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Thursday, August 31, 2017

Grading the Slave-Owning Framers (and Yourself) on a Historical Curve: The Moral Case Against/For George Washington -- and Everyone Else

Mike Dorf has an interesting post exploring whether and why monuments to slave-owning framers like Washington are more morally acceptable than monuments celebrating Robert E. Lee or Woodrow Wilson. Dorf notes that it is not enough merely to say that Washington is celebrated for reasons other than his racism and slave-owning. After all, the same could be said about Woodrow Wilson, yet the debate at Princeton over expunging the name of the Great Segregator and admirer of the Birth of the Nation is surely at least a close call -- closer, at least, than the case for re-naming our capital and tearing down the Washington Monument.

I agree with Dorf's assessment of Wilson, but I think that he overlooks the most important distinction between Wilson (on one hand) and Washington (on the other): Historical relativism. Historical figures -- i.e., everyone, including you, Gentle Reader -- should be graded on a curve. We cannot be expected to be much better than the people who surround us and the times into which we are born. Scoring an "A" in one's views about racial equality in 1789, therefore, ought to be much easier than scoring an "A" in 1912. Washington was surrounded by whites whose virulent and virtually unconsidered racism reenforced his belief that enslaved Africans were unfit for self-rule. Precious few in the late 18th century thought that slavery was such a moral abomination that it should be abolished immediately: "Immediatism" was several decades in the future. Wilson, by contrast, had the advice of William Monroe Trotter and the example of thriving black communities throughout the United States to steer him straight on the evil of racism. Yet he self-consciously persisted in adopting policies deplored by his contemporaries. Grade? I'd flunk Wilson, despite his achievement of appointing Brandeis.

I suggest, in short, that we should judge as we would be judged -- charitably, by the standards prevailing during his own time, the standards with which humans naturally take their bearings. By that standard, Washington (despite his quite aggressive efforts to recapture his slaves) easily outscores Wilson in my book. Surrendering power peacefully and conscientiously exercising power at the dawn of the republic to establish republican precedents -- those keep him on the pedestal in my book despite his all-too-human willingness to adopt the views about slavery prevailing with everyone except a few prescient Quakers and "fanatic" evangelicals.

That we should all be judged by the temper of our times naturally gives rise to the question: How well would we score if we were born in earlier times? There is a progressive smugness that judges the past by what we know today but avoids the touchy question of how we would be judged were we born in the world of yesterday. So take a test: Imagine what sort of morality or politics you would likely have if you had the age and social position roughly analogous to your current status but in the America of, say, 1750. Where do you guess you would likely stand on slavery, women's suffrage, Indian rights, and so forth? Be honest. If you are (as I am) a conventionally ovine sort of academic, in the middle of the academic road on most issues, then imagine that you likely would have been just that sort of person in 1750. An ACS liberal faculty member of 2017 with left-of-center views and teaching at a northeast law school, on this account, might likely translate into (I am guessing here) a New Light Congregationalist theology prof or schoolmaster (few law schools back then) who might have (in a fervor of Country Party egalitarian zeal) supported the Massachusetts Land Bank of 1744 but would have been shocked by women's voting and likely had no discernible views about slavery at all.

Humbling exercise, huh? So the next time you cry out to tear some equestrian off a pedestal, think a bit about coming off your own. Imagine yourself in someone else's rear-view mirror a century or two hence.

Posted by Rick Hills on August 31, 2017 at 09:26 PM | Permalink | Comments (27)

In Memoriam: Lesley McAllister

I am deeply saddened by the untimely passing of our beloved friend and colleague Lesley McAllister. Lesley, a brilliant environmental law scholar, had been bravely battling cancer for several years. She was strong and open and loving and compassionate about her disease and she was incredibly active, both in her professional and personal life, till the very end. Last year, at AALS San Francisco, the Center for Progressive Reform, in partnership with her current faculty, UC Davis, and former faculty, University of San Diego, held a Festschrift for Professor Lesley McAllister, celebrating her work and life. It was a beautiful event. At the McAllister Festschrift, I was honored to represent our colleagues at USD in delivering words - which I am pasting here below - about how much we love, admire, and miss her since she left to UC Davis. 

Words for Lesley - McAllister FestSchrift Jan 2017

Lesley and I started our teaching careers together, we were both hired by Dan Rodriguez at USD just before he stepped down from his deanship. So for me so much of the beginning of my career as a baby professor is tied to my friendship with Lesley. (actual babies too are tied to our friendship – Lesley and I each had the pleasure of throwing the other a baby shower for our daughters.). I can’t overstate how significant it was for me to have trusted colleague and friend to think together about everything we needed to learn in all the facets of academia, scholarship, writing, teaching, faculty life, and institutional leadership.

In each one of these facets Lesley always inspires me. She works hard but also finds balance. She is a great scholar and an amazing mother. She is generous and kind with her times and thoughts. She is a source of wisdom and a force of good.

Others will be talking about the scholarly dimensions of your work, Lesley, but I will just say a couple of things. First, I admire how Lesley chooses her projects in a deliberate way – driven by passion for the research, for the field, and most importantly a passion for making a difference. It is no coincidence that Lesley’s book about environmental protection in Brazil is called Making Law Matter – Lesley cares about writing that matters. She loves the environment, she is passionate about the outdoors, from hiking, backpacking, biking, camping, and - we use this expression far too often but in Lesley’s case it simply is true -  Lesley wants to make the world a better place. I think it is quite rare to find such strong synergies between one’s writing and one’s passions outside of the office. Lesley’s work matters.

Lesley is also inspiring in her rigor and devotion to interdisciplinary and comparative work. And again others this evening will talk about particular dimensions of her writing but I will just say that my own work about regulation and governance has very much benefited from Lesley's deeply insightful articles on public/private governance, private enforcement, the role of persuasion, collaboration and alliances in achieving compliance.

Beyond the scholarship, and here I want to say something not only my behalf but on behalf of all of Lesley’s former colleagues at USD, Lesley has played an amazing role as an institutional leader. She basically put together USD’s environmental and energy program and grew it from scratch. She came in as a junior faculty and took on the incredibly time-consuming role of leading EPIC – USD’s Energy Policy Institute Center – including planning the center’s annual symposium. As one of our senior colleagues writes about Lesley, “I was amazed to see how Lesley could get anyone to appear – she was rather like Johnny Carson in his prime – everyone wanted to be on her show.” Lesley was also the driving force behind the San Diego Journal of Climate and Energy Law and the faculty advisor to the environmental law student group – and as another colleague writes, “her students adored her. She has not only informed them and taught them skills for life but has influenced and inspired them.”

Lesley has been incredibly generous with her time and thoughts and energies with both students and her colleague. Obviously, we all miss Lesley very much at USD. Personally, I cannot tell you the number of times I find myself at a frustrating committee meeting or a thought provoking workshop, when I look around the room and think, “if only Lesley was still here in San Diego, we could share thoughts and move things forward”. But our loss was Davis’ gain and I am so happy to be here all of us together to celebrate Lesley’s influential work and her remarkable life.


Posted by Orly Lobel on August 31, 2017 at 08:33 PM | Permalink | Comments (5)

Why Masterpiece Cakeshop is a Harder Case Than You Think (and Why Federalism Can Help Resolve It with a Meta-Accommodation of Religious Disagreement)

In our polarized times, it is easy to be overly dismissive about arguments that contradict one's strongly held convictions. Common judicial and academic reactions to the "wedding vendor" cases like Masterpiece Cakeshop or Arlene's Flowers provide a case in point. As I suggest after the jump, academics tend to dismiss these vendors' claims with slogans that, in other contexts, would be regarded, at best, perfunctory -- the beginning rather than the end of an argument. My own view is that the vendors' claims raise genuinely hard questions that cannot be cavalierly brushed aside by brandishing Smith or blustering about commercial actors' lack of First Amendment rights. In fact, as I argue here, these questions are RADDs -- reasonable and deep disagreements -- that our federal system is well-suited to finesse rather than resolve. For that reason, I am inclined to urge that SCOTUS affirm the Colorado court in Masterpiece Cakeshop-- not because the baker does not have a plausible First Amendment argument (he does) but because, in a federal system, the federal courts ought to bend over backwards to allow different states to adopt different reasonable views about religious liberties.

But, first, consider why the the usual arguments brandished against wedding vendors' claims for some sort of accommodation are merely plausible rather than slam-dunks.

1. Why there really is no right answer in Masterpiece Cakeshop

Take the common argument that commercial activity should not be protected by the First Amendment, either because "commerce is not religious free exercise" (see, e.g., Eric Segall's impatiently brisk argument over at Dorf's blog) or because, by entering the marketplace, one somehow waives one's First Amendment associational rights (a position most famously defended by Justice O'Connor's concurrence in Roberts v. U.S. Jaycees). Contrary to these assertions, I think that it is plain to anyone not blinded by their priors that commercial actors can have substantial interests in religious freedom and free speech even when acting in a commercial sphere. Title VII requires employers to accommodate their employees' religious practices precisely because we Americans do not believe that we waive all of our personal rights whenever we engage in commerce. If one does not waive one's rights when selling labor, then why when selling cake or flowers? As for Segall's notion that commerce is not religious exercise, the claim seems question-begging: If the vendor makes a sincere claim that her religion forbids an action required by the law, then the prohibition would seem to be religious free exercise by any reasonable definition. Would Segall seriously contend that a law requiring all butchers to sell pork would not encroach on the religious exercise of kosher butchers, because selling meat is not a religious act?

Consider also the idea that refusing to provide a service to a customer imposes a "harm" on third parties that undercuts the right to a religious accommodation. As I have explained elsewhere, these sorts of arguments assume uncontroversial baselines by which to define "harm" where no such consensus about baselines exists. Why, after all, is not the customer "harming" the shop-owner by demanding a service or good that could be bought elsewhere without much trouble? It might be, as Nejaime and Siegel argue, that the refusal to serve inflicts a "dignitary harm" on the refused customer -- but why does the insistence on service, with equal plausibility, imposes an equal and opposite dignitary harm on the vendor? Moreover, if the state's only purpose in imposing the duty to serve (rather than a duty to make a referral to another vendor) is suppression of a stigmatizing message, then why is such a purpose not a content-based regulation of speech under any purpose-based theory of the First Amendment? As Andy Koppelman noted a couple of years ago, "the dignitary harm of knowing that some of your fellow citizens condemn your way of life is not one from which the law can or should protect you in a regime of free speech."

Of course, one can pretend that the doctrine is much clearer than it really is by playing the Smith trump card, noting that individuals do not ordinarily have any Free Exercise entitlements to exemptions from generally applicable laws merely because the laws incidentally burden their religious beliefs. Smith, however, is riddled with fine print about hybrid exceptions and individualized exemptions, and the Court has not felt chary about limiting Smith with further exceptions when it feels that the invasion of religious liberty is substantial. Yes, of course, the SCOTUS could brush aside the baker's and florist's claim by citing Smith. The existing doctrine is mushy enough, however, for the Court to revive Yoder's hybrid exception, holding (for instance) the "expressive" vendors have a limited right to refuse to provide a particular type of service (as opposed to refuse to serve a particular type of person) based on a combination of religious and free expression rights. Such an ad hoc exception probably could be delivered with enough doctrinal crampons to prevent the Court from skidding down a slippery slope to the invalidation of Title VII or some such absurdum.

I do not mean to defend such an argument as unquestionably correct: I mean only to suggest that any such argument is not unquestionably wrong. I imagine that we profs would gin up precisely such an argument to protect, say, kosher or halal butchers from ham-handed (pun intended) legal requirements that they sell products forbidden by their faith. Because we have ideological commitments to same-sex marriage we suddenly become dismissive or vitriolic when analogous arguments are proffered on behalf of wedding vendors.

2. How federalism can give both sides equal concern and respect for their equally reasonable views about religious accommodation

Why not acknowledge that the doctrine is pliable and our national traditions and intuitions about the proper scope of religious freedom, conflicted? In such a situation, our federal system provides us with a handy way to show equal concern and respect for our adversaries: Over that range of cases where we reasonably disagree about the scope of our religious liberties, give the states a local option to pick a version of those liberties within the pale of reasonability.

In my draft article, I offer some ideas about the sorts of questions "reasonably" left open by the precedents. Suffice it to say here that, in my view, the precedents construed in a federalism-friendly light, allow a state either to extend or withhold a religious accommodation for wedding vendors like Masterpiece Cakeshop. We have both purpose- and effects-based traditions for protecting religious liberty buried in the precedents: Why not let each state adopt the tradition that most suits its Blueness or Redness? This means that Colorado ought to be allowed to go "full-Smith," free from effects-based arguments that First Amendment associational rights extend into the commercial sphere. But states also ought to be able to provide broad religious accommodations from anti-discrimination laws without being clobbered with Establishment Clause claims that such accommodations unduly advance religion by "harming" customers.

Think of federalism, in other words, as a meta-accommodation of religion -- an accommodation of rival theories about how religion ought to be accommodated. By upholding the Colorado court in Masterpiece Cakeshop based on deference to its subnational resolution of a difficult RADD, the SCOTUS could side-step the dismissive slogans ("no religious freedom for commercial actors!") and instead show respect for both sides of the debate, acknowledging that these are hard questions on which both sides have reasonable things to say.

Let them say those things, then -- in different states of a divided nation, based on a democratic process that gives everyone an equal vote and equal concern and respect.

