clarke (Charlotte), Seth Davis (UC-Irvine), Jose Gabilondo (FIU), Rhett Larson (Arizona State), and Mark Moller (DePaul). Also, my colleague Eric Carpenter will continue his weekly write-ups on Serial, Season Two. And thanks to our February guests, some of whom may be sticking around for a few extra days.

Posted by Howard Wasserman on February 29, 2016 at 07:31 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

National Security Secrecy, Procedural Justice, and Legitimacy

It has been a delightful month at Prawfs, so thanks for having me! I am glad to be wrapping up today with some thoughts about how problems that arise accessing government held information risk undermining the legitimacy of the law. To conclude the discussion in my previous post demonstrating how litigation over national security secrecy is exempted from typical adversarial process, I will talk a bit about how procedural exceptionalism implicates both accuracy of outcomes and the legitimacy of the judiciary.

The U.S. justice system relies on adversariality as a means to uncovering the truth. As I discussed last week, we have abandoned adversarialism in the context of national security secrecy claims made in litigation, and courts have even failed to use inquisitorial methods in its place. As a result of this, we risk incorrect outcomes as to whether the secrecy at issue is justified, as well as the merits of the underlying claims.

In fact, some of the most famous cases concerning national security secrecy got it wrong. For example, in the state secrets context, United States v. Reynolds essentially defined the privilege, and applied it to allow an official report from a military plane crash to be withheld in litigation brought by the families of the victims. Years later, however, the report was released and as it turns out it contained no secrets but did reveal negligence that would have made the government liable. The failure of courts to apply rigorous procedural testing to national security secrecy claims means that information that should be made public, or should be made available to particular litigants or criminal defendants, will remain secret even though release would not result in true harm. It also affects the decisions in the underlying merits of the litigation.

Beyond getting the cases wrong, judicial abdication of responsibility to police national security secrecy threatens to undermine the judiciary and the rule of law in at least two important ways. First, evidence suggests that the judiciary may suffer from a perceived lack of legitimacy as a result of its failure to submit to adversarial or other rigorous testing claims of national security secrecy. The social science literature on procedural justice demonstrates that a belief in the legitimacy of the legal system is a significant factor in individual decisions to comply with the law. Views on legitimacy, in turn, are heavily influenced by views on whether the processes used by legal actors are fair, as demonstrated by factors such as decision maker neutrality and the ability of the interested person to participate in the process.

Courts’ failure to apply ordinary procedural safeguards to national security secrecy claims, including maximum adversarialism, combined with rigorous judicial oversight where needed, implicates both of these central concerns. Without disclosing enough information for a challenger to make arguments about the propriety of a national security secrecy claim, the challenger is effectively unable to participate in the process. And the courts’ frequent failure to subject those claims to any kind of meaningful alternative procedure, even an inquisitorial one such as in camera review, gives litigants plenty of reason to feel the court is partial to the government’s position.

Polls suggest the public agrees. For example, in one recent poll concerning courts’ policing of government surveillance, fifty-three percent of Americans believed that “federal courts and congressionally mandated rules do not provide supervision over the government’s collection of telephone and Internet data,” whereas only eighteen percent thought that the oversight was adequate.

Second, threshold national security secrecy creates proven risks of endorsing a body of so-called secret law, an anathema to our collective visions of our constitutional democracy. Examining threshold secrecy decisions across the various legal contexts, as I described in my last post, demonstrates the very real threat of the development of a body of secret law—e.g., secret authorizations for surveillance that go untested, or secret justifications for interrogation methods that go undiscovered.

Moreover, because the same procedural exceptionalism has crept into the jurisprudence in every type of case where national security secrecy is raised, there is a large swath of secrecy claims that courts do not test in any meaningful way. And this threshold secrecy plays out as a common impediment to reaching the merits of cases. Without meaningful procedural safeguards, these claims may be hiding government overreach or wrongdoing, and we may never know. The fact that criminal defendants and civil plaintiffs alike have for the first time been able to get to the merits of claims—sometimes successfully—based on unauthorized disclosures made by Edward Snowden only underscores the depth of the problem.

A lack of legitimacy as characterized by procedural justice in judicial decision making over secrecy claims will increase the likelihood that individuals will resort to self-help as well as support others who do so. Indeed, recent national security leaks of unprecedented proportions—what I have labeled elsewhere as “deluge leaks,” are, at least in part, just that: rough justice for those who feel the formal system of challenging government secrecy has failed.

All of these factors point to an imperative to reform our government secrecy oversight mechanisms at all levels. Administratively, we should work to improve FOIA’s ability to serve a government-checking function. Judicially, we should contemplate reforms that restore adversarialism and increase the incentives for maximum possible disclosure. All of which leaves us government secrecy scholars with much work to do.

Again, it was great being here and thanks for reading a bit about my work this month!

Posted by Margaret Kwoka on February 29, 2016 at 04:16 PM | Permalink | Comments (0)

Serial 2:6

Okay, so I fell behind in my Serial assignment. Blame it on the February submission cycle.  Things backed up as I worked to click “send” at exactly Feb. 16, 10:14am, because as everyone knows, that is the exact moment that maximizes your chances at a good placement.  A minute too early or a too minute late and all hope is lost.

Now that I am returning to Serial, I see that Sarah Koenig recognized that I was behind and decided to drop TWO episodes last week. (Thanks, Sarah.)  I’ll catch up on Episode 6 here and get to 7 and 8 in the next couple of days.

This episode was pretty good, as Koenig tries to wrap the frustration related to the counterinsurgency (COIN) mission in Afghanistan into Bergdahl’s reasons for doing what he did, and we get more insight into Bergdahl’s mental health.

I talked a little about COIN in earlier post in the context of how Bergdahl’s actions shifted the war effort away from COIN and back to kinetics. 

According to the COIN manual, “Long-term success in COIN depends on the people taking charge of their own affairs and consenting to the government’s rule” and the primary goal “is to foster development of effective governance by a legitimate government.”  When the local government can’t provide services, we ask soldiers to provide them until the local government can do it.  We ask soldiers to do things that look like the things government officials do (distribute food, dig wells, improve roads) and what local police do (provide security).  (I am using “soldier” to represent all American service members, not just Army Soldiers).

Broadly speaking, COIN involves a significant shift in the risk of harm to the soldier. The safe thing for a soldier is to stay buckled up and, when needed, to use force overwhelmingly and aggressively.  In COIN, we ask the soldier to expose herself to constant danger and to exercise restraint. 

When soldiers – who are primary trained in warfare – do these governmental function (in Koenig’s interviews, the Soldiers talk about distributing flour), they often can’t see how those actions will help us reach the desired end state, and they can get frustrated that their lives are being put at risk for something that doesn’t seem to make much sense.

I credit these soldiers with having a keen sense of realism. If, say, a Russian soldier was occupying my hometown and he gave me a bag of flour, I don’t think I would start supporting the Russian-backed government.  I think our soldiers recognize that the Afghans may view things similarly, and our soldiers may be spotting one of the key flaws in COIN.  The key assumption in COIN is that the ultimate goals of those who support the insurgents are the same as the ultimate goals held by the government.  The idea is that if we can just provide the basic services (like security), then the population will eventually back the government because the goals align.  The problem is that the goals often don’t align.

Koenig brings back Jason Dempsey (he also appears in Episode 2), and he builds on that criticism. (I would recommend listening to this episode just for his section).  He talks about how we hand out aid while saying, “We just want to make your life better,” but that makes no sense to an Afghan.  A Talib then says, “They are really here because they hate Islam” and that makes a lot more sense.  Further, our end game (a country that is a stable democracy) does not align with their end game.  They don’t care about democracy. 

And Afghans have been in this game for over 200 years. Dempsey talks about how COIN requires a long game – 10, 20 years – but the American military rotates units through in 7, 9, 12, or sometimes 15-month increments.  There is no long-game, just a bunch of unsuccessful, successive short-games.

Koenig ties all of this back to Bergdahl by arguing that he may have tapped into all of that, and when combined with whatever mental health problems he had, that helps to explain why he did what he did.

In this episode, we get even more of sense that he is an injustice collector. Bergdahl tells us that his disillusionment with his command started even before his deployment, and “he took all of these little things and logged them back in his memory.”  Many of these were really small slights, the sorts of things that most other Soldiers shrug off.  Or, these were things that most other Soldiers were not offended by, but he was.

Koenig points to two events in particular. The first one relates to shaving.  After another unit’s vehicle is damaged by an IED, Bergdahl’s platoon is tasked with retrieving it.  On their way to get it, one of their vehicles is hit by an IED.  They drag it up to a base, where they are stuck for several days with no supplies, to include shaving gear.  They planned for a three-hour tour and didn’t bring that sort of stuff.  When they finally leave, they get ambushed and engage in a full-on firefight. 

After they roll back into their forward operating base, Bergdahl expects that they will be congratulated for their work. Instead, the battalion commander says, “What, you couldn’t shave?”  The other Soldiers more or less shrugged it off, but Bergdahl perseverates on it.

The next event related to members of his unit, including him, getting photographed while out of uniform. They were digging fighting positions during the heat of day and started to strip down to undershirts and wear bandanas, possibly with permission.  The battalion commander saw this and got upset with them, and then pictures popped up on the internet of them out of uniform – including pictures of Bergdahl.  After that, several members of his unit were punished.

Koenig interviews the battalion executive officer about the photographs, and she says that she just sees people standing around.  The executive officer points out the big discipline mistakes – no helmets, no body armor, no weapons discipline.  I agree with him on this one.  It also looks like Bergdahl and the others have long since finished their work – no one is sweaty and the sun looks like it has set – and were really standing around trying to look like Lawrence of Arabia, as the executive officer characterizes it.  (They also have their hands in their pockets.  Those who have served in the Army know you don’t that). 

The whole thing looks like a discipline breakdown to me. The way Koenig describes the battalion commander, he sounds like a real jerk – but I would have been upset about this, too.  Small lapses of discipline lead to bigger lapses of discipline.

The Soldiers, I suspect, knew that they had done wrong. I’m about the hippiest guy that has served in the Army, and I think they were wrong.  Bergdahl couldn’t see that, though, and so the whole event was “injustice.” 

Again, Bergdahl perseverated on this and made a turn toward the paranoid: he concluded the battalion commander had it out for his platoon and might even intentionally put them into harm’s way to get rid of this blemish on his career. Next, add to that that the war was not living up to his fantastical, movie-inspired expectations (they were only doing COIN), and now things come into focus.  He goes on a Jason Bourne, movie-inspired adventure to save his unit from a dangerous commander.

And that is where Koenig leaves us. More to follow.

Posted by Eric Carpenter on February 29, 2016 at 01:07 PM | Permalink | Comments (0)

Affirmative Consent—less than meets the eye

The idea of requiring “affirmative consent” to sex has garnered much attention and debate, here on prawfs (take 2, take 3, and take 4) and elsewhere

In a series of posts, I want to “unpack” the concept of affirmative consent and see what, if anything, is there. 

My basic claim is this:  there is much less substance to affirmative consent than almost everyone seems to assume.  Most “affirmative consent” standards represent, at most, a very minor alteration of existing consent standards.  (That observation might be either a criticism or a defense of the concept, depending on your priors.) 

As a substantive legal standard, it does not achieve much in the way of reform, and likewise it does not create much in the way of risk of over-criminalizing conduct that many view as permissible.  Many of the proponents and opponents of affirmative consent share the same faulty premise—that affirmative consent is a radical new departure from existing law.  It is not.

I will focus on proposed and existing substantive legal standards for affirmative consent, rather than the procedural rules that are used.  Of course procedure is extremely important (sometimes more important than the substantive rule), and some of the criticism of recent reforms falling under the “affirmative consent” banner are largely procedural critiques.  My focus will be on the substantive standard, putting procedure to one side.

Posted by Jonathan Witmer-Rich on February 29, 2016 at 09:51 AM | Permalink | Comments (4)

Why the Fourth Amendment Should Be Part of the Apple Case

The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.

By way of background, the U.S. government is seeking a court order directing Apple to help “unlock” an encrypted iPhone previously used by one of the San Bernardino terrorists. The resulting public debate has focused on arguments that the desired order would assist law enforcement while also jeopardizing the security of many smartphones. That sounds like a perfect opportunity to reflect on the constitutional provision that is most closely applicable: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” If the government orders “seizures” of Apple’s programmers and “searches” of the encrypted device, then “the people” might no longer be “secure” in a precious set of “effects”—namely, their iPhones.

Yet Apple’s recent filing doesn’t advance a Fourth Amendment claim. And it’s not because Apple was shy about making constitutional arguments: while focusing on statutory issues, Apple also advanced arguments based on the First Amendment’s guarantee of free speech and the Fifth Amendment’s guarantee of due process. But those provisions don’t speak to the fundamental conflict of interests at issue in the case. As Apple wrote in its filing, “There are two important and legitimate interests in this case: the needs of law enforcement and the privacy and personal safety interests of the public.” What constitutional provision does that call to mind? Apple further argued that people’s “personal information” should be “secure” and that “[n]o reasonable person” would approve of the government’s position. It’s as though Apple is subliminally channeling the Fourth Amendment’s text and purpose.

Of course, there’s a reason why Apple didn’t raise any Fourth Amendment arguments: under current case law, such arguments would be very hard to make. Fourth Amendment cases have generally focused on individuals’ “reasonable expectations of privacy” and “constitutionally protected places.” That sounds sensible, and it often is. By focusing on individual privacy, the Court has indirectly tried to promote “the right of the people to be secure” against governmental power. But in light of digital technologies, the connection between individual privacy and governmental power has frayed. It’s now possible for the government to obtain enormous power, undermining the people’s security, without significantly infringing on any individual’s privacy. If Fourth Amendment law is going to keep up with these changes, it needs to evolve: rather than requiring or focusing on direct violations of individual privacy, courts should attend to the dangers of governmental power and the risks of its abuse.

Take the Apple case. The encrypted iPhone is governmental property, the county that owns the phone wants it to be searched, and the government has obtained a warrant. So there’s no significant personal privacy interest in the contents of the device, much less a privacy interest running to Apple or any particular consumer. And even if there were such a personal privacy interest, it would be outweighed by countervailing law-enforcement interests. These points explain why Apple isn’t making a Fourth Amendment argument, but they miss what the Apple case is all about. Without infringing on any individual’s privacy, the government may obtain an investigative power that could be abused in other contexts, to the detriment of privacy as well as other values. It is impossible to assess those risks of abuse by asking only whether the government’s requested order would in itself invade individual privacy. For instance, the Fourth Amendment should care about who would store or control access to the code that the government desires—much as debates about the NSA telephonic metadata program focused in part on whether customer metadata would be stored in private or governmental hands. As Apple wrote at the start of its filing, “This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power. . . .”

To put the Fourth Amendment’s relevance to the Apple case in historical perspective, consider the “writs of assistance” that so enraged some founders. Those writs allowed British officials to conscript bystanders into searching homes for smuggled goods. In that eighteenth-century context, significant expansions of governmental power tended to be accompanied by grave infringements on privacy. As a result, a prohibition on invasions of privacy, like ransacking a home pursuant to a writ of assistance, could check governmental power. Today, by contrast, the government can conscript Apple engineers in order to gain the power to access a huge number of devices—each of which has more personal information than the average house. So a search or seizure that in itself has only limited privacy implications (here, hacking the encrypted iPhone) may turn out to yield an unreasonable risk that governmental power will be abused, contrary to the purpose of the Fourth Amendment.