Posted by Rick Hills on August 31, 2017 at 12:00 AM | Permalink | Comments (38)

Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Monday, August 28, 2017

Violations of the Democratic Self-Government Interest

Following up on my last post on my article and our brief, the question about the democratic self-government interest is what s significant enough to constitute a violation of this interest.  Constitutional doctrine has generally recognized that violations of democratic self-government transpire when those outside of a political community interfere with actions that “go to the heart of representative government.”  This has usually foundational interference with the selection of important state officials across the three branches of state government.  The paradigmatic examples referenced in these cases is that states can limit those holding important state offices to those who can demonstrate requisite connections to the state.  The Constitution uses the language “inhabitant” to refer to those who can be elected to the House and the Senate (in both cases, elected officials must be inhabitants—for the House, of the state in which their district sits, and for the Senate of the state that they are representing).  The Supreme Court has also upheld limiting those who can be police or probation offices or who can teach in public schools, for instance.

Contributing to a state campaign is different than but substantially analogous to those activities.  Contributing to a state campaign does not involve trying to be the actual person holding the state office, but still can involve dictating the identity of the actual person holding the state office.  When a three-judge panel reviewed the constitutionality of the federal prohibition on foreign nationals contributing to federal campaigns, Judge Brett Kavanaugh wrote for the panel in stating that “spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher.”  

The argument, though, can’t be that any effort to influence the election of another state violates the democratic self-government interest.  While it might make more sense to prohibit any out-of-state individuals from being Governor—or to prohibit any foreign nationals from contributing to campaigns, as in Judge Kavanaugh’s Bluman opinion—it does not make sense to prohibit all out-of-state contributions to state elections.  To prohibit anyone from New York City from contributing even one dollar to the campaigns of those running for the Governor of Alaska is excessive. 

The problem, therefore, isn’t that any out-of-state contributions violate the democratic self-government interest, but that the current balance of in-state and out-of-state contributions is way off.  Consider some empirical evidence from related contexts.  One recent study found that “[t]he average member of the House receive[s] just 11 percent of all campaign funds from donors inside the district.”  During one election cycle approximately a decade ago, campaign donors in five percent of the nation’s zip codes contributed more than three times more to campaigns than the rest of the country combined.  In one recent Alaska Senate race, 86 percent of the campaign contributions came from out of state

If the evidence is that the overwhelming majority of states have their elections controlled by those outside of the state, what does that mean (1) when or if the evidence of out-of-state control changes (2) for the states that export rather than import campaign contributions.  If the evidence did not demonstrate large amounts of contributions from out-of-state relative to in-state, then there wouldn’t be a violation of the democratic self-government interest.  This is perfectly consistent with the role that facts play in constitutional litigation.  A university may be acting consistently with the Fourteenth Amendment in having race-conscious remedies one day and then not the next day because of a change in facts.

After Shelby County v. Holder, rules that apply differently to one state than to another state can raise constitutional issues. Alaska is in a very different situation than California or New York or Texas.  Those three states feature state elections dominated substantially more by in-state contributions than do Alaska elections.  An Alaska law limiting out-of-state contributions to state elections could be constitutional if enacted by Alaska and unconstitutional if enacted by California.  Again, though, assuming application of the same principle, different facts justifying different outcomes is not entirely new to constitutional law.  The University of California at Los Angeles will be able to enact different race-conscious remedies than will the University of Alaska under the Fourteenth Amendment because of their different factual histories.

Posted by David Fontana on August 28, 2017 at 05:43 AM | Permalink | Comments (1)

Chafetz on Congress

Joshua Chafetz has a fantastic new book on Congress's role in the Constitution..  The Take Care Blog ran a great symposium on the book last week, and I contributed a post.  

Posted by David Fontana on August 28, 2017 at 05:36 AM | Permalink | Comments (0)

Sunday, August 27, 2017

The process of the Arpaio pardon and civil-rights enforcement under Trump

Josh Chafetz (Cornell) has a Twitter thread and WaPo op-ed arguing that the focus should be on the underlying racism, sadism, and abuse of power motivating the Arpaio pardon, not the fact that the pardon was for a criminal contempt conviction. In other words, the problem is that Trump pardoned a racist, sadistic serial abuser of state power, not that he pardoned someone who had been held in contempt. Josh suggests that we might want a President to pardon someone convicted of contempt, at least in some circumstances.

His example is the facts underlying United States v. Cox (5th Cir. 1965). Two African-American men testified in a federal suit against a state official, saying the official had refused to register them as voters; when he denied discriminating, the federal judge presiding over the case recommended that the two men be charged with perjury. DOJ investigated, but found no grounds for a perjury charge. Nevertheless, the judge ordered the case submitted to a federal grand jury, which convicted. When the US Attorney (acting on orders of Acting AG Nicholas Katzenbach) refused to pursue the indictment, the judge held the US Attorney in contempt and ordered Katzenbach to show cause why he should not be held in contempt. On direct review, the 5th Circuit reversed the contempt order, but refused to grant a writ of prohibition to Katzenbach, who had not yet been placed in any risk of contempt.

Procedure does matter, because of the circuitousness of that hypothetical pardon. The orders in Cox were for civil contempt, so a pardon would not have made a difference. To get to criminal contempt for a racist federal judge requires so many additional steps, including the cooperation of the US Attorney and Department of Justice. So you would need not only a racist judge, but a racist DOJ, with all its layers of review, that a subsequent President would choose to rebuke through a pardon. That all seems unlikely.

A second procedural issue involves civil contempt. To the extent this pardon sends a signal about civil rights enforcement, the effect may be federal judges relying more on civil contempt, including fines and jail for recalcitrant prison officials. Arpaio and Maricopa County had been held in civil contempt, but the judge chose not to enforce the citation against Arpaio (wisely, given the risk that it would have turned him into a martyr). Criminal contempt became necessary when nothing else worked and when Arpaio was voted out of office. But how plaintiffs frame cases affects available approaches to contempt going forward. Big structural-reform cases are brought against the entity, but courts are reluctant to impose sanctions such as fines or jail against non-parties, except as an extreme last resort. So expect civil-rights plaintiffs to spread the scope of their complaints to top officials in addition to the entity.

Posted by Howard Wasserman on August 27, 2017 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 25, 2017

Ingredients or Garbage?

Law professors often talk about stages of a research project in terms of food - "half-baked" or "fully-baked." There are other stages to project development. Extending the food analogy, one of the earliest stages (if not the earliest) is the "Ingredients or Garbage?" stage. For example, let's say I have three-day old ramen, an egg just past its expiration date, and some Taco Bell hot sauce packets. Maybe with some work, creativity, and a few more ingredients, this could be a meal. Or maybe it's all just garbage. I am at the "Ingredients or Garbage" stage with something, and I thought I'd run it past the good folks of PrawfsBlawg. The beauty of this stage is that, unlike projects that are even at the "half-baked" stage, I'm not nearly invested enough in it yet that my feelings will be hurt, or that I will even feel particularly frustrated, with an honest "Throw it in the garbage." I don't know if other people have had this experience with the "Ingredients or Garbage" stage, but it's just a loose set of ideas I'm kicking around based on some reading and observations, and every once in a while I think, "Maybe this could be something" and other times I think, "This is just garbage." 

My wife and I have four kids. This means I'm accustomed to attempting to equitably allocate scarce resources amongst competing users. For meals, I will sometimes slice up a watermelon into cubes and put a large bowl of the cubed watermelon in the middle of the table. There will be less clutter without the rinds, I figure, and the kids will be less sticky by being able to eat cubes with a fork, rather than picking up sliced watermelon by the rind. I sometimes do something similar with strawberries – cut off stems and halve each berry. Or I'll open a large bag of chips, put a portion of chips on each child’s plate, and leave the bag open on the table for those that wanted more. I would not buy the smaller-sized “snack” bags of chips because they were more expensive per unit than the large “family” size chips and generate more waste, and the same goes for individually-packaged fruit cups.

I learned after several years that, despite these savings, this approach has very real costs. I would watch the tragedy of the commons unfold before my very eyes as each child ate as much and as fast from the shared container as they could. The bowl of cubed watermelon or halved strawberries, or the bag of chips, would empty quickly and result in arguments between the kids about who had taken more than their fair share. “You had three handfuls of chips, and I only had one!” “Yeah, but your hand is bigger than mine, so three of my handfuls are smaller than your whole handful!” “Maybe, but I’m bigger and older and do more chores, so I should get more!” “So – you get to stay up later because you’re older. You shouldn’t also get more food!” The whole thing ends up sounding a lot like a water rights dispute.

My imperfect, infrequent, and certainly not costless, solution has sometimes been to make two related reforms. The first reform is segmentation. In fact, a lot of what got me thinking about this was reading the work of Lee Anne Fennell after seeing her present on her Slices and Lumps project (I'm a huge fan of Lee's work. She also has the best title in the history of law review articles - Fee Simple Obsolete. That's just poetry.).

The large chip bag can been replaced with individual snack bags. While this is more costly per ounce of chip, the chips are easily apportioned relatively equally in discrete servings by an impartial distributor. The large bowl of watermelon or strawberries can be replaced by watermelon slices on the rind or strawberries with the stems, with each serving placed on the child’s individual plate. While the kids may get a little stickier and the table more cluttered, each child sees the initial, discrete distribution. If they have a problem with the distribution, they can complain directly to me, the impartial distributor. They can appeal my decisions, but my wife grants cert at a lower rate than the U.S. Supreme Court.

This segmentation reform leads to a another reform – concretization. At the end of the meal, each child has a certain number of opened snack-sized chip bags, watermelon rinds, or strawberry stems. There is evidence of each child’s consumption that is readily reviewable by all the other siblings. You can’t sneak an extra handful while no one is looking without incurring the evidentiary consequences. It means cleaning up after dinner is more work, and perhaps made dinner somewhat more expensive, but it has helped avoid conflict, or at least made conflict easier to resolve and wrongdoers easier to deter and determine. And the marginal cost of opening up one more bag usually outweighs the marginal benefit of the extra bag, so kids usually make due with the initial distribution. So there is some resource conservation benefits to potentially offset the costs of snack-size bags.

Now, maybe nothing I'm talking about here is particularly novel. A lot of this is just me noticing the tragedy of the commons, and segmentation is really just the prescription of breaking up commons into private property parcels. Lee has obviously made similar observations, just before and better than me, and making far more important connections and developing them into the "slices and lumps" framework. Concretization certainly has roots in behavioral economics, psychology, and the related "nudge" ideas of Thaler, Sunstein, and others. Concretization is also really just noticing the relationship between marginal cost and marginal utility. Learning to make due with a reduced quantity is really just a type of hedonic adaptation.  And I'm sure I'm not even thinking about others who have had similar (and better) ideas along these lines.

But there might be something to this in the context of water law and policy. In particular, I’m curious how these lessons apply, or might apply, to the concept of de minimis or exempt water uses, and explain why some de minimis uses aggravate over-consumption problems and others do not. In Arizona, for example, wells with a maximum pumping capacity of 35 gallons per minute are exempt from much of the regulation under the Arizona Groundwater Management Act (GMA). When the GMA was first enacted, many assumed that exempt wells would proliferate and create an overdraft problem. However, that has not generally occurred (or at least overdraft problems are not principally attributable to exempt wells), and I wonder if segmentation is the reason. Perhaps groundwater pumpers are doing the same thing with exempt wells as I did with snacking less because of individually-packaged cookies and chips. The marginal cost for an extra exempt well is the requirement that even exempt wells be registered and licensed. Water policy all over the world confronts similar issues in exempting certain water uses from regulation or in quantifying de minimis water uses. The challenge is making the de minimis amount large enough that users can “make do,” but small enough to facilitate conservation, and with costs for an extra de minimis use high enough to discourage “opening another package of cookies”).

With regards to concretization, there are several potentially useful implications for water policy. Tail water in agricultural uses can be better monitored and reported to create a similar impact as the strawberry stems, candy wrappers, and watermelon rinds. Perhaps within organized water districts - like irrigation or conservation districts - smart gates and meters can measure water consumption, tail water quantities, return flows, or other data that could be texted to district members. That text could serve as the "watermelon rind" or "candy wrapper" of water consumption - evidence of consumption that is transparent to the whole group. The viability of these kinds of proposals raises similar questions as those I face as a parent - is the price of segmentation and concretization worth it? And how do I ensure that consumers recognize the impartiality of the distributor and the equity of the distribution?

Posted by Rhett Larson on August 25, 2017 at 07:10 PM | Permalink | Comments (7)

More on pardoning Arpaio (Updated)

Thanks to Paul for flagging Marty Redish's NYT op-ed on the potential Arpaio pardon. Like Paul (and Marty), I do not know if the argument works. But I wanted to flag how his argument interacts with the version of "judicial departmentalism" I have been urging. My framing relies on Gary Lawson's version of departmentalism--the president can ignore judicial precedent as precedent he believes gets the Constitution wrong, but cannot ignore court orders. That includes the orders by which he is bound by as a defendant (e.g., the challenge to the travel ban) and the orders he must enforce on behalf of the federal courts involving other officials,even if he disagrees with the underlying constitutional judgment.*

[*] Lawson allows that the president might ignore a court order in extraordinary circumstances, but I put that to the side for the moment.

Marty's argument gives Gary's (and my) distinction a Fifth Amendment grounding. There is no functional difference between the president ignoring or declining to enforce a judgment and a president pardoning (or promising to pardon) another official who ignores court orders. If one violates due process, so does the other. And if departmentalism does not extend to one, it does not extend to the other.

Finally, if this becomes a concern, consider the federal courts' counter: Stop using criminal contempt and rely on civil contempt to enforce injunctions, including by jailing the recalcitrant official. There is no crime or conviction from which to pardon.

Update: Trump pardoned Arpaio on Friday.

Posted by Howard Wasserman on August 25, 2017 at 01:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Small and Vast Difference Between Two Op-Eds

Two op-eds published in the past two days provide a wonderful contrast with each other. In neither case do I evaluate or endorse the ultimate correctness of the arguments offered. Nevertheless, all the difference in the world lies between them. 

In the first, Professor Martin Redish argues that the president cannot pardon former Sheriff Joe Arpaio. And he writes, after making his argument: "I admit that this is a novel theory. There’s no Supreme Court decision, at least that I know of, that deals specifically with the extent to which the president may employ his pardon power in this way."

In the second, in Slate (which I admittedly avoid reading, but a friend pointed out the piece), my friends Nelson Tebbe and Micah Schwartzman assert, as the headline puts it, that "Charlottesville's Monuments Are Unconstitutional." The key paragraph I want to point to is this one:

So far, the lawsuit over Charlottesville’s monuments has focused on arcane issues of state law. But there are larger constitutional principles at stake—most importantly, that the government is prohibited from conveying messages that denigrate or demean racial or religious minorities. While private citizens may engage in hate speech under existing law, the government may not demean racial or religious minorities without running afoul of the guarantee of equal protection contained in the 14th Amendment. Unlike limitations on hate speech, which remain controversial, this rule against racialized government speech should enjoy widespread support.  

I'm not sure I agree with this argument (or with Redish's), although I'm quite sure that for present purposes I don't care whether I agree with it or not. What I care about is two words: "principles" and "rule." Normally, when one argues about missing nuances or counter-arguments in an op-ed, the author can be relied upon to make the "I only had 800 words" defense. I have used it myself. It's one reason I prefer blogging: so I can be excessively prolix but get in all the qualifications I think necessary. In this case, though, a small edit would rescue the Slate op-ed from what I am inclined to think of as a fatal flaw without changing the word count. All one needs to do is change "principles" and "rule" to "arguments" and "argument," respectively.

This is a point on which one might receive pushback--from cynics, from idealists, from those touched with or addicted to a sense of urgency, from those who think little differences in wording matter little and can be understood to mean what they do not actually say, and so on. I am content to hear them. But I think the difference in wording makes an enormous, essential difference: to public and political discourse, to law and legal scholarship, to journalism, to trust, candor, and responsibility. For the same reason, I also think Professor Redish's wonderfully old-fashioned approach is, in these times, especially praiseworthy.     

Posted by Paul Horwitz on August 25, 2017 at 10:45 AM | Permalink | Comments (4)

Thursday, August 24, 2017

The emptiness of "judicial activism"

The latest Slate Dialogue between Judge Posner and Judge Rakoff considers the meaning of judicial activism and judges using the bench to effect social change. Neither Posner nor Rakoff is having it. Both reject the idea that there can be judicial activism, that there is some clear "existing law" to be departed from in an activist decision, and that common law courts do not "make" policy. It ends up as a somewhat silly conversation, with the moderator putting forward every bromide about activism and misuse of the judicial power (even quoting Wikipedia's definition of judicial activism) and Posner and Rakoff rejecting the premise at every turn. But it shows the emptiness of the term and the concept of activism, which Rakoff labels a "myth."

Posted by Howard Wasserman on August 24, 2017 at 11:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Wednesday, August 23, 2017

Sponsored Post: A critical foundation for the change agents of tomorrow: Teaching today’s law students the business of law

The following is by Katrina Lee, Associate Clinical Professor at The Ohio State University Moritz College of Law, and author of The Legal Career: Knowing the Business, Thriving in Practice (West Academic 2017). This post is sponsored by West Academic

I teach a business of law course at The Ohio State University Moritz College of Law. Some assume that I teach the business of law because I want to help students get jobs at law firms and make partner. I hope that my course benefits those students aspiring to succeed at law firms, and I’ve been told that it does serve that purpose.

But, I have another, complementary, goal for my business of law course, and for the business of law coursebook that I recently wrote. I want to help prepare law students to be change agents in the world of legal.

After all, much progress remains to be made. Access to justice has yet to be achieved, by a longshot. Low-income people in the U.S. receive inadequate or no legal help at all for 86% of their civil legal needs. The legal profession has made some strides in diversity, but much unfinished work will be left to the next generation of attorneys. Just 2.6% of law firm partners are minority women. Only 8.05% of partners in major law firms are minorities. 36% of lawyers in the U.S. are women. The legal profession must urgently address issues of lawyer well-being. The National Task Force on Lawyer Well-Being’s recent report, referencing two studies, described a profession in crisis, “To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance use. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Law students will be in a better position to make change, inside and out of law firms and legal departments, if they have learned about topics like legal innovation and technology trends; efforts to apply design thinking to law; the consequences of the billable hour; attorney compensation trends and models; the competitive landscape of legal service providers; the Legal Services Act in the U.K.; and lawyer wellness issues. They require a foundation in the business of law—including an understanding of how the legal profession has historically and traditionally functioned, and the reasons why—to be able to create, experiment, and innovate in a way that truly advances the legal profession.

In that spirit, the coursebook that I recently wrote, The Legal Career: Knowing the Business, Thriving in Practice, includes reflection questions and activities designed to encourage law students to explore further and to share ideas. It includes interviews with a broad range of legal industry professionals, including the general counsel of an international company; the senior director of knowledge management at a Biglaw firm; a legal innovator who founded a pioneering legal process outsourcing company; and a legal tech startup CEO and co-founder.

In my experience, law students embrace the opportunity to learn about the connection between the business of law, and what they, future lawyers, want the legal profession to be, to look like, and to accomplish.

Today’s law students may be our best chance at changing legal for the better. Let’s give them the business-of-law foundation they need to achieve progress.


Posted by Howard Wasserman on August 23, 2017 at 10:13 PM in Sponsored Announcements | Permalink | Comments (0)

Is Cancel the New Normal?

I had fully intended to write a post this week on academics working in an online world (to follow up on my last post on academics and fake news), but something else is more pressing on my mind and is certainly related. Clearly, social and dating culture among students has changed in a tinder/bumble world such that when a better date or social offer comes along, people have no trouble cancelling on the first offer. This is documented in many contexts. Has this virus spread to academia? I wonder if our culture is changing in both the university environment and life such that cancelling (or to say it more glibly, flaking) has become the new norm. Sometimes cancelling just means not showing up to a conference, or a meeting, or to class. Sometimes it can come in the form of tardiness for an appointment or quitting a job altogether that you have committed for in advance. All of this is often done lightly and with little remorse

I have seen more of this cancelling phenomenon in the last three years or so than I ever have in my academic or professional career. My colleagues and I often complain about how often our research assistants, students, and others cancel/flake/drop out of whatever commitment they have made to us. I have told colleagues and people out of my field that I regularly receive student assignments a week after they are due, and people in Generation X are shocked, but I have grown accustomed to this. I actually build in a week or two of a cushion in case a student drops out of the task (cancels) or is late on a research assignment (not for a graded one, there are obviously repercussions for those).  This one is just sad, but I even often ask two or three research assistants to do the same research because I’m not sure that one or more will cancel on me.

Now don’t get me wrong, I try to be an empathetic professor and person. I am very sorry when students are ill, or their car breaks down, or a student has a family emergency. These things happen to all of us. In fact, in full disclosure I have had to cancel two or three conferences that I committed to myself due to Zika (I was pregnant and couldn’t travel to this part of Florida), passport issues, and newborn difficulties. And even though I felt bad cancelling, half of the panels I was supposed to speak with had to cancel as well. I think there is a growing culture of acceptance of people cancelling. I think on panels now, for instance, I will invite a few extra sometimes, just because I know some will cancel. And I wonder why this is happening. Is it because of the ever growing online nature of communications? It is so much easier to email a professor to tell them that you can’t turn in an assignment then to go to their office and have a talk about it. It is also easier for a professor to cancel on a colleague over email than to call and have to deal in person with the response. And what about cancelling on jobs. This is one that concerns me more than any. I have seen and heard about an unusually high number of students cancelling jobs they have committed to after receiving a better offer or opportunity. Maybe I am just focusing on the exceptions and not the rule, but I would be interested to hear others’ thoughts on whether cancelling seems to be the new normal.

Posted by Shima Baradaran Baughman on August 23, 2017 at 07:43 PM | Permalink | Comments (15)

Tuesday, August 22, 2017

"Revisionist History," power, and Alabama v. Tom Robinson

Malcolm Gladwell has a podcast called Revisionist History, which finished its second 10-episode season. Four of the episodes in Season 2 dealt with civil rights and the Civil Rights Movement, including episodes 7 & 8, which are about Donald Hollowell, an African-American attorney in Georgia, and Vernon Jordan, who assisted him. The podcast is great (unless you are predisposed against Malcolm Gladwell, then it likely confirms what you do not like about him) and these two stories were highlights.

Episode 7 focuses on the story of Nathaniel Johnson, an African-American man executed for raping a white woman (with whom he claimed to be having an affair) in 1959 Georgia. Gladwell compares this case to Tom Robinson in To Kill a Mockingbird, where a white woman's romantic interest in an African-American was turned into rape. Gladwell focuses on some bits from the book not included in the movie: Robinson's testimony that Mayella Ewell said she had never kissed a man before and that what her father did to her didn't count and that Bob Ewell's first words when he saw them through the window were "you dirty whore".

Gladwell's theme in these two episodes is power. And he argues that, with that bit of testimony, Atticus' defense became clear: To ask the jury not to be racist against Tom but to be sexist against Mayella (a different type of powerless person), who is portrayed as (Gladwell's words) a participant in incest. (So Atticus was a sexist, on top of the reveal in Go Set A Watchman that Atticus was, even in his time, a racist--it's been a rough couple of years).

But I thought this missed the mark in three respects.

First, even as an 11-year-old, I did not read Mayella as a participant in incest but as a victim of sexual abuse at the hands of her father. I also read him as forcing her to testify untruthfully. Perhaps that interpretation is unreasonably favorable to Mayella or against her father. And perhaps an all-male jury in 1930s Alabama would have seen it the same way as Gladwell. But I read it as Atticus trying to put Bob on trial, not Mayella. Consider the evidence (more of a focus in the movie) designed to show that Bob beat Mayella, whereas Tom (who did not have use of one of his arms) could not have done so.

Second, even if Bob was Atticus' real alternate target, Gladwell missed another power dynamic involving class and education. The Ewell's were "poor white trash" within that society. All the evidence that Atticus presented against Bob Ewell was designed to play to what the jury, the judge, the prosecutor, and the sheriff already believed about him.

Third, it shows race as the overwhelming power dynamic. No matter how badly the jury and every other institutional player disliked and disbelieved Bob Ewell, he had more credibility than an African-American. At the end, everyone was willing to bury how Ewell was killed because he had it coming, but not before allowing an African-American to be sacrificed for Bob's misconduct.

Posted by Howard Wasserman on August 22, 2017 at 12:00 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Monday, August 21, 2017

Teaching Seminars

Next semester will be my first experience teaching a seminar. It will be a seminar on "Special Topics in Water Law," with an enrollment under 20 students. I'm looking forward to it, but I'm sure it will require me to adapt how I teach. I'm accustomed to teaching large classes. For this seminar, I could take a deep dive into a particular area or aspect of water law, into complexities that we can't address in my larger water law class. Or I could focus more on skills development, simulations, and case studies, maybe with more field trips and guest speakers. I'm hoping it will help students satisfy their writing requirements, so perhaps I should just focus on making sure each student researches and writes a good paper on a particular water law issue. I'd also like to use the class to discuss and hone some of my own research questions, but I don't know to what extent I should make the class about my own research agenda. I'd appreciate any suggestions or thoughts about organizing and teaching a good seminar.

Posted by Rhett Larson on August 21, 2017 at 09:21 PM | Permalink | Comments (4)

The Democratic Self-Government Interest

Slate has a nice essay up covering my article on campaign finance law and my amicus brief based on the article with Ron Fein of Free Speech for People.  There are several arguments featured in both the article and the brief, and I will break them down into a few posts.  This post will address the basic doctrinal idea of constitutionally-required autonomous political communities, foregrounding states as one of these necessarily (at least minimally) distinctive political communities.

There are certain political communities that must be different from other political communities for the basic design of the Constitution to operate.  James Madison wrote in Federalist 51 that the diffusion of power required “distinct and separate departments.”  Each “department” would only be distinct and separate if it had a distinct and separate political community selecting its leaders and holding those leaders accountable.  If every political community and thus every department was the same—to paraphrase Madison—then the departments would not “control each other.”

States are surely one of these necessarily—at least minimally—distinct political communities.  Think of every major rationale given for federalism, and how it is substantially undermined if states are substantially similar.  States cannot be more directly accountable to the distinctive situations of their citizens if all states operate the same.  States will not experiment with new policies if all states operate the same.  States will not constrain one another and the federal government if they are subject to the same underlying political factions. 

Posted by David Fontana on August 21, 2017 at 06:12 AM | Permalink | Comments (2)

Saturday, August 19, 2017

Heckler's Veto?

According to reports, tens of thousands of counter-protesters showed up in marches and rallies in Boston, vastly outnumbering the few hundred people attending the the planned rally in Boston Common, which disbanded after an hour without planned speeches. From what I have read, there were so many more counter-protesters than ralliers that the latter could not be heard. And that was the goal of the counter-protesters.

So: Heckler's veto? And if not, how is it different from some of the campus incidents in which crowds outside the lecture hall have made it impossible for the invited speaker to be heard inside the hall?

Posted by Howard Wasserman on August 19, 2017 at 05:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, August 18, 2017

Trick plays and baseball rules

This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.

Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Bolivia and Chile Head to ICJ Over Silala River

While governance of transboundary international waterbodies is a constant challenge in many parts of the world, these challenges rarely result in cases before international tribunals. But Bolivia and Chile have brought competing claims over the Silala River to the International Court of Justice (ICJ).  Chile contends that the Silala is an international river subject to international law. Bolivia claims that the river - which originates in springs in the Bolivian highlands - cross the Chilean border only because of man-made canals constructed over a hundred of years ago. Mining interests in Chile's Atacama Desert depend on the Silala for industrial water uses in one of the driest, and most copper-rich, regions of the world. The UN has designated the Silala basin as one of the "the most hydropolitically vulnerable basins in the world."

There is no treaty between Bolivia and Chile governing the apportionment of the waters of the Silala, although the 1904 Treaty of Peace and Friendship ending the War of the Pacific relates to issues of boundary delineation relevant to the ICJ case. Neither Bolivia nor Chile are signatories to the UN Convention on the Law of Non-Navigational Uses of International Watercourses (the "Watercourse Convention"). The Watercourse Convention entered into force in 2014 with the 35th nation (Vietnam) ratifying the convention. The Watercourse Convention attempts to articulate customary international law regarding transboundary water rights based on the approaches taken in many regional international water treaties. There are several issues involved in this case, including the duties to cooperate over shared resources, landlocked Bolivia's access to the ocean, and environmental issues. But my interest is in the question of whether or not, and to what extent, the Silala is governed by international water law.

The Watercourse Convention applies to international watercourses, defined as "a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus"... parts of which are situated in different states." (Watercourse Convention, Art. 2). The Silala case will raise several interesting questions regarding the appropriate scope of international water law. If the river only crosses an international boundary and/or flows to a common terminus with other international tributaries because of man-made canals, does the river still meet the definition of "international watercourse"? Imagine a small artesian well in an intra-state closed basin is connected via man-made channels to a neighboring international drainage basin. Is the well now part of that international watercourse and thus subject to international water law? In the case of Chile and Bolivia, that would mean the water must be allocated between the two co-riparians based on the principles of reasonable and equitable utilization under Articles 5 and 6 of the Watercourse Convention. If not, then Chile may owe Bolivia compensation for diverting a purely domestic watercourse away from its sovereign state. Chile argues that the river has always been a transboundary river, and that the man-made canals simply augment flows to the mines. Chile may also argue that the century-old concession agreement establishing the canals effectively concedes the transboundary nature of the river. Bolivia argues that the man-made canals are the only reason for the transboundary character of the river, that sovereignty over the river belongs to Bolivia and the concession agreement is revocable, and that man-made canals are proprietary based on the state concession contracts and not part of an international watercourse.

The case illustrates the difficulty of clearly delineating between waters, not only because of the ways technology and infrastructure connect watercourses, but also because the hydrologic cycle connects all waters. It may seem simple to suggest that waters within a particular catchment can be treated as legally distinct from waters on the other side of the watershed, or that surface water can be treated as legally distinct from groundwater, or that embedded water can be treated as legally distinct from raw water - but in each of these instances, the legal distinction typically proves arbitrary and problematic. Water law is plagued by the impossible task of drawing defensible lines between interconnected waters.




Posted by Rhett Larson on August 18, 2017 at 09:14 PM | Permalink | Comments (0)

Thursday, August 17, 2017

Are Academics “Validators” of Fake News?

Fake news is a term we have all (unfortunately) become familiar with in the last year. It is misleading or unverified information spread through news and media outlets in order to grab attention of readers. During the election, fake news was published at alarming rates by both conservative and liberal websites. There have been recent high profile reports that mainstream media have spread fake news, including CNN and other reliable sources.

I want to talk and think about this fake news phenomenon, strictly as it applies to academics. The merits of what was actually fake and which party (or country) is most responsible for it is a more complicated question that I will punt on for now.

But what is the role of academics in spreading fake news? Do we unknowingly validate it? Or worse create it?

The Atlantic reported earlier this year that academics are “VIP Validators” of fake news. It pointed out that during last year’s primaries, Seth Abramson, assistant professor of English at the University of New Hampshire wrote in the HuffPost some “increasingly delusional blog posts explaining why Bernie Sanders would likely win the Democratic nomination.” These posts went viral among Bernie followers. The Atlantic also pointed to the example of Laurence Tribe, a professor of law at Harvard who “has been an especially active booster for the [Palmer Report], routinely tweeting links to highly questionable, unverified news stories about Trump.”

Forbes similarly discussed recently the role of academics in spreading fake news and information. Kalev Leetaru claims: “Not a day goes by that an academic paper doesn’t pass through my inbox that contains at least one claim that the authors attribute to a source it did not come from. I constantly see my own academic papers cited as a source of wildly inaccurate numbers about social or mainstream media where the number cited does not even appear anywhere in my paper.”

So with those examples as a preface (though I could name several of my own), I ask, are academics furthering the problem of fake news? I’ll share my thoughts and hope to hear some of yours.

I am absolutely mindful (maybe frightened is a better word) of spreading false information in my work. In today’s academic world, there is a much greater reliance on online sources. For instance, in my field, criminal law—and the topic I’ve written most about—bail, there is a lot of empirical work done by policy and advocacy groups and the government. I do my own empirical work and can stand behind that, but I often have to rely on others work as well. In drafting my book on bail, I have certainly relied on online articles (nonscholarly) about bail related issues and examples of stories of individuals struggling to make bail in the criminal justice system.

 Ten years ago, academics (and students) were only to rely on books or articles in print and had to verify everything by checking the original source. Now, many of the citations acceptable in law journals and other academic sources are online sources. Online publications, including newspapers, academic journals and other sources are fair game for prestigious academic publications. And while there is a hierarchy of online sources (possibly academic peer review journals being best on down to facebook/twitter being at the bottom) there is a lot of room for more reputable sources relying on less reputable ones and this information spreading.

So I worry that with the increasing reliance on online sources, that fake news and information will spread more and that academics will have a dangerous role to play in this. And this worries me because if academics are not providing reliable information, then who will? Academics should be shielded from the whims of a news cycle and deadlines to publish quickly and catchy over claiming titles that catch the eye of a reader and exacerbate the fake news problem. But are we?

More on this in my next post…

Are Academics “Validators” of Fake News?

Posted by Shima Baradaran Baughman on August 17, 2017 at 06:24 PM | Permalink | Comments (9)

Tuesday, August 15, 2017

Finalizing the U.S./Mexico Water Sharing Agreement

A summary of a tentative agreement on shortage sharing in the Colorado River basin was recently released by the International Boundary and Water Commission (IBWC) - the bilateral international commission that implements the 1944 Rivers Treaty between the U.S. and Mexico. This agreement will be Minute 323 to the 1944 Rivers Treaty, and represents an extension of several of the main provisions of Minute 319, the 2012 agreement that expired this year. Minute 323 will only be finalized if the states of the Colorado River basin can agree on a Drought Contingency Plan (DCP). The DCP negotiations are ongoing. This agreement represents the continued success of the IBWC and emphasizes the importance of hydrodiplomatic relations between the U.S. and Mexico. Lost in much of the (in my opinion, misguided) talk of building walls on the border or abandoning NAFTA is the importance of a close, collaborative relationship between the U.S. and Mexico in jointly managing our rivers to enhance drought resiliency and our ability to adapt to changing climate conditions.

Minute 323 will extend Mexico's agreement to take a reduction of the 1.5 million acre-feet per year (maf/y) it is owed under the Rivers Treaty in times of shortage, declared by the U.S. Department of the Interior (DOI). Such declarations are based on the elevation of the water in Lake Mead. The agreement will also extend Mexico's ability to store a portion of its allocation in Lake Mead, which provides Mexico with needed storage capacity while also helping to avoid shortage declaration by keeping the reservoir's levels above 1,075 feet (the level below which a light shortage would be declared). Thanks to a good snow pack this past winter, the lake level today is 1,080.31, which is comparatively comfortable after several years of drought conditions and record-low reservoir levels. Under the DOI's shortage sharing guidelines, Arizona and Nevada face reductions if a light shortage is declared, and then further reductions in the case of a heavy shortage (below 1,050) and an extreme shortage (1,025). Below 1,000 represents dead pool - there is no guidance on shortage sharing at that stage (it's the Thunderdome). California currently faces no reductions (although that issue is part of the DCP negotiations). Mexico has voluntarily agreed to reductions in Minute 319, and will renew that commitment in Minute 323. Mexico's willingness to share in shortage and store its allocation in Lake Mead are enormously helpful to the overall management of the river. The legal regime governing the Colorado River has a built-in structural deficit. The Colorado River Compact allocates 7.5 maf/y to the Upper Basin states and 7.5 maf/y to the Lower Basin. The 1944 Rivers Treaty allocated 1.5 maf/y to Mexico, and we lose about 1.5 maf/y to evapotranspiration. That's 18 maf/y we assume in the river, and represents the foundation upon which the entire water rights regime in the basin is built. Yet we know from tree ring analysis that the 1,000 year average in the river is closer to 13 maf. We have to build in more adaptive capacity to respond to this structural deficit, and Minute 323 extends that needed flexibility that we secured in Minute 319.

Minute 323 also will include a few new elements not included in Minute 319. One will be the development of the "Bi-National Water Scarcity Contingency Plan" to create a long-term strategy for larger reductions in allocations in cases of extreme shortage. The other is the formation of working groups, including one to explore the joint development of desalination on the Sea of Cortez. I've written on the legal issues raised by that kind of joint development of desalination. It's one of other recent joint international desalination developments, including most notably the Red-Dead Project between Israel and Jordan. These kinds of projects are enormously complex and generally expensive. I am optimistic about the future of desalination, and the technology has made huge leaps in recent years. But we are often too quick to jump to costly augmentation projects without fully evaluating alternatives. All of the jurisdictions of the lower Colorado basin deal with significant water losses, caused in part by infrastructure challenges like unlined ditches or leaking pipes. Water savings from repairing pipes and lining ditches may provide the same quantity of water as desalination but at a lower cost. Other potential augmentation methods should also be considered, including a cooperative approach to upland forest management. The costs and water savings that could be achieved from such measures, or perhaps something even more ambitious like floatovoltaics (solar panels on the surface of ditches and reservoirs to generate energy while reducing evaporation losses) should be compared to costs and water generated from augmentation projects like desalination.



Posted by Rhett Larson on August 15, 2017 at 07:52 PM | Permalink | Comments (0)

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14)

Sunday, August 13, 2017

Article Submissions: W&L Journal of Civil Rights and Social Justice

The Washington and Lee Journal of Civil Rights and Social Justice (JCRSJ) is conducting a direct article review for submissions to our Fall 2017 Book, Volume 23, Issue 1. Any article submitted to the journal by Sunday, August 27 at 10:00 p.m. will be reviewed and evaluated before September 4.  If you have submitted an article to JCRSJ previously, please resubmit your article for consideration in this direct review.

By submitting your article, you agree to accept a publication offer, if extended by the journal.  Any articles accepted will be published in Volume 23, Issue 1, scheduled for publication in December 2017.

If you wish to submit an article, please e-mail an attached copy of the article, along with your CV, to [email protected].  Please include “2017 Direct Article Review” in the subject line. Thank you so much and we look forward to reviewing a number of articles.

Posted by Howard Wasserman on August 13, 2017 at 01:52 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, August 11, 2017

The Process for Challenging a Presidential Self-Pardon

The ongoing investigations of possible collusion between the Trump campaign and Russia have raised all sorts of interesting and difficult legal questions. I've tried my best to read what lawyers and legal scholars are saying who are engaged with these questions, and I've learned a lot from following their debates. Family and friends sometimes ask me some of these questions. While there are a few on which I can at least offer an informed opinion, for most of these questions there are people much better qualified to answer than me (and I agree with Carissa about humility, civility, and uncertainty in offering these opinions).

I was asked one such question the other day by a friend, so I'm here to ask the same question to the many readers and bloggers of PrawfsBlawg who are better qualified to answer than me. Assume a president committed a federal crime and pardoned himself. Who has standing to challenge that pardon, and how would they go about bringing a claim? I guess a federal prosecutor could just bring charges against the president, and leave it up to the judge to decide the constitutionality of the self-pardon. Even if that's right, it just raises another frequently-asked question nowadays about whether a sitting president can or should be indicted, particularly for something like obstruction of justice. If he can't or won't be indicted, then I'm not sure that there is a process to challenge the self-pardon. I've tried to follow the debates on these kinds of issues on blogs and Twitter, but I don't think I've seen this question discussed (and sorry if it has and I've just missed it).

Posted by Rhett Larson on August 11, 2017 at 10:00 PM | Permalink | Comments (9)

In This Week's News: Some law schools accept the GRE. Conservatives' heads explode.

To a certain breed of conservatives, even the term "diversity" is a red cape in front of a bull.

How else to explain this bizarre headline, and the unfortunate article more generally, to Georgetown Law Center's announcement that it will start accepting the GRE as an alternative to the LSAT.  Northwestern made this announcement just before, joining Arizona and Harvard in the group of law schools (presumably to expand) to consider the GRE as one alternative test to the LSAT in evaluating law school applicants.

From that, we get treated to a polemic about how this move represents the decline of western civilization -- or, at the very least, the decline of law schools' commitment to admitting highly-qualified students. 

We can and should debate the complex question of law school testing and, with it, how best to evaluate the skills, credentials, and experience of students to law schools.  Yet, the argument we made, along with the other law schools who have announced this move, have precious little to do with an end-run around standards and quality.  Nor do any of us presume that applicants-of-color are unable to achieve success either on the LSAT or in law school or in the profession.  Rather, we said, and we mean, that we are looking to expand the pool of interesting, talented candidates, especially from STEM fields, who might view the strictures of the LSAT -- the narrowness of the test, as well as the procedures by which it is administered -- to create a disincentive to considering law school.  Nothing here about lower standards; indeed, nothing here about the quest to, in Professor William Otis' extravagant words, "adjust the student body to reflect the ethnic makeup of the electorate."