The writs of assistance shed light on the government’s request for assistance in the Apple litigation—which, incidentally, would issue under the founding-era “All Writs Act.” Whether viewed as constitutional avoidance or simply as part of the background conditions that gave rise to the All Writs Act, the Fourth Amendment and its history ought to figure in. A similar point has been made before: in United States v. New York Telephone Co., a precedent at the center of the Apple litigation, Justice John Paul Stevens invoked the writs of assistance and argued against an order directing a telephone company to install pen registers. But Stevens was in dissent, and the majority upheld the order. Echoing the Fourth Amendment, the majority plausibly held that no “unreasonable” burdens were being imposed. Yet digital technologies have changed the implications of the government’s writ authority. It’s time to update the existing approach to Fourth Amendment reasonableness in light of these new technologies. And that means paying more attention to power.

Posted by Richard M. Re on February 29, 2016 at 07:30 AM | Permalink | Comments (22)

Inviolate spaces

Every year, I begin my Criminal Procedure class by teaching two seminal cases, Mapp and Katz.  Together, the two stand for the maxims that a government search and seizure ought to be supported by a warrant and probable cause, and that absent those procedural prerequisites, courts should exclude from trial the fruits of such searches and seizures.  We then spend the remaining 6-8 weeks studying the various doctrines that undercut the two rules (for good or for bad, depending on your normative outlook). 

This year, I decided to begin the semester with  Boyd v. United States, an 1886 case that precedes our modern-day Fourth Amendment jurisprudence. In Boyd, the Court struck down a court-ordered subpoena for an invoice in a forfeiture case involving plate glass. (Fun stuff). Among other things, the Court treated the subpoena as a Fourth Amendment "search" and held that the government could not search a man's "private papers."  Although the government could seize contraband and stolen property, evidence of criminality (later dubbed "mere evidence") contained in one's "private papers" was off limits, even to a court order.

Boyd eventually was overruled, albeit not at once.   The "mere evidence" rule stuck around, even as the Court expanded the government's reach to "instrumentalities" of crimes and not just stolen goods or contraband.  In Warden v. Hayden, the Court openly broke with Boyd, drawing a strong dissent from Justice Douglas. Today, Boyd is little more than a historical artifact for casebooks. 

Why care about Boyd?  It provides a nice counterpoint to the growing criticisms of the third-party doctrine.  Observers bemoan the government's relatively easy access to a vast array of personal information (bank, medical, credit card and telephone records, for example).  Yet I wonder how happy we would be had Justice Douglas's notion of the Fourth Amendment privacy (largely a recital of Boyd and older authorities) prevailed.  Is it plausible (much less desirable) to erect a zone of privacy that the government can never cross, even with the support of a magistrate's warrant?  

I found myself contemplating the foregoing question in response to the controversial Apple order pertaining to the San Bernadino shooter's cell phone.  Orin Kerr has succinctly explained the dispute in a series of posts, and as he points out, the case is not about the Fourth Amendment. Moreover, there exists a strong distinction between the "mere evidence rule" and a private company's locking technology for a set of phones.  Still, some of the commentary on the Apple dispute cannot help but remind me of the debates underlying Boyd and Douglas' dissent in Hayden. 

Posted by Miriam Baer on February 29, 2016 at 12:14 AM | Permalink | Comments (0)

Sunday, February 28, 2016

More on libel, New York Times, and Donald Trump

I still do not believe we are in any danger of having President Trump open up our libel laws, but let me add a few more thoughts. After all, as Ronald Collins reminds us, this is SOP for Trump--in September, his attorney threatened a multi-million-dollar lawsuit against Club for Growth over ads critical of Trump.

NYT v. Sullivan arose in a period in which state officials were using civil libel suits to create something akin to seditious libel--a prohibition on criticizing government, government officials, and government policy. Heed Their Rising Voices triggered five defamation suits (including Sullivan's), seeking a total of $ 3 million; the Times was a defendant in lawsuits throughout the state seeking more than $ 300 million. Until recently, my instinct would have been that no modern-day public official, particularly a national figure such as the President (or someone aspiring to that office), would sue or threaten to sue his critics. Part of that is driven by NYT--that doctrine exists precisely to stop public officials from suing their critics. But another part is that suing or threatening to sue would make an elected official look weak, greedy, and ineffectual--his feelings are being hurt, so he is running to the principal to complain, rather than responding in the public debate.

But Trump turns every bit of conventional wisdom on its head. Rather than seeing a libel lawsuit as making him appear weak, Trump supporters would seem to look at it as a sign of strength, that he is a fighter and willing to stand up to evil newspapers. So Trump may unwittingly be showing why NYT is so important and why it is not going away anytime soon.

Posted by Howard Wasserman on February 28, 2016 at 06:20 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Claim: There is nothing wrong with politically motivated prosecutions (of genuinely guilty political candidates).

Here's an ethical hypo that isn't really a hypo at all.  Suppose a U.S. Attorney from the opposite party has strong reason to believe that a leading---and very dangerous and scary---presidential candidate was guilty of a serious federal felony---if, for example, that candidate were currently embroiled in multiple lawsuits, including one by a major state Attorney General, alleging that the candidate in question had led a fraudulent scheme to bilk thousands of people of their hard-earned money with a fake "university"---allegations that, if true, would also clearly meet the elements of various criminal fraud statutes.

Should that U.S. attorney investigate, and, if s/he finds probable cause, prosecute?  Even in an election year?

I'm inclined to think yes: even though it would lead to cries of "politically motivated prosecution," there's nothing particularly wrong with politically motivated prosecutions: if one wishes to run for the highest office in the land, one probably shouldn't go commit a bunch of felonies; if one does commit the felonies then run, one is fair game.* Plus, there's something grim about the idea that one can get de facto immunity from one's felonies by running for president. Especially when the candidate is, as noted, not just an ordinary political opponent, or even an extremist political opponent, but a terrifying, openly racist, demagogue. 



edit: at least when the felonies are classic malum in se crimes like conning people out of their money. I might feel differently if we were talking about, e.g., victimless drug crimes.

Posted by Paul Gowder on February 28, 2016 at 12:07 PM in Criminal Law, Law and Politics | Permalink | Comments (13)

Saturday, February 27, 2016

Things not worth getting worked up about, Part 671

Donald Trump insisting that he wants to "open up our libel laws" so media outlets can be sued "like [they] never got sued before." First, there is no federal libel law and Congress, especially Democrats, are not going to allow one to be enacted. (I still cannot tell if Trump truly believes he can unilaterally do the things he talks about; I have no doubt his supporters do believe it). Second, this is an incredibly speech-protective Court, including as to New York Times v. Sullivan, so the likelihood of the Justices overturning NYT (regardless of who replaces Justice Scalia) is precisely nil. So like much of what comes out of Trump's mouth, it cannot be taken seriously.

Which is not to say that Trump's views on free speech, especially as to public protest and dissent and the power of police to physically manhandle peaceful protesters, are not genuinely scary. They are. But the right to protest in public has become incredibly constrained, especially when protest happens within sniffing distance of the President; I doubt things would be so much different (or worse) under President Trump, only more blatant. That does not make this a good situation, only a common and unsurprising one.

Posted by Howard Wasserman on February 27, 2016 at 05:01 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, February 26, 2016

A great conversation on Justice Scalia

This edition of the National Constitution Center's We the People features a conversation with two of Justice Scalia's early law clerks--Larry Lessig (Harvard) and Steven Calabresi (Northwestern); it is one of the best discussions of his work and legacy that I have heard since he passed away.

One interesting piece is discussion of whether and why Scalia became nastier in his rhetoric and tone in the later years. Calabresi and Lessig agree on two possible, somewhat related, explanations. 1) Scalia moved away from his early practice of hiring at least one liberal-leaning clerk (obviously Lessig in that term), creating something of an echo chamber; 2) As Scalia got older, the age gap between him and his clerks became greater, making them less willing or able to talk him down from his lesser instincts. Calabresi relates how he and his co-clerks would read drafts and convince him to dial it back or to step away from the opinion for the night and come back to it, presumably to tone it down the next day. But surrounded by younger and less intellectually diverse clerks, no one was counseling him back from the rhetorical edge--whether because they did not believe themselves able to do it or because they did not see anything wrong with that excess.

The point about the growing age gap is obvious, but interesting. One of the things that keeps law profs feeling "young" (even as we increasingly are not) is that we encounter a new group of 22-year-olds in our classrooms every August. So at least within the context of work, we are less aware of getting older because we are still dealing with recent college grads. (A colleague who is in his early 60s confirmed this sense). I imagine it is the same for judges, who similarly have a new group of 25-year-old law clerks entering chambers every August. But while the new blood keeps us feeling young-ish, the dynamic inevitably changes as the numerical distance grows. And if Calabresi is right that it affected how Scalia judged, it surely affects how we teach.

Posted by Howard Wasserman on February 26, 2016 at 09:13 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

Victim Advocates in the Grand Jury in Police Use of Deadly Force Cases

Many critics have expressed concerns about whether local prosecutors are overly reluctant to actively pursue charges against police in use of deadly force cases. One way to address this is by giving the person subjected to the police use of force (or the family, if the person has been killed) a right to appear and participate in the grand jury process—what you might call a “victim advocate.”

In the past, many prosecutors simply declined to file charges, after conducting their own review of the case. More recently, some prosecutors have begun presenting the case to a grand jury, even in cases in which the prosecutor believes charges are not warranted. This approach has not done much to mollify critics, who see this as a largely pointless gesture—the grand jury is not likely to indict if the prosecutor spends the grand jury process persuading them not to indict.

One possible reform is the use of an independent or special prosecutor. A local prosecutor may not view the case neutrally because she works with the local police department regularly and faces political and institutional pressures not to alienate the local police. An independent prosecutor would not face that possible conflict (at least not the in same way), and thus may be a good step forward. But even with a special prosecutor, the question remains whether the prosecutor would still show excessive deference to law enforcement.

An independent prosecutor may be a prosecutor from another county, who does not have immediate ties to the local law enforcement agencies but nonetheless is accustomed to working closely with law enforcement and looking at circumstances from the law enforcement perspective. Or a state might set up a free-standing independent prosecutor’s office, perhaps as part of the state Attorney General’s office. How these prosecutors would approach police use of deadly force cases would then likely depend in part on the state Attorney General, and his or her views on how aggressively police use of deadly force cases should be investigated and prosecuted.

Another suggestion, mentioned by one of my students in a recent class discussion, as well as hinted at by "brad" in the comments to my last post, is authorizing the victim (or a lawyer representing the victim) to appear and participate in the grand jury process. This idea is notable because it would ensure that the grand jury process includes a zealous advocate whose interests would be firmly aligned with the victim of the shooting, rather than with the police.

Take the Tamir Rice case. Subodh Chandra, the lawyer for the Tamir Rice family, repeatedly raised concerns thoughout the grand jury process: whether the police officers were questioned before the grand jury, whether the experts were presented fairly, etc.  He actively sought out experts to support an indictment.

Had Mr. Chandra been a full participant in the grand jury proceedings, there is no doubt the grand jury would have been exposed to a significantly different viewpoint, one vigorously advocating for indictment. We’ll never know what the outcome would have been, but at least the public would know the grand jury had heard a strong case for indicting.

It turns out there is a tradition in some states, perhaps now largely moribund, of allowing alleged crime victims a right to participate in the grand jury process. Perhaps this practice could be revived and expanded in the police use of deadly force context. For a very interesting description of this historical practice and argument for its revival, see Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America: Direct and Judicial Access to the Grand Jury As Remedies for Victims of Police Brutality When the Prosecutor Declines to Prosecute, 53 Md. L. Rev. 271 (1994).

From Davis's conclusion:

Gaining access to a grand jury -- either directly or through the impaneling judge -- certainly would limit the prosecutor's total monopoly and increase his or her accountability. Of equal importance, it would be a powerful weapon in the hands of citizens who are now all too often shut out of the criminal courts.  The crime victim would have a far better chance of securing a criminal prosecution against his victimizer; the whistleblower would have a far better chance of exposing public and private corruption.Battered women, gays, lesbians, minorities, the homeless--society's most marginal and most vulnerable--would be given a chance to tell their stories of victimization to those who are not part of the professional law enforcement system.
Most of all, however, giving citizens direct access to the grand jury helps to ameliorate the problem of the symbiotic relationship between police and public prosecutors. When plain, ordinary citizens are able to approach the grand jury or the empaneling judge, it is likely that far more indictments will issue against brutal police officers--particularly in the less sensational cases.


Posted by Jonathan Witmer-Rich on February 26, 2016 at 10:38 AM | Permalink | Comments (2)

Thursday, February 25, 2016


Len Strickman was the Founding Dean of FIU College of Law, serving in that role from 2001-2009 before joining the faculty for the past six years. Len is retiring and taught his final class ever this afternoon. To mark the occasion, some faculty members entered the classroom at the end of the period to applaud the end of class. This idea came from a colleague who attended Notre Dame Law School, where this was the common practice (is that still true, Rick?). It is a cool tradition and nice to be a part of.

Only 40 more years . . .

Posted by Howard Wasserman on February 25, 2016 at 07:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Conference Announcement: "Louis D. Brandeis: An Interdisciplinary Perspective"

Touro Law Center and the Jewish Law Institute are hosting a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.

Speakers will include The Honorable Kermit Lipez, United States Court of Appeals for the First Circuit; Lance Liebman, former Dean of Columbia Law School and former Director of the American Law Institute; Kenneth Elzinga, Robert C. Taylor Chair in Economics at the University of Virginia; Hasia Diner, Paul S. and Sylvia Steinberg Professor of American Jewish History and Director of the Goldstein-Goren Center for American Jewish History at New York University; and Fred Lawrence, former President of Brandeis University.
More info is available here.

Posted by Rick Garnett on February 25, 2016 at 01:19 PM in Rick Garnett | Permalink | Comments (0)

Robot Lawyers and Inequality Part I: The Robotic Rule of Law

For a while, I’ve been worrying about the distributive effects of the invasion of legal practice by technology. But Frank Pasquale is much better at worrying about those issues than I am, and a recent post of his on concurring opinions partly replying to mine has prodded me to think about it a little more loudly.

On a naive view, AI and tools of other computational lawyering are unmitigated boons to the poor. More supplier competition lowers prices! Lower prices benefit the poor! Greater access to legal services! But the real story is much more complex.

There are two distinct worries we might have about the impact of these developments on the poor. First is a worry that Frank raised: people might use these services to oppress the poor, either by themselves accessing cheap legal services and using them to unequally enforce unequal rules against the poor, or by using these technologies to impose barriers to things the poor need. Second, it might have a substitution effect, driving out service providers who do serve the poor (or at least the lower middle class), leaving them with worse legal services than they were getting before.

Thus, this is the first part of a two-part post on the subject. After the fold, some more thoughts on the first of those issues. Later today or tomorrow, some more thoughts on the second.

The First Worry: LegalTech Oppression

Frank tells a grim story of landlords who use legal tech to automatically evict tenants when they fall behind on rent: no longer need the landlord personally take the trouble to show up in court, or even think about whether she or he wants to give the tenant a break---legal tech may be automating the way to the ultimate mean old landlord story: the moment the rent is a day late, out the door you go. And we can proliferate these examples: right now, powerful actors use the legal system to oppress people in lots of ways, and how much worse could it get if they could do so cheaply and with no personal effort?