So, to Ward Connerly, Prof. Otis at Georgetown, and others, keep moving along folks, there's nothing to see here.


Posted by Dan Rodriguez on August 11, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Teaching via treatise

Classes begin at FIU on Monday.*

[*] Although I must confess to wishing we had another two weeks of summer this year. This is unusual for me--I enjoy the semesters more than summers, because I like the rhythm and routine of teaching. But I am in the midst of three projects and believe I could finish all with an extra two weeks before having to balance teaching time. 

I am trying something different in Federal Courts this semester. I am not using a casebook, but instead am working primarily from two treatises (Erwin Chemerinsky's comprehensive Fed Courts treatise and Jim Pfander's Principles treatise), along with the Constitution, statutes, a handful (maybe 10) of recent cases, and some problems. I have been toying with this for a couple years and finally decided to pull the trigger this year. A few thoughts went into this. I sensed that in upper-level classes, many students used the treatises to prep rather than reading the cases.  My class discussion is organized in a treatise format--we do not work through individual cases, but discuss the doctrine at a macro-level whole, so it may be better to have them read and prepare in a similar format. And the author of one of the books convinced me that my spoon-feeding concerns ("the students are not having to figure out the rules of standing for themselves, Chemerinsky and Pfander are telling them the rules") were overstated and that the class discussion can be as rigorous. Plus, as I will remind the students on Monday, they will have more total pages of reading this way, and while it may take less time or require less re-reading, they still must read with care and preparation to engage in the discussion.

If I like how it works, I plan to follow the same format in Civil Rights in the spring, using my treatise (new edition forthcoming).

Posted by Howard Wasserman on August 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Thursday, August 10, 2017

The Case for Law School Part III

This is the third in a three-part series in defense of law school. One more really important reason to go to law school:

3. A Law degree is a tangible skill for people who lack other tangible skills. Now don’t get me wrong, lawyers don’t cure cancer, or fix broken bones or even cars, we don’t build amazing things, and we certainly don’t invent things. So we really lack important tangible skills that make the world run. That is unfortunate. We need people out there building and creating and fixing tangible things. But there are a lot of people who realized (or are realizing) as they go through wood shop and physics or sewing or cooking class that their skills may not be tangible in nature. Or they don’t like the lifestyle that one of the jobs with a tangible skill provides them. So they decide they want a white collar office job. This would put these individuals in the same category of white collar paper/email shufflers as business people, academics, and most office jobs (you name it: HR, advertising, public relations, marketing, sales, etc.)—however I would argue that lawyers are well placed in this cohort as they have a tangible skill. It hasn’t always been this way before law schools existed and state bars limited who could practice law, but the way it is now, you need a law degree and to pass the bar to practice law.

And a law degree (and passing the bar) provides a student with a tangible skill with which to make money and/or help people. Lawyers are often necessary to help with serious family and custody disputes, immigration problems, tax, trusts, estates, criminal matters, personal injury disputes, contracts, business mergers and so on and so on. The skills to practice these areas of law obviously require more training after law school, but the basis starts at law school. And if a student is willing to work hard and go out there and serve the underprivileged, there are PLENTY of jobs out there. Most jurisdictions have lists for lawyers to sign up who are willing to take cases at reduced rates. This is also available at the federal level. Immigration and criminal cases are always more plentiful than lawyers to help process them and represent defendants in court.

 In this past year, lawyers rallied all across the country to help those who were affected by the Trump immigration ban. Many lawyers are still engaged in volunteer efforts towards this cause. And doesn’t that feel great to be able to do more—something tangible—than just complain on facebook, or cry into your pillow, or write your Congressperson to complain about policies you feel are unjust or constitutional? In other words, there is plenty of legal work to go around and plenty of good to do with it if you have the desire. The tangible skill of law can also help you make a great living. You may not be as rich as if you invent something really useful (like this exercise board I saw on Shark tank that made me rethink my entire life) but there will be work for you if you are willing to work hard and a pretty good income relatively.

Having a skill is not something I really thought about when I was graduating college. I had majored in a social science and hoped for a PhD in political science and to teach after. And although that would have been fascinating, it would not have provided me with skills to be able to represent many criminal defendants and some big companies throughout my career. This is not something students may think about when they are considering what to do after their undergrad, so I put it out there for consideration as a huge bonus to a law degree.

There are plenty more than three reasons to go to law school—I’d love to hear others from you all—but these are my most important three.

Posted by Shima Baradaran Baughman on August 10, 2017 at 01:18 PM | Permalink | Comments (9)

Is "The Federal Judiciary" Necessary?

I have just made my way through Richard Posner's latest book (as of the time of posting), The Federal Judiciary: Strengths and Weaknesses. Not without difficulty: The second half of the book was more of a slog than the first, and finishing it was more an act of will than of love. Before making two points about it, I want to offer some context; another bit of context, a confession, follows at the end. So: 1) I reviewed and criticized Posner's last book, Divergent Paths: The Academy and the Judiciary; 2) in the course of discussing William Domnarski's recent biography of Posner (note that I screwed up Domnarski's name in that post; my apologies), I suggested that it is appropriate and relevant to ask whether Posner has declined and whether his recent work and other statements suggest that it may be time for him to retire (I did not answer the question; I just said it was a natural and important question to ask and criticized the apparent reluctance to do so, for him and for Justice Ginsburg too); 3) I recently raised that question again, albeit in the course of praising something he had written this summer; and 4) as I have often noted, Posner has long been my favorite legal writer and thinker. (Not my "hero." I think lawyers and legal academics are better off without heroes and hero-worship. The famous dedication to John Hart Ely's book Democracy and Distrust is moving, captures a common mentality of lawyers and legal academics, and is a mistake.) If I think there are good reasons to ask whether Posner has declined, these are the questions of an admirer, not a hater. I find moving his quotation from Yeats at page 376, beginning, "Grant me an old man's frenzy,/Myself must I remake/Till I am Timon and Lear," although one might recall that on some interpretations Lear begins by displaying pride and narcissism, harms his kingdom by denying his own aging and death, and comes to madness. 

A longtime critic of Posner (and admirer and former clerk of Posner's nemesis, Justice Scalia), Ed Whelan, has a series of posts at The National Review's website detailing and lambasting the book. (The best posts, in my view, are this and this one.) I do not share all of Whelan's perspective or agree with all of his criticisms of Posner or the book, although some seem on-target. But I write here to offer a partial defense of the book and to raise one general, critical question about it. 

First, the book isn't bad! That's faint praise, but seems necessary in light of Whelan's widely shared posts, which might well lead readers to wonder whether to bother with the book at all. (Whelan does acknowledge that there are good bits and pieces here and there, but the point may get lost amid all the disparaging remarks.) With the caveats noted below, I enjoyed a fair amount of the book, especially the first half. As with a number of Posner's books, even when the book as a whole is questionable or seems loosely put together, there are many tidbits within it to enjoy and profit from. There are reasons to read it. 

For example, as I noted in my last post, I just taught the Intro to Law class for entering 1Ls at my law school. I told my students that it is common for law students to seek definite definitions for and applications of frequently used legal phrases ("intermediate scrutiny," "clearly erroneous," and so on), and common for lawyers to argue over those phrases in the manner of those who think some definite meaning can be derived from them, an exercise that easily turns into a kind of scholasticism. I told the students that such phrases rarely if ever have a precise or fixed meaning, and that--their understandable desire for certainty notwithstanding--it would be a mistake for them to begin their legal educations, or careers, under the illusion that most (or any) legal/judicial language of this sort can be reduced to some kind of mathematical formula. Such phrases should be understood as practices, or as placeholders standing in for an activity calling for judgment, and perhaps summing up some kind of underlying concept or policy, but not a definite one. Posner has a lengthy (too lengthy) section (especially 239-76, but really most of chapter 3) discussing various standards of review and other legal phrases. He argues, by picking them apart, that "there are no satisfactory answers to my questions about the meaning of familiar legal phrases commonly invoked by lawyers and judges without any clear idea of their meaning," and that they "exemplify not only concealment and indirection but also sheer superfluity in legal discourse." The discussion would have been better if it had been shorter, and some of the individual criticisms seem too cute. But it's useful and refreshing. Law students, lawyers, and judges would benefit from reading it.      

The real question is not whether the book is bad, but whether it is necessary. To his credit, Posner announces on the second page that the book is what he calls a "macédoine," a "medley or jumble." I would call it a "gallimaufry," a confused medley or jumble. Also to his credit, he acknowledges the "somewhat unconventional" format of the book, which "contains a good deal of quoted material." "A good deal" is an understatement. The book is about 430 pages long. Of that, some 130 pages consist of long block quotes (I tried not to count short ones), reprints of his own writing (including several judicial opinions), and most strikingly long sections of other people's writing, including lengthy judicial opinions from his own and other courts. Some are useful. Many are useful but could have been shortened or summarized. Some are not: Did we really need five and a half pages of a Slate dialogue between Posner and Akhil Amar? A few are embarrassing: The introductory chapter contains a three-page laudatory review of his last book, from the Los Angeles Daily Journal. At times this feels less like a book book and more like a scrapbook or commonplace book. Much of it feels loosely sutured together. As Whelan notes, it is full of digressions and divagations--often true of Posner's books and usually worth the diversions, but in this case ultimately tedious and marked by abrupt transitions. Imprisoned in this fat book is a much thinner one. I would complete Cyril Connolly's quote and say "wildly signalling to be let out," but I don't see much evidence of that. The epilogue feels tacked on and perfunctory. One understands the desire to acknowledge the election of Donald Trump, but it doesn't add much, unless reprinting the four-page open letter to Trump from "Constitutional Law Scholars" can be considered a fruitful addition. It doesn't seem so to me, especially given that it's an open letter and easily accessible.

(A more substantive side note: Religion plays a weird role in the book, getting numerous brief but ominous references. Posner quotes himself saying that "our deepest values (Holmes's 'can't helps') live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification. The point holds even for judicial action. The judge [inevitably] . . . preserves a role for conscience." But he returns again and again to only one "can't help" or "deepest value," religion, often highly speculatively and generally suspiciously if not disparagingly. The closest he comes to a justification for this fixation is a short passage--immediately after arguing with seeming approval that judges are inevitably influenced by their "deepest values" and "conscience[s]," and he notes elsewhere in the book that judges' many priors include religion--offering a cursory and tendentious argument from the Establishment Clause. That's not enough of a hook on which to hang his repeated, abrupt, almost obsessive references to religion. He should have said more about it, or less.)      

I said I especially enjoyed the first half of the book. That's no surprise. I also enjoyed it when I read most of it in his Divergent Paths, Reflections on Judging, How Judges Think, and his two editions of The Federal Courts--not to mention pages and pages elsewhere excoriating the Bluebook. Of course there are some changes and additions, especially from his earlier Federal Courts books. But a good deal of it is a mere reprinting or restatement of recent writings without building on them. The closest to a justification for this extreme repetitiveness that I can find is his statement (at page 393) that his oft-stated skepticism and criticisms are "very largely ignored" and that "[c]riticisms by me that seem irrefutable are seemingly not even noticed, as if I were exhibiting paintings to a blind man or singing to a deaf one." I would urge him to take more comfort than that: I think much more attention has been paid than these quotes suggest. Even if I'm wrong, I don't think it justifies repeating, quoting, or paraphrasing all this yet again and so soon after his last three books on these subjects. One despairing memoir from Lear following his displacement would have been enlightening; four or five would have been tedious, and provided some evidence that it was indeed time for him to exit the stage.

One must note that some books, including some of Posner's previous books, consist largely of reprints of published articles. Maybe that weakens my general point a little, but not much, I think. Some of these kinds of books are indeed superfluous. But in most cases those articles are less likely to be encountered by the general reader, and there is some value in their being collected in book form. The best of them have a unity of purpose that sheds light on the collection as a whole, and make meaningful changes to the articles or add connective tissue that contributes a new element or greater clarity to the work, making it more than the sum of its parts. The books themselves, as books, have some purpose and novelty, even if the material is collected from elsewhere. There's a difference between that and simply repeating what one has already said, at length and as well or better, in previous and recent books.    

In sum, I don't think the book was or is necessary. And to that I would add (with the confessional caveat below) that I doubt in particular that it was necessary for Harvard University Press to publish it. Perhaps that suggests that I place too much faith in university presses, especially elite ones, and am engaging in a form of snobbery or credentialism. I hope not. But I do think that university presses have a valuable niche role to play in publishing, and that elite university presses ought to make the most of that role. Some presses--Oxford and Cambridge come most readily to mind--maintain huge lists. Others, like Harvard or Yale, do not, and should be selective in forming their relatively small booklists. They still have some importance (to me, at least) for their signaling function or imprimatur. The books they publish should deserve that imprimatur and add something to the literature. This one doesn't. (And, as I have suggested, it was not edited as well as one might hope or expect, although Posner thanks the Press for "critical comments on the structure and substance" of the book. I credit that statement, but it might tell us more about the state of the earlier drafts than about the quality of the final product.) A trade press could have published it, perhaps in softcover only. (I haven't read Justice Ginsburg's In My Own Words, which is mostly a collection of speeches and other ephemera along with some co-authored biographical material. Perhaps it is a work of genius. But Simon & Schuster was an adequate, and probably more profitable, home for it; it didn't need and probably didn't merit the imprimatur of a university press.) Or he could have kept working on it until it made a serious and new contribution.  I got some pleasure from the book--occasionally from new things, but mostly from reading what I had basically already read in his other recent books. I'm not panning it, as such. But I doubt strongly that it was necessary. 

* A final confession seems appropriate. I have published one book with Harvard University Press and, more relevantly, have another book in progress with them. For "in progress," read "incredibly late." Some of the reasons it is so late are fair ones: several surgeries and lots of chronic pain. Others are lamentable but understandable: I decided it needed an empirical section, and that is proving more difficult than I thought, something I ought to have weighed more heavily when estimating its date of completion. None are sufficient. I was greatly cheered by this recent article, but I'm not counting on similar forbearance, and I'm terribly embarrassed and frustrated by my lateness. I wrote last year about the effects that both chronic pain and the drugs used to treat it can have on one's productivity as a writer. That is an explanation, not an excuse--others have done more while laboring under greater burdens--but it doesn't fully capture how frustrating and demoralizing it can be to try to get things done when you feel like only half a fully functioning person. Especially given my own ambitions, I would very much like to be writing more and faster right now, as I used to. I can only apologize that I cannot, and try to press on. In any event, it didn't seem fair to criticize Posner's book--which has the comparative advantage to my own of actually existing--and especially to reserve some of that criticism for the Press, for publishing it in this form, without acknowledging the plank in my own eye.    



Posted by Paul Horwitz on August 10, 2017 at 10:12 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 09, 2017

JOTWELL: Kaminiski on Lobel on disruptive platforms

I am honored to read Margot Kaminski's (OSU) new Jotwell essay Disruptive Platforms which reviews my recent article, Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016). In The Law of the Platform I analyze what I refer to as the third generation of the Internet: online apps that disrupt offline services, most iconically represented by Uber and Airbnb. The article unpacks the economic, regulatory, and social drives for the rise of the platform economy and develops a framework for policy makers to consider the vast range of legal challenges that these new companies currently face. Kaminski describes The Law of the Platform as "rich, complicated, and ... well worth reading for anyone following changes to technology and the law." She does however call me a "platform optimist" and is concerned that I romanticize "a lighter regulatory touch in the area of technological development, even while recognizing the legitimacy of a number of consumer concerns." In particular, she raises questions the downsides of lighter enforcement and the risks of exacerbating power disparities through data collection and private digital governance. Here is a taste of this part:

The last third of the article ventures into more dangerous territory. Lobel has previously done important work on the relationship between public regulation and private (or public-private) governance. She closes The Law of the Platform by returning to this topic. Where traditional regulation fails, Lobel argues, platforms themselves can through private “regulation” ensure consumer trust and a certain degree of consumer protection. Platforms do this by obtaining insurance, by voluntarily running background checks, and through rating and recording systems that track all transactions on a platform. It is this last form of governance that most excites Lobel, and most worries me.

I take Kaminski's warning very seriously and it is an area I'd like to research more. The Law of the Platform lays out the initial framework for analyzing and debating this new wave of digital business models and as Kaminski correctly notes, each one of the areas discussed in the article, including tax, consumer protection, occupational licensing, antitrust, employment and labor law, zoning, and discrimination, poses a myriad of challenges and new questions.

I've begun to respond to some of these challenges in several sister articles to the Law of the Platform. I engage with the questions of employment law, including the classification issue of drivers and other workers on the platform, in a talk I delivered when I was honored to give the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals last year. The lecture is now published as an article named The Gig Economy and the Future of Employment and Labor Law.  In another new article, Platform Market Power, Kenneth Bamberger (Berkeley) and I research the questions of antitrust, market concentration, new entry and the risks of dominance and inequities through data collection (soon on SSRN or email me for a copy). And I continue to analyze whether and how the platform can reduce transaction costs in all three stages of the deal in an essay, Coase & the Platform Economy, forthcoming in the Cambridge University Press Sharing Economy Handbook 2017 (Nestor Davidson, Michele Finck & John Infranca eds.) There is still much more to study and debate and I am very grateful for Kaminski’s excellent review pushing us forward as we grapple with the rise of the platform.



Posted by Orly Lobel on August 9, 2017 at 07:59 PM | Permalink | Comments (0)

Inter-State Water Disputes in India

Thanks to everyone at PrawfsBlawg for having me back. I am currently working on a project comparing how nations with federal systems govern waters crossing sub-national jurisdictional boundaries, and what lessons international transboundary water law can draw from these domestic approaches.  It's been a particularly interesting summer for inter-state water issues in India.

India's Constitution creates a federal structure that divides legislative powers between the national parliament and 29 state legislatures. Water policy is largely delegated to the state legislatures and institutions, with the exception of inter-state water issues. Under Article 262(1) of India's Constitution, the national parliament may enact laws for the adjudication of inter-state disputes over shared waters. In 1956, Parliament enacted the Inter-State Water Dispute Act. This act allows an individual state to request the formation of a special tribunal to adjudicate a claim that a neighboring state's action, or failure to act, has adversely impacted the complaining state's water supply. Upon such a request, the national government establishes an ad hoc tribunal for that specific case, consisting of a chairman and two members nominated by the chief justice of the Supreme Court.

Just a few days ago, an inter-state water tribunal was convened under the 1956 Inter-State Water Dispute Act to adjudicate claims made over the Mahanadi River, shared between the states of Odisha and Chhattisgarh. Odisha has sought the formation of the ad hoc tribunal based on a claim that Chhattisgarh's construction of dams and weirs on the river has impacted flow on the Mahanadi. There is something to be said for India's approach to resolving inter-state water disputes. India's ad hoc tribunals tend to have comparatively greater expertise in water law and management than they typical district court in India. However, so far these tribunals have struggled with reaching decisions in a timely manner and enforcing judgments. Tribunals deciding inter-state disputes on the Cauvery and Ravi Beas rivers have been convened now for over 25 years without having yet reached a decision.

In its last session this summer, the national Parliament introduced the Inter-State River Water Disputes Bill. This bill proposes of permanent tribunal made of eight members, with each dispute referred to a three-member panel. Unlike the current law, the tribunal will have less than six years to decide each case. The bill could be a major improvement over the current law by retaining the institutional competence of a specialized water court, but expediting its decision-making process. However, the bill does not appear to solve the issue of enforceability.

While inter-state water disputes in the U.S. are fairly common and the adjudication of these disputes fraught with challenges and complexities, lack of enforcement has not typically been a problem. One reason perhaps is that U.S. federal agencies (particularly in the arid west where inter-state disputes are more common) generally finance, build, and operate the large dams and reservoirs on inter-state rivers, and usually have permitting jurisdiction over such dams under Section 404 of the Clean Water Act as well as the Federal Energy Regulatory Commission's permitting of large hydroelectric dams. This provides a mechanism for the federal government to enforce water sharing decisions, legislation, or agreements - as can be seen with the role of the Department of the Interior enforcing shortage sharing in the lower Colorado River basin based on the level of Lake Mead. Perhaps India's 2017 bill on inter-state river disputes should be coupled with a stronger national role in financing, building, permitting, and managing water infrastructure on inter-state rivers to enhance the enforceability of national tribunal judgments in inter-state water disputes.

Posted by Rhett Larson on August 9, 2017 at 01:54 PM | Permalink | Comments (2)

The Case for Law School—Part II

This is the second post in a series exploring why a student might consider law school over no advanced degree or another advanced degree.

2.Writing skills. Like my first example, every lawyer does not acquire amazing writing skills out of law school and there is always a range, but in general law students learn how to write. They learn how to write cohesive arguments that address important counterarguments systematically. They learn how to write quickly and not to waste any words. If you can say something in 10 words, a law student will learn never to say it in 15. The flowery adjectives that are acceptable to add into your essays for your English or Sociology undergrad class will be quickly excised in your first semester law school memo.

If a student loves writing and wants to improve at it, they are a great candidate for law school. I remember saying to an undergrad professor that I wasn’t sure I should go to law school because I hated arguing. They responded, “do you like writing”? Because you will do a lot more of that in law school than arguing. I couldn’t agree more with this observation. And this is the same in practice. Lawyers in practice write often and often effectively. My colleagues at Kirkland & Ellis used to joke that we were the best email writers around (which is basically most of what we did early on in our legal careers in litigation)—write really good emails. (I would argue that many white collar office jobs are just people paid way too much to write really nice emails all day, but that is clearly an aside) But obviously writing a quick—to the point—email that effectively communicates your argument is important. Effective writing will help a person in any field they decide to work in. It is a life skill for an individual, even if they decide not to practice law. I have heard from friends who studied business regret that they didn’t also get a law degree for the writing skills they would have gained.

Rather than hiring a lawyer to write a “lawyerly” letter to your landlord, or to a subcontractor working on your house, or to your Senator to help you with a small immigration issue—you can do all of that yourself. It is an empowering skill, which you can really only learn through law school. (Since I’m writing to a large audience of lawyers, I will say, of course there are exceptions and a lot of people without a law degree have these skills but the best way to gain them for someone who doesn’t have great writing skills is law school). Many of the most talented journalists today have gone to law school (Linda Greenhouse, Bob Woodward, Adam Liptak, Dalia Litwick just to name a few current examples). Some very popular political commentators on both sides (I don’t want to name these because you will all mock me but there are many very popular ones that you might be surprised by—including Geraldo Rivera and Megyn Kelly). Some of the most effective presidents and world leaders (Thomas Jefferson, Abraham Lincoln, Woodrow Wilson, Franklin D. Roosevelt, Gandhi, Nelson Mandela, Fidel Castro and so on). This is not by accident and at least a part of many of these leaders’ successes I would say is excellent writing.

More reasons to study law in my next post…

Posted by Shima Baradaran Baughman on August 9, 2017 at 11:58 AM | Permalink | Comments (12)

Tuesday, August 08, 2017

The Case for Law School Part I


We are all very familiar with the arguments made against going to law school in recent years. A couple examples here and here and here. There have been some real fears and other exaggerated ones about the lack of jobs and debt burden. A part of me believes that there is a small contingent at the N.Y. Times who had a parent that pushed law school and a rebellious adult who now hates all lawyers because there has been an extraordinary amount of negative press there. Here are just a few of the many titles: the law school debt crisis, an expensive law degree and nowhere to use it, the debt burden of law school graduates. I understand this potential motivation to a certain extent, as I was “too lazy” to go to medical school (according to my parents) and became a lawyer.

So with all of this bad press, law admissions have been down. But should they be? Why should students go to law school? I will put forward a few arguments.

At the outset my defensive argument (which has been the frontline from the law field) but I think the weakest and least important one: The economy has not been strong for new job growth, but law jobs are struggling just the same as other jobs. The job growth for law jobs is on track with other professions according to most recent numbers of the Bureau of Labor Statistics and lawyers make a median salary of $118,000 a year. Not bad. According to NALP, Employment numbers for the class of 2015 were over 87% employment. Also pretty respectable. But even if employment numbers are not as strong as they could be (sometimes they have been at 90% or more), should you decide not to go to law school because at the time you graduate college the job numbers aren’t great for all students? Maybe you are an above average student or really have skills that will make you a good lawyer. Or should you not study law just because you might not want to practice law?

Obviously a degree in law is not for everyone. I’ve seen several students lately who I believe have made the mistake of choosing to do a master’s degree or no advanced degree because of some of the negative press against law schools.

So instead of going on the defensive and arguing job numbers or about struggling law schools, I want to provide some insight into why a law degree is an important one.

  1. Law school teaches you how to see both sides of an argument better than any other degree. Law school teaches you how to determine a reputable source from a bad one, a good argument from a weak one, and to see through logical fallacies. Often lawyers are criticized for becoming dispassionate because of this great skill. Students that come into law school feeling indignantly opposed to abortion rights will be forced to confront the legitimate arguments on the other side and have to rethink their views. This is an invaluable lifelong skill. There is no other education that will teach you this kind of analytical thinking. And the byproduct of this is that it makes it hard for lawyers to argue with nonlawyers (ask your snarky lawyer friends but it is true). It is important now—more than ever—to have people able to see the holes in arguments and to be able to understand both sides of an issue. It is important for people to be able to decipher real from fake news and be able to see the logical problems in arguments.

I will share other thoughts in my next post…


Posted by Shima Baradaran Baughman on August 8, 2017 at 07:20 PM | Permalink | Comments (5)

The Geography of Campaign Finance Law

I have just posted my article on the geography of campaign finance law, forthcoming in the Southern California Law Review. The argument in the Article is that a few metropolitan areas dominate contributions to congressional campaigns, and this poses constitutional problems. A few metropolitan areas exercise an outsized influence in shaping candidates for office, the staff for these candidates, the issues these candidates run on, and how these candidates once elected govern. If Congress is to reflect the principle of geographical self-government it was designed to reflect, this poses constitutional problems.

There is currently a case before the Ninth Circuit that raises some of these issues. Alaska has a law that limits out-of-state contributions to candidates for state office. Working with the very talented Ron Fein at Free Speech for People, we have filed an amicus brief in this case expanding on the issues raised in my article.

I will have several posts on these issues in the next few weeks. For now, here is the abstract of the paper:

Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states — places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.

Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.


Posted by David Fontana on August 8, 2017 at 09:32 AM | Permalink | Comments (3)

SEALS faculty recruitment

SEALS is considering whether to establish a faculty recruitment conference for member and affiliated schools.* Details--whether it should be for laterals, entry-levels, or both; whether it should be in conjunction with the August annual meeting--are yet to be hashed out. The organization will appoint a committee to study the question.

[*] Motto: "Every school is southeast of somewhere."

Faculty at member and affiliated schools who are interested in serving on the committee can contact Russ Weaver at Louisville. If you have thoughts on the idea and how to implement it, leave them in the comments.

Posted by Howard Wasserman on August 8, 2017 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (5)

Sunday, August 06, 2017

Commercial Photography in Public Parks--Is Police Presence Required?