For example, there’s lots of techno-utopian talk going around right now about computational contracts. The idea there is that if you can fully represent a contract in a computer, you can automate its enforcement. Performance happens automatically, and if the human-controlled parts of performance get breached, penalties happen automatically as well. (In a way, we can think of DRM encryption as a primitive form of computational contract in this sense.) Which sounds great, until you imagine the horrible adhesive contracts that corporations impose on us all unilaterally every day. All of a sudden, computational contracts sound really bad. It might be even scarier than Larry Lessig’s worst fears: not only is code law, in that it can architecturally constrain behavior, but code also acquires the capacity to invoke law too, and back up its electronic walls and gates with the traditional enforcement tools of the law, to wit, people with guns and real-life cages for those who disobey.

Frank also touches on the flip side of this, namely oppression by those who are supposed to be helping. Instead of going to the welfare official who might be able to make a decision, you go to the computer who has no discretion or mercy at all. Frank quoting Bret Scott on fintech: “If you fail to interact exactly correctly, you will not make it through the digital gatekeeper, which – unlike the human gatekeeper – has no ability or desire to empathise or make a plan. It just says ‘ERROR’.“

If we think human gatekeepers in our system have the capacity to empathize or make plans (having spent a few years doing legal aid work, I honestly have my doubts---I interacted with a lot of really heartless welfare officials, but let’s suppose that I got an unusually bad lot)*, this seems like a bad worry.

Solutions? Well, as you may know, I’m a rule of law person. (Shameless plug again: go buy The Rule of Law in the Real World.) And so naturally, all of this sounds to me a lot like the worries expressed classically by folks like Morton Horwitz about the replacement of discretion to treat humans like humans with the bureaucratic and mechanized process of law:

I do not see how a Man of the Left can describe the rule of law as “an unqualified human good”! It undoubtedly restrains power, but it also prevents power’s benevolent exercise. It creates formal equality—a not inconsiderable virtue—but it promotes substantive inequality by creating a consciousness that radically separates law from politics, means from ends, processes from outcomes. By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage. And it ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations.
(Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 YALE L.J. 561, 566 (1977))

In a way, the prospect of LegalTech oppression is the ultimate rule of law, on a naive conception of the rule of law according to which it just means “everyone obeys the rules that have been set down.” And if you’re an old-school, vaguely authoritarian, rule of law person, that kind of sounds like a good idea. People should pay their rent, and if they don’t pay it, they deserve eviction; we should obey our adhesive clickwrap contracts with Facebook, and if we don’t, well, bring on the legal Terminators. People are only entitled to welfare benefits if they meet the rules set out in the statute, and if they don’t, the system ought to deny them. Worse, on this story, what the discretionary, pre-rule-of-law approach really means is favoritism and discrimination---maybe the person of a racial background that the welfare official likes gets a nod past the rules, while others do not.

But I actually don’t think that’s what the rule of law is. Rather, the ideals of the rule of law are fundamentally asymmetric: they demand we control the powerful in the aid of equality. In the first instance, that means controlling the direct use of government power, but it also means controlling the private use of government power, including through the disproportionate rights to access government power that private law gives some, but not others, through tools like property and contract.

And that suggests that the real rule of law answer to LegalTech oppression is twofold.

First, it is the substantive law, not necessarily the tools, that must give way. Sometimes, the computational contract favors rather than oppresses the little guy. Think about how nice it would be if we could genuinely hold corporate malefactors like airlines, cable companies, cellphone companies, and the like to providing the services they promise to provide! Instead of fighting the technology that might make enforcing the obligations of the powerful easier as well as enforcing the obligations of the powerless, we need to restructure the substantive legal rules that make it possible for the powerful to lawfully wriggle out of their obligations (like repeal the outrageous consumer protection law preemption provision in the Airline Deregulation Act, for starters). The problem is not the power to enforce the law, but the fact that the law is unjust.

Frank’s eviction story really brings this home. Mass evictions didn’t start with some snotty startup full of landlord-loving brogrammers. It started with foreclosure factories run by the big banks that had humans doing ten-a-days.

Second, not all technologies are neutral, and this includes not just the kinds of technologies that are mediated by computers, but also more foundational kinds of LegalTech, namely the legal innovations that lawyers make without the aid of programmers. (For example, we can describe the practice of bundling and securitizing home mortgages as a technological innovation in law... and obviously not a neutral one.) And so, just like we work to control the legal innovations cooked up by corporate lawyers, we also ought to work to control the legal innovations cooked up by programmers. Maybe, for example, we should pass laws requiring landlords to show up in person (for some sufficiently tricksy definition of “in person” that can meaningfully constrain corporate landlords) in eviction suits, to put a few barriers between them and algorithmic evictions. Perhaps we ought to use Rule 11-like constraints to more carefully police the bulk-filing of lawsuits by large entities.

But: we should be working to restrict access to these tools on the part of the powerful, while enabling their use by the powerless.  If we care about unequal access to justice, we ought to at least try to choose who gets to lower their legal costs, rather than imagining that uncontrollable tech leads to immediate all-or-nothing change. And if we think we don’t have the power to control the distribution of legal tech, that the forces of politics will ensure that technological innovations go first to the rich and powerful with an interest in using them to oppress, then how could we think that we have the power to stop the innovations from happening altogether?

* My least favorite public benefits case: I represented a client before the SSA on a disability claim. The claim was so obviously legitimate that the ALJ called me before the hearing, said “why are we wasting our time?” and sua sponte ruled in our favor. The client continued without benefits for months on end, and in the face of increasingly frantic bureaucratic advocacy from me, until, days away from pulling the mandamus trigger, I found a secret phone number and managed to get ahold of someone in authority, who discovered that a clerk had simply not bothered to enter my client’s claim in the system. If this is the human touch, please, bring on the damn robots!


Posted by Paul Gowder on February 25, 2016 at 01:07 PM | Permalink | Comments (1)

The Talk

After the police shootings of Michael Brown and Tamir Rice (and the litany of other African American men and boys and girls too), white folks began to discover that the parents of African American boys gave their sons “the talk” (the literature is primarily about boys, though it should be about girls too). “The talk” instructs young black men how to behave if confronted by a police officer: do not run; do not make eye contact; be polite; keep your hands in plain view; no sudden movements, and so on.

But what happens if this advice—the advice to be passive and deferential—is not simply disenfranchising; is not even useless, but is actually dangerous? What if the advice accepts the loss of rights that white citizens enjoy when confronted by the police; if it makes no difference to the police what people do if the officer has decided to engage in an investigatory stop; and if the officer is trained to look for “body language” signs indicative of guilt, many of which are exactly the signs of angry passivity that African Americans are likely to display when they know they are being subjected to an investigatory stop and at the same time try to behave in a deferential way?

The talk is disenfranchising precisely because of the passivity it preaches. For the most part, we have the right to ignore the police and “go about our business.” Only if the police have some articulable reason to suspect that we might be engaged in criminal activity may they interfere with us. And even if they can interfere, the scope of their interference is generally limited. Having stopped us for a traffic offense, the officer cannot search the car for without our permission unless she has some level of suspicion that drugs could be found in the car; having issued the citation, the officer cannot extend the search if the civilian declines to consent; and having posed questions to the suspect, the officer cannot force him to speak should he assert his right to silence. All these rights to refuse to comply are denied by “the talk” which preaches respectful compliance with the police.

More fundamentally, for many people, their primary objective is to avoid the police. And the reason to avoid the police is that the defense mechanisms preached by the talk do not matter if the police have decided to engage in an investigatory encounter. The difference between investigatory and other encounters was first articulated in Terry v. Ohio and the two other stop-and-frisk cases decided the same day, Sibron and Peters. All three cases recognize that the sort of aggressive investigatory use of stops and frisks can be used as an instrument of domination. More fundamentally, Charles Epp and his co-authors have revealed that at least one police department deliberate plans to engage in separate types of traffic stop, one for safety, another investigatory, and targets minorities for investigatory stops. If the police have already prejudged the scope of their search, there is little the subjects of the search can do (or, more to the point, feel they can do.) The talk is useless for avoiding the harms inflicted by investigatory encounters. The only real solution is avoidance.

Worse, even if the police have not prejudged the type of search, certain forms of deferential behavior may convince a police officer that the suspect is dissimulating. Richard Leo has described the police interrogation as a two-step process, in which the first step is directed towards the suspect’s body language, to determine whether they are telling the truth; and if the officer perceives the offender is lying, the second step is geared towards getting the offender to comply and cooperate by confessing to the crime. One feature Leo identifies as indicating guilt during the first stage is a failure to maintain eye-contact: precisely the sort of deferential conduct promoted by “the talk.” Deference may appear evasive, especially if it is accompanied by barely concealed frustration at having to undergo a discriminatory, investigatory stop.

All this is to recognize the truth in Ta-Nehesi Coates’ claim that “Each time a police officer engages us, death, injury, maiming is possible. It is not enough to say that this is true of anyone or more true of criminals.” Ta-Nehisi Coates, Between the World and Me 131 (2015). It is particularly true for African Americans, guilty or innocent, and even those of us who are best drilled in deference and compliance—in giving up our standing as an equal citizen in order to avoid the brute force of policing—may simply confirm the worst suspicions of the investigating officer.

Posted by Eric Miller on February 25, 2016 at 03:49 AM | Permalink | Comments (8)

Wednesday, February 24, 2016

I, for one, welcome our new robot Law Lords.

Friends, I've been a terrible guest-blogger so far this month. My apologies. Life (and teaching... mostly teaching) intervened.

But one of the things I'm teaching is an experimental yearlong project-based seminar called the Policy Lab (link is somewhat obsolete), where students spend the first semester learning about an area of legal policy, and the second designing innovations to work on it. And for this first run-through, students have been thinking about legal technology and access to justice. They've learned about things like predictive coding, multijurisdictional tech-driven delivery of legal services, and artificial intelligence, and they've had virtual as well as physical visits from experts and people making waves in the area, including Dan Katz, Jake Heller, Stephen Poor, Tim Hwang, and Craig Cook, as well as more local folks---and now they're working on designing (though not fully implementing) technological tools to provide legal knowledge to nonprofits, as well as policy analyses of, e.g., the ethical implications of such tools. I'm really proud of them.

I'm also a confirmed parking and traffic scofflaw, who once beat a parking ticket with a procedural due process claim, and also once beat a speeding ticket by getting testimony about the laser evidence chucked on the good-old Frye standard (back in grad school, when that standard applied in California). So imagine my delight when I saw this story: "A 19-year-old made a free robot lawyer that has appealed $3 million in parking tickets". A Stanford kid, Joshua Browder, has written a webapp that (as far as I can discern without trying it out or seeing the code) quizzes people about their parking tickets (U.K. only, alas) in natural language, invokes what is sometimes called an expert system to discern a defense for them, then provides an appeal for them to file. Obviously, I have lots of questions and thoughts about this after the fold.

First, is this legal in the U.K.? How do folks feel about the unauthorized practice of law on the other side of the pond? And what about California? On some aggressive interpretations of UPL rules, we might think that the awesome kid is practicing British law in California. As this kind of service, and the services provided by companies like RocketLawyer, LegalZoom, and the like become more customized, and interact with people more like lawyers interact with clients, the UPL questions are going to get harder and harder. The natural language aspect of the parking ticket thing feels to me more like legal practice: you can easily imagine a client trusting an interactive, English-speaking app more than they might trust a more web 1.0 or 2.0 system of drop-down menus and such. Are the regulators going to quash this (especially now that he's looking to expand to New York), or are they going to get out of the way?

Second, to me, this level of legal tech innovation seems like an unmitigated good. Is there anyone scrutinizing the behavior of parking enforcement authorities right now (given that it's far too small-fry in most cases for lawyers), or is the parking ticket system in many cities nothing but taxation by another name, buttressed by the total lack of any real opportunity to challenge them? Browder might look closer to his temporary home, given that San Francisco is kind of notorious for its abusive parking tickets and they've been resisting the use of other automated systems to squeeze out a droplet of due process from the machine. As I've argued previously on this blog, nickel-and-diming people to death with penny-ante law enforcement directed at ordinary day-to-day behaviors is a threat to the kind of ideas underlying the rule of law, and maybe software can fix it where lawyers can't.

Third, to fellow prawfs: as folks like Dan Katz and Oliver Goodenough keep reminding us, this is coming to the rest of the law. Right now, the advances seem mostly to be looming over the discovery process, with stuff like predictive coding threatening to be the second level of the inexorable process of stripping the legal profession of the rents generated by document review (where outsourcing and offshoring were the first), as well as to relatively small-scale stuff like parking tickets, leases, etc. for small players. But as the technology gets more sophisticated, it has the potential to supplement or replace lawyers in more areas of law. (Right now, the most hubristic claims are being made by an early-stage startup called Ross... but what happens if those claims turn out to be even sort-of true?) What can we as law professors do about it?

One option is to get a lot better about teaching our students to be more comfortable with technology, as users as well as creators, even to the point of trying to teach them programming and machine learning. That's a strategy I'm interested in exploring further, but I also have some skepticism about it. It doesn't obviously follow from the danger of technology supplanting lawyers that the lawyers who will be best positioned to survive are those who are capable of operating in both domains. Whether that's true depends on the shape of the ultimate market: will it actually demand people with both legal skill and technological skill (perhaps to translate from one to the other), or will it favor people with pure technological skill plus a handful of really good lawyers to handle the most high-level work? My crystal ball isn't sharp enough to tell me, though I'm encouraging my students to tech up to the extent possible in order to hedge their bets. But what else can we do?

Posted by Paul Gowder on February 24, 2016 at 06:55 PM in Life of Law Schools, Science, Teaching Law, Web/Tech | Permalink | Comments (0)

Is this our next Supreme Court justice?

Perhaps it's all a trial balloon, but readers might wish to take a look at this article, which is suggesting President Obama may nominate Nevada governor (and Republican) Brian Sandoval to the Supreme Court.  If the idea is to generate an internal fight among Senate Republicans, the strategy may pay off.  (It might also annoy quite a few progressives, but that's a different matter).  Over at Sentencing Law and Policy, Doug Berman offers some additional insights on this OSU alum. 

Posted by Miriam Baer on February 24, 2016 at 06:01 PM | Permalink | Comments (0)

CFP: Rule of Law-Religious Perspecives

Journal of Law, Religion & State

International Conference: Rule of Law – Religious Perspectives

Call for Papers

The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from—and stand in opposition to—state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.

In this conference we seek to study this tension and discuss the following questions:
  • Does religion (in general or a specific religion) accept the rule of state law?
  • What are the boundaries (if any) of such acceptance?
  • In what cases would religion challenge state law and in what cases would it seek exemptions?
  • Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
  • What other policies should states follow in response to these tensions?

Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:

  • What is the position of religion with regard to the concept of law and the rule of law?
  • Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
  • The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law—and by what kind of law: law of nature, morality?

These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.

Submissions are invited on the themes outlined above. An abstract of 500 (max.) words should be sent to [email protected] no later than­­­­­­ April 15, 2016. Please indicate academic affiliation and attach a short CV. The conference committee will notify applicants of papers acceptance by the beginning of June, 2016. The participants will be required to submit a first (full) draft of their papers three weeks before the conference. The final papers will be published in the Journal of Law Religion and State subject to review.

The organizing committee:

Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel

Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

Posted by Howard Wasserman on February 24, 2016 at 01:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Tuesday, February 23, 2016

Secrecy's Procedural Exceptionalism

It has been fun in my last several posts to share with you some of my research on the commercial use of FOIA, which I report in my forthcoming article FOIA, Inc. But I am eager now to lay out some of the ideas I am working on in a current draft about how secrecy, and in particular secrecy based on national security justifications, arises in litigation. In my newest draft, I argue that in a wide variety of contexts, when the government makes claims that relevant evidence cannot be disclosed based on national security concerns, courts’ exempt those claims from the default procedures used to test ordinary secrecy claims (like privilege), and instead fail to meaningfully police the boundaries of necessary secrecy.

So how do we usually treat secrecy claims in litigation? Courts, through procedural rules and sometimes common law practice, have generally used the default processes that pervade the American justice system. These processes require maximum possible adversarial testing of disputed claims, while using second-best inquisitorial options when adversarialism is insufficient to resolve the dispute. For example, in civil litigation, when a party asserts a privilege claim, the rules provide that the party “describe the nature of the [information not] disclosed . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” This rule is expressly designed to promote adversarial testing of the claim. And in a wide variety of contexts, courts have stringently asserted the right to review the disputed records in camera when the parties’ submissions are insufficient to decide the matter. This is true even when perhaps the most important personal privilege we recognize—the Fifth Amendment right against self-incrimination—is at stake.

But when the claim of secrecy is founded on national security interests, procedural safeguards to test whether the information truly is protected on that basis are, in my view, routinely abandoned. Take, for example, litigation in which the government asserts the state secrets privilege. Theoretically, the state secrets privilege is like any other litigation privilege, and would be subject to the procedures I just described. In reality, courts have abandoned those procedures in several important ways. First, the government has been permitted to assert the state secrets privilege at the outset of the litigation, before any discovery request has been made or any particular records or information is at issue. Of course, this means that no privilege log has been created. Instead, the debate about the applicability of the state secrets privilege occurs almost entirely in the abstract or hypothetical. Second, courts allow the privilege to protect not only material that would cause national security harm, but a halo of information around the privileged material that, while not privileged itself, might risk inadvertent disclosures or unanticipated harms. And third, parties are precluded from relying on sources of information that are nonprivileged to demonstrate the same facts as the court concludes are protected by the state secrets privilege.

As a result, it is nearly impossible for the party opposing the state secrets privilege to craft arguments or gather evidence that might persuade a court that the claim of privilege is unfounded. Moreover, invocation of the privilege early in the litigation has in some circumstances resulted in dismissal of the lawsuit outright or, in other circumstances, prevented plaintiffs from gathering sufficient evidence to demonstrate they have standing to sue, which in turn also results in dismissal. In particular, the state secrets privilege has routinely prevented courts from reaching the merits of legal challenges to post-9/11 extraordinary rendition and secret surveillance programs.

The same dynamic plays out in criminal contexts. One area in which the government asserts national security secrecy arises when criminal defendants seek disclosure of underlying authorizations for secret surveillance through which evidence was gathered against them. Normally, a criminal defendant has access to a criminal warrant and supporting affidavit in order to contest the legality of the search. In the national security context, however, defendants are not, as a practical matter, able to access those materials, and sometimes have no way of knowing a secret search even occurred.

For example, under the Foreign Intelligence Surveillance Act (FISA), a specialized court, the work of which is all classified, authorizes surveillance for national security investigations. Though criminal prosecution is not the stated goal, evidence gathered can later be introduced in a criminal proceeding. FISA appears at first blush to provide for the possibility of adversarial testing of the underlying legality of the search, because it requires the government to notify the defendant when it plans to use evidence “obtained or derived” from FISA or its amendments and the defendant may then move for disclosure of FISA materials to suppress the evidence.

However, if the Attorney General certifies that disclosure would result in national security harm, the court skips straight to an ex parte, in camera review of the materials. Even that review does not purport to test whether there is a security risk, only to evaluate the legality of the surveillance, and to determine whether disclosure to the defendant is necessary to making that ultimate determination. In no case since FISA’s inception in 1978 has a criminal defendant ever obtained FISA materials under this provision, providing at least some empirical evidence that the second-best inquisitorial methods here are not exercised as stringent oversight.

And that is when the defendant knows a secret search has happened. What happens when the defendant doesn’t know? As came to light recently, from 2008 to 2013 the Department of Justice took the position that the government need not provide notice to a defendant that it obtained evidence under certain FISA authorities if it wasn’t going to be directly introduced in the criminal trial, but was only used as a basis to find further evidence that would be introduced. DOJ still takes that position with respect to searches pursuant to executive order.

In both of these types of cases, criminal defendants are essentially prevented from challenging not only the decision to keep the underlying surveillance materials secret as necessary for national security, but also the merits of the constitutional claim about the illegality of the search. Akin to the state secrets cases, this can shut down whole classes of challenges to government activities.

There is no question that there are important matters of national security that are subject to valid claims of privilege. As I’ll describe in my next post, however, the fact that exceptional procedures used to test the claims of secrecy need in this area routinely fall short of our default litigation methods poses serious problems for the accuracy of outcomes and legitimacy of the judiciary.

Posted by Margaret Kwoka on February 23, 2016 at 01:13 PM | Permalink | Comments (0)

Monday, February 22, 2016

Fellowship: HLS Program on Corporate Governance

The Harvard Law School Program on Corporate Governance is seeking applications from highly qualified candidates who are interested in working with the Program as post-doctoral fellows or senior associates in the fields of corporate governance and/or law and finance. It is an excellent opportunity for someone with a corporate law or similar background who is interested in a career as a law professor or other pursuits in academia. Applications will be considered on a rolling basis.  Any candidates who are interested in the Fellowship or would like more information are very welcome to email the coordinator of the Program, at [email protected].

For more information about the position, including required qualifications and application materials, please visit the program website.   

Posted by Howard Wasserman on February 22, 2016 at 09:04 PM in Teaching Law | Permalink | Comments (0)

Recency bias, Scalia's successor, and the First Amendment

There has been a lot of discussion about the fate of various likely 5-4 cases from this term and recent 5-4 decisions should Scalia's successor be appointed by President Obama or President Hillary Clinton. Ron Collins has a post on the 5-4 free speech cases in which a Democratic appointee likely would vote differently than Scalia, perhaps leading to these decisions being overturned in short order.

But I wonder how much it will matter for many of these cases. Citizens United is still only doing the work started by Buckley v. Valeo (for campaign-spending generally) and Bellotti v. Bank of Boston (protecting corporate speech), while overturning one outlier case (Austin v. Michigan Chamber of Commerce). Morse v. Frederick was a bad decision and a wide expansion of what qualifies as "in-school" speech, but students were losing most cases (especially involving t-shirts)  just under the Tinker balancing. Garcetti v. Ceballos categorically removed job-related-speech from the First Amendment's reach, but the prior requirements under Connick and Pickering still largely worked against employees. In other words, many of these cases did not revolutionize First Amendment law or dramatically depart from prior law, as much as they sharpened already-speech-restrictive doctrine. The one exception may be the union-fee cases--both this Term's Friederichs, as well as two other recent cases questioning the permissibility of union-fees and leading us to Friederichs.

Posted by Howard Wasserman on February 22, 2016 at 04:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Sunday, February 21, 2016

Frank Pasquale on Law Schools' "double binds"

For the past few years, I had the pleasure of serving on the Editorial Board of the Journal of Legal Education with Prof. Frank Pasquale (Maryland), who was kind enough to share with me a paper he and I discussed, called "Synergy and Tradition:  The Unity of Research, Service, and Teaching in Legal Education."  Here's the SSRN abstract:

Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)

Like The Man says, "highly recommended."

Posted by Rick Garnett on February 21, 2016 at 04:21 PM in Rick Garnett | Permalink | Comments (12)

Friday, February 19, 2016

The Grand Jury as Democratic Sounding Board

In an earlier post I noted that Cuyahoga County Prosecutor Tim McGinty claims to be using grand juries in police use of deadly force cases in their investigative role, rather than their charging role.  This leads to the question:  why use an investigative grand jury in these types of cases?

McGinty’s answer, here, is that this is one way to fulfill his pledge to make the “Criminal Justice System more transparent, professional and accountable.”  He explains, “It was clear we needed a more rigorous, independent investigation of police use of deadly force cases.”  McGinty wanted to “to end the traditional system where the prosecutor privately reviewed police reports, then decided if an officer should be charged,” with no input or review from other groups.

McGinty thus decided to take all police use of deadly force cases to a grand jury:  “Although not required by Ohio law, I now have all evidence reviewed not just by the prosecutor or this office, but by the citizens of the Grand Jury sitting as an investigative panel.  They hear all the evidence and make the final call.”

Is there any merit to this approach?

The first thing to notice is that McGinty seems to be using the grand jury in a new role—grand jury as democratic sounding board—rather than either of the two traditional roles of sword and shield.  McGinty claims to be using the grand jury in its investigative role (sword), but he does not give any reasons why he needs the tools provided by that role to carry out these investigations.  His explanation for why he is using the grand jury does not refer to the grand jury’s investigative powers, but to its possible role as an accountability and transparency mechanism.  And when a grand jury is serving as a shield, the prosecutor is attempting to overcome the (meager) protection of the grand jury.  That’s not what is happening here either.

Instead, McGinty is using the grand jury as a sort of democractic sounding board.  “Democratic,” in the sense that a grand jury is a representative body.

Thus far McGinty’s approach has garnered much criticism, and done little to satisfy the public that the charging process in police use of deadly force cases is more “transparent” and “accountable.”

For one, using a grand jury provides only a very limited type of “transparency.”  The grand jury is a secret proceeding, so it does not provide any public transparency.  At most, it means that another group, outside of the prosecutor’s office, is also reviewing the evidence in a police use of deadly force case.

Another concern is that the grand jury is not very useful as a “democratic sounding board,” because the grand jury in practice does not have much independence but is heavily influenced by the prosecutor.  Thus the “independent” consideration of the case by the grand jury begins to look more like a form of political cover than a truly independent second look.

Finally, much criticism of this process relates to the fundamental issue of whether local prosecutors are actively seeking indictments—as they do in most cases—as opposed to actively discouraging the grand jury from returning an indictment—as was true in the Tamir Rice case.

This concern does not really relate to the prosecutor’s use of the grand jury as such—it relates to whether the prosecutor applies a different, far more deferential and protective, standard to local police officers than to ordinary suspects.  This concern applies regardless of whether the prosecutor takes the case to the grand jury (urging no charges) or simply announces, with no grand jury process, that in the prosecutor’s own view no charges are warranted.

Which leaves the question:  is there some way, either through reforming the grand jury process or the prosecutorial function, to improve the accountability, transparency, and neutrality of charging decisions in police use of deadly force cases?  I’ll return to this question in a future post.

Posted by Jonathan Witmer-Rich on February 19, 2016 at 12:58 PM | Permalink | Comments (1)

Wednesday, February 17, 2016

Remember Dan at Harvard

Dan markel invite alternative


To sign up for Shabbat dinner in memory of Dan Markel, please sign up at http://guestli.st/404715

To make a donation in Dan’s memory, please do so at https://donatenow.networkforgood.org/danmarkel

Posted by Ethan Leib on February 17, 2016 at 02:29 PM | Permalink | Comments (0)

Do Law Clerks Need Empathy?

Here is a very well-done remembrance of Antonin Scalia by Joan Larsen, one of his former clerks and now a Michigan Supreme Court justice. I've written frequently, and most recently here, that "[t]oo many former law clerks in the academy retain an adolescent love of their judges," that the kind of filial piety the clerkship relationship often induces becomes a lifelong and unhealthy habit in them. I still think that's true, but I'm not a total monster, and this is a lovely account. It raises a specific question for me I thought I'd air. Larsen writes:

Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say. Each of his opinions needed to conform to that principle and to be written clearly, forcefully and accurately. If you could help him with that, you were useful to him. If not, then not . . . . As impatient as he may have been with our missteps, he truly valued our input. He had no use for sycophants. He wanted to get things right; and, therefore, he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion, or outcome, or legacy, or anything else. The only way to convince him was to show him that the law was on the other side (usually by peeking nervously over his shoulder as he read, and questioned, and then reread the cases). My proudest moment as his clerk was convincing him, with two sleepless nights of research into dusty old precedents, that a criminal defendant should win a case that none of the justices originally thought he should win. I’m pretty sure that was the moment he was most proud of me, too.

Conspicuously absent here as a desideratum for law clerks is empathy. There's plenty of talk and debate, and no doubt there will be more soon enough, about the value of empathy in judges. The law review database in Westlaw shows over 750 uses of "empathy" within the same sentence as "judge" or "judicial" since the turn of the century. But there is virtually no discussion of whether law clerks ought to have the quality of empathy. A search in the same period for the word "clerk" in the same sentence as "empathy" yields only 16 hits, most of which are irrelevant and the rest of which involve clerks remarking on their judge's empathy. There are, this crude search suggests, no discussions in this literature, at least not in those terms, about the relationship between empathy and law clerks

That's pretty striking and suggests a nice, unanswered question for someone to follow up on. For one thing, the literature on judges and empathy is already at the saturation point. For another, most people write on the assumption that clerks are something more than mere amanuenses, if something much less than full partners in the enterprise, and that they at least sometimes bring something to the job other than mere mimicry of their judges' own views; and there's probably plenty of overlap between people holding those views and people who believe that empathy is an important quality in judging. Without overstating it, I think the question whether law clerks also need empathy is an interesting and overlooked one. 

That doesn't mean the answer to the question is of an intricacy proportioned to its interest, but the answer might have interesting implications. As a first cut, there are two obvious answers here, with two different sets of implications. The first, obviously, is "no." Judges decide cases. Empathy may help them decide them better. But law clerks are not the decision-makers. Their job starts after the vote and consists of something between being an advanced amanuensis, writing as the judge would write, and being a cite-checking machine. If that's right, then the implication is that we should avoid the temptation to (over-) glorify the importance of law clerks, and also perhaps that we should take a more circumscribed view of what law clerks' duties are or should be. It also suggests something about judges' uses of law clerks. And perhaps it says something about their tenure too: If empathy is an important quality for judges, then when a judge has reached the point at which he or she leans heavily on clerks even at the voting stage and gives over the writing of opinions substantially to the clerks, then that judge is no longer capable of providing the added value that his or her empathy and experience brings to the process, and should leave the bench. 

One problem with this answer is that it is hardly fully consistent with what many law clerks actually do. They do a lot of the reasoning that publicly explains a judge's vote. Especially in some cases, like "screeners," they may do practically all of it. And Supreme Court clerks also have a substantial pre-vote role through their participation in the cert pool, as well as in briefing cases before oral argument. Empathy is important, on some views, not only in deciding how to vote, but in explaining the outcome to the winners and losers--especially the losers--and to the public. In some cases, perhaps a law clerk's empathetic understanding of a case can even influence or change the judge's vote.

If that's the reality, and/or if that's your normative position, then perhaps the answer should be "yes." Empathy is an important quality in law clerks, and should be one of the selection criteria for judges in selecting them. Perhaps it should be especially important in an era in which federal appellate judges and Justices are cast from a narrow mold--elite school-to-elite practice-to-elite lower federal court judging--and thus may need law clerks to provide some of the empathy that might not flourish in such a circumscribed existence. The implications of this position are arguably problematic too, however, quite apart from the question whether it delegates too much of the judicial task (if empathy is a key part of the judicial task) to law clerks. Law clerks are generally chosen from within an even narrower and more elite-favoring pool than judges. Just as important, empathy is not a question of background alone: it's a quality that develops with exercise and experience, something that law clerks necessarily lack. Maybe those who believe empathy is an important quality for judges ought to advocate for hiring law clerks who are not only diverse in background but older and more varied in their lifetime experience. Or maybe, interestingly, those who believe empathy is important for judging should be arguing that law clerks ought to be much more limited in their duties--that they really should be glorified secretaries and cite-checkers, and that their role in both pre-vote work, like the cert pool, and post-vote opinion writing, must be more limited than it often is today.