Is a municipal ordinance requiring all businesses, including commercial photographers, to get a permit to use a public park a prior restraint subject to strict scrutiny? No, said the Eighth Circuit in Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 2017 WL 3159678 (8th Cir. 2017). There, the court upheld the ordinance as a content-neutral time, place, and manner regulation subject only to intermediate scrutiny. In doing so, it applied the “narrowly tailored” prong of that constitutional standard very leniently, based on a Missouri municipality’s assessment that police presence should attend all commercial activity in public parks. This conclusion strikes me as dubious, and it also strikes me that the court's application of intermediate scrutiny looks a lot more like rational basis scrutiny than it ought. Here's a summary so you can judge for yourself.

The case involved a commercial photographer who brought facial and as applied challenges against a municipal ordinance requiring those wishing to engage in any commercial activity in a public park to seek a permit before doing so. The waiting period for a permit was two days for small-group events and fourteen days for larger-group events. The photographer asked for injunctive and declaratory relief, contending that the permit scheme created by the ordinance was a prior restraint subject to strict scrutiny. Both a federal district court and the Eighth Circuit court of appeals disagreed.

The Eighth Circuit first rejected the argument that a facial challenge was appropriate, because the challenger had failed to show how it would “significantly compromise recognized First Amendment protections of parties not before the [c]ourt.” The challenger’s arguments  centered only on “her own commercial photography” and failed to show how the ordinance would affect any other speech or speakers protected by the First Amendment. Presumably, her arguments would apply to all other commercial photographers wishing to use the park, but the court did not find this argument sufficient to create standing for a facial challenge. Therefore, the court instead addressed only whether the ordinance was unconstitutional as applied to her.

The first step in this analysis was determining whether the ordinance was content-based or content-neutral. The court determined it was the latter based on its text and purpose. The text of the ordinance did “not reference any specific commercial enterprise or any specific message,” and it applied equally “to commercial photographers and to hot dog vendors.” Nor was there any evidence that the ordinance had a “content-based purpose,” since the ban on commercial activity had a long history and was for the purpose of reducing park congestion and maintaining visitor safety. Finally, even though the ordinance discriminated between commercial and non-commercial photographers, there was no evidence that commercial photographers were disfavored speakers; the court therefore concluded that any burden on the speech of the challenger as a commercial photographer was purely incidental to regulation of commercial activity within the park.

Because the ordinance was content-neutral, the court treated the permit scheme it created as a time, place, and manner restriction on speech; therefore, the proper standard for judging the ordinance’s constitutionality was whether it was “narrowly tailored to serve a significant governmental interest” and “[left] open ample alternatives for communication.” The photographer challenging the ordinance conceded that reducing park congestion and maintaining safety were significant governmental interests, but made four separate arguments that it was not narrowly tailored. First, the challenger contended that the ordinance was not narrowly tailored because the Village had not created a permit exception for commercial photography of small groups. The court held that the lack of a small-group exception did not invalidate the ordinance given the record evidence of “high demand, [a] history of congestion, and the limited facilities of the park.” The court also rejected the challenger's second argument that the ordinance should have focused only on known “congestion points” frequented by commercial photographers. This argument, according to the court, ignored that other commercial vendors might cause congestion at other points, making it rational for the Village to “globally promote maximum use of park resources and protect against damage to all park facilities.”

The third argument rejected by the court was that the ordinance’s “two-day application period (for events of fewer than ten people) and the 14-day period (for larger groups) [we]re not narrowly tailored because they serve[d] to chill artistic expression.” The court noted that commercial photography is typically planned in advance, giving photographers plenty of time to obtain the required permits, and the permit period were chosen to give the Village the time needed to process and, if necessary, review permit applications.  Finally, the court rejected the argument that the ordinance was not narrowly tailored because the $100 administrative fee charged by the Village was too high. According to the court, the Village hired police officer to watch over commercial activities in the park, and the court therefore found a “direct correlation” between the fee and the costs incurred by the Village. The court assumed, without further analysis, that the Village had made a rational decision to provide police to watch over hot dog vendors and commercial photographers and concluded that the $100 fee, which very well might be cost prohibitive for some commercial photographers, to be narrowly tailored to making the park secure. The court emphasized that because only intermediate scrutiny applied, narrow tailoring did not require that the Village choose the least restrictive means but instead required only that “the means chosen are not substantially broader than necessary to achieve the government's interest.” This standard was met.

 The court also found that the photographer had ample alternatives because “the natural attributes of the part exist[ed] in multiple locations across the Saint Louis area.” The photographer was not entitled to her “ideal venue” but merely to “ample alternative channels for communicating her message.” Apparently, any natural setting in the Saint Louis area would do.

Finally, the Court addressed the criteria imposed by the ordinance for issuing a permit (or license). Although the challenger argued that the ordinance’s vague criteria gave the Village unbridled discretion to deny permits, the Court held that the scheme imposed “objective factors” and “articulated standards,” such as “the nature of the activity, potential conflicts with other scheduled events, the number of participants, and other factors relevant to resource allocation.” None of the criteria for issuing a permit were content-based, and the ordinance’s plain language essentially guaranteed approval for small-group events and conditioned approval for larger events only on content-neutral factors related to “park use and safety.” Therefore, the Court held that the ordinance met “constitutional scrutiny as-applied [stet]” to the commercial photographer.


Posted by Lyrissa Lidsky on August 6, 2017 at 03:31 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (2)

Saturday, August 05, 2017

What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper

The academic year begins absurdly early in Alabama, at public schools and universities alike, and I have already begun teaching. The 1L class began its work on Thursday with a short, intensive course called "Introduction to the Study of Law." I believe this is the second year we have taught it for every 1L student, and I have taught it both years. Our dean, Mark Brandon, taught most recently at Vanderbilt, and so it's perhaps unsurprising that Vanderbilt offers such a course and that we use a text written by two Vanderbilt law professors, Tracey George and Suzanna Sherry. The class mostly does what one would expect of such a course. It gives students some basics on what to expect from the law school experience, how to read and brief cases, some of the basic knowledge and vocabulary they will need to know to do their work, tips for success, and so on. The goal is to eliminate unnecessary fear and ignorance prior to the beginning of substantive law school classes. (Although I tell them, half-jokingly, that if there were no fear at all, they would miss out on joining the long law school tradition, and would lack stories to tell each other and their progeny in years to come.) We read a couple of cases, of course, and--also of course--spend some time with the classic "no vehicles in the park" hypothetical. Is the course necessary? I don't know. I enjoy any opportunity to meet and teach 1Ls, so I'm not complaining; and I think they get something out of it. It is certainly not a demanding course. No doubt many schools now do something like this, either for every student or, sometimes and problematically, for a smaller group of entering law students. 

There are a couple of things I do in this class that I thought I would share. One is obvious, if no doubt not always done: I make sure that the students, in the short time they have with me, read at least one or two full cases. The Sherry and George book offers excerpts from the fun recent Supreme Court decision in Yates v. United States, which asked whether fish are a "tangible object" for purposes of a federal criminal law barring the destruction of material to prevent its seizure by the government. Their excerpt is fine but shorter than even the average casebook excerpt. I require the students to read the full version, including the concurring and dissenting opinions, which altogether is 43 pages not counting the syllabus (which I do not reprint in my handout). Students are not required often enough in law school to read full opinions rather than excerpted versions. They thus aren't forced often enough to do the work of figuring out what the opinion means, separating the substance from the filler, and learning how to use separate opinions to make sense of and critique the majority (or plurality, in this case) opinion, and vice versa. Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often unimportant, so I want these students to read a full case at least once in law school. (Yes, they do so in their legal writing and research classes--further evidence that LRW is the most important class in law school. And I hope they all do so in the course of writing papers during law school. But more of this is better, and it's rare in substantive courses.) Yates is a statutory case and a Supreme Court case, so it's not fully illustrative of what they usually read in their 1L year, although it's pretty fun and readable. I also have them read a much shorter but still full version of a standard common-law case, and write a brief of that case. Although I don't think my own chosen common-law case qualifies, having students read a case or two is one area in which those professors or law schools that are so minded can bring in some of the underlying bigger issues that are present but not always discussed in law school--race, inequality, etc. (Some of these issues are discussed in my Intro class.) 

There are three other things I talk about: jobs; whether to attend law school at all; and writing. More on that below.

First, I talk extensively about jobs. No doubt this will please the many students, graduates, and professors who worry about this issue and think law schools fail if they're not candid and detailed in talking about difficulties getting jobs, the state of the legal economy, and so on. And it is equally likely that the talk may dispirit some of my new students, who are coming in full of hope and perhaps high expectations engendered by all the usual blandishments and encouragements that they receive when deciding whether and which law school to attend. I consider it a duty, in any event--and especially a duty to do it early, when they can still reconsider their decision to attend law school, without as much expense or disruption as withdrawing later would involve. I do mention those writers who have argued that the legal economy is improving, that law school graduates still enjoy a lifetime earnings benefit, and so on; I also mention those who argue that the legal economy is undergoing fundamental restructuring and that there will be many fewer jobs, or worse jobs, for today's law students and lawyers. But the general discussion is short; much of the talk is about jobs for Alabama students in particular, and advice for their job hunt.

Alabama is a highly ranked law school and, I naturally think, a durn good one. If rankings were all, it would be a ticket to national employment as well as work in Alabama. Our ranking, among other factors (including our relatively low tuition and extensive clinical offerings; many also say they are impressed by the friendliness of everyone they meet when they visit, and the interest in those prospective students, as compared to their visits to other law schools, which seem less friendly and happy or more indifferent to them), draws students from out of state as well as Alabamans. But rankings are not all, especially when combined with two things: the national prejudice elicited by the very mention of the word "Alabama," and the tendency within Alabama to be parochial. So we face a kind of double-bind in employment. Students who come from out of state to Alabama for law school and want to live and work here sometimes find that Alabama law firms worry that they will leave after a couple of years, and that their investment in training them will be lost. They are, in short, suspicious of out-of-staters, and place a heavy burden of proof on these students that they will remain in the state for the long haul. Conversely, despite its ranking, the value of the Alabama law degree does not "travel" out of state to a degree commensurate with our ranking. So those students, whether out-of-staters or Alabamans, who want to work elsewhere (other than a few places in the Southeast like Atlanta or Nashville) find that it's more difficult than they thought to get jobs there. (I will add that when I meet with prospective students the year before they attend law school, I ask where they want to work and what schools they have gotten into. Where appropriate, if they want to work in place X and have an offer from a decent law school in place X, I often advise them to think seriously about going there, even if it's more expensive than Alabama. I offer half-hearted apologies to the hard-working folks in our admissions and recruitment department.) 

I don't want to overstate any of this, especially if any of my colleagues are (still) reading this. Most of our graduates succeed in getting jobs, and I hope most of them get the jobs they want. Moreover, everyone from the dean on down is working hard on this issue, and making progress. As at most schools, however, getting a job isn't automatic, and it's better that our students be warned about our particular conundrum, even if it makes them nervous or unhappy at the beginning of law school. 

I don't have perfect advice. If I were talking to Alabama law firms themselves, I would tell them, I hope gently, that their parochialism is silly. And it is tied, no doubt, to a general parochialism in Alabama, and especially a tendency to rely heavily and foolishly on those who already know each other--from school, from social networks in Birmingham or Mobile, from excrescences such as the "Machine," etc. It is not different in kind from networks of those who know each other from Choate or Stuyvesant or Harvard or other webs of the northeastern professional-managerial class. But it is worse in degree, incestuous, secretive, often has a racial- and class-discriminatory impact, and is one among many reasons that our state too often fails to update itself and too often prefers mediocrity to greatness. That's a broad statement and an accurate one, but not of course a universal one. Those employers think there are many reasons to live in places like Birmingham and Mobile, and they're right; they should have a little more faith. They should also place greater weight on the fact that these students have already chosen to come to school here. Finally, they're missing out on excellent opportunities for the sake of ostensibly sure bets. Some out-of-staters will leave, but others will stay. In any event, some will be worth the investment even if they eventually leave. In the meantime, the web of alumni and connections built thereby will benefit them in the long run, as will the infusion of new blood, energy, and ways of thinking and doing business at those firms and in the state legal community, as opposed to stagnating and incestuous circles of the already-acquainted, and the occasional high-profile scandals and routine low-profile conflicts of interest they engender. I think many lawyers at many big firms in the state know this and are responding, and I think our dean, who is an Alabama alumnus, is an extraordinary ambassador and advocate for our students. But change comes slowly in our state. 

To the students, I say this. For out-of-staters who want to work in Alabama, I tell them to start preparing a plausible (and hopefully mostly sincere) story about why they want to stay and work in Alabama for a long time. (I do not tell them never to leave. The long-term shape of their careers and their decisions is their own business.) And I tell them to start immediately getting to know as many Alabama lawyers as they can, including the usual offer to buy coffee and listen admiringly to the Great Man or Woman talk about his or her practice, with the emphatic assurance that they will not ask for a job. Lawyers like to talk about themselves and, on the whole, like talking to students who profess to want to do exactly what they do. They are more willing to do so if there is no pleading for a job attached. They may remember that student, and they may introduce him or her to other lawyers who will also remember his or her name. It's slow work and there will be more noes than yeses, but it can result in a job in the long term. Similarly, for Alabamans or out-of-staters studying at Alabama but who want to work elsewhere, I encourage them to start trying to meet as many lawyers in the place and area of practice they are interested in as possible. That may include using trips or vacations to those places, and trying in advance to set up as many informal informational interviews as they can manage. They should certainly contact Alabama alumni in those places, and although younger alumni will have less power, they may understand the conundrum better and be more willing to give advice. 