Posted by Paul Horwitz on February 17, 2016 at 09:23 AM in Paul Horwitz | Permalink | Comments (1)

The New Supreme Court and the Jurisprudence in Exile

During the past 20 or so years, the Supreme Court’s more liberal justices have created a kind of jurisprudence in exile. This is most apparent in areas like campaign-finance, sovereign immunity, the Second Amendment, and taxpayer standing in Establishment Clause cases, where more conservative majorities have repeatedly defeated exasperated four-Justice dissents. A similar point could be made about areas like abortion rights and the exclusionary rule, where there are sometimes defections but also 5-4 splits in key cases.

Yet the old five-Justice bloc is no more, and a new one might soon arrive. Let’s assume something that seems plausible but remains very far from certain—namely, that Justice Scalia’s ultimately confirmed replacement has a judicial philosophy that resembles Justice Sotomayor’s or Justice Kagan’s. And let’s further assume that the resulting nine-Justice Court retained the same personnel for a significant period of time. Would the Supreme Court suddenly disregard Citizens United and other controversial rulings, in favor of the dissenting opinions in those cases? Would the jurisprudence in exile reclaim the throne?

Here are a few predictions, given the assumptions above.

First, the new, more liberal Court would feel partially constrained by stare decisis, leading to precedential narrowing and other forms of gradualism that we have seen in the Roberts Court. True, Citizens United and other cases are so opposed in some quarters that Democratic presidential candidates have essentially proposed a “litmus test” that any of their nominees must be prepared to overrule them. And Justices chosen in this way would likely also agree that the precedents at issue are misguided. But precedential reversals occasioned by personnel changes are often thought to undermine the rule of law. That idea, at any rate, was central to the rationale of Planned Parenthood v. Casey, which refused to overrule Roe v. Wade after a personnel change. And a similar dynamic seemed silently to influence Chief Justice Roberts and Justice Alito, who slow-pedaled major rulings by engaging in gradualist decisions, including in the area of campaign finance. Given that the Roberts Court has been heavily criticized in its first decade for “changing the law” in a conservative direction, it would be somewhat awkward for those critics now to insist on an even sharper turn in the opposite direction.

Second, at least some lower courts would pay greater attention to the jurisprudence in exile and, as a result, would adopt relatively narrow readings of the Court’s more conservative rulings. This trend would arise for several mutually reinforcing reasons. Many judges are simply pragmatic about these things: all things being equal, they would prefer not to be reversed. And that commonsense intuition might soon point toward the jurisprudence in exile.  Moreover, that approach has a certain intellectual pedigree. While lower courts are generally barred from overruling higher-court decisions, there is no comparably clear prohibition against narrowing from below. Moreover, there is a respected intellectual tradition in favor of the “predictive model” of vertical stare decisis, which maintains that lower courts should generally do what they predict a higher court would do. Judges may tend to adopt this approach when they happen to agree with the higher court’s disposition. And after seven years of Democratic appointees to the federal bench, most circuits would now be on the same wavelength as the hypothesized new Supreme Court majority. These factors could add up to an unprecedented degree of narrowing Supreme Court precedent from below.

Third, advocates at all levels of the judiciary would shift their attention away from separate opinions by Justice Kennedy and toward the jurisprudence in exile. This shift in attention would be both a consequence and a cause: that is, it would occur because advocates understand the basic trends discussed above, and it would also add fuel to those trends. To be clear, advocates would continue to care about authoritative precedent, as they always have. But when leavening their conventional precedential arguments, advocates would realize that it is no longer so important to appeal to Justice Kennedy’s concurrences and dissents, since he is no longer so likely to be the marginal vote. Instead, it would be more valuable to master the jurisprudence in exile. That is, advocates would know that the jurisprudence in exile would hold sway in the newly constituted Supreme Court. And lower courts would know that, too. Advocates would feed that appetite. In some contexts, we might even see a new norm in favor of considering dissenting opinions. If that sounds hard to believe, just look at how many times the Citizens United majority and winning briefs cited dissenting opinions.

Fourth, as the newly constituted Court engaged in gradualist legal change and began to generate its own jurisprudence, the Court’s new case law would dilute the importance of the jurisprudence in exile. Again, the causes would be mutual and reinforcing. The newly constituted Court would feel awkward about citing too often to dissenting opinions, and over time it would generate an increasing store of its own recently authored, conventional precedents to rely on instead. The new precedent would also be more valuable: it would be influenced by whoever is ultimately added to the Court, and it might be more cautious in scope and wording than the non-authoritative proposals previously aired in dissenting opinions. The new Court might even repudiate some of the jurisprudence in exile. Recognizing all this, lower courts would be more interested in what the current Justices think than what their predecessors wanted. And, again, advocates would follow suit. The jurisprudence in exile would therefore have a key role only in the early years of the new Court. It would facilitate the legal system’s gradual transition toward a revised jurisprudence. But, before too long, more conventional, long-term citation practices would be restored.

At the end of the process described above, what would have happened? Many conservative precedents would have been narrowed in the Supreme Court—or, to use a recently popular if pejorative term, conservative rulings would be subjected to “stealth overruling.” Additional conservative precedents would have been narrowed from below, as lower courts adjusted their case law to the new vertical reality. And a few especially salient conservative precedents, like Citizens United, would likely have been outright overruled—but by and large, those reversals would happen only after a delay, perhaps after the new majority had issued a warning shot or two. In other words, we would likely see a more liberal version of the controversial legal changes that have marked recent years.

Again, all of this is predicated on the assumptions noted at the outset, so none of this may come to pass. Still, it’s worth testing whether our intuitions on precedential change would themselves change, if the proverbial shoe were on the other foot.

Posted by Richard M. Re on February 17, 2016 at 08:15 AM | Permalink | Comments (19)


I do not have time to write this out fully for now, so I will just throw the idea out there for discussion, since we have been discussing The West Wing:

Donald Trump is Jeb Bartlet. That is, Aaron Sorkin wrote Donald Trump as president/presidential candidate in Jeb Bartlet, in terms of the "game-on, don't stand on ceremony, tell the dummies how it is" approach to talking to everyone. Bartlet's first scene on the show had him telling a group of religious-conservative political activists to "get your fat asses out of my White House."* Can you not picture Trump saying the same thing? The only difference, of course, is that Trump is doing it in service of a conservative/populist/angry-alienation agenda rather than a '60s Great Society liberal agenda?

[*] Mind you, that scene also contained one of the great free speech quotations of all time. When one of the activists asked whether the fact that any child could buy pornography for $ 5 was too a high a price for free speech, Bartlet responded, "No. But $5 is too high a price to pay for pornography."

Posted by Howard Wasserman on February 17, 2016 at 08:01 AM in Culture, Howard Wasserman | Permalink | Comments (4)


I had though of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

But put that to one side. I'm also of the opinion that if a liberal justice had died while George W. Bush was in the last year of his presidency, liberals would have strategized to hold up his ability to nominate a successor. It is the President's duty to nominate a successor; it is the Senate's job to do with that what it will. The Constitution says no more than "advise and consent," and the idea that the Senate would be acting against the text of the Constitution in withholding an appointment seems to me to read more into the Constitution than is there. The point of a self-checking tripartite government is precisely to engage in a power-struggle to see who can make their point of view prevail. Odds are, it will be the Senate.

Of course, that process should be—in an ideal world—one that is guided by moral principles. I am not a person who believes in the realpolitik or "dirty hands" model of politics, in which there is a separate sphere of morality that operates in the political domain and that holds that the ends justify the means in promoting the interests of one's faction. That, famously, was Machiavelli's position, and Machiavelli was wrong. Nonetheless, in a pluralistic world, there is room for disagreement; and there is certainly a reasonable position that says that half a term without a justice will not ring in the end of the world. Of course, if the President nominates reasonable candidates, and the Senate fails to nominate them, then the Senate will be acting unreasonably and perhaps immorally. Unfortunately, it is within the Senate's power to act unreasonably and immorally (one might think that, on certain topics at least, that is its default position). 

There are, however, a couple of fallacious arguments out there. The first is that there is some tradition that authorizes such conduct. There is no tradition, because the situation is incredibly rare. I clerked for two judges who were Carter lame-duck appointees. So certainly the tradition does not exist for lower-court judges. And there is simply not enough of a sample size for there to be a tradition at the Supreme Court level. 

There is also no Thurmond Rule worth adhering to. The name of the rule gives it away. 

Finally, the idea that Justice Scalia would have wanted a conservative (Judge Easterbrook, some have said) as his successor is an interesting fact, but somewhat irrelevant. I'm pretty sure Thurgood Marshall's preferences weren't honored; and there is certainly no tradition of a justice nominating her successor. 

Which brings us back to politics. At some point, politics is about power. It is what makes it a specialized branch of morality. And the current Senate has all the power. It's arguments for exercising that power should be moral ones, not some set of made up rules to bamboozle us into thinking that they are just following precedent. Some said at election time that the President should have put more effort into ensuring a Democratic Senate; he is now reaping that whirlwind. As are we all. 

Posted by Eric Miller on February 17, 2016 at 12:32 AM | Permalink | Comments (4)

Tuesday, February 16, 2016

The Missing Discussion of Race and Xenophobia in the Ted Cruz Citizenship Controversy

The debate about Ted Cruz’s eligiblility to the presidency, whether he is a natural born citizen (NBC), shows no sign of abatement or conclusive resolution. Eric Posner, Einer Elhauge, Robert Clinton, and Sol Wachtler voted nay, Jack Balkin and Laurence Tribe debated the issue at Harvard, Akhil Amar supports Senator Cruz’s eligibility here and here. Former university president Donald Trump has threatened a lawsuit; according to his website, Ted Cruz is eligible. And in a free country, he should be.

Nevertheless, irony abounds, as Professor Tribe wrote, because Senator Cruz is an originalist, but the best arguments for his eligibility are based on progressive readings of the Constitution and US law.  There is another level of irony not yet considered.  Cruz’s immigration policy is punitive and harsh, and has introduced what seems to be a patently unconstitutional law to expatriate U.S. citizens. The joke is that historical discrimination embodied in US immigration and naturalization law, of a type that he apparently hopes to revive, make his case for natural born citizenship a heavy lift.

Michael Ramsey, an important and influential scholar on the topic, recently updated his paper about British practices, which argues that "the Framers conveyed to Congress, through the naturalization clause, the power to define 'natural' birth."  While there is wide agreement that the question is difficult, the paper has persuaded me and, for example, Akhil Amar and Jack Balkin.

Critically, the paper reserves the question of whether Congress actually exercised this power to benefit Senator Cruz. (p. 37, n.138) Evaluation of that question requires recognizing the racism, sexism, and xenophobia dominating U.S. citizenship (and immigration) law from the founding until the civil rights revolution.  For example, the naturalization acts of 1790 and 1795 restricted naturalization to "free white persons," a qualification in effect for more than a century and a half.  Reading the relevant legal materials in light of these traditions raises doubt that Congress granted natural born status to people in Ted Cruz's situation.

Here is the problem. Congress only once purported to grant NBC status to foreign-born children of U.S. citizens, in the Naturalization Act of 1790. In the Naturalization Act of 1795 and every subsequent citizenship law, including the Fourteenth Amendment, Congress never mentioned "natural born." Congress grants only citizenship.  Many commentators contend that these acts are critical.  The 1790 Act shows that Congress intended to grant foreign-born children of U.S. citizens natural born status (and had the power to do so, given that many members of the first Congress were Framers of the Constitution.)   The 1795 Act shows that Congress intended to grant NBC status even without using the words “natural born”, and, by implication, has done so ever since. 

Professor Ramsey's paper finds the legislative history of the 1795 Act inconclusive regarding the import of the elimination of natural-born status, and that the 1795 law’s main effect was to extend the period of U.S. residence required for naturalization. (9-10) I read the 1795 Act as much more restrictive.  In addition to lengthening the residence requirement, the 1795 law: (1) established a monitoring regime by creating the longstanding requirement of filing a declaration of intention to become a citizen; (2) strengthened the required oath, requiring, in addition to supporting the Constitution, that the person "absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever"; (3) required renunciation of any hereditary titles; and (4) excluded from naturalization those convicted of having joined the army of Great Britain during the Revolutionary War.  The 1795 Act unquestionably reflects greater suspicion of noncitizens than its predecessor; perhaps it was a step toward the Alien and Sedition Acts a few years later. 

The 1795 Act's most critical change linked the kind of citizenship granted to foreign-born children of U.S. citizens to that granted foreign-born children of naturalized citizens.  When their parents naturalized, the 1790 Act had made noncitizen children under 21 "citizens of the United States."  In a separate provision, the 1790 Act made children of US citizen parents born overseas "natural born citizens."  The 1795 Act merged the two provisions. The combined provision made children in both categories "citizens of the United States." Thus, in 1795 Congress did not merely eliminate the words "natural born citizen;" it apparently intended two formerly distinct groups to be treated identically.  It is unlikely that Congress used "citizen" synonymously with "natural born citizen." That is, presumably, Congress did not mean to grant noncitizens presidential eligibility if they became citizens as teenagers upon their parents' naturalization. 

Under the circumstances, it seems fair to apply the canon that "change of language strongly implies an intent to change the object of legislation," United States v. Fisher, 6 U.S. 358, 388 (1805) (Marshall, C.J.), and therefore to conclude that the 1795 Act reflects the decision of Congress not to grant natural born status to overseas-born children of U.S. citizens.  That many in Congress in 1795 were Framers is as important as it was with the 1790 Act: It is impossible that the significance of voting to eliminate the words “natural born” was lost on James Madison and other drafters of the Constitution. I am aware of no indication in text or legislative history that Congress in any later naturalization or citizenship legislation desired to grant “natural born” status to any children born out of the United States.  (I assume that in recent decades Congress has given the issue little thought.)

There is another curve-ball.  Congress sometimes declares noncitizen adults, retroactively, to have been citizens "at birth."  For example, in 1994, Congress enacted 8 USC 1401(h), granting citizenship and nationality "at birth" to people born overseas to U.S. citizen mothers before the date in 1934 when female U.S. citizens were granted equal rights to transmit citizenship to their children.  Congress can at its pleasure grant retroactive citizenship for many purposes (such as to make the new citizen's existing children, retroactively, U.S. citizens "at birth"), but it seems doubtful that Congress can make NBCs out of people who were not citizens at all when born.  If so, then it cannot be assumed automatically that Congress intends to exercise its NBC power every time it grants citizenship “at birth”; perhaps Congress simply wants the beneficiaries, in law, never to have been "aliens" or has some other motive.

Senator Cruz’s citizenship did not rest on the long-superseded 1795 Act; the applicable provision (Section 301(a)(7) & (b) of the 1952 Immigration Act) was written in the 1930s. But that also was the era of the "white America" naturalization policy.  As discussed before, Congress granted people with one US citizen parent only conditional citizenship, which automatically expired unless specific steps were taken to retain it. The retention requirement was imposed because of the potentially questionable loyalty of a person with only one US citizen parent, born in a foreign land. 

Applying “strict construction” and “neutral principles” to the words enacted by Congress, Senator Cruz may be in trouble. To conclude that he is an NBC requires, first, acceptance of Professor Ramsey’s compelling but controversial theory about the breadth of congressional power under the naturalization clause. Next, it requires the assumption that Congress sub silentio intended to grant natural born status, when their last word on the subject was directly to the contrary. Third, it requires the assumption that by citizenship “at birth” Congress always means “natural born citizenship,” when the 1994 amendment, I believe the most recent, makes clear that is not the case. Finally, it requires an assumption that Congress intended to grant presidential eligibility to a class that it distrusted to the point that it made their citizenship temporary.

Again, Senator Cruz should be eligible; the natural born citizen clause is confusing and illiberal. The cleanest resolution would be constitutional amendment; next best would be a statute not about Cruz as an individual but declaring that all citizens at birth are natural born. For whatever reason, both seem nonstarters. But there are other routes, based on progressive readings of the law, or originalism rooted in the Reconstruction Amendments.

On the principle that amendments can impliedly repeal earlier, inconsistent constitutional provisions, perhaps the NBC clause did not survive enactment of the Fourteenth Amendment. The Fourteenth Amendment itself, notably, makes no “natural born citizens,” those born in the U.S. are merely citizens, yet this is the only provision for citizenship in the Constitution. The Framers of the Fourteenth Amendment must have contemplated that those born in the United States would be eligible to the presidency, yet it made them mere citizens. Perhaps this should be read as a determination that citizenship at birth suffices.

Alternatively, perhaps on the theory that acts of Congress and jurisprudence created in a pre-modern era should be eyed suspiciously, the broad immigration and naturalization powers recognized in Congress should be subject to far more searching judicial review. On that principle, it might be that, contrary to current doctrine, Congress may not make citizenship contingent. Indeed, perhaps Senator Cruz is a natural born citizen because, again contrary to current law, Congress must grant unconditional natural born citizenship to children of U.S. citizens born overseas.

Finally, relying on the democracy canon, Rick HasenSandy Levinson, Akhil Amar and others propose that there should be a heavy thumb on the scale on the side of finding Senator Cruz eligible. 

Any of these, or others, might prove sufficient to make Senator Cruz eligible. But they would also require invalidation of some of his beloved legal ideas. So I hope The Donald files a lawsuit, and Senator Cruz is found eligible, but based on genuinely neutral principles of law that will be equally available to others who do not happen to be in the Senate.

Posted by Jack Chin on February 16, 2016 at 08:11 PM | Permalink | Comments (1)

The West Wing may not be the best source for resolving political problems

Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.

Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off.  I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).

First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring.  We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.

Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**

[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle. 

[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.

Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.

Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).

Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):

    Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.

    Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.

   Lang: Well, thank you for that.

But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.

I know, I know--it is only a TV show.

Posted by Howard Wasserman on February 16, 2016 at 07:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Law review strategy

Other Prawfs bloggers have already pointed out the Yale Law Journal's helpful report on when authors submit manuscripts to law reviews.  Most mainline reviews appear to be open, according to Scholastica's fancy, automatically updating table of law reviews.  As I fix the footnotes within my own manuscript, I cannot help but wonder why some reviews open for business in January, while others wait for either the first week of February or later.  Is it purely idiosyncratic, reflecting a particular school's calendar (i.e., when the semester starts), or does it signal a deliberate choice?  And if it does reflect a deliberate choice, why choose an early or late date? Can a law review time the submissions cycle any better than its peers?  

Posted by Miriam Baer on February 16, 2016 at 05:48 PM | Permalink | Comments (1)

What Do People Submitting to Law Reviews Want?

From time to time, PrawfsBlawg threads have included thoughts about what those submitting to law reviews want from law reviews. (For example, to receive rejections, rather than just no response at all.) Now that we're getting into the thick of law review submission season, I'm curious whether people have thoughts about what they'd like from Scholastica, Expresso, and other future tools used to submit to law reviews. ("Free submissions" is definitely one thing -- and a valid thing -- other thoughts also very much welcomed....)

Posted by Sarah Lawsky on February 16, 2016 at 12:48 PM in Law Review Review | Permalink | Comments (19)

Disclose, disclose, disclose

Affirmative disclosure was the transparency promise of the Obama administration. Yet, many efforts, like data.gov and FOIAonline have met with mixed reviews. Sometimes agencies have a hard time figuring out what to publish that will be useful and sometimes the right data is published but in such a way that makes it hard for folks to find what they are looking for. Nonetheless, affirmative disclosure—publication of government information without waiting for a public request—still holds great (if often unrealized) promise. And, in fact, I think it can be the way to address the central problems posed by the volume and character of current commercial FOIA requesting practices, which I describe in my forthcoming article, and in my previous posts here, here, and here.

Let me explain why I think affirmative disclosure offers unique promise in this area. As it turns out, commercial requesters tend to request the same type of records over and over again. This is true both of regular commercial requesters and of information resellers. Let me give you a couple of examples.

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At FDA, here is a typical commercial requester, INC Research, and you can see the subject mater of its requests in the last column on the right. Over and over and over again, INC Research requests Form 483s and other inspection related records. Obviously, each record concerns a different facility and inspection that took place, but the type of record it requests is routine.

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Here is another great example. At FDA there is a group of commercial requesters who do nothing but request the FOIA logs themselves. JH Barr is one such requester, and you can see that all of its requests are simply for different time chunks of the FOIA logs. Incidentally, some evidence suggests that requesting the FOIA logs is merely a way of seeing what other people are requesting about you or your client. (This is also, of course, how I obtained information about who is requesting what.)

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In contrast to the commercial requesters at FDA, news media requests vary widely in subject matter. Here for example, is a list of requests from Bloomberg News, which ranges in subject matter from cybersecurity threats to correspondence between senior FDA officials to results of a survey.

Commercial requesters at other agencies are similar in their practices. At DLA, essentially all of the commercial requesters are asking for bid information regarding defense contracts, identified by solicitation number. And at SEC, lots of top requesters, including resellers, request entirely exhibits to required SEC filings.

Of course, not every commercial request is this routinized, but the large majority are. Given that commercial FOIA users have information needs that are very routine, one-by-one FOIA is a highly inefficient way of meeting those needs. Instead, I propose that agencies affirmatively disclose whole categories of records by publishing searchable, downloadable, indexed databases, which would guarantee equal access to the information for all and would obviate the need for this kind of request. By contrast, the example of the varied news media requests demonstrates the value of a one-by-one FOIA request model, which may well be the best way to serve journalists interests in reporting the news.

Increased use of affirmative disclosure in a targeted way would take the pressure off of FOIA and would improve government transparency in a host of ways. For the agencies, affirmative disclosure would certainly cost money, but it would save them from having to respond to thousands of individualized requests at the costs of potentially millions of dollars. This would have the secondary effect of potentially freeing up agency FOIA offices resources to service the requests that go to the heart of FOIA, potentially making FOIA faster and more useful for journalists and watchdog groups.

Second, it takes back a traditionally public function and eliminates a private subsidy. Once the records are published, pure information resellers who do nothing more than warehouse free or low cost federal records and sell them at a profit would no longer be able to trade in what should be public commodities.

In fact, the potential public and private benefits from affirmative disclosure reveal why government publication is legitimately for the public good. For private industry, it may even pose a benefit to the market by leveling the information playing field for companies and promoting competition by smaller businesses that may not have had the resources to access records through resellers. For the public at large, affirmative disclosure provides an opportunity for unanticipated public benefits. Researchers, news media, community groups, and concerned individuals may find uses for the data in the production of knowledge or citizen engagement. Once the agency has gone to the trouble of searching for, reviewing, and making ready to distribute these records, the public should reap the maximum possible benefit from the agency’s efforts.

While affirmative disclosure won’t and shouldn’t prevent all commercial requesting, nor does it necessarily address every concern that may arise about the practice, my data suggest that targeted interventions in that realm may alleviate the use of FOIA for purposes not within its core function.

Posted by Margaret Kwoka on February 16, 2016 at 10:39 AM | Permalink | Comments (0)

Monday, February 15, 2016

Controversial clients

Since the days of Robert Bork's failed nomination, the conventional wisdom has been that the best Supreme Court nominee is one who has been fairly reticent about how he would rule on specific issues.  The less said (and I guess, less written), the better.

But what about one's past as a lawyer?  Should the identity of one's clients play a role in either one's nomination or selection?  If a person is otherwise highly qualified, should the president decline to nominate that lawyer if she represented clients whose conduct some find particularly repugnant or controversial?

All of the "short-list" articles I have read so far tell me that either Sri Srinivasan and Jane Kelly are eminently qualified to serve on the Supreme Court. Yet in the comment section to one of these articles, commenters suggested that Jane Kelly should not be nominated because she was a public defender (because this may be unpopular with some Republicans), and this article cites as potentially problematic Srinivasan's previous work defending Jeffrey Skilling in his famous "honest services" appeal, and Exxon and another company in a pair of Alien Tort Act cases (rendering him potentially unpopular with some Democrats).       

At this rate, the Senate may never schedule hearings for President Obama's nominee.  So it really may not matter at all who the eventual nominee or who s/he represented while s/he was a practicing lawyer.  And I may be drawing too much from a comment section and the article to which I linked.  Nevertheless, I cannot help but find this line of inquiry troubling, particularly if it further narrows the pool of potential nominees. 

Posted by Miriam Baer on February 15, 2016 at 10:24 PM | Permalink | Comments (4)

The Peter Principle and the Supreme Court

I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.

Given that (especially # 2), some thoughts/questions as we go forward:

1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.

2) I also wonder about the following, with respect to the White House's seemingly quick rejection of a recess appointment (the Senate is, perhaps, in recess until February 22).

A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.

But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not  even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."

3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.

[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.

Posted by Howard Wasserman on February 15, 2016 at 03:42 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Sunday, February 14, 2016

Justice Scalia and Election Law

As someone who focuses primarily on election law, the implications of Justice Scalia's death are monumental. Virtually every aspect of election law might be different with an Obama appointee replacing Scalia.  From redistricting, to campaign finance, to voter ID, to the next Bush v. Gore, here is a breakdown of the various areas that may be impacted by the next Justice:


First, there is the obvious impact on this Term's one-person, one-vote case, Evenwel, on whether states must use citizen-voting age population (a count of eligible voters), instead of total population, as the measure for achieving population equality between districts.  I think this case was going to come down in favor of allowing the state to choose which measure to use, so Justice Scalia's death may not change this result.  But if he was going to vote with the other conservatives and require states to use citizen-voting age population, that probably would have been a 5-4 decision.  Now it will be 4-4, meaning that the lower court, allowing total population, will be affirmed.  There could also be an immediate impact on North Carolina's request for a stay of recent a lower court decision striking down that state's congressional maps.

Second -- and this is a big one -- the federal courts might finally be able to police partisan gerrymandering.  In a 2003 decision, Vieth v. Jubelirer, Justice Scalia wrote for a 4-Justice plurality that claims of partisan gerrymandering are nonjusticiable, because there is no manageable standard for a court to use to separate "good" politics from "bad" in the redistricting context.  Four Justices -- the so-called "liberals" -- came up with various standards to use; Justice Kennedy did not like any of the standards but wanted to leave the door open to a potential standard in the future. (The Court in essence affirmed this split in 2006 in LULAC v. Perry.) Now, if a new Justice agrees with one of the standards (such as Justice Kennedy's invocation of the First Amendment for these cases), there would be 5 votes to police partisan gerrymandering.  That is, the Court could become even more enmeshed in policing the worst political abuses in drawing district lines.  The Court could go deeper into the "political thicket."

Third, there could be an effect on the scope of redistricting decisions involving race -- including the racial gerrymandering cases under the Equal Protection Clause and minority vote dilution claims under Section 2 of the Voting Rights Act.  In essence, a new Justice may be more willing to invoke the Equal Protection Clause or the Voting Rights Act to ensure greater minority representation in the drawing of district lines.

Voting Rights Act:

A new Supreme Court appointment may have major implications for the Voting Rights Act.  Shelby County v. Holder, which effectively gutted the Section 5 preclearance mechanism, was a 5-4 decision.  There has been some concern among the voting rights community that the Court could invalidate Section 5 further if the DOJ  successfully places Texas under preclearance (under the "bail in" mechanism of Section 3), or that Section 2 (which prohibits discrimination in voting nationwide) could be in jeopardy.  But now, with only 4 true conservative votes, these aspects of the Voting Rights Act may live on much longer.  In addition, a new Obama-appointed Justice would likely uphold any new coverage formula for Section 5 that Congress could pass (although, of course, the likelihood of Congress acting is pretty slim).

Campaign Finance:

In the 10 years of the Roberts Court, the conservative majority has struck down virtually every campaign finance provision it has considered, typically on a 5-4 vote.  Of course, the most notable decision was Citizen United v. FEC.  But there have been other significant cases as well, such as McCutcheon (striking down aggregate contribution limitations) and Arizona Free Enterprise (invalidating matching funds in public financing).  Unless the new Justice holds stare decisis above jurisprudential considerations, these recent precedents are, all of a sudden, in question.  In essence, the past 10 years have been marked by significant deregulation of money in politics.  A new Justice may call the entire foundation of recent campaign law into question.

Voter ID:

In 2008, in Crawford v. Marion County Election Board, the Court ruled, 6-3 to uphold Indiana's voter ID law, which then was considered the strictest in the nation.  States around the country followed suit, passing their own strict voter ID measures.

Yet the vote breakdown of the 6 Justices in Crawford was important:  Justice Stevens wrote the plurality, joined by Chief Justice Roberts and Justice Kennedy, ruling on somewhat narrow grounds that the challengers did not have sufficient evidence to strike down Indiana's law in a facial challenge.  Importantly, the plurality left the door open to as-applied challenges with a stronger evidentiary record of the burdens the law imposed on voters.  Justice Scalia, joined by Justices Thomas and Alito, concurred in the judgment.  He would have upheld all voter ID laws on their face; Scalia disagreed with the plurality's approach to invite further as-applied litigation.  Justices Ginsburg, Breyer, and Souter dissented.

It is quite possible that Justice Stevens voted with the conservative justices, and wrote the plurality opinion, because of what I have termed "strategic compromise."  Justice Stevens may have been concerned that, if he did not write a more moderate opinion upholding the law and instead joined the dissent, then Chief Justice Roberts and Justice Kennedy may have instead joined Justice Scalia's opinion, foreclosing any possible challenges to voter ID laws in the future.   That is, without Justice Stevens taking the lead for a more moderate view, Justice Scalia's opinion could have become the lead opinion for a 5-4 conservative majority.

Without Justice Scalia, and with Justices Sotomayor and Kagan on the Court, the consideration of a voter ID law could look very different.  It is quite possible that, with an Obama appointee, there will be 5 Justices to strike down a strict voter ID law (such as Texas's, which the 5th Circuit invalidated; that court is currently deciding whether to take the case en banc).  

In sum, a new Justice could create a new majority that will look much more skeptically at voter ID laws.

Other election administration issues:

One of the problems with the Court's recent election law doctrine, as I have argued, is that the Court unduly defers to states in how they run their elections.  This means that state legislatures, the majority of which are Republican-controlled, have great leeway in enacting rules for election administration.  Under heightened scrutiny, it is usually the state that has the burden of justifying a law that infringes on the fundamental right to vote.  But the Court's recent jurisprudence has been backward on this point: it has deferred to a state's  interest, usually agreeing that a general assertion of preserving "election integrity" justifies a law that impacts voting rights.  That is, all states must do is say "election integrity," and the Court has accepted that justification at face value without scrutinizing more closely the real reason behind a law.