Most important, and perhaps most in tension with what they are told officially, I tell my new students that they should treat the job hunt as an immediate priority, not something that should wait until after midterms, Thanksgiving, or first-semester exams. Yes, they should focus hard on their studies. But it is never too early to start worrying about jobs. I advise them (and upper-year students as well) to act as if they are enrolled each semester in a class called "Job Hunting," and--as with their other classes--to schedule a certain amount of time to it each week rather than only at the end of the semester or other specific times. They should move the ball forward a little each week rather than trust that everything will work out if they apply through the conventional channels at the conventional times and/or rely on the on-campus interview process. They should do so for all six semesters of law school, including the first. I can't promise magic results. (Again I emphasize that most of our graduates succeed in getting jobs.) But I can promise a little less tension, less surprise and sudden disappointment, and more agency.

Second, I talk about the decision to attend law school itself. The modern cliche is that prospective law students should be told that unless they really want to actually practice law, with the expectation of a living but not great wealth or security, they should probably not attend law school. Take comfort: When I asked for a show of hands, the vast majority of the class reported that they had been given this advice before deciding to come to law school. (I offer the same advice to prospective and admitted law students.) We talk about why they decided to come anyway, what their expectations are, and what concerns they have. Some students talk about unhappy lawyers they know, and why they're unhappy.

This talk is less necessary than it was around 2009-12, when students came in with a great gulf between expectation and reality and less information about law school and the legal economy. Most of my students now are pretty informed about these issues, and have made conscious decisions about whether and why to attend. (They may be over-optimistic decisions, to be sure; but they are much more informed and deliberate decisions.) My point is not to scare them away. They're adults, for one thing; and for another, I loved law school and (mostly) my brief practice of law, and many of these students are far more determined, informed, and excited about the nuts-and-bolts practice of law than those of us who attended law school a couple of decades ago, when "I have a BA in English" or "I like debating" was still a frequent explanation for one's decision to attend. But it's better that they talk and think again about these questions now--when, among other things, it's easier to withdraw if they so choose--than later. We talk about these things too when I teach the legal ethics course, but by then they're already second- or third-year law students. 

Finally and more conventionally, I talk a lot about writing. My general advice is that LRW is the most important course in law school, that a vast amount of legal practice in any field involves writing, that the ability to translate and explain clearly to clients and others is a major part of their jobs, and that if they can internalize the form of a good legal memo, they can apply that skill more easily and successfully on law school exams. I continue to think this advice is better and cheaper than trying to learn and game the preferences of each individual professor. This year, I handed out something I came across in my summer reading: the English historian Hugh Trevor-Roper's writing advice for those writing academic theses. Although it's written for a different audience, it's mostly excellent advice for any writer, including any legal writer. A PDF version is available here, but I reprint them below, from this source. It can also be found in this collection of letters from Trevor-Roper, which is a delightful read.

* * *  


1 Thou shalt know thine own argument and cleave fast to it, and shall not digress nor deviate from it without the knowledge and consent of the reader, whom at all times thou shalt lead at a pace which he can follow and by a route which is clear to him as he goeth.

  1. Thou shalt respect the autonomy of the paragraph, as commended by the authority and example of the historian Edward Gibbon; for it is the essential unit in the chain of argument. Therefore thou shalt keep it pure and self-contained, each paragraph having  within it a single central point to which all other observations in it shall be exactly subordinated by the proper use of the particles and inflexions given to us for this purpose.


  1. Thou shalt aim always at clarity of exposition, to which all other literary aims shall be subordinated, remembering the rule “clarté prime, longeur secondaire.”* To this end thou shalt strive that no sentence be syntactically capable of any unintended meaning. To this end also thou shalt not fear to repeat thyself, if clarity require it, nor to state facts which thou thinkest as well known to others as to thyself; for it is better to remind the learned than to leave the unlearned in perplexity.


  1. Thou shalt keep the structure of thy sentences clear, preferring short sentences to long and simple structures to complex, lest the reader lose his way in a labyrinth of subordinate clauses; and in particular, thou shalt not enclose one relative clause in another,  for this both betrays crudity of expression and is a fertile source of ambiguity.


  1. Thou shalt preserve the unities of time and place,**placing thyself, in imagination, in one time and one place, and distinguishing all others to which thou mayest refer by a proper use of tenses and other forms of speech devised for this purpose; for unless we exploit the distinction between past and pluperfect tenses, and between imperfect and future conditional, we cannot attain perfect limpidity of style and argument.


  1. Thou shalt not despise the subjunctive mood, a useful, subtle and graceful mood, blessed by Erasmus and venerated by George Moore, though cursed and anathematized by the Holy Inquisition, politicians and some of the media, and others who prefer to diminish language.***


  1. Thou shalt always proceed in an orderly fashion, according to the rules of right reason: as, from the general to the particular when a generality is to be illustrated, but from the particular to the general when a generality is to be proved.


  1. Thou shalt see what thou writest, and therefore shall not mix thy metaphors. For a mixed metaphor is proof that the image therein contained has not been seen worth the inner eye, and therefore such a metaphor is not a true metaphor, created out of the active eye of imagination, but from stale jargon idly drawn up from the stagnant sump of commonplace.


  1. Thou shalt also hear what thou writest, with thine inner ear, so that no outer ear may be offended by jarring syllables or unmelodious rhythm; remembering herein with piety, though not striving to imitate, the rotundities of Sir Thomas Browne, and the clausulae of Cicero.


  1. Thou shalt carefully expunge from thy writing all consciously written purple passages, lest they rise up to shame thee in thine old age.


* Some versions ascribe this to "the prophet Black."

** Another version adds "as commended by the High Priest Nicholas Boileau, (1636-1711)"

*** Another version has it ‘the Holy Inquisition, Pravda, and the late Lord Beaverbrook.’







Posted by Paul Horwitz on August 5, 2017 at 11:35 AM in Paul Horwitz | Permalink | Comments (6)

Friday, August 04, 2017

Law Review Submission Angsting Thread: Fall 2017

It looks to be about that time of year again.  Post here for comments about your law review submission experiences.  I'm wondering if the Northwestern exclusive review, with its decisions made by July 28, has moved up the process a bit.

UPDATE: You can get to the last page of the comments here.

Posted by Matt Bodie on August 4, 2017 at 08:32 AM in Law Review Review | Permalink | Comments (765)

Wednesday, August 02, 2017


Beyond Disadvantage: Disability, Law, and Bioethics
JUNE 1, 2018

“Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”

                                        Justice William J. Brennan, Jr., School Bd. of Nassau, Fl. v. Arline, 480 U.S. 273 (1973).

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2018 annual conference, entitled: “Beyond Disadvantage: Disability, Law, and Bioethics.” This year’s conference is organized in collaboration with the Harvard Law School Project on Disability.

Conference Description

Historically and across societies people with disabilities have been stigmatized and excluded from social opportunities on a variety of culturally specific grounds. These justifications include assertions that people with disabilities are biologically defective, less than capable, costly, suffering, or fundamentally inappropriate for social inclusion. Rethinking the idea of disability so as to detach being disabled from inescapable disadvantage has been considered a key to twenty-first century reconstruction of how disablement is best understood.
Such ‘destigmatizing’ has prompted hot contestation about disability. Bioethicists in the ‘destigmatizing’ camp have lined up to present non-normative accounts, ranging from modest to audacious, that characterize disablement as “mere difference” or in other neutral terms. The arguments for their approach range from applications of standards for epistemic justice to insights provided by evolutionary biology. Conversely, other bioethicists vehemently reject such non-normative or “mere difference” accounts, arguing instead for a “bad difference” stance. “Bad difference” proponents contend that our strongest intuitions make us weigh disability negatively. Furthermore, they warn, destigmatizing disability could be dangerous because social support for medical programs that prevent or cure disability is predicated on disability’s being a condition that it is rational to avoid. Construing disability as normatively neutral thus could undermine the premises for resource support, access priorities, and cultural mores on which the practice of medicine depends.
The “mere difference” vs. “bad difference” debate can have serious implications for legal and policy treatment of disability, and shape strategies for allocating and accessing health care. For example, the framing of disability impacts the implementation of the Americans with Disabilities Act, Section 1557 of the Affordable Care Act, and other legal tools designed to address discrimination. The characterization of disability also has health care allocation and accessibility ramifications, such as the treatment of preexisting condition preclusions in health insurance. The aim of the conference is to construct a twenty-first century conception of disablement that resolves the tension about whether being disabled is merely neutral or must be bad, examines and articulates the clinical, philosophical, and practical implications of that determination, and attempts to integrate these conclusions into medical and legal practices.

Call for Abstracts

We seek proposals that offer innovative conceptualizations and advance inventive approaches. Proposals should focus on the fresh contributions the presentation will make, including sketches of the supporting arguments. The abstract should include (but not be limited to) a paragraph summarizing the issue that will be addressed and any currently contending views about its resolution. Successful abstracts will explicitly address how the proposed presentation will address the challenges of integrating legal and medical understandings of disablement.

We welcome submissions on both broad conceptual questions and more specific policy issues related to the “mere difference” vs. “bad difference” debate. Potential topics include:
• Can disability be considered definitively bad, without defining living with a disability as inescapably disadvantageous?
• Can we ameliorate mismatches between the capabilities of people living with disabilities and the socially constructed environment without seeming to privilege them?
• Do the kinds of human diversity that disablement represents threaten the species or harm society? Can they improve the human species or benefit society?
• (How) are bioethicists obligated to represent or at least respect the standpoints of people with disabilities?
• Does the U.S. Supreme Court characterize and categorize disability correctly in the seminal equal protection case, Cleburne v. Cleburne Living Center? How can we reconcile making special or individualized arrangements to avoid excluding individuals based on disability with equal opportunity and equal protection?
• Do different agencies’ and programs’ diverse definitions of disability—for example, that for some programs medical diagnoses suffice for disability status while others demand demonstrations of severe dysfunction—undercut efforts to address disability discrimination?
• What is the standard for people with disabilities having meaningful access to health care? What is the minimum standard for people with disabilities’ access to health care below which denial of care equates to disability discrimination?
• How may protections against disability discrimination—especially claims to civil rights or human rights—most effectively be made operative in the medical clinic?
• Can the processes for accommodating disabilities be secured against fraud?
• How should the impact of differences due to disability affect the way the competence of people with disabilities for accepting or rejecting treatment is assessed? How might new technologies affect courts’ determinations in this regard?
• What progress has been made in increasing the proportion of medical professionals with disabilities and what steps are needed to speed this effort?
• (How) should people with disabilities’ inability to achieve normal functioning affect their priority for scarce or expensive health care?
• Given the current state of data about their risks of morbidity, should lifesaving interventions for extremely preterm infants be harder to obtain than for other babies?
• Can Disability Pride be as effective for “destigmatizing” as earlier expressions of pride made by social movements such as those advanced by the LGBTQi, Women’s, or other groups?

Please note that this list is not meant to be exhaustive; we hope to receive abstracts related to the conference’s central question even if the particular topic was not specifically listed here. Proposals should demonstrate a clear linkage to all three aspects of the conference—disability, bioethics, and law. Papers that focus on ethics should include substantial discussion of policy implications. Relatedly, law will be treated broadly to include governmental policy decisions more generally. Successful abstracts will propose or outline an argument/position, rather than merely stating a topic.

In an effort to encourage interdisciplinary and international dialogue, we welcome submissions from legal scholars and lawyers, bioethicists, philosophers, clinicians, medical researchers, disability rights advocates, public health practitioners, behavioral economists, government officials and staff, and others who have a meaningful contribution to make on this topic. We welcome philosophical and legal reflections from contributors across the world, but these submissions should be general or United States- focused rather than comparative in nature. We welcome submissions from advocacy organizations, think tanks, and others outside academia, but emphasize that this is a scholarly conference, and abstracts/papers will be held to academic standards of argumentation and support.

How to Participate

If you are interested in participating, please send a 1-page abstract of the paper you would plan to present to [email protected] as soon as possible, but not later than October 15, 2017. If your abstract is selected, your final paper will be due on April 1, 2018, and you will be assigned a presentation slot for the conference. Please note that all presenters must provide a full final draft in order to participate and that presenters are expected to attend the conference for its full duration. We will accept conference papers of all lengths and styles (e.g., law review, medical, philosophy, or policy journal, etc.), but presentations will be limited to 15 minutes. The conference will be held on Friday, June 1, 2018. We will pay travel expenses for presenters who must travel to Cambridge; co-authored papers must name a single presenter.

In the past, we have successfully turned several of our conferences into edited volumes (e.g., with Cambridge, MIT, Johns Hopkins, and Columbia University presses). It is possible, although not guaranteed, that conference presenters will publish their papers with us in an edited volume whose chapters will be limited to 5,000 words, including references. Previous conference participants have been able to publish their submissions in different formats in multiple venues, for example both as a short book chapter and a longer law review article. However, the version that will be used for an edited volume should not have been published previously or be planned to publish separately.

How to Register

Registration information is available here. Attendance is free and open to the public, but space is limited. Stay tuned for the conference agenda, which will be posted to our website once abstracts have been selected.

Please contact the Petrie-Flom Center with any questions: [email protected], 617-496-4662.

Sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. This year’s conference is organized in collaboration with the Harvard Law School Project on Disability.

Posted by Howard Wasserman on August 2, 2017 at 08:21 PM in Teaching Law | Permalink | Comments (0)

Tuesday, August 01, 2017


Welcome to August and to our returning guests--Shima Baughman (Utah), David Fontana (GW), and Rhett Larson (ASU).

Remember that Redyip will be seen in a couple of weeks.

Posted by Howard Wasserman on August 1, 2017 at 08:01 AM in Teaching Law | Permalink | Comments (6)