A new Justice will (hopefully) understand the fallacy of this approach, and instead require states to provide specific, detailed justifications for its voting rules.  This is not to say that the Court should strike down every election regulation.  Instead, it means that states must more carefully explain the precise rationale for a voting rule.

On a practical level, this might have an impact on cases about early voting, registration rules, provisional balloting, last-minute litigation (the so-called Purcell Principle), and scores of other issues.  A change in the level of detail and evidence states must provide to justify their election laws could have a major impact on the scope of election litigation -- thereby affecting the manner in which we vote.

Trump v. Clinton:

Bush v. Gore was a 5-4 decision.  What will happen if this year's presidential election goes into overtime, and the courts must become involved once again?  Although not likely, it is not impossible either.  Before Justice Scalia's death, the Court had 5 Republican appointees and 4 Democratic appointees.  If Obama is successful in appointing a new Justice, that political split will be 5-4 in the other direction.  For those who think that the Court's election law doctrine is influenced by the Justice's personal ideologies (a claim that is only partially true, in my opinion), then this shift could have huge implications on how the Court might resolve a disputed election. 

A new Justice will have an obvious impact on the hot-button issues of the day: abortion, affirmative action, gun rights, etc.  Add election law to the mix.

Posted by Josh Douglas on February 14, 2016 at 12:46 PM in Law and Politics | Permalink | Comments (2)

Justice Scalia and the Blaine Amendments

Following up on Josh's post:  For about 20 years, I've been hoping for -- and sometimes trying to contribute to to bring about -- a Court decision to the effect that the "Blaine Amendment"-type provisions in state constitutions (which, in my view, needlessly discriminate against religious institutions) violate the Constitution of the United States.   The currently soon-to-be-argued Trinity Lutheran case appeared to be a decent candidate for a case that would produce such a decision.   However, given the votes of Justices Breyer and Ginsburg in Locke v. Davey and Zelman, it seems likely that they'll endorse the lower-court opinion in that case (which allowed to Missouri deny an "application for a grant of solid waste management funds to resurface a playground on church property").

Posted by Rick Garnett on February 14, 2016 at 06:37 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

Can Dead Justices Vote?

The stunning news of Justice Scalia's passing has understandably (if, perhaps, a bit too quickly) provoked speculation about the fate of cases from this Term (especially those already argued--and, thus, voted upon) in which his vote was necessary to a majority... As Tom Goldstein noted at SCOTUSblog, we could see a bunch of orders dismissing such cases by an equally divided Court. We could also see orders setting some of these cases for reargument next Term (which is the far-more-common historical practice in cases in which the 4-4 division may only be temporary). Or we could see some combination of both. We could also see efforts by the Court to find narrower grounds in some of these cases that might command a Scalia-less majority (e.g., relying on procedural vehicles to avoid the merits). 

Whatever happens, the assumption necessarily uniting all of these analyses is that Justice Scalia's votes in all of these cases became void upon his death--i.e., that, where the decision has not yet been handed down, it doesn't matter whether his vote had already been cast (or even memorialized in a draft majority or dissenting opinion), because it was necessarily tentative up until the moment that the Court's judgment is handed down. That is certainly the practice in the Courts of Appeals (where there is far more precedent for such morbid matters), where federal law expressly outlines the powers of a two-judge panel to proceed without a third judge--and where each circuit's rules require the appointment of a new panel member in any case in which the remaining judges are evenly divided.

And there is every reason to believe that the same should hold for the Supreme Court--that the Court cannot hand down a ruling going forward based upon a decisive vote by Justice Scalia. But at least where Justice Scalia's vote is not dispositive, there's at least one equivocal precedent for noting a late colleague's views: Justice Frankfurter's dissent in D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946), which closes with the notation that “The late Chief Justice participated in the hearing and disposition of this case and had joined in this dissent.” By way of context, Gangi was decided on April 29, 1946, just one week after Chief Justice Stone had died from a cerebral hemorrhage that he suffered while reading his dissent in Girouard v. United States (the opinions in Gangi may therefore have already been finalized prior to Chief Justice Stone's passing). And even counting Chief Justice Stone's vote, the result was still 5-3 instead of 5-2 (with Justice Jackson, still at Nuremberg, recused). Perhaps even more curiously, Frankfurter's notation does not appear in the U.S. Reports, but does appear in the Supreme Court Reporter (and, thus, on Westlaw), both of which include a notation (missing from the U.S. Reports) that the dissenting opinion was amended on June 10, 1946 (six weeks after it was filed). 

It's quite possible that the reason for this discrepancy is well documented in Justice Frankfurter's papers--and on my list of things to check the next time I'm at the Library of Congress's Manuscript Division. But given that the U.S. Reports are published after the Supreme Court Reporter, I have to wonder, at least tentatively, if Justice Frankfurter (either on his own or at some of his colleagues' suggestion) eventually thought better of such an awkward notation...

Posted by Steve Vladeck on February 14, 2016 at 04:26 AM in Steve Vladeck | Permalink | Comments (7)

Saturday, February 13, 2016

Justice Scalia

Justice Scalia was a giant among giants.  It is not an exaggeration to say he was the most influential Supreme Court Justice in the past 30 years.  Whether you agreed with him or not, his importance cannot be underestimated.  

Because there have been various questions swirling around the implications of his death, I thought I would provide some answers here.

1.  What does this mean for current cases pending before the Court? The Court is now an 8-member institution.  (Tom Goldstein of SCOTUSBlog provides some thoughts on this point here.)  Even if a decision was about to be issued, it no longer has Justice Scalia's vote.  This will not make a difference for many cases, which were not going to come down 5-4.  But it could make a BIG difference in the BIG cases this term, such as Evenwel (one-person, one-vote), Friedrichs (union contributions), and U.S. v. Texas (immigration).  These cases are now, suddenly, a potential 4-4 split.  That would have the affect of affirming the lower court, without a controlling precedent from a majority. [Update: Tom Goldstein now thinks that these cases might be set for re-argument once there is a new Justice instead of having an affirmance by an equally divided Court.]  (Fisher, the affirmative action case, now has 7 Justices deciding it, as Justice Kagan is recused, so it could potentially come out 4-3, depending on Justice Kennedy's vote.)  For instance, if Justice Scalia was going to vote with the other conservatives in Evenwel, and require states to use only citizen-voting-age-population as the count for drawing district lines, now that case will be 4-4, which will change the outcome and affirm the lower court's decision allowing Texas to choose total population instead.

2.  What does this mean for a potential Obama appointee?  Senator Mitch McConnell has already said that he will not support the Senate considering any Obama appointee.  Senator Patrick Leahy has said that "It's only February," and that the Senate should do its work of confirming a new Justice.  So this will be a huge political battle.  In my view, regardless of the politics, Senator Leahy is correct here.  Senator McConnell said that "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."  I thought we all had a say in 2012 when we elected President Obama and in 2014 when we elected the current Senate.  

If Obama does want to nominate someone, he'll likely have to go with a moderate pick who can make it through the Republican Senate. Various names have already been suggested. (Here's another one to consider: I'm biased, because I clerked for him, but Judge Ed Prado on the 5th Circuit seems like a great pick!  He has been a U.S. attorney, district judge, court of appeals judge, and was appointed by two Republican Presidents.)

3.  What does this mean for the 2016 election?  This is huge.  Assuming President Obama is not able to nominate a new Justice, then the Supreme Court has just become the biggest issue in the presidential election campaign.  This is a good thing; the longest-lasting legacy of any President is the Justices (and lower court judges) that President appoints.  It's about time the American people begin paying attention.  This is not to say that Justice Scalia's passing is a good thing.  Not at all.  He was a great Justice, regardless of one's views of his opinions.  But the implications now are that the Supreme Court will loom large over the election, and that itself is a positive.

4.  What does this mean for the public's view of the Court? The Court prides itself on being the least political branch. Even though many decisions are seen as ideological (Bush v. Gore, Obergefell, etc.), the public's perception of the Court has generally remained fairly positive.  And the Justices vigorously try to protect that image -- that politics do not play into the Court's decisions.  So a negative of the Court becoming a big issue in the 2016 election is that the public's perception of the Court as apolitical will likely diminish.

5.  What does this mean for Justice Scalia's legacy? As I wrote earlier, Justice Scalia was a giant among giants.  We teach textualism and originalism much more meaningfully now because of his contributions.  He loved the law, and he made Court and its decisions so much better (not to mention so much more fun to read!).  (As someone who often disagreed with him, I know he was at least correct this term in Shapiro, when he wrote for a 9-0 Court in an election law case in which I wrote an amicus brief!)  This is truly a huge loss for our country.


Posted by Josh Douglas on February 13, 2016 at 07:12 PM | Permalink | Comments (13)

What's Obama's Best Move?

Scalia is dead. The Republicans control the Senate.  There's an election in 9 months.  Assume Obama's goal is to shove the Court as far to the left as possible, relative to the likely alternatives. What should he do?  I assume the Republicans are going to go wild in the Senate stopping anyone he appoints. We're unlikely to get Justice Elizabeth Warren/Lani Guinier/Erwin Chemerinsky any time soon.  
Here's a slightly crazy idea: is his best move to appoint a moderate or even a soft rightist, but one who is widely respected, in order to either
a) force the Republicans to block someone that'll make them look real stupid, or
b) actually get someone appointed, and hedge against the possibility of whomever a possible Republican president appoints (which could be real scary---the phrase "Justice Roy Moore" is the sort of thing that nightmares are made of, at least if you hold political views like mine---but would Ted Cruz or Donald Trump go that far?  Maybe.)?
In that light, Justice Posner doesn't sound so bad after all (the words turn to ash on my tongue!), compared to some of the possible alternatives.  
(Unless, of course, he just wants to appoint a mild-mannered young constitutional law professor in a swing state. That could work too. Shucks, though, I just can't think of anyone who fits the bill there.)

Posted by Paul Gowder on February 13, 2016 at 06:05 PM in Current Affairs | Permalink | Comments (29)

Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?

The other day Donald Trump claimed, on Twitter, that he has standing to challenge Ted Cruz's eligibility to be president.  The substantive question revolves around whether Cruz is a "natural born citizen" because he was born in Canada.

Rick Hasen, who should always be trusted when it comes to matters of election law, suggests that Trump would have standing based on the notion of "competitive standing": in essence, Cruz's (improper) appearance on the ballot makes the election more competitive for Trump.  Trump is therefore injured by having to run a campaign against an opponent who might not be eligible for the office. 

I'm not convinced.

Most fundamentally, the cases invoking the "competitive standing" doctrine all involved the government providing some benefit on some candidates but not others, thereby putting the candidate at a "competitive" disadvantage in the campaign.  In one case, Ralph Nader had standing because he objected to participating in a presidential debate sponsored by corporate donors.  He suffered an injury, as compared to his rivals, because of the decision to hold the debate in a manner that was contrary to the message of his campaign -- making the election fundamentally less competitive for him because he could not reach voters who would watch the debate.  In the cases giving "competitive standing" to political parties, there was direct evidence that the governmental action would directly cause added expenses: for example, when the Republican Party in Texas sought to remove Tom DeLay from the ballot and substitute a new candidate, the Texas Democratic Party suffered an injury-in-fact in the need to mount a completely different campaign against a different opponent.  Courts have also found an injury to a political party when the party's nominee will face stiffer competition, i.e., leading to added expenses, but this relates to the general election, when ideological lines are clearer.

Here, the added expense to Trump seems fairly speculative.  How can he demonstrate that Cruz's placement on the ballot has harmed him directly?  Maybe all of Cruz's supporters would vote for Ben Carson. Can he point to any direct campaign expenses that he has incurred, and would not have, if Cruz were not on the ballot?  That is, how does Cruz's placement on the ballot directly cause any injuries to Trump? Is it because he is the front runner, meaning that Jim Gilmore would not have had standing (before he dropped out, of course)? Further, this situation seems different from the government sponsoring a debate but having rules that effectively exclude one candidate, providing a clear competitive disadvantage to that candidate.

At a minimum, this does not seem to be a clear-cut case.  To be sure, Trump could sue in state court under various state standing doctrines, or have a state's ballot commission rule on Cruz's eligibility.  (Derek Muller is compiling these various lawsuits, brought by voters, here.)  And he could sue after the election in each state, saying that his loss of delegates was caused directly by Cruz winning some of those ballots when Cruz was ineligible.  But I think that a pre-election suit to try to take Cruz off of the ballot is a much harder road. Trump would need to show that this "competitive standing" doctrine should extend beyond political parties at a general election, beyond a conferral of actual benefits to some candidates but not others, but to the mere appearance of an additional candidate on the ballot, when the election has not yet taken place.

My guess is that a federal court will not want to wade into the murkiness of Trump's standing and will wait for the political process to play out, or for after the election in that state, to make a ruling. If it does reach the question of Trump's standing, then there are good arguments against his ability to bring this suit.

[Update: Rick Hasen responds here. We certainly agree on one point: Trump will lose this case one way or the other, whether it is on standing or the merits.]

Posted by Josh Douglas on February 13, 2016 at 12:31 PM in Law and Politics | Permalink | Comments (5)

Good News for Long-Winded, Caveat-Spewing Canadian Legal Bloggers

A fun and interesting article about how to change people's minds, based on a study by Cornell researchers titled "Winning Arguments: Interaction Dynamics and Persuasion Strategies in Good-faith Online Discussions." A couple of findings: The researchers "find that longer replies tend to be more convincing, as do arguments that use calmer language," and "they find that hedging – using language like 'it could be the case' – is actually associated with more persuasive arguments. While hedging can signal a weaker point of view, the researchers say that it can also make an argument easier to accept by softening its tone."

Posted by Paul Horwitz on February 13, 2016 at 08:43 AM in Paul Horwitz | Permalink | Comments (0)

Friday, February 12, 2016

A Comparative Critique of "The Ultimate Unifying Approach to Complying With All Laws and Regulations"

In the new Green Bag, Daniel Solove and Woodrow Hartzog have an article titled "The Ultimate Unifying Approach to Complying With All Laws and Regulations." It's described here. This is the SSRN abstract: "There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation."

As with Orin Kerr's A Theory of Law, the fun lies largely in its brevity and in the slight surprise involved in clicking through to the article. (This also means that people who want to get the joke have to download it from SSRN, at least for now and until now. It already has over 1,500 downloads.) I honor that here by offering the standard "SPOILER" alert here and continuing after the jump, where I reveal the approach, take it seriously, and critique it at slightly greater length than the article itself.

Not including the abstract, the article reads, in full:

Be reasonable.

So, how well does this approach work? Of course, like most people, I like it and try to live it, albeit more for moral and ethical reasons than out of a desire to avoid legal consequences. I find it intuitively attractive as a general Golden Rule for living under the law. Insofar as it cuts through the fog, and through reams of paper, to find a common-sense conclusion, I like it for that reason as well. Still, I'm pretty dubious.

One reason is empirical. As Solove's colleague Cynthia Lee notes in her book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, different individuals and communities may have different views about what constitutes reasonableness, and/or about what the reasonable member of a community would consider reasonableness. There is a large literature out there calling for more empirical study of the application of the reasonable person standard, although my quick tour through it suggests that there have been more calls than responses.

Another is, roughly speaking, political and sociological, although it's related to the empirical point. The United States is a highly pluralistic society across any number of dimensions, including political views relevant to questions about how a reasonable person should comply with the law--reasonably; with an eye toward a default assumption of minimal state power and individual liberty; with avoidance or avoision in mind; loyally; purposively; and so on. There are also varied views, exacerbated by the increasingly polarized and heated division over politics and culture, about the substance of individual laws, and that's likely to create inconsistency in and between individuals over whether a particular law or legal rule should "reasonably" be interpreted broadly and purposively or narrowly and literally. 

One might have less reason to worry about all this if the official interpretive community were sufficiently homogeneous in its views of the "reasonable person" to allow such a standard to be interpreted consistently. Decisions by judges and other legally trained officials would then be consistent, and decision by juries would likely be subject to some judge-imposed constraints. Individual actors would "be reasonable" according to their predictions about what judges, lawyers, and government officials, or maybe the professional/managerial class more generally, consider reasonable. There are obvious problems with this, however. One is the simple question whether the class of people subject to the laws is able to make these sorts of predictions. Another, lying somewhere between descriptive and normative concerns, is whether such predictions will be more difficult if there is a widening gulf between the professional/managerial class and others. On the normative side of the line, asking such a question raises obvious concerns about political legitimacy.

All that aside, is it accurate to describe the relevant interpretive community in the United States as sufficiently homogeneous?  Views differ, but I don't think so. Notwithstanding complaints that the legal profession is not sufficiently diverse, it is already (or also) the case that there is a great deal of variation and conflict in the political, social, and cultural views of lawyers, a conflict that plays itself out, among other things, in debates, divisions, and polarization within the legal community that parallel the debate and polarization within the broader political and civic community. Because law in the United States is so often political, and so many lawyers and legal thinkers are content or eager to treat it as such, or believe that they must do so rather than "unilaterally disarm," that condition is not going away any time soon. Any society, or legal interpretive community within that society, in which there is strong disagreement over something as fundamental, simple, and vital as how to interpret a statute is not well-suited to live by the injunction to "be reasonable."   

This brings me to an interesting (to me, admittedly) comparative point. Other legal interpretive communities do operate by various "be reasonable" rules. In Canada, for instance, courts often quote Elmer Driedger's book (now carried on by Ruth Sullivan) on the Construction of Statutes and its description of the "Golden Rule" of statutory interpretation: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." This is essentially an injunction to "be reasonable" in the interpretation of a statute, and Canadian courts have regularly said as much. Similarly, Canadian constitutional analysis, like judicial constitutional review in many countries, relies heavily on a proportionality test, and there too reasonableness is a linchpin of the analysis.  It is sometimes lamented that American constitutional doctrine is not conducted more explicitly in terms of reasonableness, balancing, and proportionality, and Justice Breyer, among others, has argued that it should be.

My sense as a former member of the Canadian legal interpretive community, however, is that however well reasonableness functions as a guide, much of that success has to do not with the test, but with the homogeneity of the interpretive community. It's a big country, of course; moreover, one often associates it with the split between Quebec and the rest of Canada, or between English-speaking and French-speaking Canadians. My take, however, is that Canadian law, government, and administration have generally been overseen by a smaller mandarin class within which there is a fair amount of cultural similarity and political consensus. There are about 23 law schools in Canada, of which say 17 are of reasonable long standing and establishment and among which the "tiering" is nowhere near as strong as among American law schools. A larger number of faculty within those schools come from outside the country than was the case when I was a student in the early 90s; still, there is a substantial amount of cultural and especially political consensus, and unity and similarity of training, among them. And the same kind of relative educational, cultural, and political homogeneity also characterizes the political/administrative managerial class more broadly. It is still largely captured by people with similar educations and views, coming from or having lived in a relatively small number of major Canadian cities: Toronto, Vancouver, Montreal, Ottawa/Hull, maybe a couple of others. If you think "Washington" is an epithet for people captured by the Beltway culture, and are struck by the tiny number of law schools responsible for producing our Supreme Court justices, you're right. But even so, the legal and political culture here is relatively diverse and divided, even within DC, compared to the Canadian mandarinate, and notwithstanding other ways in which that group has become diverse along other dimensions such as race, ethnicity, and religion. And the American professional/managerial class lives, works, and disagrees in many other places than Washington.

Indeed, from my distant perspective, one of the most interesting and salutary things about the rise of the Conservative Party in Canada was that it revealed a gulf between the mandarin culture and at least some of the regular citizens in at least some of the regions of Canada--especially the West, which, Vancouver and Victoria aside, has different views and much less Ottawa-based political representation in the political class than the Toronto-Ottawa-Montreal nexus. That's not to say I shared that party's views. As a Torontonian and a member of the professional/managerial class, I lamented the death of the much more "reasonable" Progressive Conservative Party; and, if I didn't much care for the Liberal Party given its ideological vagueness and the inevitable corruption that afflicts a party long used to power, I was generally comfortable being governed by it, for similar reasons. But it was interesting and, I think, valuable to see the West take a greater share of the political power from which it had generally been frozen out, and to see the ways in which the views of the country were different from those of the average entrenched deputy minister. That idea ought to resonate some. We are, after all, seeing a political season in which revolt against the United States's own professional/managerial establishment and its shared values and assumptions is a major element in the successes of challengers in both parties.   

In short (hah!), if a "be reasonable" rule works in Canada, and perhaps in other countries that also rely on things like proportionality, it may be not because there's much content to or value in the rule itself, but because the class interpreting it already shared a substantial consensus and worldview. I suspect that such an interpretive community would have reached similar results and consensus if it had instead adopted a fairly strict rule of textualism as the approach to interpreting statutes, and a more originalist and/or categorical approach to constitutional interpretation--that, indeed, textualism, originalism, and categoricalism in legal interpretation could all be undertaken more successfully in that legal culture than they could be or are in the United States. It may also have something to do with the degree to which law is or isn't consistently made a vehicle of "politics" there, compared to the United States.   

I will make explicit what I've already implied: in such a country, if the professional/managerial class shares a strong political and cultural consensus but the consensus is not shared across the country and some regions, classes, and views are absent or shut out from that class, then there are good reasons to think that even a 'successful' "be reasonable" legal interpretive regime there has serious political legitimacy problems. But neither those problems nor the day-to-day stability and consistency of the interpretive regime have much to do with the approach to legal interpretation that this class adopts. And American champions of things like proportionality, balancing, and "reasonableness" as interpretive tools--for rules, statutes, constitutional questions, and other issues--who point abroad for examples of the value and workability of such a system should dig deeper into the homogeneity of the legal classes charged with administering those systems, and into how representative and politically legitimate they are. In any event, and despite the many ways in which we already live under something of the rule of a professional/managerial class here, as people often complain, the United States is too culturally and politically diverse for "be reasonable" to be a sufficient guide in general, however well it functions for individuals. However much people like me are attracted to "be reasonable" as a guide, and however much it looks like plain common sense, we should also recognize the degree to which the proposed rule is heavily freighted with politics--and the politics of a particular class, at that. 

I grant that this is a slightly lengthier critique than the article itself. If I were doing it Green Bag-style, I suppose my response to the Solove/Hartzog article would be, "It's complicated--and political."

Posted by Paul Horwitz on February 12, 2016 at 01:35 PM in Paul Horwitz | Permalink | Comments (4)

The Borders of Black History

Black history is often regarded as primarily a matter of race or skin color, whereas Latino and Asian American history are about borders. But I tend to think that borders have played an important role in African American history too: the plethora of borders surrounding Colonial and Ante-Bellum America across which enslaved Americans could escape was a fear in the United States as much as in Jamaica and the other slave territories. Enslaved Americans fleeing across the North-South border marked by the Mason-Dixon line and always free and emancipated African Americans kidnapped and taken south across that border thanks to the Fugitive Slave Act.

That border (or something like it) and another persisted after emancipation and through segregation: the Great Migration north, across the former Mason-Dixon line, and another migration west, to what Ralph Ellison called “the promised land” of “Indian Territory,” some of which is Oklahoma. The response was a series of violent white-on-black “pogroms” that swept through the Mid-West—East St. Louis, Chicago, Omaha, and Greenwood (Tulsa), Oklahoma. I’m most familiar with the last of these, having had the amazing fortune to have met some of the survivors of the 1921 Tulsa Race Riot—at the time the youngest was 82 and the oldest 101. And what strikes me most about that case (I just presented a talk about it at my daughter’s school today) was the treatment of these thousands of internal migrants, burned out of their houses, 3,000 of whom fled the city, the other 2,000 of whom were forced to camp out the autumn and winter in Red Cross tents; and the misuse of a Grand Jury to indict African American community leaders, while the police and 500 armed and deputized white rioters got off scot free.

The Riot was precipitated by some incident between a teenage African American youth and a white woman in a hotel elevator (he bumped into her; they were secretly lovers and had a quarrel). After police took the man, Dick Rowland, into custody, a crowd of whites appeared downtown and a group of African Americans, aware that there had recently been a spate of lynchings, went, armed, to the jail to offer their help to the Sheriff. There was a melée, and a white man was shot. That night, the police, national guard, and 500 civilians deputized by the police and armed from the local armory, fought with the recently demobilized African Americans protecting Greenwood. By morning, the whites prevailed and a crowd of people burned 35 city blocks and over 1,100 houses.

It’s hard to describe some of the pictures of the Riot, especially those that appear to be taken on the morning of June 1. Rows of neatly parked Model-T Fords stand in line just outside Greenwood, and men and women in straw boater hats and their Sunday best promenade up and down while fire spews out in the background. Postcards with legends such as “Running the Negro Out of Tulsa” were made and sent—a feature of lynchings and violence against African Americans throughout the period. These pictures depict a wasteland reminiscent of a war zone: burned out houses as far as the eye can see, families picking over their belongings for a few meagre scraps. 

The Riot was, I think, in part the result of demagoguery about who America really belongs to, and the necessity of ridding the country of these internal migrants. Oklahoma's push for statehood—for inclusion in the Union by expanding the border to the exclusion of African Americans—was also a factor. That, and the use of grand juries as a tool of oppression, not justice, have an all to familiar feel. The State of Oklahoma, for 80 years, denied the Riot even happened, and neglected all mention of it in its history books. Yet the riot is still the most devastating event in Oklahoma history outside of the Trail of Tears, claiming 300 lives and displacing thousands of people.

For those interested in a compelling history of the Riot, Alfred Brophy’s book, Reconstructing the Dreamland, is indispensable.

Posted by Eric Miller on February 12, 2016 at 04:18 AM | Permalink | Comments (0)

Thursday, February 11, 2016

Judicial supremacy and professional responsibility

The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.

One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS's interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility.  In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is  "emphatically the province and duty," etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.

On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.

Posted by Howard Wasserman on February 11, 2016 at 01:06 PM in Civil Procedure, Constitutional thoughts | Permalink | Comments (3)

Transparency Undermined

As I have documented in my last two posts here and here, at some agencies, commercial FOIA requesters dominate the landscape, having found a wide range of uses for records they obtain under FOIA as part of their profit-making enterprises. In this post, and as I describe in my forthcoming article, I want to talk a bit about the implications of commercial requesting for FOIA’s original democracy-enhancing purpose. In general, I believe the volume and character of commercial requesting expands the role for private enterprise in capturing transparency resources and regulating government transparency and, correspondingly diminishes the role of transparency for the public good.

First, government is massively subsidizing corporate requesting. My data suggests that agencies are often recouping only between about one and five percent of the cost of processing commercial requests by charging fees to those commercial requesters. And the raw numbers are not small. For instance, FDA spent about 33 million dollars in a year on FOIA processing, and if three quarters of its requests are commercial, that would translate to approximately 26 million dollars on commercial requesters. By contrast, it recouped only $327,000 in fees from commercial requesters. As we saw, commercial requesters are making huge profits off of the government’s give away of essentially free or extremely low cost federal records, making this simply a form of corporate subsidy.

Some subsides are of course justified because they promote a public good, such as subsides that incentivize job creation, urban renewal, or infrastructure investments. But in the case of commercial uses for FOIA, my study demonstrates that the overwhelming objective of those requests is simply to fuel private profits. Perhaps worse for transparency purposes, these companies often profit in a way that can only be accomplished if the requester closely guards the information obtained. For example, commercial requesters using FOIA for due diligence are only able to profit from the information precisely because it is not widely available. Even more so, resellers can only profit from federal records because they guard those records closely and charge very high access fees. In this way, free and low cost provision of federal records is subsidizing corporate secret keeping, and not the democracy-enhancing mission of FOIA.

Second, the volume of commercial requesting suggests that, at least at some agencies, news media and other requesters may be crowded out due to resource constraints. At the bigger agencies, some individual commercial requesters are filings hundreds and even thousands of requests per year. One requester at the SEC averages about one request an hour all day long every business day. Given that delay and administrative burden are frequently cited reasons journalists don’t use FOIA, and given that at some agencies average response times can well exceed the 20 business day statutory deadline, it seems entirely likely that resources used to fill commercial requests are taking away from the resources that could be used for requests that better serve FOIA’s core mission.

Third, information resellers end up acting as intermediaries who themselves now hold power over what information is available and what is not, because they are the ones providing federal records to interested parties.

There are two main reasons why industry prefers to access records through resellers rather than filing their own FOIA requests at a fraction of the price. The first is that it protects the identity of the interested party. If a business files a FOIA request, their identity and the records they requested become part of the agencies’ FOIA logs, which are themselves generally available under FOIA. A company that is looking into a particular business venture may want its interest to remain secret. The second reason is that resellers warehouse information and make it available almost instantaneously for a fee. Thus, the delay of FOIA itself is a reason that businesses use resellers instead.

But as the reseller becomes the actual locus of access to federal records, the transparency function itself is largely privatized. A reseller may decide certain records are not economically viable to pursue, and those records may remain, as a practical matter, hidden in government files from all interested parties. While the government obviously has not contracted with these resellers to provide federal records services, it remains a sort of de facto outsourcing of what is an inherently public function, the provision of federal records to the public.

If I have convinced you at all that the current commercial FOIA practices pose some troubling problems for government transparency, you may initially be tempted, as I was, to imagine limits on commercial requesting or additional fees or burdens on the practice that would discourage it or at least recoup its cost. Instead, stayed tuned for my next and last post on this topic in which I hope to provide a more promising and transparency-enhancing solution for business and the public alike.

Posted by Margaret Kwoka on February 11, 2016 at 12:01 PM | Permalink | Comments (2)

Wednesday, February 10, 2016

Ferguson consent decree falls apart, DOJ sues

The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.

I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in  single night. Life imitating art imitating life?

Posted by Howard Wasserman on February 10, 2016 at 08:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Will we see criminal charges for what happened in Flint?

I guess we will find out eventually, since Todd Flood, the lead state investigator tasked with investigating Flint's water scandal, says his team is working intently to determine, among other things, if any crimes have occurred. This article says that investigators have not ruled involuntary manslaughter charges out of the question, although I would think proving causation would pose some challenges for prosecutors.  (Flood compares the water crisis with the situation where, due to someone's gross negligence, a manhole is left uncovered and a victim falls through it and dies.)  I'm all for imposing sanctions on the officials who caused this terrible crisis, but I worry that Flood may be setting expectations too high.   



Posted by Miriam Baer on February 10, 2016 at 08:29 PM | Permalink | Comments (0)

Where do Republicans go?

The refrain among Democrats, liberals, and progressives on the eve of a presidential election is always "If [insert Republican candidate] wins, I'm moving to Canada." (Dahlia Lithwick offers guidance).

Where do Republicans and conservatives threaten to go if Bernie Sanders wins?

Posted by Howard Wasserman on February 10, 2016 at 06:51 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)